Commonwealth v. Ellison

213 A.3d 312

COMMONWEALTH of Pennsylvania

v.Kevin C. ELLISON, Appellant

No. 1670 MDA 2018

Superior Court of Pennsylvania.

Filed June 20, 2019

Submitted June 26, 2019

James J. Karl, Public Defender, Harrisburg, for appellant.

Ryan H. Lysaght, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: LAZARUS, J., MURRAY, J., and STEVENS^* , P.J.E.

OPINION BY MURRAY, J.:

Kevin C. Ellison (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of three counts each of criminal use of a communication facility and delivery of a controlled substance.¹ We affirm.

Appellant's convictions arose from three separate incidents in January and February of 2017. During each incident, Appellant sold crack cocaine to a confidential informant (CI). On June 1, 2017, the Commonwealth filed a criminal complaint against Appellant.

On April 16, 2018, Appellant filed a motion to compel discovery, in which he requested that the Commonwealth disclose the CI's identity. The Commonwealth filed an answer to Appellant's motion on April 18, 2018, and the trial court held a hearing on May 15, 2018. That same day, the trial court denied Appellant's motion.

On May 24, 2018, Appellant's case proceeded to trial. The trial court summarized the evidence presented as follows:

At trial, the Commonwealth relied on Agent Shannon Swope in its case in chief.... Agent Shannon Swope was the lead investigator in controlled purchases of crack cocaine made between the Appellant and a [CI].

On January 20, 2017, the first controlled purchase was conducted between the Appellant and the [CI]. In arranging the controlled purchase, Agent Swope was present when the [CI] placed a call to the phone number (717)-510-4215. The [CI] texted the same number when no one picked up the phone. Eventually, the [CI] receives a call from the same number and places the phone on speaker so Agent Swope may hear. During that conversation, a controlled buy for crack cocaine is arranged. The plan was that the Appellant and [CI] would meet at the Giant Food Store parking lot in Middletown, and the [CI] would purchase fifty ($ 50) dollars' worth of crack cocaine. Before the [CI] was permitted to meet the Appellant, the [CI] and the [CI]'s vehicle were thoroughly searched, which resulted in nothing being found. Additionally, the [CI] was given fifty ($ 50) of prerecorded money. Agent Swope follows the [CI] to the Giant Parking Lot, where other agents were stationed. The [CI] is only in the parking lot for 14-15 minutes before leaving. The [CI] meets with Agent Swope in a prearranged location, giving her a corner tie bag with crack cocaine that was provided by the Appellant.

The next controlled sale between the Appellant and [CI] is conducted on January 31, 2017. Again, the [CI] texts the same number to arrange a buy. Immediately after, the [CI] receives a text and a phone call, to which Agent Swope is able to listen to. This time, the plan is to purchase $ 100 worth of crack cocaine at the Giant Food Store in Middletown. Again, a thorough search of the [CI] and the [CI]'s car is conducted. The [CI] is again provided with $ 100 in prerecorded money. Agents Swope and Jenkins follow the [CI] to the Giant Food Store in Middletown and back. The [CI] is there for only 5-6 minutes and returns again with a corner tie bag with crack cocaine inside.

The final meeting between the Appellant and [CI] is arranged on February 23, 2017. The [CI] receives a phone call from the same number, and arranges to meet again at the Giant Food Store in Middletown for a fifty ($ 50) dollar purchase of crack cocaine. Again, before meeting the Appellant, the [CI] and [CI]'s car are searched. This time the [CI] is in the parking lot for approximately ten (10) minutes. During this interaction, Agent Swope is able to obtain a video recording of the Appellant and [CI] in the Appellant's vehicle, using a device that was placed on the [CI] for all three controlled purchases. Again, after leaving the [CI] returns with a corner tie baggie containing crack cocaine.

As a result of the three controlled substance purchases, the Appellant [was] arrested June 6, 2017.

Trial Court Opinion, 12/31/18, at 1-3 (citations to notes of testimony omitted).

On May 24, 2018, the jury convicted Appellant of the above crimes. The trial court sentenced Appellant on August 21, 2018 to an aggregate 3 to 6 years of imprisonment, followed by 6 years of probation.

Appellant filed a timely post-sentence motion, which the trial court denied on September 13, 2018. Thereafter, Appellant filed this timely appeal. Both the trial court and Appellant have complied with Pennsylvania Rule of Appellate Procedure 1925.

Appellant presents the following two issues for our review:

I. DID NOT THE COURT ERR IN DENYING THE MOTION TO COMPEL THE CONFIDENTIAL INFORMANT'S IDENTITY, WHERE SAID DISCLOSURE WAS MATERIAL TO [APPELLANT]'S DEFENSE, REASONABLE, AND IN THE INTERESTS OF JUSTICE, AND THE COMMONWEALTH DID NOT ESTABLISH THAT PRODUCTION OF THE CONFIDENTIAL INFORMANT[']S IDENTITY WOULD JEOPARDIZE HER SAFETY?

II. WAS NOT THE EVIDENCE INSUFFICIENT TO SUSTAIN THREE CONVICTIONS FOR DELIVERING A CONTROLLED SUBSTANCE AND RELATED OFFENSES WHEN THE POLICE'S ORCHESTRATION OF IMPERFECT CONTROLLED-BUY SCENARIOS, IPSO FACTO, DOES NOT CONSTITUTE SUFFICIENT PROOF OF THE DELIVERIES?

Appellant's Brief at 5 (underlining omitted).

Appellant first claims that the trial court erred in denying his motion to compel the Commonwealth to reveal the CI's identity. "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).

In his motion, Appellant stated, "[i]nitial discovery does not include the identity of the [CI]," and further averred that "[a] criminal defendant is entitled to know the identity of a confidential informant when the confidential informant is the only eyewitness to the entire transaction." Appellant's Motion to Compel Discovery, 4/16/18, at 1. In both his motion and appellate brief, Appellant cites our Supreme Court's decision in Commonwealth v. Roebuck , 545 Pa. 471, 681 A.2d 1279 (1996) to support his claim. See id. at 2; see also Appellant's Brief at 12.

Appellant incorrectly interprets Roebuck and improperly asserts that "[a] criminal defendant is entitled to know the identity of a confidential informant when the confidential informant is the only eyewitness to the entire transaction." Appellant's Motion to Compel Discovery, 4/16/18, at 1. In Roebuck , the Supreme Court stated that "the fact that the only eyewitness to the entire transaction other than the confidential informant was a police officer militates in favor of disclosure." Roebuck , 681 A.2d at 1284 (citation omitted). However, this statement may not be read in isolation. The Supreme Court recognized that the trial court must consider various factors in "exercis[ing] its discretion to determine whether the information is to be revealed ... [o]nly after a showing by the defendant that the information sought is material and the request reasonable." Id. at 1283 (citations omitted) (emphasis added). We have explained:

If materiality and reasonableness are proven, then the courts must balance the public interest in the police's ability to obtain information against the defendant's right to prepare his defense. In this connection, we consider the crime, the potential defense, and the significance of the [confidential informant's] testimony. The scales tip in favor of disclosure if the Commonwealth will be relying on police testimony based on a single observation. If other proof corroborates a police officer's testimony, disclosure is not mandated. Furthermore, the safety of the confidential informant can be a controlling factor in determining whether to reveal a source's identity.

Commonwealth v. Jordan , 125 A.3d 55, 63 (Pa. Super. 2015) (en banc ).

It is of further significance that:

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 , 713 A.2d 56 ( [Pa.] 1998) ; Commonwealth v. Roebuck , 681 A.2d 1279, 1283 n.6 ( [Pa.] 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 , 380 A.2d 1228 ( [Pa.] 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

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