J-S77014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

MARC S. BATES A/K/A MARC S. BATTES

                            Appellant                 No. 291 MDA 2016


            Appeal from the Judgment of Sentence August 26, 2015
               In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0001906-2014


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                        FILED FEBRUARY 13, 2017

        Appellant, Marc S. Bates, appeals from the judgment of sentence

entered after a jury found him guilty of delivery of a controlled substance,

cocaine. Bates raises five challenges to the conviction, including the

sufficiency of the evidence, weight of the evidence, and evidentiary rulings

by the trial court. After careful review, we conclude that two of the trial

court’s evidentiary rulings were based upon incorrect premises. In both

instances, the trial court’s ruling precluded further development of the

record to allow consideration of whether the evidence was ultimately

admissible. As a result, we affirm in part, and vacate and remand for a

hearing on the issues identified in this memorandum.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      On October 14, 2014, the Commonwealth charged Bates with delivery

of cocaine and criminal use of a communications facility. At trial, the

Commonwealth presented evidence that Sergeant Brett Hopkins of the

Lebanon County Drug Task Force utilized a confidential informant (“CI”) to

introduce him to a cocaine dealer known only as “Mighty Mike.” N.T., Trial,

6/10/15, at 4-8. The CI contacted Mighty Mike and arranged for a cocaine

transaction. See id., at 9.

      Shortly before 10 p.m., a white car, later determined to be Bates’s,

pulled up on the street in front of Sergeant Hopkins and the CI. See id., at

9; 33-34. Sergeant Hopkins testified that he saw, but could not identify, a

Hispanic female driving the vehicle. See id., at 26. A black male exited the

vehicle and approached the CI. See id., at 9. Sergeant Hopkins handed the

CI $100 of “prerecorded drug task force funds,” and the CI immediately

handed the money to the black male. Id. In exchange, the man handed the

CI a white envelope containing crack cocaine and then quickly departed. See

id., at 10.

      The transaction lasted no more than a minute. See id., at 26. During

that time, Sergeant Hopkins stood within inches of the black male. See id.,

at 17. He stated that he got a clear look at the man’s face. See id., at 28.

Sergeant Hopkins positively identified Bates as the man who handed the

envelope to the CI. See id., at 8.




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      Bates pursued a mistaken identity defense at trial. In furtherance of

this strategy, he sought pre-trial disclosure of the identity of the CI. The trial

court denied this request. Furthermore, Bates sought to present the

testimony of his girlfriend, Ali Marinkov. Bates proffered that Marinkov would

testify that during the time in question, she would take Bates’s car with

people other than Bates to engage in narcotics transactions. The trial court

barred Marinkov’s testimony on the grounds that she was an undisclosed

alibi witness. Finally, Bates sought to introduce a picture of himself and his

brother in an attempt to bolster his argument that Sergeant Hopkins had

mistakenly identified him. The trial court denied admission of the photograph

on the ground that Bates could not present the testimony of the person who

had taken the photograph.

      The trial court entered a directed verdict on the criminal use of a

communications facilty charge, and the jury convicted Bates on the delivery

of cocaine charge. Bates filed a post-sentence motion, which the trial court

denied. This timely appeal followed.

      In his first argument on appeal, Bates argues that the evidence at trial

was insufficient to establish his identity as the perpetrator. Our standard of

review for a challenge to the sufficiency of the evidence is to determine

whether, when viewed in a light most favorable to the verdict winner, the

evidence at trial and all reasonable inferences therefrom are sufficient for

the trier of fact to find that each element of the crimes charged is


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established beyond a reasonable doubt. See Commonwealth v. Dale, 836

A.2d 150, 152 (Pa. Super. 2003). “The Commonwealth may sustain its

burden of proving every element of the crime beyond a reasonable doubt by

means of wholly circumstantial evidence.” Commonwealth v. Bruce, 916

A.2d 657, 661 (Pa. Super. 2007) (citation omitted).

      The facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence. See id. Any doubt raised as to

the accused’s guilt is to be resolved by the fact-finder. See id.      As an

appellate court, we do not assess credibility nor do we assign weight to any

of the testimony of record. See Commonwealth v. Kinney, 863 A.2d 581,

584 (Pa. Super. 2004). Therefore, we will not disturb the verdict “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.” Bruce, 916 A.2d

at 661 (citation omitted).

      As noted above, Sergeant Hopkins testified that he was within inches

of the perpetrator as the transaction occurred. He positively identified Bates

as the perpetrator. Furthermore, it is undisputed on appeal that the vehicle

used by the perpetrator was Bates’s, and driven by Bates’s girlfriend,

Marinkov. The jury was entitled to credit these facts and draw the

reasonable inference that Bates was the perpetrator. Bates is due no relief

on his first issue on appeal.




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       Next, Bates argues that the verdict was against the weight of the

evidence.

       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.
       Thus, we may only reverse the lower court’s verdict if it is so
       contrary to the evidence as to shock one’s sense of justice.
       Moreover, where the trial court has ruled on the weight claim
       below, an appellate court’s role is not to consider the 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.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (internal

citations omitted).

       When the challenge to the weight of the evidence is predicated
       on the credibility of trial testimony, our review of the trial court’s
       decision is extremely limited. Generally, unless the evidence is
       so unreliable and/or contradictory as to make any verdict based
       thereon pure conjecture, these types of claims are not
       cognizable on appellate review.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal

quotes and citations omitted).

       The trial court found that the verdict did not shock its conscience due

to Sergeant Hopkins’s positive identification. We cannot conclude that this is

an abuse of discretion, and therefore Bates’s second issue on appeal merits

no relief.1

____________________________________________


1
  We base this analysis on the record as it currently exists. Obviously, the
trial court’s evidentiary rulings shaped this record in ways that may
(Footnote Continued Next Page)


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      In his third issue, Bates contends that the trial court erred in denying

pre-trial disclosure of the identity of the CI. “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. Watson, 69 A.3d 605, 607 (Pa. Super. 2013) (citation omitted).

      The Commonwealth enjoys a qualified privilege to withhold the
      identity of a confidential source. 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. 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.

Id., at 607-608 (internal citations omitted).

      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
      communications, 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
      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
                       _______________________
(Footnote Continued)

ultimately be determined to be erroneous. We cannot reach that issue at this
time.



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       charged, the possible defense, the possible significance of the
       informer’s testimony, and other relevant factors.

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

Announcing the Judgment of the Court) (citation omitted).

       The initial burden requires the defendant to “demonstrate a reasonable

possibility the informant could give evidence that would exonerate him.”

Commonwealth v. Belenky, 777 A.2d 483, 488 (Pa. Super. 2001) (citation

omitted). A defendant does not meet this burden by “mere assertion” that

disclosure of the CI’s identity would be helpful to the defense. Id.

       The Supreme Court of Pennsylvania has held 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 defendant has presented evidence

supporting a mistaken identity defense, justice requires the disclosure of the

CI’s identity. See Commonwealth v. Payne, 656 A.2d 77, 80 (Pa. 1994).

Disclosure could still be withheld, however, if the Commonwealth presents

evidence that the CI’s safety would be threatened thereby. See Marsh, 997

A.2d at 324.2

____________________________________________


2
  The opinion announcing the judgment of the court in Marsh garnered the
support of three Justices. A concurring opinion, which criticized the lead
opinion’s analysis of evidence concerning safety of a CI, garnered the
support of the three remaining Justices. Justice Greenspan did not
participate in the decision. All six Justices agreed that safety of the CI was
an appropriate concern; the concurrence held that the identity of the CI
should not be withheld without evidence of a “reasonably specific type of
danger.” 997 A.2d at 326 (citation omitted). We therefore conclude that
(Footnote Continued Next Page)


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      Here, there was no hearing on Bates’s oral, pre-trial motion.3

However, given that Bates testified at trial, it is clear that he was prepared

to testify during a hearing on this motion. At trial, Bates testified that he did

not commit the crime. See N.T., Trial, 6/10/15, at 54-55. The only positive

identification evidence that Bates was the perpetrator came from Sergeant

Hopkins, who admitted that the transaction with the CI was the first time he

had met Bates. See id., at 14. He did not arrest Bates at the time, but

waited approximately one and one-half months to file charges. See id., at

25.

      Under these circumstances, we conclude that Payne controls the

resolution of the first element of the balancing test. Bates established that

the identity of the CI was material to his mistaken identity defense.

Furthermore, he established that, absent evidence of a “reasonably specific

type of danger” to the CI, disclosure of the identity was warranted. See

Commonwealth v. Bing, 713 A.2d 56, 60 (Pa. 1998).

      However, since the Commonwealth was also denied the chance to

present evidence on this issue, we cannot rule as a matter of law on this

record. At trial, the Commonwealth did present testimony of general

                       _______________________
(Footnote Continued)

Marsh did not alter the rule requiring evidence of a “reasonably specific type
of danger” to the CI set forth in Bing, infra.
3
  Neither the Commonwealth nor the trial court dispute Bates’s contention
that he made such a motion in open court while the jury was being selected.



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concerns about revealing the identity of a CI. See N.T., Trial, 6/10/15, at 8.

This evidence would not establish a reasonably specific type of danger to the

CI in this case. Since the issue of the CI’s safety was no longer directly

relevant to the trial, it is possible that the Commonwealth could have

adduced further evidence on this issue in a hearing on Bates’s motion. We

would therefore remand for such a hearing in the trial court to determine if a

new trial is necessary. Accorindingly, we vacate the trial court’s ruling in this

regard and remand for a hearing.

      Unfortunately, this is not the only error committed by the trial court in

this matter. The trial court also impacted Bates’s mistaken identity defense

by denying him the opportunity to present the testimony of Bates’s

girlfriend, Ali Marinkov. Bates proffered that Marinkov would testify that,

during the time in question, she was using drugs and that she would drive

Bates’s car for other individuals, not Bates, to sell narcotics. See id., at 43-

44. The trial court denied the request, holding that Marinkov was an alibi

witness   of   whom   Bates   had   not   provided   sufficient   notice   to   the

Commonwealth. See id.

      The trial court and the Commonwealth continue to argue that Marinkov

was an alibi witness, as her testimony would place Bates somewhere other

than the scene of the crime. However, Marinkov’s testimony did not place

Bates at any particular place, and therefore did not constitute an alibi. See

Commonwealth v. Bryant, 855 A.2d 726, 742 (Pa. 2004). Thus, the trial


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court erred in denying the request on this ground. In doing so, the court

prevented further development of the proffer to allow for a thorough

examination of the relevance of Marinkov’s testimony. We therefore cannot

reach the issue, despite the Commonwealth’s arguments. Thus, we vacate

this ruling and remand for both sides to be given an opportunity to provide

proffers or evidence addressing the issue of relevance.

      Finally, the trial court denied Bates’s request to enter a photograph of

himself and his brother on the ground that Bates could not authenticate the

photograph without the testimony of the person who took the photograph.

Photographs “may be authenticated by testimony from a person who has

sufficient knowledge that the photograph fairly and accurately reflects what

the proponent is purporting that photograph to reflect.” Commonwealth v.

Loughnane, 128 A.3d 806, 814 (Pa. Super. 2015). Bates proffered to

identify himself and his brother in the photograph. See N.T., Trial, 6/10/15,

at 51. This proffer would have been sufficient to authenticate the photo.

      Once again, the Commonwealth argues that, in any event, the

photograph was irrelevant. In this instance, we agree. Bates denied that he

was accusing his brother of being the perpetrator. See id., at 56-57. “I don’t

know who it was. I know it was my car used, I know that, but it wasn’t me.”

Id., at 57. Pursuant to that the testimony, the photograph was not relevant

to any issue at trial. Bates is therefore due no relief on this issue.




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      Judgment of sentence affirmed in part and vacated in part. Case

remanded for proceedings consistent with this memorandum. Jurisdiction

relinquished.

      Judge Platt joins the memorandum.

      Judge Olson files a concurring/dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2017




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