J-S33038-18

                                   2018 PA Super 169

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JONATHAN KOONCE                            :
                                               :
                       Appellant               :   No. 804 EDA 2017

           Appeal from the Judgment of Sentence January 25, 2017
    In the Court of Common Pleas of Montgomery County Criminal Division
                      at No(s): CP-46-CR-0000620-2016


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                               FILED JUNE 15, 2018

       Appellant Jonathan Koonce appeals from the judgment of sentence of

four years’ reporting probation entered in the Court of Common Pleas of

Montgomery County on January 25, 2017, following his conviction in a

stipulated non-jury trial of possession with intent to deliver (marijuana).1 We

affirm.

       The trial court aptly set forth the relevant facts revealed at the

suppression hearing as follows:

             The credible testimony of the Commonwealth witnesses,
       Detective Christopher Schwartz of the Plymouth Township Police
       Department and Detective Iran Millan of the Montgomery County
       Detective Bureau established the following facts. In November of
       2015, Detective Christopher Schwartz of the Plymouth Township
       Police Department met with a CI2 to set up a controlled buy.
       (Motion to Suppress 1/17/2017 pp. 4, 5). Detective Schwartz is

____________________________________________


135 Pa.C.S.A. § 780-113(a)(16).
2The abbreviation CI will be used throughout this Opinion in reference to the
confidential informant.
____________________________________
* Former Justice specially assigned to the Superior Court.
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     an experienced police officer, with specific training and experience
     in drug enforcement. Id. at 4. The detective testified that he has
     worked with this CI on or about two or three prior occasions, and
     that the CI has been reliable in the past. Id. at 5-6. He also
     indicated that the CI had provided information to other detectives
     about eight times. Id. at 5. In every case that [ ] Detective
     Schwartz investigated using this CI, the information was
     corroborated and led to arrests and seizure of drugs. Id. at 6.
            On November 23, 2015, Detective Schwartz met with this
     particular CI to establish a plan. Id. at 6. The CI informed that he
     had arranged a delivery of one pound of marijuana from an
     individual named Pope. Id. He and Pope met online and later
     spoke by phone, and the CI provided the detective with this
     individual's cell phone number. Id. The CI told Detective Schwartz
     that he believed Pope was from the New York area. Id. at 7. The
     detective was able to confirm that the cell phone number was a
     New York number, but he was unable to identify it as having come
     from a person named Pope. Id. at 21-22, 34. The CI also believed
     that Pope would be traveling with a female named Ava, or some
     variation of that. Id. All of the CI's information came from the
     communication between the CI and Pope.
            They decided to do the controlled buy. The police had the CI
     come down to the police department, and as per the usual protocol
     with informants on controlled buys, the Cl's person was searched
     to assure that no contraband or U.S. currency was present on the
     Cl. Id. The police also thoroughly searched the CI's vehicle for any
     contraband or U.S. currency. Id. Neither search turned up
     anything improper. Id. at 8. The CI was provided with prerecorded
     U.S. currency of $3,600, which had been established as the going
     price from [sic] high-end marijuana at that time. Id. at 8.
     Detective Schwartz physically placed the $3,600 into a black
     backpack and then placed it in the trunk of the CI's vehicle for
     transport to the scene. Id. at 8. The CI was instructed that in the
     event that the person from New York delivered the marijuana to
     him, he was to go to the trunk, retrieve the money and get back
     into his vehicle. Id. at 8-9. It was significant to this controlled buy
     that the backpack with the money would be in the trunk because
     it was the signal to law enforcement that the delivery transaction
     took place. Id. at 8-9.
            The CI never left the officers' presence. Id. at 9. The location
     of the drug transaction was to be at Wendy's restaurant in
     Conshohocken, Plymouth Township. Id. Several detectives
     established surveillance at the meet location parking lot. Id. There
     were police officers positioned across the street. Id. at 10.

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      Further, Detective Schwartz was in a position to view the Cl's
      vehicle and Wendy's. Id. at 9.
             The detective followed directly behind the CI from the police
      station to meet location. Id. The CI did not do anything he was
      not supposed to do. Id. at 9-10. The CI did not make any stops
      on the way and no one other than the CI was in the vehicle. Id. at
      9. Detective Schwartz arrived at the Wendy's parking lot and set
      up surveillance. Id. at 10. There were two main surveillance
      detectives, Detective Schwartz and Detective Iran Millan from the
      Montgomery County Detective Bureau. Id.
             Once the CI was in the Wendy's the CI did not go to the
      bathroom and the CI did not talk to anyone else. Id. at 11. The CI
      did meet with the individual who was later identified as [Appellant]
      inside the Wendy's. Id. The individual arrived on foot empty-
      handed. Id. at 12-13. The meeting was brief. Id. at 13. [Appellant]
      left the restaurant, and went back in the direction where he had
      come from. Id. at 14. [Appellant] returned a short time later
      carrying a black backpack. Id. at 14. He got into the CI's vehicle.
      Id.
             Less than three minutes after [Appellant] got into the
      vehicle, the CI exited the vehicle and went to the trunk where the
      backpack full of the prerecorded currency was located. Id. at 15.
      After retrieving the money, the CI got back into his vehicle. Id.
      The police waited less than a minute so the transaction could be
      completed, then they moved in and made the arrest. Id. at 15-
      16. At that time, the police found the marijuana with the CI and
      the money with [Appellant]. Id. at 16-17
             Detective Schwartz testified and explained that the CI's
      safety would be jeopardized if the [c]ourt compelled the disclosure
      of the CI's identity. Id. at 17-18.

Trial Court Opinion, filed 5/1/17, at 5-8.

      Appellant filed a motion to suppress physical evidence on May 11, 2016.

Also contained therein was a motion to produce confidential informant.       A

suppression hearing was held on January 17, 2017, and following the hearing,

the suppression court denied both Appellant’s motion to suppress and his

motion to produce confidential informant in separate orders entered on

January 19, 2017.

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       A stipulated non-jury trial was held on January 25, 2017, at which time

the testimony obtained at the suppression hearing was incorporated and the

trial court admitted the stipulated bench trial colloquy. See N.T. Trial,

1/25/17, at 10. At the conclusion of trial, Appellant was found guilty of the

aforementioned offense and immediately sentenced as previously indicated.

Id. at 11. Appellant did not file a post-sentence motion; however, he filed a

timely notice of appeal on February 22, 2017. On February 24, 2017, the trial

court entered its Order directing Appellant to file a concise statement of the

matters complained of on appeal pursuant to Pa.R.A.P. 1926(b), and Appellant

complied on March 13, 2018, wherein he presented four claims for the trial

court’s review.

       In his appellate brief, Appellant sets forth the following Statement of

Questions Presented:

      1.       Whether [t]rial [c]ourt committed error by not ordering
      Commonwealth to disclose the identity of a confidential informant
      who was the only eyewitness to defendant being in possession of
      controlled substance, and was only person with knowledge of the
      content of communications between confidential informant and
      [Appellant]?

      2.       Whether the [t]rial [c]ourt committed error by finding
      probable cause existed, allowing the police to seize/arrest
      [Appellant], where police had not seen [Appellant] in possession
      of any contraband?

Brief for Appellant at 3.

       When considering Appellant’s first claim, we are mindful of the

following:


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            “Our standard of review of claims that a trial court erred in
     its disposition of a request for disclosure of an informant's identity
     is confined to abuse of discretion.” Commonwealth v.
     Washington, 63 A.3d 797, 801 (Pa.Super. 2013).
            Under Pennsylvania Rule of Criminal Procedure 573, a trial
     court has the discretion to require the Commonwealth to reveal
     the names and addresses of all eyewitnesses, including
     confidential informants, where a defendant makes a showing of
     material need and reasonableness:

          (a)    In all court cases, except as otherwise provided in
                 Rule 230 (Disclosure of Testimony Before
                 Investigating Grand Jury), 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:
          (i) the names and addresses of eyewitnesses....
     Pa.R.Crim.P. 573(B)(2)(a)(i).
            The Commonwealth enjoys a qualified privilege to withhold
     the identity of a confidential source. Commonwealth v. Bing,
     [551 Pa. 659, 713 A.2d 56 (1998)]; Commonwealth v.
     Roebuck, 545 Pa. 471, 681 A.2d 1279, 1283 n. 6 (1996). In order
     to overcome this qualified privilege and obtain disclosure of a
     confidential informant's identity, a defendant must first establish,
     pursuant to Rule 573(B)(2)(a)(i), that the information sought is
     material to the preparation of the defense and that the request is
     reasonable. Roebuck, supra at 1283. Only after the defendant
     shows that the identity of the confidential 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
     Commonwealth. Bing, supra at 58; Commonwealth v. Herron,
     475 Pa. 461, 380 A.2d 1228 (1977).
            In striking the proper balance, the court must consider the
     following principles:

          A further limitation on the applicability of the privilege
          arises from the fundamental requirements of fairness.
          Where the disclosure of an informer's identity, or of the
          contents of his communication, is relevant and helpful to
          the defense of an accused, or is essential to a fair

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J-S33038-18


           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.

          [N]o fixed rule with respect to disclosure is justifiable.
          The problem is one that calls for balancing the public
          interest in protecting the flow of information against the
          individual's right to 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 informer's
          testimony, and other relevant factors.
          Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284,
          287 (1967) (quoting Roviaro v. United States, 353
          U.S. 53, 60–62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)).
      Commonwealth v. Marsh, 606 Pa. 254, 260–261, 997 A.2d 318,
      321–322 (2010).

Commonwealth. v. Watson, 69 A.3d 605, 607–08 (Pa.Super. 2013)

(quotation marks omitted).

       Herein, Appellant maintains:

          . . . the defense theory is that the confidential informant
      “framed” [Appellant], and because the confidential informant was
      the only eyewitness to the transaction, this theory would be
      plausibly aided by the identity of the informant.
                Evidence that the CI framed [Appellant] could affect the
      outcome of the trial. Therefore, [Appellant] has satisfied the
      threshold requirement of materiality and reasonableness by
      showing that the evidence of record supports a reasonable
      possibility that the information he seeks would be helpful.

Brief for Appellant at 8. Appellant posits that “only [Appellant] and the CI saw

what changed hands in the controlled buy [which] mitigates in favor of

disclosure.” Id. at 9. Appellant stresses the Commonwealth produced no

evidence that the CI would be endangered were his identity revealed, and he


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cites to the testimony of Detective Schwartz that conceded Appellant had not

been threatened and indicated an uncertainty as to any danger to Appellant

were the identity of the CI revealed. Id. at 9. Appellant further notes the

chance of possible threats is lessened by the fact that he and the CI met for

the first time on the day of the drug buy, as Appellant was from New York,

and he had known nothing about the CI previously. Id.

       Upon our review of the record, we find the suppression court did not

abuse its discretion in finding Appellant had failed to make the threshold

presentation of materiality and reasonableness. Appellant does not pursue a

misidentification defense. Instead, he baldly asserts that he was “framed,”

and, therefore, as the CI was the only eyewitness to the transaction, he should

have had the opportunity to confront the CI. The record belies Appellant’s

claim, for the CI’s trustworthiness was established through the credible

testimony of Officer Schwartz who stated he and other officers had gained

valuable information from the CI which led to narcotics arrests in the past.

N.T. Suppression, 1/17/17, at 5-6.

      Also, the testimony of Officers Schwartz and Millan concerning their

personal observations of the transaction substantiated the information the CI

had provided. Moreover, as the suppression court explains, most problematic

with Appellant’s claim is that “[a]lthough the CI was the only witness to the

actual hand-to-hand drug transaction, the police, both Detective Schwartz and




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Detective Millan saw every other aspect of the transaction.”        Trial Court

Opinion, 5/1/17, at 11.

       Even had Appellant satisfied the threshold presentation of materiality

and reasonableness before the suppression court, he has neither presented

record support for his defense he was “framed” nor provided a plausible

explanation as to how the CI’s testimony could have benefitted him.        See

Watson, supra, at 609. It is clear that “allegations alone do not supplant

the need to make an actual evidentiary showing” that disclosure of a witness's

identity is material to a defense. Marsh, 606 Pa. at 261, 997 A.2d at 322.

“[B]efore disclosure of an inform[ant's] identity is required in the face of the

Commonwealth's assertion of privilege, more is necessary than a mere

assertion by the defendant that such disclosure might be helpful in

establishing a particular defense.” Commonwealth v. Herron, 475 Pa. 461,

466, 380 A.2d 1228, 1230 (1977) (holding that the defendant failed to provide

a “sufficient factual foundation to enable the trial judge to conclude that

knowing the inform[ant]'s identity might be helpful in establishing an

entrapment defense” where defendant failed to establish specific facts

supporting entrapment through witnesses or, at a minimum, an offer of proof).

Cf. Commonwealth v. Payne, 540 Pa. 54, 60, 656 A.2d 77, 80 (1994)

(holding that where a single police officer is the only eyewitness to a crime

other than the CI, the arrest was not made shortly after the crime, and the




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defendant has presented evidence supporting a mistaken identity defense,

justice requires the disclosure of the CI's identity).

      While cross-examination of the Commonwealth's witnesses may be

enough in some cases to lay an evidentiary foundation for materiality and

reasonableness, the cross-examination herein was insufficient to meet the

defense's burden. To the contrary, Appellant’s questioning of Officers

Schwartz and Millan failed to show how the revelation of the CI’s identity and

his or her subsequent testimony would have aided Appellant’s defense or

otherwise exonerated him. Moreover, unlike the defendant in Payne, supra,

Appellant failed to offer any other evidentiary showing that would demonstrate

the identity of the CI was material to his defense.

      Appellant is correct that the only witness to the actual transaction in the

CI’s vehicle was the CI; however, multiple police officers observed Appellant

and the informant in relatively close range during daylight hours in the

moments leading up to and immediately after the transaction both inside the

Wendy’s restaurant and in the area surrounding the vehicle in which the

transaction occurred. The CI met with no other individual other than Appellant

in Wendy’s, and Officers had searched the CI and his vehicle prior thereto to

ensure he was not in possession of any contraband or U.S. currency. N.T.

Suppression, 1/17/17, at 7-17, 48, 52-55. In addition, the vehicle was under

constant police surveillance, and no one other than Appellant and the CI

approached or entered the automobile. Id. at 15-16. Appellant was arrested


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moments after the drug buy, at which time only Appellant and the CI were

inside the car. The CI was in possession of a black backpack which contained

a sealed bag of approximately one pound of marijuana, and Appellant

possessed $3,600.00 belonging to law enforcement. Id. at 17. Under these

circumstances, Appellant’s position he was framed is wholly untenable.

      Furthermore, Detective Schwartz testified he believed the CI’s safety

would be jeopardized were the trial court to compel the disclosure of his

identity. The Detective explained, “this informant has worked on several cases

beyond [Appellant’s] case. Was a valuable asset that led to what I would

deem significant seizures. He has directly told myself and my partner his fear

in cooperating, his fear of retaliation, and I find it to be extremely reasonable.”

N.T. Suppression, 1/17/17, at 18. Therefore, based on the foregoing, we find

no abuse of discretion in the suppression court’s determination that disclosure

was not mandated in light of Appellant’s failure to make a threshold showing

of materiality and in its finding that revealing the identity of the CI would

jeopardize his or her safety.    See Trial Court Opinion, filed 5/1/17, at 11.

Thus, Appellant’s first claim lacks merit.

       Appellant next contends officers lacked probable cause to arrest him.

Appellant reasons that there was insufficient evidence the CI’s tip was reliable

and no corroborating evidence existed to substantiate the information the CI

had provided, other than Officer Schwartz’s representations that this CI had

been reliable in the past and had provided information that led to arrests and


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seizure of narcotics. Brief for Appellant at 10. Appellant argues the paucity

of information the CI provided, coupled with the lack of support of any

investigation which is evident in the fact that officers were unable to

corroborate cell phone information, lacked a physical description of Appellant,

and never observed him with contraband either prior to or at the time of

arrest, reveals no probable cause existed to justify a warrantless arrest. Id.

at 10-11.

     When considering the instant claim, we are mindful of the following:

      Our standard of review ... is whether the record supports the trial
      court's factual findings and whether the legal conclusions drawn
      therefrom are free from error. Our scope of review is limited; we
      may consider only the evidence of the prosecution and so much
      of the evidence for the defense as remains uncontradicted when
      read in the context of the record as a whole. Where the record
      supports the findings of the suppression court, we are bound by
      those facts and may reverse only if the court erred in reaching its
      legal conclusions based upon the facts.

Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa.Super. 2011) (en

banc) (citation omitted), appeal denied, 615 Pa. 753, 40 A.3d 120 (2012).

Additionally, “[a]ppellate courts are limited to reviewing only the evidence

presented at the suppression hearing when examining a ruling on a pretrial

motion to suppress.” Commonwealth v. Bush, 166 A.3d 1278, 1281-82

(Pa.Super. 2017) (citation omitted), appeal denied, 176 A.3d 855. “It is within

the suppression court's sole province as factfinder to pass on the credibility of

witnesses and the weight to be given their testimony.” Id. at 1282 (citation

omitted).


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      In evaluating Appellant's argument that he was unlawfully arrested

because officers did not corroborate the unreliable information they had

received from the CI, and, therefore, the evidence recovered pursuant to his

arrest should be suppressed, we take note that law enforcement authorities

must have a warrant to arrest an individual in a public place unless they have

probable cause to believe that (1) a felony has been committed; and (2) the

person to be arrested is the felon. See Commonwealth v. Martin, 101 A.3d

706, 721 (Pa. 2014). As we have stated:

      Probable cause is made out when the facts and circumstances
      which are within the knowledge of the officer at the time of the
      arrest, and of which he has reasonably trustworthy information,
      are sufficient to warrant a man of reasonable caution in the belief
      that the suspect has committed or is committing a crime. The
      question we ask is not whether the officer's belief was correct or
      more likely true than false. Rather, we require only a probability,
      and not a prima facie showing, of criminal activity. In determining
      whether probable cause exists, we apply a totality of the
      circumstances test.

Commonwealth v. Thompson, 614 Pa. 198, 203, 985 A.2d 928, 931 (2009)

(emphasis in original) (citations and quotation marks omitted).

      An officer’s determination of probable cause based upon information

received from a confidential informant depends upon the informant's reliability

and basis of knowledge viewed in a common sense, non-technical manner.

Commonwealth v. Gagliardi, 128 A.3d 790, 795 (Pa.Super. 2015) (citing

Commonwealth v. Clark, 611 Pa. 601, 28 A.3d 1284, 1288 (2011).

Information provided by a CI “may constitute probable cause where police

independently corroborate the tip, or where the informant has provided

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J-S33038-18


accurate information of criminal activity in the past, or where the informant

himself participated in the criminal activity.” Id. at 795-96.

      Herein, the suppression court found:

           the information that the police possessed and the manner in
      which they carried out the investigation supports an abundant
      finding of probable cause. Initially, the CI [ ] gave to Detective
      Schwartz the source of his information. In other words, the
      detective knew how the CI got his information, and it was from
      the direct communication between the CI and [Appellant]. In
      addition, the controlled buy happened in the way that the police
      had planned it. Detective Schwartz was told by the CI that the
      buy had taken place when he went to the trunk, retrieved the
      backpack with the $3,600 in prerecorded U.S. currency and got
      back into his car. The police observed conduct consistent with
      illegal drug activity by [Appellant], and based on that at the bare
      minimum, they certainly had reasonable suspicion that criminal
      activity was afoot, justifying the brief detention. This quickly
      ripened into probable cause upon the finding of the marijuana with
      the CI and the money with [Appellant].

Trial Court Opinion, filed 5/1/17, at 8.

       The record supports the suppression court's findings that Appellant's

arrest was supported by probable cause that he was involved in the felonious

sale of drugs to the CI, and thus, we are bound by those findings. See

Galendez, supra. The information from the CI, who had provided accurate

information to Detective Schwartz in the past, coupled with and substantiated

by the officers' direct observation of the conduct of Appellant and the CI, was

sufficient to warrant a person of reasonable caution to believe that Appellant

delivered to the CI the marijuana officers discovered in the black backpack in

the vehicle. See id.; see also Gagliardi, supra. Thus, Appellant's

warrantless arrest was lawful, and the contraband seized was admissible.

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      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/15/18




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