J-S75022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

VICTOR HARRIS

                            Appellant                  No. 605 EDA 2014


          Appeal from the Judgment of Sentence December 16, 2013
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0005222-2013


BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J.:                          FILED JANUARY 16, 2015

        Victor Harris appeals from the judgment of sentence imposed by the

Court of Common Pleas of Bucks County following his conviction for

possession with intent to deliver a controlled substance.1         After careful

review, we affirm.

        The trial court summarized the facts of this case as follows:

        On October 23, 2012, Bensalem Police Officers conducted a
        controlled buy of narcotics from [Harris].    A confidential
        informant was utilized to purchase seven bags of cocaine for
        $80.00.

        Arrangements were made for [Harris] to sell the informant
        cocaine at the Stadium Bar in Bensalem, Bucks County,
        Pennsylvania. Bensalem Police Sergeant Busch and Officers
        Smith and Brady conducted the surveillance concerning the
        transaction. Officer Brady testified that he observed [Harris]
____________________________________________


1
    35 P.S. § 780-113(a)(30).
J-S75022-14


      hand a plastic bag to the informant.      The informant, in
      exchange, was observed counting and handing cash to [Harris].

      After the transaction, Officer Brady maintained visual contact
      with the informant. They met in a secluded area of the parking
      lot and the informant handed the bags containing white powder
      to Officer Brady and returned $120.00 of the pre-recorded ‘buy’
      money.

      The bags were submitted to the Bucks County Crime Law for
      analysis. The lab determined that the bags contained 1.83
      grams of cocaine.

      On October 7, 2013, the case proceeded to trial. [Harris] raised
      a single pre-trial motion to disclose the identity of the informant.
      The motion was denied as [Harris] readily admitted he already
      knew the identity of the informant, but insisted on confronting
      and cross-examining this person. The Commonwealth elected to
      proceed to trial with[out] calling the informant as a witness.

      The jury returned a verdict of guilty as to the lone count of the
      Criminal Information, Delivery of a Controlled Substance. A Pre-
      Sentence Report was ordered and on December 15, 2013.
      [Harris] was sentenced to not less than three and one half nor
      more than seven years in a State Correctional Institution.

Trial Court Opinion, 5/9/14, at 1-2.

      Harris filed a petition for reconsideration of sentence on December 23,

2014, which the trial court denied on January 23, 2014.

      On appeal, Harris raises the following issues for our review:

      1. Whether the trial court erred in not granting [Harris’] motion
         to disclose the identity of the confidential informant?

      2. Whether the jury verdict was against the weight of the
         evidence?

Appellant’s Brief, at 3.

      In an appeal from an order denying a motion to disclose the identity of

a confidential informant, our standard of review “is to determine whether the

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J-S75022-14



trial court abused its discretion in denying appellant’s request for discovery.”

Commonwealth v. Belenky, 777 A.2d 483, 487 (Pa. Super. 2001). In his

Pa.R.A.P. 1925(a) opinion, the Honorable Wallace H. Bateman, Jr., succinctly

and thoroughly addresses this issue.           Therefore, based upon Judge

Bateman’s analysis at pages 5-6 of his opinion, we conclude that Harris is

not entitled to relief on this issue.

      Harris next asserts that the verdict was against the weight of the

evidence. Such claim must be raised with the trial judge in a motion for a

new   trial.    See    Pa.R.Crim.P.     607.   Harris’   counseled    petition   for

reconsideration of sentence does not raise a weight of the evidence claim,

and accordingly, the claim is waived. See Commonwealth v. Bryant, 57

A.3d 191 (Pa. Super. 2012) (failure to challenge weight of evidence prior to

sentencing or in post-sentence motion results in waiver).            Thus, we are

precluded from reviewing this issue.

      Because we affirm based on Judge Bateman’s analysis of the only

properly preserved issue, we instruct the parties to attach a copy of Judge

Bateman’s decision in the event of further proceedings.

      Judgment of sentence affirmed.




                                        -3-
J-S75022-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2015




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          IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA

                                            CRIMINAL DIVISION


   COMMONWEALTH OF PENNSYLVANIA                               No.: CP-09-CR-0005222-2013

                          v.
  VICTOR HARRIS


                                                 Opinion

         I.      INTRODUCTION

         Defendant Victor Harris (hereinafter "Appellant") appeals to the Superior COllrt of

  Pennsylvania I1'OIn his conviction and judgmcnt of sentence. We filc this Opinion pursuant to

  PellJlsylvania Rule of Appellate Procedure (Pa.RAP.) I 925(a).

         II.    FACTUAL AND PROCEDURAL BACKGROUND

         On October 23, 2012, Bensalem Police Officers conducted a controlled buy of narcotics from

 Appellant. (N.T., 1017/13 p.ll) A confidential infol'lnantwas utilizcd to purchase seven bags of

 cocaine for $80.00. (N.T., 1017113 p.ll)

        Arrangements were made for Appellant to scll the informant cocaine at the Stadium Bar in

 Bensalem, Bucks County, Pel1l1sylvania. (N.T., 1017/13, p.1l) Bensalem Police Sergeant Busch and

Officers Smith and Brady conducted the surveillance concerning the transaction. Officer Brady

testified that he observed Appellant hand a plastic bag to the informant. The informant, in exchange,

was observed counting and handing cash to Appellant. (N.T., 1017/13 p.IS, 40)

       After the trallsaction, Officer Brady maintained visual contact with the informant .. (N.T.,

1017113 p.16) They met in a secluded area ofthc parking lot and thc informant handed the bags

containing white powder to Officer Brady and returned $120.00 of the pre-recorded "buy" money.

(N.T., 1017113 p.16"17)
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                 The bags were submitted to the Bucks County Crime Lab for analysis. The lab determined that

         the bags contained 1.83 grams of cocaine, , . (N.T., 1017113 pp.5-7)

                 On October 7,2013, the case proceeded to trial. Appellant raised a single pre-trial motion to

        disclose the identity of the informant (N,T. Oct. 7, 2013) (pp. 5-7), The motion was denied as

        Appellant readily admitted he already knew the identity of the informant, but insisted on confronting

        and cross-examining this person, The Commonwealth elected to proceed to trial with calling the

        informant as a witness.

                The jury returned a verdict of guilty as to the lone count of the Criminal Information, Delivery

       of a Controlled Substance. 1 A Pre-Sentence Report was ordered and on December 15, 2013, Appellant

       was sentenced to not less than three and one half nor more than seven years in a State Correctional

       Institution. 2

               Appellant lms timely filed an Appeal to the Superior Court from this conviction.

               III,     MATTERS COMPLAINED OF ON APPEAL

               We served a J925(b) Motion upon counsel for Appellant. Although counsel has failed to

       respond in a timely manner, Appellant has filed a pro se J925(b) Matters Complained of On Appeal.

      Appellant has also claimed a breakdown in the attorney-client relationship? While the purpose of PA

   R.A.P. 3304 is to prohibit hybrid representation, we are aware ofConllnonwealth v. Cooper, 61 \ Pa.

   437 (201 J). Disregarding Appellant's pro se filing would merely delay resolution of his claims until

  they can be raised under the Post Conviction Relief Act. Since we believe we can dispose of his


  '34 PA C.S.A 780-1138 § A30(F)
  2Appellant's Sentencing Guidelines recommended a standard range sentence of 27-40 months.
 3 Although granted an extension, trial counsel did not timely respond to our 1925(b) order, nor did counsel
 forward to the court reporter our order to transcribe the notes of testimony. Appellant has alleged a breakdown
 of the attorney-client relationship. We offer no opinion on this allegation without holding a hearing on the Issue
 raised. However, we have vacated the appOintment of trial counsel and appointed new counsel to represent
 Appellant.

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claims on the merits, we believe it to be in the interests of all to do so. Therefore, we will address the

merits of Appellant's Appeal. Appellant has raised the following issues for appeal, verbatim:

       1. Defendant wishes to argue that the Affidavit of Probable Cause in no way adequately reveal the
           "basis of knowledge" of the confidential infonnant.- the particular means by which he came by the
           information given in his report to Affiant. Also, the affidavit in no way sufficiently establish either
           the "Veracity" of the confidential informant, or alte11latively, the "reliability" of the infonnant's
           report in this particular case or in past cases. Defendant wishes to argue that the affidavit lacked
          any reference to both the Veracity and the Basis of Knowledge of the confidential informant, thus
          failing to meet the basic requirements set forth in the "totality of circumstances" standard presented
          in III vs. Gates 462 U.S. 213. The information set fOlih in the affidavit was never verified by an
          independent police investigation, and by using this information to alTest Defendant, Defendant has
          been denied due process.
      2. Defendant also wishes to argue, that the affidavit of probable cause stemming from an
         incident reported October 23,2012. Warrant having been issued December 4,2012 and the
         same warrant reissued May 7, 2013. Constitutes state warrant information under Pa.R.
         Crim.P.200S. This violated Defendant's 41h amendment rights and right garuanteed under
         PA Constitution Article 1-8. Defendant will argue that the affidavit of probable cause is
         invalid for this reason and should have been suppressed (along with any evidence
         presented) for failure to meet the probable cause demand set fOlill in U.S. Constitution
         Amendment IV.

     3. Defendant also wishes to argue, that the sworn affidavit submitted to the issuing magistrate
         by affiant Ofc Michael Brady 32242 contained fabricated information in support of this
         aguement, Defendant will utilize notes of testimony from preliminary transcript dated 4-10-
         2013 wherein on page 13 line 6 thru 9, Ofc Michael Brady under oath stated that he "didn't
        see what the two items were". And again on page) S, line 21 thIu 23, Ofc Michael Brady
        stated that "at the time of the actual transaction, I was unaware of what the actual items
        were at the conclusion of my investigation ... ". These testimonial notes clearly show
        statements inconsistent with the statements written in the affidavit of probable cause. Due
        to this rubricated information the issuing magistrate was forced to rely on false information.
        And in no way could have made a common sense rational decision based on the facts before
        him, being that the information provided was false.

    4. Defendant also wishes to argue, that the prosecution withheld exculpatory- impeaching
        evidence. The prosecution did withhold fi'om the Defendant vital evidence that could have
        been used to impeach the credibility of the confidential infomlant. This infOlmation
        includes but is not limited to an active bench wan'ant issued by Judge Wallace H. Bateman
       on May 22, 2013, and active arrest warrant issued on March lSIh by Tullytown police
       department, a deal made.with the prosecution and the Bensalem police department and
       special probation issued by Judge Wallace H. Bateman. The prosecution also withheld
       infomlation regarding the confidential informant's arrest record and previous failure to
       appeal' to trial and parole violation proceedings. This withholding of evidence is in
       violation of Brady vs. Maryland.



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           5. The Defendant also wishes (0 argue, that witnesses at trial proceeding were not properly
              sequestered before the trial testimony began. This improper sequestration resulted in the
              testimony oflead witness for the prosecution Ofc Michael Brady's testimony being heard
              and observed by the remaining witnesses for the prosecution thus denying the Defendant of
              his right (0 a fair trial.

          6. Defendant wishes to argue that the trial court erred in denying Defendant's motion to
              disclose identity of the confidential informant pursuant Rule Pa.R.Crim.P.305(B)(2)(a).
              Defendant will argue that is was clearly stated in the affidavit that the confidential
              informants was a material witness absolutely necessary to the preparation of a defense, and
              by withholding the confidential infonnant's identity the commonwealth did deny the
             Defendant (he right to a fair (rial garuanteed in the U.S. constitution. Defendant wishes to
             argue that the courts grossly abused its power and its discretion in denying defendant's
             request for discovery. This denial resulted in a trial in which the jury had to rely solely on
             testimony of officers not on testimony provided by a confidential informant who set up this
             alledged criminal occurrence and played a prominent part in it. Defendant will argue that
             there could not be a charge of delivery of a controlled substance without testimony of the
             person who the controlled substance was alledgedly delivered to.

         7. Defendant wishes to argue that Affiant and lead witness for the Prosecution Ofc Michael
            Brady did knowingly make statements before the jury inconsistent with statements given at
            preliminary hearing. Defendant will argue and show thru testimonial notes that Ofc
            Michael Brady's inconsistent statements were blatantly misleading and so undennined the
            truth determining process that no fail' finding offacts could be UIldertaken by jurors.

         8. Defendant wishes to argue, ineffective assistance of counsel. Defendant wishes to argue
              and challenge the stewardship of counsel Harry J. Cooper. Defendant will plead and pl'Ove
              that counsel's performance was unreasonable, and that Defendant suffered prejudice as a
             result of counsel's pelformance 01' lack thereof. Defendant will argue pursuant to 42Pa
             CSA 9543(a)(2)(U). That counsel prior to and at tdal committed the following errors,
             including but not limited to (A) Even though Defendant informed counsel of confidential
             informant's full names, counsel never attempted to do even th« minimal amount of due
            diligence in locating this'\vitness neither did the call infomlantimaterial witness to testify.
            (B) COUllsel never attempted to suppress evidence obtained thm an invalid warrant. (C)
            Counsel did not request witnesses be sequestered before testimony began and did not call
            for a mistrial after witnesses were improperly sequestered. CD) When witnesses made prior
            statements inconsistent with his trial testimony counsel failed to intl'Oduce entire statement
            for purpose of impeaclnnent. For these facts and others not liSted, Defendant wishes to
           argue ineffective assistance of counsel.

        9. Defendant also wishes to argue that the prosecution failed to prove elements of the crime
           beyond a reasonable dOUbt. Batson Violation

       At the outset, we note that Appellant's first three issues covel' the probable cause recited in the

affidavit attached to the criminal coinplaint. We do not believe these issues were ever raised and are,


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   therefore, deemed to be waived. Moreover, the jury heard the evidence and detelmined the evidence to

   be credible beyond a reasonable doubt, thus nullitying Appellant's objection to the affidavit as lacking

   in probable cause and containing false information.

          Appellant also claims that witnesses were not properly sequestered before testimony began.

   Again, this was not raised at the time oftfial and is, therefore, deemed waived. Even if raised, we do

  not believe it would have been proper to grant sequestration as to Sergeant Brady. Sergeant Brady was

  the affiant and prosecuting officer, and as such would have been permitted to remain in the courtroom

  to assist the COJmnonwealth's attorney. Lastly, Appellant's claim could have been argued to the jury

  as a factor in determining credibility.

         Appellant has claimed that this couli eITed in not requiring disclosure of the confidential

  informant. As noted above, Appellant was well aware of this informant's identity.

         It is well established that if a defendant can establish that an informant's identity would be

 material to his defense, the trial court, in its' discretion, may order disclosure ofthe infonuant's

 identity. Commonwealth v. Marsh, 606 Pa. 254 (2010); Commonwealth v. Bing, 551 Pa. 659 (1998) .

. The court must balance all relevant factors in order to determine whetller disclosure is material and

 reasonable. The determination of whether disclosure should be made is to be decided on the particular

facts of each case. The trial court may consider possible defenses and the significance of the

informant's testimony. Marsh, supra.

        Generally, the Commonwealfu has a qualified privilege to withhold the identity of a

confidential informant. See Bing, supra, Commonwealth v. Roebuck, 545 Pa. 471, 1283 n. 6 (1996).

The fureshold inquiry is whether the infonnation sought is material and reasonable. See PA Rules

Crim.Proc., Rule 573 (B)(2)(a)(i); Roebuck, supra. Only after a defendant can show that identification

is material to the defense, is the trial court required to determine whether the information should be



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    disclosed. The balancing ofa11 factors should be weighed in favor of the Commonwealth's qualified

   privilege. Bing, supra

           In Marsh, our Supreme Court offered guidance ill dctcnnining whether disclosurc is mandated.

   The trial court must balance the Commonwealth's intcrcst in protecting infonnation against a

   defcndant's right to prepare a defense.

                   "Whether a proper balance renders nondisclosure erroneous must depend on the
                   particular circumstances of each case, taking into consideration the crime
                   charged, the possiblc defenses, the possible significance of the informer's
                   testimony, and other relevant factors." Commonwealth v. Marsh, 606 Pa. 265
                   (2010), citing Conunonwealth v. Cmtel', 427 Pa 53 (1967) (quoting Roviaro v.
                   United States, 353 U.S. 53 (1957).

          In the case at bar, the identity of the informant was known to Appellant notwithstanding the

  delay between incident and arrest of approximately 6 months. Appellmlt's motion and argument allege

  His a violation of his "right to" confl'ont his accuser and to prepare a meaningful defense. As in

  Commonwealth v. Marsh, 606 Pa. 254 (2010), there was no allegation of mistaken identity or other

 reason offered that would be possibly helpful to the defense. 4 As noted above, since the identity was

 already known to Appellant and no legitimate reason was offered for disclosure, we concluded that the

 motion for disclosure would be denied. It appears Appellant waS simply sceking public verification of

 who he already knew to be the informant. Appellant claims the informant was a material witncss, but

 yet chose not to subpoena the witness himself. We carefully evaluated all relevant factors and

 detcnnined Appellant's argument to be without merit.

         Appellmlt's seventh and ninth claims of error relate to credibility and sufficiency ofthe

evidence. Appellant ciaims the testimony of Sergeant Bready was not credible and that the

Commonwealth did not prove the elements of the offense beyond a reasonable doubt.



, Appellant failed to present any evidence in support of his position. Appellant claimed disclosure was
necessary without offering a plausible explanation of his position.

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           On appeal, the standard that the appellate COUli applies in reviewing the sufficiency of evidence

   is whether, viewing all the evidence admitted at trial in the light most favorable (0 thc verdict willllcr,

   there is sufficient evidence to enable the fact finder to find every element of the crime beyond a

  reasonable doubt. Commonwealth v. Heberling. 678 A.2d 794, 795 (Pa. Super. 1996). The Supel'ior

  Comt in Commonwealth v. VentrinL 734 A.2d 404 (Pa. Super. 1999) elaborated:

         In applying [the above] test, we may not weigh the evidence and substitute OUl'
         judgment for that of the fact-finder. In addition, we note that the facts and
         circumstances established by the Commonwealth need not preclude every possibility of
         inllocence. Any doubts regarding a defendant's guilt may be resolved by the fact-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 Conunonwealth may sustain its burden of proving evelY 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 belicve all, part or none
         of the evidence. 734 A.2d 404,406-07 (pa. Supcr. 1999)(citations and quotation marks
         omitted).

         "The trier of fact, while passing upon the credibility of witnesses and the weight of the

 evidence produccd, is free to believe all, part, or none of the evidence." Commonwealth v. Reynolds.

 835 A.2d 720, 726 (Pa. Super. 2003)

        As referenced above, the evidence viewed in the light most favorable and the Commonwealth

established that Appellant delivered seven packets of cocaine to a confidential informant for the sum of

$80.00. The jury weighed the evidence and concluded Appellant delivered the cocaine to a third

person. There was ample and credible evidence for the jury to reach its verdict.

       Appellant's last claim is that counsel was ineffective in his representation of Appellant. Issues

that are cognizable tmder the Post-Conviction Relief Act must be raised in a Post-Conviction Relief

Act petition. A petition for relief must be filed within one year of the date the judgment of sentence

becomes final. Commonwealth v. Taylor, 65 A.2d 462 (pa. Super. 2013).

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        For pUIlloses of Pos(- Conviction Relief Act, "a judgment becomes final at the conclusion of

direct review, including discretionary review in the Supreme Court of the United States and the

Supreme COUll of Pennsylvania, or at the expiration of time for seeking review". 42 PA CSA 9545.

These allegations cannot be determined without a hearing on the merits. At present, we are without

jurisdiction to decide Appellant's claims of ineffective assistance of counsel. However, we will hold a

Post-Conviction Relief Act hearing, ifnecessal'Y, upon conclusion of this appeal.

       IV.     CONCLUSION

       Fol' all of the above reasons, it is respectfully submitted that Appellant's Appeal be denied.



       BY THE COURT;




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