Com. v. Heater

Page 1126

899 A.2d 1126

COMMONWEALTH of Pennsylvania, Appellee v. Donald C. HEATER, Appellant.

Superior Court of Pennsylvania.

Argued November 2, 2005.

Filed April 18, 2006.

Reargument Denied June 21, 2006.

COPYRIGHT MATERIAL OMITTED

Jeffrey G. Velander, Stroudsburg, for appellant.

Raymond J. Tonkin, Assistant District Attorney, Milford, for Commonwealth, appellee.

BEFORE: JOYCE, STEVENS, and McCAFFERY, JJ.

OPINION BY McCAFFERY, J.:

¶ 1 Appellant, Donald C. Heater, challenges his convictions for drug violations as well as a court order directing him to forfeit $42,085 in cash related to drug sales. Upon review, we affirm.

¶ 2 The facts and procedural history underlying this appeal are as follows. After a confidential informant executed several controlled buys of marijuana from Appellant's residence, police obtained a warrant and searched the residence on February 13, 2003. The search yielded sixty-one (61) grams of marijuana; drug paraphernalia, including a triple beam scale and a box of plastic baggies; and two caches of cash: $3,775 in a safe in Appellant's bedroom and $38,310 in a safe in his kitchen, totaling $42,085. All items, including the cash, were seized. Appellant was arrested and charged with possession with intent to deliver a controlled substance,¹ possession of a controlled substance,² and possession with intent to use drug paraphernalia.³

¶ 3 On March 26, 2003, Appellant filed a petition for return of his cash property. The Commonwealth then filed a petition for forfeiture of the cash, pursuant to section 6801(a) of the Controlled Substances Forfeitures Act (Forfeiture Act).⁴

¶ 4 The criminal charges and the petitions concerning the seized cash were consolidated under a single criminal docket number. A bench trial, dealing with the criminal charges as well as the forfeiture issues, was held on May 21, 2004, and June 23, 2004. During trial, defense counsel attempted to cross-examine a police officer testifying for the Commonwealth concerning characteristics of the confidential informant. The court sustained the Commonwealth's objection to this line of questioning, based on the assertion that it could lead to identification of the informant. At the close of trial, the court found Appellant guilty of all three drug-related charges; ordered forfeiture of the entire $42,085 found in Appellant's residence; and denied Appellant's motion for return of property. Appellant was sentenced to serve two years' probation and to pay costs and fines. After Appellant's post-sentence motion for judgment of acquittal was denied, he filed this appeal, seeking a new trial as well as reversal of the forfeiture order.

¶ 5 Appellant raises six issues for our review, which we have reordered for ease of analysis:

1. Did the lower court abuse its discretion when it refused to permit defense counsel to question Commonwealth witnesses about the identity of the confidential informant?

2. Did the lower court err in convicting [Appellant] of the charges of possession with intent to deliver marijuana and possession with intent to use drug paraphernalia in that the Commonwealth failed to present sufficient evidence to convict him?

3. Did the trial court err in concluding that the $42,085 in U.S. currency found in Appellant's home constituted the proceeds of drug trafficking because it was not supported by substantial evidence in that a nexus was not established between the marijuana and the currency [?]

4. Did the lower court err in directing the forfeiture of $42,085 because it was unduly harsh in that it is grossly disproportionate to the gravity of Appellant's offense?

5. Did the lower court err in refusing to permit Appellant to retain from the seized funds an amount which is reasonable to pay for legal defense?

6. In the event that this honorable court concludes that the appeal in the forfeiture matter should have been filed exclusively with the Commonwealth Courts [sic] despite the fact that the criminal and forfeiture issues were joined for purposes at [sic] trial in the lower court, Appellant requests that this court transfer the forfeiture appeal to the Commonwealth Court.⁵

(Appellant's Brief at 4-5.)

¶ 6 We first address Appellant's claim that the trial court erred by refusing to permit defense counsel to pose questions to the testifying police officers, the answers to which might have revealed the identity of the confidential informant. Defense counsel specifically sought to question a police officer concerning whether the confidential informant had been Appellant's employee at some time in the past and was, therefore, acquainted with him. Appellant claims to have inferred that the confidential informant was a Ms. Morgan, a woman who previously had served as one of his caregivers⁶ and was thus acquainted with Appellant and familiar with his residence. The court refused to allow this line of questioning, after the Commonwealth objected, because the testimony was getting too close to identifying the informant. (See Notes of Testimony, ("N.T."), 5/21/04, at 87-88; R.R. 115a-116a).

¶ 7 We review the trial court's decision to limit questions that would reveal the informant's identify under the standard of abuse of discretion. See Commonwealth v. Carter, 208 Pa.Super. 245, 222 A.2d 475, 478 (1966), rev'd on other grounds, 427 Pa. 53, 233 A.2d 284 (1967). Our Supreme Court has recognized "the importance of the Commonwealth's qualified privilege to maintain the confidentiality of an informant in order to preserve the public's interest in effective law enforcement." Commonwealth v. Bing, 551 Pa. 659, 664, 713 A.2d 56, 58 (1998). There is no fixed rule regarding when disclosure of the identity of a confidential informant is justifiable; rather, the court must balance "the public interest in protecting the flow of information against the individual's right to prepare his defense." Id. at 663, 713 A.2d at 58 (quoting Commonwealth v. Carter, 427 Pa. 53, 59, 233 A.2d 284, 287 (1967) (citations omitted)). In applying this balancing test, the court must take into consideration a variety of case-specific factors, including "the crime charged, the possible defenses, the possible significance of the informer's testimony and other relevant factors." Id. at 664, 233 A.2d 284, 713 A.2d at 58 (quoting Carter, 427 Pa. at 59, 233 A.2d at 287 (citation omitted)). The defendant must establish as an initial matter that revelation of the informant's identity is both reasonable and material to his or her defense. Id.; Commonwealth v. Belenky, 777 A.2d 483, 488-89 (Pa.Super.2001).

¶ 8 Under certain circumstances, our Supreme Court has held that the identity of a confidential informant should be revealed. See Commonwealth v. Payne, 540 Pa. 54, 59-60, 656 A.2d 77, 79-80 (1994); Carter, 427 Pa. at 61, 233 A.2d at 288. In both Payne and Carter, the Commonwealth's case was based upon the testimony of one or two police officers who had seen the perpetrator on only one occasion, and the defense strategy was to assert that the defendant had been mistakenly identified. In each case, a confidential informant had also witnessed the drug offense for which the defendant was being tried, and the defense wanted to examine the informant-witness. The Court held that the risk of misidentification of the defendant under these circumstances militated in favor of revealing the identity of the confidential informant and outweighed the factors against revelation.

¶ 9 In the case sub judice, misidentification of Appellant by the police was never an aspect of the defense, and indeed was never an issue at all. As Appellant did not assert a misidentification of himself by the officers, his reliance on Bing, Payne, and Carter is misplaced. Applying the balancing test under these precedents does not aid Appellant because his defense strategy was entirely different.

¶ 10 Appellant based his defense upon his contention that the marijuana found in his residence had been supplied to him by his previous caregiver, Ms. Morgan, who he assumed was the confidential informant. (Appellant's Brief at 32). Appellant testified that Morgan had sold him marijuana on three occasions, and that he had never sold marijuana to her or to anyone else. Appellant's defense strategy was clear, and there was no showing that the identification of the informant was material to Appellant's defense that Morgan had sold him marijuana or to his assertion that he had never sold marijuana to anyone. Furthermore, whether the informant was or was not personally familiar with Appellant because of possible service as his former employee was also not material to Appellant's defense. In sustaining the Commonwealth's objection, the trial court neither circumscribed Appellant's defense strategy nor hampered his ability to defend himself. We determine that it was proper for the trial court to refuse to allow a line of questioning that might have revealed the identity of the confidential informant under these circumstances.

¶ 11 We next address Appellant's claim that the evidence was insufficient to sustain his convictions. A challenge to the sufficiency of the evidence is a question of law. Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000). In reviewing a sufficiency challenge, "[w]e must determine whether the evidence, and all reasonable inferences deducible from that, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all the elements of the offense beyond a reasonable doubt." Commonwealth v. Butler, 856 A.2d 131, 135 (Pa.Super.2004) (quoting Commonwealth v. Clark, 761 A.2d 190, 192 (Pa.Super.2000)). "[W]e may not weigh the evidence and substitute our judgment for that of the fact-finder." Commonwealth v. Cunningham, 805 A.2d 566, 571 (Pa.Super.2002). Issues of witness credibility are the province of the fact-finder, not the appellate court. Commonwealth v. Wright, 867 A.2d 1265, 1267 (Pa.Super.2005). However, "[w]here...