Commonwealth v. Koonce

190 A.3d 1204

COMMONWEALTH of Pennsylvania

v.Jonathan KOONCE, Appellant

No. 804 EDA 2017

Superior Court of Pennsylvania.

Submitted May 21, 2018

Filed June 15, 2018

James P. Lyons, Lafayette Hill, for appellant.

Kevin R. Steele, District Attorney, Norristown, for Commonwealth, appellee.

Robert M. Falin, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Daniel C. Bardo, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS^* , P.J.E.

OPINION BY STEVENS, P.J.E.:

Appellant Jonathan Koonce appeals from the judgment of sentence of four years' reporting probation entered in the Court of Common Pleas of Montgomery County on January 25, 2017, following his conviction in a stipulated non-jury trial of possession with intent to deliver (marijuana).¹ We affirm.

The trial court aptly set forth the relevant facts revealed at the suppression hearing as follows:

The credible testimony of the Commonwealth witnesses, Detective Christopher Schwartz of the Plymouth Township Police Department and Detective Iran Millan of the Montgomery County Detective Bureau established the following facts. In November of 2015, Detective Christopher Schwartz of the Plymouth Township Police Department met with a CI² to set up a controlled buy.

(Motion to Suppress 1/17/2017 pp. 4, 5). Detective Schwartz is an experienced police officer, with specific training and experience in drug enforcement. Id. at 4. The detective testified that he has worked with this CI on or about two or three prior occasions, and that the CI has been reliable in the past. Id. at 5–6. He also indicated that the CI had provided information to other detectives about eight times. Id. at 5. In every case that [ ] Detective Schwartz investigated using this CI, the information was corroborated and led to arrests and seizure of drugs. Id. at 6.

On November 23, 2015, Detective Schwartz met with this particular CI to establish a plan. Id. at 6. The CI informed that he had arranged a delivery of one pound of marijuana from an individual named Pope. Id. He and Pope met online and later spoke by phone, and the CI provided the detective with this individual's cell phone number. Id. The CI told Detective Schwartz that he believed Pope was from the New York area. Id. at 7. The detective was able to confirm that the cell phone number was a New York number, but he was unable to identify it as having come from a person named Pope. Id. at 21–22, 34. The CI also believed that Pope would be traveling with a female named Ava, or some variation of that. Id. All of the CI's information came from the communication between the CI and Pope.

They decided to do the controlled buy. The police had the CI come down to the police department, and as per the usual protocol with informants on controlled buys, the Cl's person was searched to assure that no contraband or U.S. currency was present on the Cl. Id. The police also thoroughly searched the CI's vehicle for any contraband or U.S. currency. Id. Neither search turned up anything improper. Id. at 8. The CI was provided with prerecorded U.S. currency of $3,600, which had been established as the going price from [sic] high-end marijuana at that time. Id. at 8. Detective Schwartz physically placed the $3,600 into a black backpack and then placed it in the trunk of the CI's vehicle for transport to the scene. Id. at 8. The CI was instructed that in the event that the person from New York delivered the marijuana to him, he was to go to the trunk, retrieve the money and get back into his vehicle. Id. at 8–9. It was significant to this controlled buy that the backpack with the money would be in the trunk because it was the signal to law enforcement that the delivery transaction took place. Id. at 8–9.

The CI never left the officers' presence. Id. at 9. The location of the drug transaction was to be at Wendy's restaurant in Conshohocken, Plymouth Township. Id. Several detectives established surveillance at the meet location parking lot. Id. There were police officers positioned across the street. Id. at 10. Further, Detective Schwartz was in a position to view the Cl's vehicle and Wendy's. Id. at 9.

The detective followed directly behind the CI from the police station to meet location. Id. The CI did not do anything he was not supposed to do. Id. at 9–10. The CI did not make any stops on the way and no one other than the CI was in the vehicle. Id. at 9. Detective Schwartz arrived at the Wendy's parking lot and set up surveillance. Id. at 10. There were two main surveillance detectives, Detective Schwartz and Detective Iran Millan from the Montgomery County Detective Bureau. Id.

Once the CI was in the Wendy's the CI did not go to the bathroom and the CI did not talk to anyone else. Id. at 11. The CI did meet with the individual who was later identified as [Appellant] inside the Wendy's. Id. The individual arrived on foot empty-handed. Id. at 12–13. The meeting was brief. Id. at 13. [Appellant] left the restaurant, and went back in the direction where he had come from. Id. at 14. [Appellant] returned a short time later carrying a black backpack. Id. at 14. He got into the CI's vehicle. Id.

Less than three minutes after [Appellant] got into the vehicle, the CI exited the vehicle and went to the trunk where the backpack full of the prerecorded currency was located. Id. at 15. After retrieving the money, the CI got back into his vehicle. Id. The police waited less than a minute so the transaction could be completed, then they moved in and made the arrest. Id. at 15–16. At that time, the police found the marijuana with the CI and the money with [Appellant]. Id. at 16–17

Detective Schwartz testified and explained that the CI's safety would be jeopardized if the [c]ourt compelled the disclosure of the CI's identity. Id. at 17–18.

Trial Court Opinion, filed 5/1/17, at 5–8.

Appellant filed a motion to suppress physical evidence on May 11, 2016. Also contained therein was a motion to produce confidential informant. A suppression hearing was held on January 17, 2017, and following the hearing, the suppression court denied both Appellant's motion to suppress and his motion to produce confidential informant in separate orders entered on January 19, 2017.

A stipulated non-jury trial was held on January 25, 2017, at which time the testimony obtained at the suppression hearing was incorporated and the trial court admitted the stipulated bench trial colloquy. See N.T. Trial, 1/25/17, at 10. At the conclusion of trial, Appellant was found guilty of the aforementioned offense and immediately sentenced as previously indicated. Id . at 11. Appellant did not file a post-sentence motion; however, he filed a timely notice of appeal on February 22, 2017. On February 24, 2017, the trial court entered its Order directing Appellant to file a concise statement of the matters complained of on appeal pursuant to Pa.R.A.P. 1926(b), and Appellant complied on March 13, 2018, wherein he presented four claims for the trial court's review.

In his appellate brief, Appellant sets forth the following Statement of Questions Presented:

1. Whether [t]rial [c]ourt committed error by not ordering Commonwealth to disclose the identity of a confidential informant who was the only eyewitness to defendant being in possession of controlled substance, and was only person with knowledge of the content of communications between confidential informant and [Appellant]?

2. Whether the [t]rial [c]ourt committed error by finding probable cause existed, allowing the police to seize/arrest [Appellant], where police had not seen [Appellant] in possession of any contraband?

Brief for Appellant at 3.

When considering Appellant's first claim, we are mindful of the following:

"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).

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, [551 Pa. 659, 713 A.2d 56 (1998) ] ; Commonwealth v. Roebuck, 545 Pa. 471, 681 A.2d 1279, 1283 n. 6 (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, 475 Pa. 461, 380 A.2d 1228 (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 relevant and helpful to

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