J. S52011/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                     v.                     :
                                            :
LIONEL WIDGINS,                             :           No. 159 EDA 2015
                                            :
                          Appellant         :


          Appeal from the Judgment of Sentence, December 18, 2014,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0000023-2014


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED AUGUST 18, 2016

        Lionel Widgins appeals from the judgment of sentence entered by the

Court of Common Pleas of Philadelphia County on December 18, 2014, after

a jury found him guilty of possession with intent to deliver a controlled

substance (“PWID”).1       Following his conviction, the trial court sentenced

appellant to 3 to 10 years’ incarceration. We affirm.

        The trial court set forth the following factual history:

                     At   approximately     7:40     [p.m.]     on
              December [3], 2013, plainclothes police officers,
              responding to information from an undercover police
              officer about a “potential narcotics transaction,”
              intercepted   a   black   GMC    Envoy    containing
              [appellant] and two males at the corner of Norton
              Street and Walnut Lane.         In his testimony,

* Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
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            Officer [Felix] Nosik stated that while working
            undercover from a confidential location at the
            intersection of Washington [Street] and Chew
            [Avenue] on December 3rd, he observed [a]ppellant
            and two other men standing in a laundromat for
            15 minutes from a confidential location and
            witnessed a black male (later identified as a black
            female) enter the laundromat and speak to
            [a]ppellant after being directed to him by another
            man standing inside the laundromat.

                   After watching this conversation, Officer Nosik
            then observed the woman exchange U.S. currency
            with [a]ppellant for an “unknown small-object.”
            Following the exchange, Officer Nosik saw this buyer
            place the object into a glass tube, light it and smoke
            it. Based on his experience as a narcotics officer,
            Officer Nosik believed that he witnessed a narcotics
            transaction and continued to observe [a]ppellant.
            Ten minutes later, [a]ppellant left the location in a
            black GMC Envoy.        Officer Nosik contacted his
            backup officers, gave a description of the vehicle,
            including the license plate number, and asked them
            to intercept the Envoy.

                   In his testimony[,] Officer [John] Ellis said he
            received the request and he pulled over the Envoy.
            Officer Ellis then questioned [a]ppellant who was
            sitting in the passenger side seat and asked him[,]
            “[W]hat do you have on you?” Appellant responded
            by stating[,] “I have some weed on me.” While
            recovering     the   marijuana     from    [a]ppellant,
            Officer Ellis   also  discovered     9    packets    of
            crack-cocaine tucked into [a]ppellant’s waistband
            and immediately placed [a]ppellant under arrest.
            After recovering the drugs, Officer Ellis placed them
            on “property receipts and sent them to the chemistry
            lab where they tested positive for marijuana and
            crack-cocaine.”

Trial court opinion, 10/30/15 at 2-3 (citations to notes of testimony

omitted).



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      The   record   reflects   that   appellant   filed   neither   post-trial   nor

post-sentence motions. Rather, appellant filed a timely notice of appeal to

this court. Appellant also complied with Pa.R.A.P. 1925(b). He now raises

the following issues for our review:

            1.     Did not the lower court err by denying
                   [appellant’s] motion in limine to prohibit the
                   Commonwealth from asserting the confidential
                   location privilege, regarding the location from
                   which the Commonwealth’s primary witness
                   saw a disputed drug sale, where aspects of the
                   witness’s observations were concededly false,
                   and where the lower court’s denial harmed
                   [appellant’s] ability to raise a reasonable doubt
                   about whether the witness saw the drug sale,
                   which violated of [sic] Pa.R.Crim.P. 573, due
                   process, the right to present a defense, and
                   cross-examine witnesses[?]

            2.     Did not the lower court err by instructing the
                   jury to ignore the defense [sic] closing
                   argument that the Commonwealth had gotten
                   greedy by pursing [sic] the excessive charge of
                   possession with intent to deliver instead of
                   knowing and intentional possession of a
                   controlled substance, where that was the sole
                   disputed factual question at trial, and where
                   the argument fairly responded to the
                   Commonwealth’s opening statement that
                   conflated breaking the law by possessing drugs
                   with possession with intent to deliver[?]

Appellant’s brief at 3.

      In his first question presented, appellant claims that the trial court

erred in denying his pretrial motion to prohibit the Commonwealth from

claiming a privilege with respect to the location from which Officer Nosik

observed appellant sell a controlled substance. When viewing this issue as


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framed by appellant in his question presented, the record belies appellant’s

assertion.

                    The record reflects that on October 22, 2014,
             the trial court heard an oral defense motion
             requesting that it preclude Officer Nosik from
             testifying that he observed appellant selling a
             controlled substance from a confidential location.
             The record further reflects that defense counsel did
             not file a pretrial motion on the issue he raised in his
             oral motion on October 22, 2014. We set forth the
             relevant colloquy from the oral defense motion, as
             follows:

             [DEFENSE COUNSEL]:      Your Honor, this is a
             motion in limine to preclude or prevent
             Officer Nosik from testifying that he was in
             anyway in a confidential location with respect
             to the observations that he made in this case.

                   Your Honor, at the preliminary hearing in this
             matter as well as a motion to suppress, it is
             abundantly clear that Officer Nosik arrived to the
             scene at the major intersection of Chew Lane and
             Washington Avenue, that he arrived in a vehicle and
             then proceeded to move around on foot throughout
             the location. At any given time, he has testified
             previously, he is within 15 to 50 feet of the
             laundromat.      At the motion, he gave specific
             distances for where he was at various times, but
             there has been some reliance on him being in a
             confidential location.

                   It’s my conclusion, Your Honor, that -- I’m
             certainly not going to get into any detail of the type
             of car he arrived in or was in on that particular
             evening; but with respect to him moving
             around, it’s inappropriate -- first of all, it’s not
             confidential when you’re moving around on
             foot, and it would be inappropriate and prejudicial
             for him to rely upon that in front of a jury.

             ....


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          [THE COMMONWEALTH]: If I may, Your Honor. I’m
          not -- since I was told about this motion today at
          9:30, I don’t have any case law for Your Honor. If I
          had been told this yesterday, I would’ve certainly
          brought some in to quote some authority.

                 When I’ve had this previously, narcotic
          officers, when it is a location that is in use, Your
          Honor, and when they conduct surveillances from
          certain blocks, certain areas, they have their spots
          that they sit in. And that is why the confidentiality of
          that spot is protected.

                 I asked Officer Nosik if it is still a confidential
          location, and he said it is, yes.

                Normally, this motion is filed, you hear
          testimony on it -- at least, that’s the way I’ve seen it
          done before -- but Your Honor knows the case law
          and would like to hear from Officer Nosik before
          making an order to have him testify to it.

          ....

          [DEFENSE COUNSEL]:         Your Honor, if I could
          respond to that. It’s a standard motion in limine.
          There’s no case law at issue. The fact is an officer
          is claiming he’s in a confidential location when,
          again, prior testimony is indicated that he is on
          foot throughout.        You don’t get to claim
          confidentiality as to where you’re standing in a
          major intersection. I understand what counsel is
          saying.

          ....

          [THE COMMONWEALTH]: . . . . I’ve had this issue
          before in waiver trials. I’ve never had it in a jury
          trial. You know, you object when they ask for the
          location because there’s certain spots that are used,
          maybe a roof, maybe, you know, a particular type of
          car. Each district only has one particular type of car.
          And in an open courtroom, officers are not forced to


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            reveal those certain factors that would indicate to
            the community of the 14th District where they are,
            what they’re doing and allow them to be seen in
            conducting hidden surveillances.

                  There is -- I’m not aware of the names, but
            I’m pretty sure there is case law on this topic. I
            don’t know why counsel says there isn’t, because I’m
            pretty sure this is an issue in a lot of narcotic cases.

            [DEFENSE COUNSEL]: And, Your Honor, there is
            case law with respect to fixed locations where
            an officer is claiming confidentiality. I have no
            issue with that if he was claiming to be in a
            fixed location, but the fact is he’s not -- I arrived in
            a car; I was mobile on foot throughout, 15 to 50 feet
            away at any given time.

                   He’s observing the alleged transaction in this
            case through various windows of the laundromat on
            two different sides of the street. It’s absolutely
            ridiculous to assert that -- and I have pictures of the
            intersection. It’s absolutely ridiculous to assert that
            within 50 feet of this corner laundromat that there is
            any location that is fixed or confidential.

Notes of testimony, 10/22/14 at 4-8 (emphasis added).

      Officer Nosik then testified that private-property owners permit him to

conduct surveillance on their properties, but that disclosure of those

locations would carry “severe” consequences for the private property

owners.   (Id. at 14-16.)   The officer further testified that he conducted a

portion of the surveillance that gave rise to appellant’s arrest and

subsequent conviction on private property.       (Id. at 17.)     After hearing

argument and the officer’s testimony, the trial court held that the location of

the privately owned property would remain confidential, but that the officer



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would be required to disclose the location of any and all public property on

which he conducted his surveillance of appellant. (Id. at 17-18.)

      The record, therefore, demonstrates that appellant prevailed on the

oral motion that he presented on October 22, 2014. Stated differently, the

court agreed with appellant that “it’s not confidential when you’re moving

around on foot.” (Id. at 5.) Appellant also conceded that he had “no issue

with [confidentiality] if [the officer] was claiming to be in a fixed location.”

(Id. at 7.) Consequently, appellant cannot now complain about a ruling on

which he prevailed. That ruling, however, is not the gravamen of appellant’s

complaint on appeal.

      In the argument section of his brief, appellant claims that the trial

court erred by not compelling Officer Nosik to disclose the confidential

location from which he conducted his surveillance of appellant. In response,

the Commonwealth argues that appellant waived this issue for failure to

raise it below. We agree.

      Pa.R.Crim.P. 573, titled “Pretrial Discovery and Inspection” governs

pre-trial discovery motions and requires, in relevant part:

            (B) Disclosure by the Commonwealth.

            ....

                   (2) Discretionary With the Court.

                        (a) In all court cases, except as
                        otherwise    provided   in  Rules   230
                        (Disclosure    of    Testimony    Before
                        Investigating Grand Jury) and 556.10


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                            (Secrecy; Disclosure), if the defendant
                            files a motion for pretrial discovery, the
                            court may order the Commonwealth to
                            allow the defendant’s attorney to inspect
                            and copy or photograph any of the
                            following requested items, upon a
                            showing that they are material to the
                            preparation of the defense, and that the
                            request is reasonable:

                            ....

                                   (iv) any other evidence
                                   specifically identified by the
                                   defendant,     provided    the
                                   defendant can additionally
                                   establish that its disclosure
                                   would be in the interests of
                                   justice.

Pa.R.Crim.P. 573(B)(2)(a)(iv).

      Here, appellant failed to file the requisite motion for pretrial discovery

to   request   disclosure    of    the   confidential     location   of   Officer   Nosik’s

surveillance and to establish that disclosure would be in the interests of

justice.   Therefore,       appellant    waives    this    issue     on   appeal.     See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”).

      Appellant next complains that the trial court erred in sustaining the

Commonwealth’s objection and instructing the jury to disregard appellant’s

comment in closing argument that the Commonwealth “got greedy” in

charging appellant with only PWID and not the lesser-included offense of




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knowing or intentional possession2 (“possession”) because it “had the effect

of applying to the entirety of the closing argument.”   (Appellant’s brief at

29.)     The record reflects that the following colloquy took place during

defense counsel’s closing argument:

             [DEFENSE COUNSEL]: You did hear from Officer Ellis
             that [appellant] had marijuana on him, three
             packets, and nine packets of crack cocaine.

                  Ladies and gentleman, [appellant] is not
             charged today with possession of those substances.
             The Commonwealth, for whatever reason, got
             greedy. They didn’t charge him --

             [THE COMMONWEALTH]: Objection.         Objection to
             the Commonwealth got greedy.

             THE COURT: You can continue.

             [DEFENSE COUNSEL]: They didn’t charge him with
             that.

                   What did they charge him with?

                   They charged him with drug dealing and
             criminal conspiracy, not possession. They charged
             him with engaging in a sale that was observed by a
             police officer.

                   What evidence do you have of that?

                   There isn’t much. There’s at least not much
             that’s not contradicted in some way for all the
             reasons I just went through.

                  That’s what he’s being charged with.      He’s
             charged with drug dealing. . . .



2
    35 P.S. § 780-113(A)(16).


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Notes of testimony, 10/23/15 at 22-23.

     At the conclusion of defense counsel’s closing, the trial court excused

the jury to address the Commonwealth’s objection.        The Commonwealth

again objected to defense counsel’s comment that the Commonwealth

“got greedy.” (Id. at 24-25.) It then requested that the court charge the

jury on the lesser-included offense of possession because defense counsel

opened the door by commenting in its closing argument that the

Commonwealth “got greedy” when it charged appellant with PWID and not

possession.     (Id. at 25.)     Initially, the trial court agreed with the

Commonwealth.        Defense counsel, however, argued that a charge on

possession would “directly undercut” appellant’s closing argument. (Id. at

28.) The trial court ultimately agreed with appellant and refused to charge

the jury on possession. (Id. at 30-31.) The Commonwealth then requested

a curative instruction with respect to the comment that the Commonwealth

“got greedy.” The following colloquy then took place:

              THE COURT: I will do that. I will do that because it
              did shock my conscience. So I can do that. That
              was what I was going to offer.

              [THE COMMONWEALTH]: That’s fair.

              [DEFENSE COUNSEL]: And just for clarification, Your
              Honor, the comment specifically was, “The
              Commonwealth got greedy”?

              THE COURT: That’s it.

              [DEFENSE COUNSEL]: Okay. I understand Your
              Honor’s possession [sic] with respect to that.


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Id. at 31.

      The court then instructed the jury as follows:

             THE COURT: Ladies and gentlemen, I just want to
             address with you something that happened in the
             defense’s closing argument. He mentioned that the
             Commonwealth got greedy.       And I want you to
             disregard that. It was in the context of a charge in
             the case.

                 I want you to disregard               the   words
             “Commonwealth got greedy,” okay?

             ....

Id. at 32.

      Once again, the record reflects that the trial court agreed with defense

counsel when it refused to charge the jury on possession. In other words,

the record demonstrates that appellant received what he requested, which

was for the trial court to not charge the jury on the lesser-included offense

of possession. The record also reveals that appellant acquiesced to the trial

court’s curative instruction.

      The record further demonstrates that the trial court only instructed the

jury to disregard the words, “Commonwealth got greedy,” and not the

premise of counsel’s closing argument which was that the Commonwealth

charged appellant with PWID and not possession. Although appellant baldly

asserts that the trial “court’s order was not limited merely to the words

‘got greedy’, but had the effect of applying to the entirety of the closing

argument” (appellant’s brief at 29), appellant fails to advance any


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meaningful argument or set forth case law to support that assertion.        As

noted by the Commonwealth in its brief, “it is impossible to discern

[appellant’s] theory of relief.” (Commonwealth’s brief at 13.)

      Therefore, notwithstanding the fact that the record belies appellant’s

claim that the trial court’s curative instruction to the jury to disregard the

three words, “Commonwealth got greedy,” somehow negated counsel’s

entire closing argument, appellant waives the issue for failure to set forth a

relevant legal analysis and to cite to relevant legal authority.          See

Pa.R.A.P. 2119; see also Commonwealth v. Rhodes, 54 A.3d 908, 915

(Pa.Super. 2012) (an appellant’s failure to set forth a relevant legal analysis

and/or to cite to relevant legal authority results in waiver).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/18/2016




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