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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
FARUQ H. MCCOY ,                            :
                                            :
                         Appellant          :     No. 1868 MDA 2015

            Appeal from the Judgment of Sentence February 4, 2015
               In the Court of Common Pleas of Luzerne County
               Criminal Division at No.: CP-40-CR-0003964-2012

BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                          FILED DECEMBER 02, 2016

        Appellant, Faruq H. McCoy, appeals from the February 4, 2015

Judgment of Sentence entered in the Luzerne County Court of Common

Pleas following his conviction by a jury of one count of Possession of a

Controlled Substance With Intent to Deliver (“PWID”).1 Appellant challenges

the trial court’s refusal to grant his discovery requests regarding a

confidential informant’s (“CI”) prior work with police and prior payments for

that work. After careful review, we affirm.

        On July 23, 2012, police conducted a sting operation at Public Square

in Wilkes-Barre, Pennsylvania.       Officer Joseph Savage, along with several

other officers from the Wilkes-Barre Police Department (“WBPD”) and the

*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
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Pennsylvania Attorney General’s Drug Task Force, conducted a controlled

buy with a CI, who purchased two packets of heroin from Appellant in

exchange for $40 in pre-recorded buy money. Other officers made a video

recording and took photographs of portions of the controlled buy.

     Police arrested Appellant approximately one week later and charged

him with one count of PWID.         On December 4, 2014, Appellant filed a

general pre-trial Motion for Discovery. The trial court described Appellant’s

discovery request as follows:

     This particular issue arose when, prior to the start of trial, the
     defense belatedly sought discovery information. Specifically,
     [Appellant] requested documents that pertain to payments the
     CI received (as the defense put it, “paychecks”) as well as the
     CI’s history of work with the WBPD. The defense also argued
     that the Assistant District Attorney (ADA) should have
     anticipated just such a request and acquired the information on
     [Appellant’s] behalf.8
           8
             The ADA was not accused of withholding discovery
           in her possession and sanctions were not sought.

                                *      *    *

     Notwithstanding, the ADA stated she responded to the defense
     and informed them the records did not exist. Additionally, the
     ADA noted defense had the opportunity to speak with the police.
     Most significantly, the ADA spoke to the affiants, informed
     defense of the amount the CI was paid for the transaction at
     issue, and stated there was no other consideration for any
     pending charges received by the CI. The ADA also disclosed that
     the CI worked for WBPD, in particular Officer Boyle[], a few
     times previously.

     During the exchange regarding the defense discovery request,
     we made clear that the defense enjoyed the right to pursue the
     issues on cross-examination.       For reasons not otherwise
     apparent in the record, defense counsel conducted a very limited


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      inquiry on the subject.     Notably, defense counsel did not
      question Boyle in any detail about the prior work with this CI,
      nor did defense counsel ask the CI a single question about her
      prior work with law enforcement to include remuneration
      received.

Trial Court Opinion, filed 2/1/16, at 3-4 (some footnotes omitted). The trial

court concluded there was no discovery violation and did not grant Appellant

any other form of relief in light of his belated discovery requests.

      Appellant proceeded to a trial and a jury convicted him of one count of

PWID.   The trial court sentenced Appellant to a term of 24 months’ to 60

months’ incarceration.

      Appellant filed a timely Post-Sentence Motion, which the trial court

granted in part2 and held under advisement in part on June 3, 2015.

      On October 13, 2015, Appellant filed a Notice of Appeal.3           Both

Appellant and the trial court complied with Pa.R.A.P. 1925.



2
  The trial court granted additional time-credit, an issue not relevant to the
instant appeal.
3
  Ordinarily, the time for filing an appeal begins to run on the date the post-
sentence motion is denied either by the court or by operation of law. Here,
the trial court failed to issue a final Order disposing of Appellant’s Post-
Sentence Motion within 120 days as required by Pa.R.Crim.P. 720(B)(3)(a),
and the motion was, thus, denied by operation of law. Rule 720(B)(3)(d).
However, the clerk of courts did not enter and serve an order stating that
the Motion had been denied by operation of law as required by Pa.R.Crim.P.
720(B)(3)(c). Such an oversight constitutes a breakdown in the court
system; and we will not find this appeal untimely filed under such
circumstances. Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super.
2003).




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      Appellant raises one issue on appeal:

      Did the trial court err in failing to require the Commonwealth to
      provide specific discovery as requested prior to trial, namely
      specific documentation of the amount of payments made [to the]
      confidential informant witness in the instant case and prior cases
      regarding her work as a confidential information for the same
      police station and the number of times the confidential witness
      informant had been utilized as same by the same city police
      department?

Appellant’s Brief at 6 (capitalization removed).4

      Appellant is challenging the trial court’s decision to deny a request for

disclosure of information about a CI. We review that decision for an abuse

of discretion. Commonwealth v. Watson, 69 A.3d 605, 607 (Pa. Super.

2013).

      Appellant asserts in his brief that the prosecution violated his

Fourteenth Amendment due process rights by failing to divulge exculpatory

evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963). See

Commonwealth v. Robinson, 122 A.3d 367, 373 (Pa. Super. 2015),

appeal denied, 130 A.3d 1289 (Pa. 2015) (discussing Brady).

      “To establish a Brady violation, a defendant must demonstrate that:

(1) the evidence was suppressed by the Commonwealth, either willfully or

inadvertently; (2) the evidence was favorable to the defendant; and (3) the

evidence was material, in that its omission resulted in prejudice to the

4
  Appellant has abandoned a second issue on appeal averring that the trial
court improperly permitted cumulative testimony from multiple police
officers. See Commonwealth v. Sanchez, 36 A.3d 24, 72 (Pa. 2011)
(holding issue purposely abandoned on appeal is not reviewable).



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defendant.” Id. “Evidence is favorable to the accused where, if disclosed

and used effectively, it may make the difference between conviction and

acquittal.” Commonwealth v. Chambers, 807 A.2d 872, 888 (Pa. 2002)

(citation and quotation marks omitted).

      To constitute a Brady violation, “the withheld evidence must have

been in the exclusive control of the prosecution at the time of trial.” Id. Of

course, the underlying premise in all Brady violations is that the evidence

actually exists.

      Appellant argues that the trial court abused its discretion in refusing to

order any relief or a new trial because the Commonwealth’s failure “to turn

over requested documents regarding the history of payments to a

confidential informant witness … amounts to a Brady violation because it

meets the three-pronged Willis[5] test.”     Appellant’s Brief at 10, 20.    He

insists that information about the CI’s work history with WBPD exists

because “a police department must record their financial transactions for tax

purposes[.]” Id. at 10, 19.

5
   In Commonwealth v. Willis, 46 A.3d 648 (Pa. 2012) (Opinion
Announcing the Judgment of the Court), our Supreme Court reviewed Brady
and held that “nondisclosed favorable evidence which is inadmissible at trial
may be considered material for purposes of Brady, as long as there is a
reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.” Willis, supra at
650. The Court noted that mere speculation was not enough to support a
Brady violation.    The Court ultimately reversed and reinstated Willis’
Judgment of Sentence, finding that the appellee had not established that
there was a reasonable probability that had the challenged evidence been
disclosed, the outcome of the trial would have been different.



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      Appellant further asserts that the complete history of payments

provided to the confidential informant was vital impeachment evidence

because the CI “is the only witness available to provide first hand testimony

regarding Appellant’s criminal conduct.” Id. at 10. Appellant concludes that

he could not “effectively” cross-examine and impeach the CI without the

requested evidence and he, thus, suffered prejudice necessitating a new

trial. Id. at 20.

      In its Rule 1925(a) Opinion, the trial court concluded that Appellant’s

“belated” discovery request lacked merit because the Commonwealth had

informed Appellant that: (1) “the records did not exist[;]” (2) “the CI was

paid [$50] for the transaction at issue[;]” (3) “there was no other

consideration for any pending charges received by the CI[;]” and (4) “the CI

worked for [], in particular Officer Boyle[], a few times previously.”   Trial

Court Opinion at 3-4.     We agree with the trial court, and conclude that

Appellant’s attempt to raise a Brady violation fails.

      With respect to the first prong of the Brady test, as the trial court

noted, Appellant presented no proof that the Commonwealth suppressed any

evidence, either willfully or inadvertently.   Appellant failed to demonstrate

that the prosecutor possessed or controlled any discoverable materials and

the trial court observed that there was no indication that the records or

documents Appellant sought actually existed.        Trial Court Opinion at 4.

Although the hearing transcript is not contained in the certified record, the



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trial court noted “the ADA stated she responded to the defense and informed

[counsel that] the records did not exist.” Id. at 3.

      Appellant’s arguments to both the trial court and this Court contain a

great deal of unsupported speculation about tax records, practices, and

reports purportedly created and maintained by the Luzerne County District

Attorney’s Office, the WBPD, and the Pennsylvania Attorney General’s Drug

Task Force.    None of Appellant’s averments shows that any of these law

enforcement offices actually possessed any material information about this

CI. Without any proof or a reasonable explanation supporting the existence

of the evidence, there is no basis for concluding that the evidence was

suppressed by the Commonwealth, “either willfully or inadvertently.”

      The second prong of the Brady test, i.e., that the evidence was

favorable to the defendant, is, of course, premised on the existence of the

evidence. If the evidence Appellant sought had existed, it would have been

favorable in the sense that it would have provided Appellant with further

evidence to impeach the credibility of the CI.         However, there is no

indication that the evidence would have been exculpatory, or otherwise

made a difference in the verdict, in light of the video and photographic

evidence showing Appellant committed the crime.

      Moreover, Appellant admittedly had the following information with

which to impeach the CI: (1) the CI’s prior work with the WBPD; (2) the

payment the CI received for the work done on this case; and (3) the lack of



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any other consideration provided with respect to the CI’s pending charges.

Appellant concedes that “the Court permitted [Appellant] to cross-examine

the witnesses regarding this information; defense counsel chose not to do

so.”   Appellant’s Brief at 20.   Appellant cannot satisfy the second Brady

prong that he was deprived of favorable evidence.

       With respect to the third prong of the Brady test, we cannot conclude

that Appellant suffered prejudice as a result of not getting evidence that was

not available.6   The Commonwealth responded to Appellant’s December 4,

2014 Motion for Discovery and, as noted above, was able to confirm (1) the

amount of payments police had provided to the CI, (2) the CI’s drug

addiction, (3) the CI’s prior convictions, and (4) the CI’s reliable participation

in prior cases. Appellant did not seek a continuance to pursue the matter

further and, after the trial court rejected his belated request for more

information about the CI, Appellant did not demand any other alternative

form of relief.

       Moreover, at trial—despite ample opportunity to cross-examine and

impeach the CI’s credibility—Appellant conducted a very limited cross-

examination by asking only about the CI’s prior convictions and history of


6
  The trial court opined that Appellant waived the issue raised on appeal
because defense counsel conducted a very limited inquiry on the subject
when cross-examining Detective Boyle and the CI. See Trial Court Opinion
at 4. Because Appellant had filed a discovery request and made these
arguments in the lower court when it rejected his discovery request, we
decline to find waiver.



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drug addiction.   He asked no questions about her prior work with police.

Likewise, Appellant limited his cross-examination of Officer Boyle to the

accuracy and completeness of his reports and asked no questions about

Officer Boyle’s previous work with this particular CI.    Considering that

Appellant failed to cross-examine the CI or Officer Boyle regarding these

credibility matters with the information that he had been provided, we are

not persuaded that Appellant suffered any prejudice of the sort that would

support a Brady claim.

     After a careful review of the certified record, we discern no abuse of

discretion by the trial court and, thus, affirm Appellant’s Judgment of

Sentence.

     Judgment of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/2/2016




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