J-S46011-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                        Appellee         :
                                         :
            v.                           :
                                         :
NATHANIEL BRABHAM,                       :
                                         :
                        Appellant        :      No. 59 MDA 2014

          Appeal from the Judgment of Sentence Entered August 26, 2013,
              In the Court of Common Pleas of York County,
            Criminal Division, at No. CP-67-CR-0007086-2012.


BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ

MEMORANDUM BY SHOGAN, J.:                       FILED AUGUST 29, 2014

      Appellant, Nathaniel Brabham, appeals from the judgment of sentence

entered following his conviction of criminal conspiracy to deliver cocaine. For

the reasons that follow, we affirm.

      The facts are as follows:

      On the evening of June 14, 2012, Officer Benjamin Smith and other



Unit conducted an undercover buy/bust operation involving illegal narcotics.

The officers did not have a particular target for the operation; rather, the



known for drug activity and have the CI attempt to purchase illegal drugs.

      Officer Smith provided the CI with pre recorded currency to purchase

narcotics and described the parameters of the operation so that the officers

involved could keep her under constant surveillance. If the CI completed a
J-S46011-14




drug transa



      Officer Kyle Pitts conducted surveillance with binoculars in a Miles

Muffler shop located across the street from the target area.              From this

vantage point, Officer Pitts witnessed the CI make contact with a man, later

identified as Appellant, sitting on the front steps of 25 South West Street.

Appellant and the CI talked briefly, after which Pitts saw Appellant appear to

dial a number on a cellular telephone and have a short conversation.

      After approximately twenty minutes, a gold-colored Pontiac GrandAm

drove into the area and parked. The CI approached the passenger side of

                                                                         thereafter,

the CI backed away from the vehicle and gave the pre determined ponytail

sign that a drug transaction had occurred.           Officer Pitts notified the other

participating   officers   that   the   controlled   buy   happened,    provided   a

description of the suspect and his location, and requested that they move in

to effectuate an arrest.      Officer Pitts observed Officers Tiffany Vogel and

Larry Lawrence take Appellant into custody. Officer Pitts also watched the

CI walk back towards the location where Officer Smith was waiting. Before

Officer Pitts lost his visual of the CI, Officer Smith radioed confirming that he

had the CI in his sights.

      When Officer Smith and the CI re connected, the CI produced a tied

off baggie corner that contained a rock like substance and twenty two

dollars of remaining official funds. The substance in the baggie field tested

positive for the presence of cocaine.           At trial, it was stipulated that the

Pennsylvania State Police Crime Laboratory report identified the substance in


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question as cocaine, a Schedule II substance that weighed eleven

hundredths of a gram. N.T. (Trial), 7/8/13, at 93 95; Commonwealth Ex. 2.



station where Officer Lawrence delivered the standard Miranda1 warnings.

Appellant signed a form indicating that he understood his rights and waived

his right to remain silent. Appellant told Officer Lawrence that a girl with a

ponytail walked up to him and stated that she wanted to buy twenty dollars

of rock cocaine. Appellant then placed a telephone call to a person known to
           2




girl rock cocaine. Appellant also committed his statement to writing.

       On June 15, 2012, Appellant was charged with delivery of cocaine.

Later, on November 8, 2012, the Commonwealth filed an information

replacing the charge of delivery of drugs with one count of criminal

conspiracy to deliver drugs.

       Subsequently, Appellant sent correspondence to the trial court

expressing a desire to represent himself.   On February 14, 2013, the trial

                                        representation request. As the court

was satisfied that Appella

                                   directed Assistant Public Defender Clasina

Houtman to serve as stand by counsel. N.T. (Pretrial Conference), 2/14/13,

at 11.    Later that day, Appellant filed an omnibus pretrial motion that


1
    Miranda v. Arizona, 396 U.S. 868 (1969).
2
                                                           , at 196.

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included a motion to suppress statements that he made to police on the

night of his arrest.



motion.    The portion of the hearing relevant to this appeal concerned

                                     arrest statements to police be suppressed



between Appellant and the CI. At the conclusion of the police testimony, the

trial court denied                                                arrest statements

and determined that there was sufficient evidence to support a prima facie

case of criminal conspiracy against Appellant.3



trial court commenced a pretrial hearing. Appellant requested that Attorney

Houtman resume her representation of him, and the trial court granted that
                                                         4
request.   N.T. (Pretrial Hearing), 4/23/13, at 78.          At this point, the trial

court learned that Appellant wanted to file a motion to disclose the identity

of the CI and it entertained an oral motion on that request. Although the



                                                    ention to any contradictory


3
    Appellant did not testify at the pretrial hearing.
4
    The transcript of proceedings for the hearing held on April 23, 2013, is

omnibus pretrial motion that included the motion to suppress his post arrest
statements and a motion to disclose the identity of the CI were also litigated
at this proceeding. To simplify, evidence elicited at this hearing regarding
                                                                  ceedings as
related to the motion to disclose and all other matters will be referenced as



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legal authority on the disclosure issue. At no time did Appellant respond to

this invitation or renew the motion for disclosure.

      On July 8th and July 9th, 2013, Appellant was tried before a jury.

Officers Smith, Pitts, and Lawrence testified for the Commonwealth and



deliberations, Appellant was found guilty of criminal conspiracy to deliver

cocaine.5   On August 26, 2013, he was sentenced to a three to six year

term of imprisonment.

      On September 4, 2013, Appellant filed post-trial motions that the trial

court denied on December 18, 2013. This timely appeal followed.

      Appellant presents three questions for review:

      I.    WHETHER       THE   TRIAL    COURT     ERRED     IN   DENYING

            THE CI BECAUSE THE CI WAS A NECESSARY WITNESS
            WHERE APPELLANT WAS CHARGED WITH CRIMINAL


            TO WHETHER IT WAS APPELLANT, OR THE CI, WHO MADE
            THE PHONE CALL TO THE DRUG DEALER AND WHO
            PROVIDED THE PHONE NUMBER OF THE DRUG DEALER?

      II.   WHETHER      THE     COMMONWEALTH     PRESENTED
            INSUFFICIENT   EVIDENCE  TO  PROVE   BEYOND   A
            REASONABLE DOUBT THAT APPELLANT WAS GUILTY OF
            CRIMINAL CONSPIRACY TO COMMIT DELIVERY OF
            COCAINE BECAUSE THE COMMONWEALTH FAILED TO
            PRESENT ANY EVIDENCE SHOWING THAT (1) APPELLANT
            MADE AN AGREEMENT WITH AQUIL HILLS, THE DRUG
            DEALER, AND THAT HE (2) HAD THE INTENT TO BRING

5
   Aquil Hills pled guilty to delivery of a controlled substance, specifically,
crack cocaine. N.T. (Trial), 7/9/13, at 196 197; Defense Ex. 5.



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            ABOUT THE CRIME OF DELIVERY OF COCAINE, AND THAT
            HE (3) DID ANY OVERT ACTS IN FURTHERANCE OF THE
            CONSPIRACY?

     III.   WHETHER THE VERDICT WAS AGAINST THE WEIGHT

            EVIDENCE WAS NOT CREDIBLE WHERE: THE OFFICER
            WHO ENGAGED IN SURVEILLANCE WAS TOO FAR AWAY
            TO HAVE SEEN OR HEARD WHO MADE THE PHONE
            CALL TO THE DRUG DEALER AND WHAT WAS
            DISCUSSED; THE COMMONWEALTH NEVER CHARGED
            THE DRUG DEALER WITH THE CRIME OF CRIMINAL
            CONSPIRACY WITH APPELLANT, BUT RATHER ONLY
            WITH DELIVERY; AND THE COMMONWEALTH DID NOT
            CALL THE CI AND THE JURY WAS PERMITTED TO INFER
            THAT SHE WOULD HAVE TESTIFIED FAVORABLY FOR
            APPELLANT?




motion to reveal the identity of the confidential informant. Appellant argues

that disclosure was required to demonstrate that it was the CI, and not




                                                                  discretion.

Commonwealth v. Washington, 63 A.3d 797, 801 (Pa. Super. 2013). In

instances where the confidential informant is an eyewitness to the events in



Rule of Criminal Procedure 573:

     (2) Discretionary With the Court

          (a) In all court cases, except as otherwise provided . . . if
     the defendant files a motion for pretrial discovery, the court may

     inspect and copy or photograph any of the following requested

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      items, upon a showing that they are material to the preparation
      of the defense, and that the request is reasonable:

                (i) the names and addresses of eyewitnesses . . . .
Pa.R.Crim.P. 573(B)(2)(a)(i).

      The Commonwealth, nonetheless, retains a qualified privilege to

withhold the identity of a confidential source. Commonwealth v. Watson,

69 A.3d 605, 607 (Pa. Super. 2013) (citations omitted). To overcome this

qualified privilege and attain disclosur



information sought is material to the preparation of the defense and that the

                              Id. at 608 (citation omitted).        The party seeking




                                                     Washington, 63 A.3d at 801

(quoting Commonwealth v. Withrow, 932 A.2d 138, 140 141 (Pa. Super.



informant is material to the defense is the trial court required to exercise its

discretion to determine whether the information should be revealed by

balancing     relevant    factors,   which    are   initially   weighted   toward   the

                         Watson, 69 A.3d at 608 (citing Commonwealth v.

Bing, 713 A.2d 56, 58 (Pa. 1998))

      To strike the appropriate balance, courts consider the following

principles:

      A further limitation on the applicability of the privilege arises
      from the fundamental requirements of fairness. Where the



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      communication, is relevant and helpful to the defense of an
      accused, or is essential to a fair determination of a cause, the
      privilege must give way. In these situations[,] the trial court
      may require disclosure and, if the Government withholds the
      information, dismiss the action.

      No fixed rule with respect to disclosure is justifiable. The
      problem is one that calls for balancing the public interest in

      prepare his defense. Whether a proper balance renders
      nondisclosure erroneous must depend on the particular
      circumstances of each case, taking into consideration the crime
      charged, the possible defenses, the possible significance of the


Commonwealth v. Marsh, 997 A.2d 318, 322 (Pa. 2010) (citations

omitted).



the following:



      the Commonwealth should not be required to reveal the identity



      and the observations of the officer.
N.T. (Pretrial Hearing), 4/23/13, at 82.



determined that Appellant failed to make the threshold showing that the

identity of the CI was material to his defense. As further explained in the



            In this case, Officer Pitts testified that he observed
      Defendant pull out a cell phone and appear to make a call
      shortly after coming into contact with the CI. (N.T., 4/23/13,
      page 27). The Officer also testified that at no time did he either


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J-S46011-14



      see the CI with a phone, that he did not see Defendant hand the
      CI his phone, nor did he see the CI make a phone call (N.T.,
      4/23/13, pages 34-36). Moreover, the Officer was using
      binoculars to assist with the surveillance. (N.T., 4/23/13, page

      his own oral and written statements to Officer Lawrence that he

      4/23/13, pages 50-52); Commonwealt


      show that the identity of the confidential informant is material to
      the defense, and did not overcome the qualified privilege of the
      Commonwealth to withhold the identity of the CI.
Trial Court Opinion, 3/24/14, at 4.



disclosure.   The police officers testified at the pretrial motion hearing that

the CI was under constant surveillance. After Officer Smith instructed the CI

on the specifics of the buy/bust operation, he relayed her description to the

other officers involved and informed them that she was on the move.

Officer Smith continued observing the CI until Officer Pitts radioed that he

had her in his view. N.T. (Suppression), 4/23/13, at 9 13.

      From his location in the muffler shop, Officer Pitts witnessed the CI

conversing with Appellant after which Appellant appeared to place a

telephone call.   N.T. (Suppression), 4/23/13, at 27.     Officer Pitts further

attested that he did not see the CI with a telephone, never saw Appellant

hand the CI a telephone, nor did he observe the CI place a telephone call.

Id. at 35 36.

      Additionally, as e

written statements offer compelling evidence that he was the person who

                                              Miranda rights, he told Officer


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Lawrence that a girl with a ponytail walked up to him and stated that she

wanted to buy twenty dollars of rock cocaine. N.T. (Suppression), 4/23/13,

at 46

                                                                 Id. at 47.

Appellant deta

                                                    Id.

        Appellant also authored a written statement revealing that he had




this girl call him, she said that he could not come because his boss was

there. I ask him for some drugs because of my birthday to give a girl for

        Id.

        Because Officer Lawrence felt the need to clarify the information in

                                                                         en

question and answer section designed to explain some inconsistencies. In

relevant part, the supplement read:

              Q: Lawrence

              A: Brabham


        ponytail?

              A: Yes I call for her a $20 . . . .


        with the ponytail drugs?

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           A: On my porch then I went in [then] came back and
     called . . . .

          Q: When the police arrested you on the porch, the cell
     phone that was in your possession, was it the phone you used to


            A: Yes.
N.T. (Suppression), 4/23/13 at 49 52; Commonwealth Ex. 2. This written

supplement explained away any ambiguity regarding the person who called



                                              that his conspiracy conviction

was premised primarily on whether he placed the telephone call, we reject



                                                                       tion.



the pretrial hearing and its subsequent written opinion that the request for



police that he was the




Accordingly, we conclude that the trial court properly d

motion to compel disclosure of the confidential informant.



evidence supporting his conviction of criminal conspiracy. Appellant argues

that the Commonwealth failed to prove that he:      (1) made an agreement




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with his co-conspirator, Aquil Hills; (2) intended to commit the crime of

delivery of cocaine; and (3) did any overt act in furtherance of a conspiracy.

      When examining a challenge to the sufficiency of the evidence:

      [t]he standard we apply . . . is whether viewing all the evidence
      admitted at trial in the light most favorable to the verdict winner,
      there is sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. In applying
      [the above] test, we may not weigh the evidence and substitute
      our judgment for the fact-finder. In addition, we note that the
      facts and circumstances established by the Commonwealth need
      not preclude every possibility of innocence. Any doubts regarding
                                                        -finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence. Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      [trier] of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.
Commonwealth v. Orr, 38 A.3d 868, 872 873 (Pa. Super. 2011) (quoting

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011)). This

standard is similarly applicable in cases where the evidence is circumstantial



                                                          Commonwealth v.

Santiago, 980 A.2d 659, 662 (Pa. Super. 2009) (quoting Commonwealth

v. Johnson, 818 A.2d 514, 516 (Pa. Super. 2003)).

      To sustain a conviction for criminal conspiracy, the Commonwealth

must prove that a defendant entered into an agreement to commit or aid in

an unlawful act with another person; that he and that person shared a



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criminal intent; and that an overt act was taken in furtherance of the

conspiracy. 18 Pa.C.S.A. § 903; Commonwealth v. Smith, 69 A.3d 259,



can seldom, if ever, be proved and it need not be, for proof of a criminal

partnership is almost invariably extracted from the circumstances that

                       Commonwealth v. Kinard, ___ A.3d ___, 2014 PA

Super 41, at *12 (Pa. Super. filed March 4, 2014) (quoting Commonwealth

v. Johnson, 719 A.2d 778, 785 (Pa. Super. 1998) (en banc)).              The

conspiratorial agreement            inferred from a variety of circumstances

including, but not limited to, the relation between the parties, knowledge of

and participation in the crime, and the circumstances and conduct of the

parties surrounding the criminal             Commonwealth v. Watley, 81

A.3d 108, 116 (Pa. Super. 2013) (quoting Commonwealth v. Feliciano, 67

A.3d 19, 25 26, 1147 (Pa. Super. 2013)). We have held additionally that an

overt act need not be committed by the defendant; it need only be

committed by a co-conspirator.     Commonwealth v. Hennigan, 753 A.2d

245, 253 (Pa. Super. 2000) (quotation omitted).

     Appellant contends that the evidence supporting his conspiracy

conviction was deficient for a number or reasons, all of which, to some



Appellant claims that the Commonwealth failed to establish that he entered

into an agreement to commit or aid in an unlawful act. Appellant reasons



required agreement element.




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      In this same vein, Appellant asserts that the evidence adduced at trial

instead shows



telephones or to check the telephone records to determine if dialed calls

were successfully completed.      In his view, the only competent evidence

offered about the telephone call was his testimony that he handed a

telephone to the CI and she then placed the call.      N.T. (Trial), 7/9/13, at

166. He bolsters this argument with reference to certain inconsistencies in

Off




      We disagree that the evidence presented at trial was insufficient to




number and had specified that Appellant should call him if he needed drugs.

N.T. (Trial), 7/9/13, at 180. Officer Smith testified as to the details of the

buy/bust operation and his interaction with the CI. N.T. (Trial), 7/8/13, at

77

                      he telephone call is irrelevant, as he did not offer any

evidence at trial concerning their dialogue for the jury to consider.



among Appellant, the CI, and the gold vehicle, including a declaration that

the CI did not make any telephone calls. N.T. (Trial), 7/8/13, at 115. This


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9/25/




statement, if it can even be characteri

attention and they were free to consider the discrepancy to impeach Officer

                     See Commonwealth v. Badman, 580 A.2d 1367, 1370

(Pa. Super. 1990) (in criminal proceeding, credibility of witness may be

impeached with evidence of prior statement inconsistent with witness's

present testimony).

        We conclude that the telephone call evidence, viewed favorably to the

Commonwealth, was sufficient for the factfinder to determine that Appellant

                                                        g an arrangement to

deliver narcotics.   The jury decided that the credible evidence proved the

existence of this illegal agreement and we discern no reason to disturb its

verdict.

        Appellant next disputes the evidentiary worth of his post arrest

statements to Officer Lawrence. On the night of his arrest, Appellant orally



7/8/13, at 139




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man status.    Although Appellant initially used some confusing language

concerning the details of the telephone call, Officer Lawrence created the

supplemental written question and

statement.    N.T. (Trial), 7/8/13, at 143.   In this portion of the written

statement, Appellant thrice admitted that he was the person who placed the

                      Id. at 145 149; Commonwealth Ex. 4 5.

      Appellant attributes the conflicting renditions in his oral and written



diabetic and his blood sugar levels were low after his arrest.      Appellant

claims that although he alerted Officer Lawrence to his medical condition,

the officer proceeded with the questioning. N.T. (Trial), 7/9/13, at 169.

      A



corroborated by the record. While Appellant testified that he informed the

officers that he was diabetic and that his sugar levels were low, he never

requested medical treatment. Indeed, he indicated to Officer Lawrence that



                                                                            er

Lawrence did not recall Appellant mentioning his diabetes or requesting

medical attention. N.T. (Trial), 7/8/13, at 156.




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elements of conspiracy.      Appellant maintains simply that the absence of



to deliver cocaine.

      We previously determined that it was reasonable for the jury to find

                                                                                 the



the drugs and sold same to the CI, it was likewise reasonable for the jury to



substance to the CI.

      With   regard    to   the   overt   act    element   of   the   offense,   the

Commonwealth was not required to prove that Appellant committed an act

in furtherance of the conspiracy. According to 18 Pa.C.S.A. § 903(e), it need

                                                ged and proved to have been done

                                                        See also Hennigan, 753

A.2d at 253 (overt act need not be committed by defendant; it need only be

committed by co-

brought the drugs to the sale site and consummated the drug deal, thereby

committing the requisite overt act.              Accordingly, the Commonwealth

presented sufficient evidence of a criminal conspiracy on June 14, 2012, and




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the weight of the evidence. Pa.R.Crim.P. 607 instructs, in part, that a claim

that the verdict was against the weight of the evidence must be raised with

the trial judge in a motion for a new trial in a written or oral motion before

the court prior to sentencing, or in a post-sentence motion.     Pa.R.Crim.P.

607(A)(1) (3). Here, Appellant filed post-trial motions raising a weight of

the evidence claim on September 4, 2013, that the trial court denied on

December 18, 2013.       Appellant has thus preserved his weight of the

evidence claim for appellate review.



of the trial judge, who heard the same evidence and who possesses only

                                              Commonwealth v. Sanchez, 36

A.3d 24, 39 (Pa. 2011) (citation omitted). Relief cannot be based merely on



                                Id. (quoting Commonwealth v. Blakeney,

946 A.2d 645, 653 (Pa. 2011))



greater weight that to ignore them or to give them equal weight with all the

                             Commonwealth v. Antidormi, 84 A.3d 736,

758 (Pa. Super. 2014) (quoting Commonwealth v. Widmer, 744 A.2d 745,

752 (Pa. 2000)).   The trial court must accord substantial deference to the




                                       -18-
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whether their testimony, if believed, establishes the elements of the offense

            Commonwealth v. Stays, 70 A.3d 1256, 1267 (Pa. Super.

2013). If that evidence is legally sufficient, the trial court may grant a new

                                                         ict is so contrary to

                                                 Id.

      Appellate scrutiny of a weight of the evidence issue is governed by the

principles set forth in Commonwealth v. Champney, 832 A.2d 403 (Pa.

2003):

      The weight of the evidence is exclusively for the finder of fact
      who is free to believe all, part, or none of the evidence and to
      determine the credibility of the witnesses. An appellate court
      cannot substitute its judgment for that of the finder of fact.

      contrary

            Moreover, where the trial court has ruled on the weight

      underlying question of whether the verdict is against the weight
      of the evidence. Rather, appellate review is limited to whether
      the trial court palpably abused its discretion in ruling on the
      weight claim.
Id. at 408 (citations omitted).

      Appellant contends that the verdict was against the weight of the

credible evidence because: (1) the officer engaged in the surveillance was




conspired with Appellant to deliver narcotics; and (3) the Commonwealth did



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not call the CI as a witness, allowing the jury to infer that she would have

testified favorably for Appellant.



the weight of the evidence.      First, after reviewing the specifics of Officer




the jury to decide.   Trial Court Opinion, 3/21/14, at 9.    The court further

det

describe the content of the telephone conversation was groundless because

there was no claim by the Commonwealth that Officer Pitts heard anything.

Id. at 10.

      Next, in regard to the delivery offense lodged against "K" as a result of

the buy/bust operation, the trial court dismissed the import of the different

crimes charged. The trial court reasoned that

      the path of prosecution, or non-
      alleged co-conspirator(s) is irrelevant as to the prosecution of
      the defendant. Rather, all that is required is proof of the
      elements of conspiracy, one of which is that the defendant
      conspired with one or more persons to commit or plan a crime.
Trial Court Opinion, 3/21/14, at 10 (quoting Commonwealth v. Fremd,

860 A.2d 515, 521 522 (Pa. Super. 2004)).




that she would have testified in his favor.      Describing this argument as



necessary witness and that her identity would not be disclosed. Trial Court



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Opinion, 3/24/13, at 11.     The trial court also noted

request, it charged the jury as follows on the permissible inferences it could



            There is a question about what weight, if any, you should
      give to the failure of the Commonwealth to call the confidential
      informant as a witness. If three factors are present and there is

      witness, the Jury is allowed to draw a common sense inference
      that her testimony would have been unfavorable to that party.
      The three necessary factors are: First, the person is available to
      that party only and not to the other; Second, it appears the
      person has special information material to the issue; and, Third,
                                ould not be merely cumulative.

            If you find these three factors present, and you find there

      call the confidential witness, confidential informant to testify,
      you may infer, but only if you choose to, that her testimony
      would have been unfavorable to the Commonwealth.
N.T. (Trial), 7/9/13, at 248 249.



benefit, particularly because there was no indication that the CI would have

testified favorably to Appellant.   The trial court further reasoned that the



regarding the safety concerns attendant to protecting the identity of

confidential informants. Trial Court Opinion, 3/24/13/ at 12. The trial court



                                                        Id.

      After reviewing the record and trial transcripts, we conclude that the




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have shocked the

challenge to the weight of the evidence must fail.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2014




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