Com. v. Malik, C.

J-S14015-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

CHRISTOPHER MICHAEL MALIK :

:

Appellant : No. 1072 MDA 2023

Appeal from the Judgment of Sentence Entered May 23, 2023

In the Court of Common Pleas of Cumberland County Criminal Division at

No(s): CP-21-CR-0002280-2022

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and MURRAY, J.

MEMORANDUM BY LAZARUS, P.J.: FILED: SEPTEMBER 10, 2024

Christopher Michael Malik appeals from the judgment of sentence,

entered in the Court of Common Pleas of Cumberland County, after a jury

convicted him of a single count of delivery—methamphetamine.1 Malik

challenges the sufficiency of evidence, the weight of the evidence, and the

trial court’s evidentiary rulings with respect to the Commonwealth’s

confidential informant (CI). Upon careful review, we affirm.

The trial court set out the relevant factual history as follows:

Pennsylvania State Police Trooper Shawn Wolfe, who had been a

member of the Vice and Narcotics Unit since 2007, testified that

on April 20, 2022, he was working with a [CI] to purchase a sum

of methamphetamine from [Malik]. Trooper Wolfe directed the

[CI] to call [Malik] and order a half-ounce of methamphetamine,

which the [CI] did in the trooper’s presence. Trooper Wolfe

searched the [CI] to ensure he had no contraband on his person

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1 See 35 P.S. § 780-113(a)(30).

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and provided the [CI] with $300 cash (the cost of one half-ounce

of methamphetamine).

While the [CI] was still in Trooper Wolfe’s vehicle awaiting the

transaction, Trooper Wolfe had three other troopers in three

separate undercover vehicles surveilling [Malik] and the Sheetz

[convenience store, where the CI had agreed to meet Malik,] at

Allen Road and Ritner Highway in Carlisle, Cumberland County.

All surveillance units, including Trooper Wolfe[,] who had the [CI]

in his vehicle, followed [Malik] from his hotel[,] where [Malik] was

residing[,] to a residence in Carlisle. Two surveillance units

remained at that residence while Trooper Wolfe continued on in

his vehicle, carrying the [CI], to the Sheetz, as did another

surveillance unit, to await [Malik]’s arrival.

All four units were present at the Sheetz when [Malik] later arrived

alone in his vehicle, a GMC Envoy. Trooper Wolfe was parked at

the gas pumps when [Malik] arrived at the Sheetz and drove up

behind Trooper Wolfe’s vehicle. The [CI] exited the trooper’s

vehicle and entered [Malik’s] vehicle, at which time the two were

the sole occupants of [Malik’s] vehicle. Trooper Wolfe observed

[Malik] drive to the front door of the Sheetz, at which time [Malik]

and the [CI] remained in [Malik’s] vehicle for one to two minutes

before they exited the vehicle. [Malik] and the [CI] engaged in

“some type of discussion along the passenger’s side of the GMC

Envoy” before the [CI] returned to Trooper Wolfe’s vehicle.

Trooper Wolfe said the [CI] did not leave the trooper’s vehicle until

[Malik] arrived and that he returned to the trooper’s vehicle

immediately after leaving [Malik].

Upon the [CI’s] return to Trooper Wolfe’s vehicle, the [CI] and

Trooper Wolfe returned to their “pre-meet location” where the [CI]

provided Trooper Wolfe with methamphetamine in a small plastic

Ziploc [storage bag] and Trooper Wolfe searched the [CI] for any

other contraband or currency with negative results. Trooper Wolfe

conducted a field test of the methamphetamine, which

presumptively identified the substance as methamphetamine.

Trial Court Opinion, 9/29/23, at 2-4 (footnotes omitted, paragraph breaks

added for clarity). On May 23, 2023, following the jury’s conviction after a

two-day trial, the trial court, with the benefit of a court-ordered pre-sentence

investigation, sentenced Malik to 6-23 months’ incarceration. On June 2,

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2023, Malik filed a timely post-sentence motion requesting a new trial. He

argued that the verdict was against the weight of the evidence and moved to

modify the sentence to authorize work release. On June 27, 2023, the court

granted Malik’s motion to modify sentence with respect to work release

eligibility2 and denied the motion in all other respects.

Malik filed a timely notice of appeal, followed by a court-ordered

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Malik

raises the following claims for our review:

1. Whether the evidence was insufficient to sustain the verdict of

guilt?

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

3. Whether the trial court abused its discretion in excluding

evidence of the [CI’s] criminal record and in restricting cross-

examination and direct examination of witnesses concerning the

identity, criminal background, and other information concerning

the [CI]?

Appellant’s Brief, at 5 (unnecessary capitalization omitted).

Malik first asserts that the evidence at trial was insufficient to support

his conviction beyond a reasonable doubt. See Appellant’s Brief, at 8. Malik

contends that his “mere presence at the Sheetz store is insufficient to sustain

his conviction for delivery of methamphetamine.” Id. at 9. Malik also

suggests that the Commonwealth failed to meet the sufficiency threshold by

not introducing phone records, obtaining video surveillance, or searching the

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2 The trial court previously granted work release eligibility at sentencing. See

Order, 5/23/23.

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surrounding areas for other individuals who could have been present during

the drug buy. Id. at 11. Malik further takes issue with Trooper Wolfe

misstating the date of the drug buy and the use of the CI, considering the CI’s

pending criminal charges. Id. at 9-10, 12-13.

In reviewing a challenge to the sufficiency of the evidence, “we must

determine whether, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, together with all reasonable inferences

therefrom, the trier of fact could have found that each and every element of

the crimes charged was established beyond a reasonable doubt.”

Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000) (citations

omitted). “This standard is equally applicable to cases where the evidence is

circumstantial rather than direct[,] so long as the combination of the evidence

links the accused to the crime beyond a reasonable doubt.” Commonwealth

v. Swerdlow, 636 A.2d 1173, 1176 (Pa. Super. 1994) (citation omitted).

“The Commonwealth may sustain its burden of proof by means of wholly

circumstantial evidence, and the jury, which passes upon the weight and

credibility of each witness’s testimony, is free to believe all, part, or none of

the evidence.” Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011).

We will not “substitute our judgment for that of the factfinder; if the record

contains support for the convictions[,] they may not be disturbed.”

Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005)

(quotations omitted). Finally, “[b]ecause evidentiary sufficiency is a question

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of law, our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013).

To sustain a conviction for unlawful delivery of a controlled substance,

the Commonwealth must establish that Malik delivered a controlled substance

without legal authority. Regarding the element of delivery, the law requires

“evidence that [a defendant] knowingly made an actual, constructive, or

attempted transfer of a controlled substance to another person without the

legal authority to do so.” Commonwealth v. Murphy, 844 A.2d 1228, 1234

(Pa. 2004); see also 35 P.S. § 780-102. “A defendant actually transfers

drugs whenever he physically conveys drugs to another person.” Murphy,

844 A.2d at 1234. Further, we establish that “mere presence at the scene of

a crime is insufficient to establish guilt.” Commonwealth v. Wagaman, 627

A.2d 735, 737 (Pa. Super. 1993).

Instantly, the Commonwealth adduced evidence at trial that the State

Police conducted a controlled transaction where “[they] attempt[ed] to control

every aspect of the investigation.” See N.T. Trial, 3/28/23, at 37. Trooper

Wolfe testified that he directed the CI to call Malik and order a half-ounce of

methamphetamine, which the CI did in the Trooper’s presence. See id. at

41; N.T. Trial, 3/29/23, at 18. Trooper Wolfe then searched the CI to ensure

he had no contraband on his person and provided him with $300 cash for the

buy. See N.T. Trial, 3/28/23, at 41. The State Police also had multiple units

surveilling the CI as he met with Malik. See id. at 41-45; N.T. Trial, 3/29/23,

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at 42. The CI did not leave Trooper Wolfe’s vehicle until Malik arrived and the

CI returned to Trooper Wolfe’s vehicle immediately after completing his

interaction with Malik. See N.T. Trial, 3/29/23, at 100-02. Upon the CI’s

return to Trooper Wolfe’s car, they drove to their pre-meet location. See N.T.

Trial, 3/28/23, at 48. There, the CI provided Trooper Wolfe with the

methamphetamine, and Trooper Wolfe searched the CI for any other

contraband or currency with negative results. See id. The recovered

substance was presumptively field tested positive for methamphetamine, and

a forensic scientist with the Pennsylvania State Police Bureau of Forensic

Services Harrisburg Regional Laboratory later confirmed this finding. See id.;

N.T. Trial, 3/29/23, at 49-53. Corporal Justin Long, also present at the buy,

testified and introduced photos depicting Malik outside of the Sheetz in front

of his vehicle. See N.T. Trial, 3/29/23, at 55-57.

Viewed in the light most favorable to the Commonwealth, contrary to

Malik’s claims, we conclude that the testimony and evidence presented at trial

were sufficient to prove that Malik delivered the methamphetamine to the CI.

Furthermore, the jury received proper instructions on the definition of

delivery. See N.T. Trial, 3/29/23, Exhibit 1. The jury could reasonably infer,

based on the testimony of Trooper Wolfe and Corporal Long regarding the

controlled nature of the operation, that Malik did deliver the

methamphetamine to the CI. See Swerdlow, supra; Murphy, supra.

Malik’s conviction may be sustained based on circumstantial evidence alone.

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See Ramtahal, at 607. Therefore, we will not disturb the jury’s finding.

Brewer, supra. Consequently, we conclude that the jury had sufficient

evidence to convict Malik of a single count of unlawful delivery of a Schedule

II controlled substance—methamphetamine. Moreover, to the extent that

Malik argues that Trooper Wolfe is not credible because he misstated the

relevant date, that issue is relevant to the weight of the evidence rather than

the sufficiency and we will consider that claim next.

The distinction between a claim challenging the sufficiency of

evidence and a claim challenging the weight of evidence is critical.

A motion for a new trial . . . claims that[,] notwithstanding all the

facts, certain facts are so clearly of greater weight that to ignore

them or to give them equal weight with all the facts is to deny

justice. A claim challenging the sufficiency of the evidence,

however, asserts that there is insufficient evidence to support at

least one material element of the crime for which Appellant has

been convicted.

Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003) (citations

and quotation marks omitted).

Malik’s second claim is that the verdict was against the weight of the

evidence. See Appellant’s Brief, at 15. Malik argues that the Commonwealth

failed to present evidence of the April 20, 2022 phone call setting up the

meeting with Malik and the phone number’s owner. Id. Malik also takes issue

with the lack of video evidence of the transaction and contends that the drug

sale was not fully controlled because the CI went out of the officers’ view. Id.

at 17. Malik then asserts that the CI is the only person who could testify about

what allegedly happened inside the vehicle because the transaction was out

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of view of the officers, yet the Commonwealth did not call the CI as a witness

at trial. Id. at 17-18. We also recognize Malik’s argument that Trooper Wolfe

is not credible because he misstated the date of the controlled buy. Id. at 9.

The standard of review of a claim that a verdict is against the weight of

the evidence is well-established:

A motion for a new trial based on a claim that the verdict is against

the weight of the evidence is addressed to the discretion of the

trial court. A new trial should not be granted because of a mere

conflict in the testimony or because the judge on the same facts

would have arrived at a different conclusion. Rather, the role of

the trial judge is to determine that notwithstanding all the facts,

certain facts are so clearly of greater weight that to ignore them

or to give them equal weight with all the facts is to deny justice.

It has often been stated that a new trial should be awarded when

the jury’s verdict is so contrary to the evidence as to shock one’s

sense of justice and the award of a new trial is imperative so that

right may be given another opportunity to prevail.

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations and

quotation marks omitted). To successfully challenge the weight of the

evidence, a defendant must prove the evidence is “so tenuous, vague[,] and

uncertain that the verdict shocks the conscience of the court.”

Commonwealth v. Mucci, 143 A.3d 399, 410-11 (Pa. Super. 2016) (citation

and quotation marks omitted). Furthermore, we do not substitute our

judgment for that of the finder of fact. See Commonwealth v. Shaffer, 40

A.3d 1250, 1253 (Pa. Super. 2012). The trial court’s ruling regarding a

challenge to the weight of the evidence is one of the “least assailable” trial

court determinations. Clay, 64 A.3d at 1055 (citation omitted).

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Malik properly preserved his weight of the evidence claim by raising it

in his June 2, 2023 post-sentence motion, which the trial court denied.

Therefore, we now address the merits of Malik’s claim. See Pa.R.Crim.P.

607(A)(3).

Upon our review, we conclude that testimony from Trooper Wolfe and

Corporal Long was specific and provided detail as to the interaction between

Malik and the CI; indeed, the evidence was not vague or uncertain. See

Mucci, supra. The trial court did not find “the verdict to be against the weight

of the evidence” and concluded that Malik’s “attempt to undercut the weight

of the Commonwealth’s evidence [did not] turn the balance.”3 Trial Court

Opinion, 9/29/2023, at 9. The jury was free to weigh the evidence and accept

or reject the arguments presented and found the testimony of Trooper Wolfe

and Corporal Long to be credible, in contrast to Malik’s testimony. See Mucci,

supra. Accordingly, we discern no abuse of discretion by the trial court.

Finally, Malik alleges the trial court abused its discretion by limiting

testimony and the questioning of witnesses concerning the CI. Malik makes

three sub-arguments: (1) that the trial court erred by not permitting the

disclosure of the CI’s name; (2) that the trial court erred by not permitting

____________________________________________

3 Malik argued that the Commonwealth purposely chose not to call the CI as

a witness at trial. See Appellant’s Brief, at 16. However, as made clear in his

brief, Malik himself knew the CI’s identity and did not call him as a witness to

rebut the Commonwealth’s evidence. See Appellant’s Brief, at 18; N.T. Trial,

3/29/23, at 79.

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questions about the CI’s criminal record; (3) that the trial court improperly

limited the scope of cross-examination regarding the CI’s pending criminal

charges.

“It is well settled that evidentiary rulings are within the sound discretion

of trial courts.” Commonwealth v. Distefano, 265 A.3d 290, 297 (Pa.

2021). An appellant seeking to reverse a trial court’s evidentiary ruling

“carries a heavy burden to demonstrate that the trial court abused its

discretion.” Id. “Discretion is abused when the course pursued [by the trial

court] represents not merely an error of judgment, but where the judgment

is manifestly unreasonable or where the law is not applied or where the record

shows that the action is a result of partiality, prejudice, bias, or ill will.”

Commonwealth v. Smith, 681 A.2d 1288, 1290 (Pa. 1996) (citation and

quotation marks omitted).

In his first sub-issue, Malik argues that the trial court erred by not

permitting the disclosure of the CI’s name. See Appellant’s Brief, at 19. Malik

claims that “this information should have been permitted to be disclosed

during direct examination because it was relevant for the jury to know who

the [CI] was.” Id. at 23. Malik has waived this claim.

When a case involves a CI, “[t]he Commonwealth retains a qualified

privilege not to disclose an informant’s identity.” Commonwealth v.

Withrow, 932 A.2d 138, 140-41 (Pa. Super. 2007). “To overcome that

privilege, the defendant must show that his request for disclosure is

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reasonable[,] and that the information sought to be obtained through

disclosure is material to the defense.” Id.

Malik failed to argue, as required, at both trial and on appeal that his

request for the CI’s name was reasonable. See N.T. Trial, 3/29/23, at 20;

Appellant’s Brief, at 23. Moreover, in his two-paragraph discussion on this

sub-issue, Malik failed to cite to controlling case law or any rules of evidence

that support his claim. Appellant’s Brief, at 19-20. “The failure to develop an

adequate argument in an appellate brief may [] result in waiver of the claim

under Pa.R.A.P. 2119.” Commonwealth v. Beshore, 916 A.2d 1128, 1140

(Pa. Super. 2007) (citations and quotation marks omitted); see also

Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (explaining

appellant’s briefing requirement and duties to present arguments sufficiently

developed for review; “Court will not act as counsel and will not develop

arguments on behalf of an appellant”). Malik failed to develop this claim, and

therefore, this sub-argument is waived.

Malik’s second sub-argument is that the trial court erred by not

permitting questions about the CI’s criminal record. Malik again fails to

develop this argument by citing to any authority or the certified record. See

Beshore, supra; Hardy, supra. An appellant is required to provide “such

discussion and citation of authorities as are deemed pertinent” in the

argument section of his brief. Pa.R.A.P. 2119(a). See also Commonwealth

v. B.D.G., 959 A.2d 362, 371-72 (Pa. Super. 2008) (“When an appellant fails

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to develop his issue in an argument and fails to cite any legal authority, the

issue is waived.”); Beshore, 916 A.2d at 1140 (failure to develop an adequate

argument in an appellate brief may result in waiver of the claim under

Pa.R.A.P. 2119). We, therefore, find this sub-argument waived.

Malik’s third sub-argument is that the trial court improperly limited the

scope of cross-examination regarding the CI’s pending criminal charges. See

Appellant’s Brief at 21-25. Malik argues that the pending criminal docket was

“relevant for the jury to know who the CI was” and it “would have given the

CI a reason to be involved in this matter as a cooperating individual and to

potentially give him motivation to be less than truthful concerning [Malik’s]

involvement because the CI had a lot to gain by implicating Christopher Malik.”

Appellant’s Brief, at 23. We disagree and find this argument similarly waived.

The right to cross-examine witnesses, although fundamental, is not

absolute. See Commonwealth v. Rosser, 135 A.3d 1077, 1088 (Pa. Super.

2016) (en banc). “A trial court has discretion to determine both the scope

and the permissible limits of cross-examination.” Commonwealth v. Briggs,

12 A.3d 291, 335 (Pa. 2011) (citation omitted). “[W]henever a prosecution

witness may be biased in favor of the prosecution[,] . . . that possible bias, in

fairness, must be made known to the jury.” Commonwealth v. Lane, 621

A.2d 566, 566 (Pa. 1993) (citation omitted). The admission of evidence of a

conviction of a crime involving dishonesty or false statements, commonly

referred to as crimen falsi offenses, is permitted for the sole purpose of

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attacking the credibility of a witness. See Pa.R.E. 609(a). We will not reverse

the trial judge’s exercise of discretion except in a clear abuse of that

discretion, or an error of law. See Briggs, 12 A.3d at 335. Furthermore, a

trial court does not abuse its discretion when it precludes cross-examination

based on inadmissible evidence. See Commonwealth v. Rashi, 160 A.3d

838, 843 (Pa. Super. 2017).

There is no basis for the claim that the introduction of the CI’s pending

criminal docket would have suggested to the jury that the CI was cooperating

for his benefit. The jury already knew that the CI was assisting police because

he hoped for more favorable treatment in his pending criminal cases. See

N.T. Trial, 3/29/23, at 22 (Trooper Wolfe answering affirmatively when asked

“[whether the CI] was assisting [] because he was hoping for more favorable

treatment in his own pending criminal cases”). Malik also testified that the CI

was imprisoned several times after the controlled buy on April 20, 2022. Id.

at 85. This information is precisely what the defense sought to elicit from the

Commonwealth’s witnesses. See Appellant’s brief, at 22.

Here, we observe that Malik did not call the CI or subpoena anyone who

could attest to the CI’s full pending criminal docket. See N.T. Trial, 3/29/23,

at 141. Additionally, the trial judge correctly instructed Malik only to ask

Trooper Wolfe specific questions about the CI’s record of which the Trooper

would have been aware. See Pa.R.E. 602 (witness may only testify to matter

if witness has personal knowledge of matter). Following the trial court’s

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instructions, Malik asked Trooper Wolfe if he knew “that the [CI] had multiple

pending cases against him.” N.T. Trial, 3/29/23, at 35. The Commonwealth

objected and Malik offered to rephrase the question before the court

could even rule on the objection, to which the court agreed. See N.T.

Trial, 3/29/23, at 35-36.

However, in his brief, Malik mischaracterizes this exchange, asserting

that “the Commonwealth objected, and the trial court asked that the question

be rephrased.” Appellant’s Brief, at 20. “We have consistently held that issues

not raised in the court below are waived and cannot be raised for the first time

on appeal to this Court.” Commonwealth v. Piper, 328 A.2d 845, 847 (Pa.

1974); Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and

cannot be raised for the first time on appeal”). Malik’s failure to allow the trial

court to rule on the issue waives his argument. Although the sub-argument

is waived, we briefly discuss the remainder of Malik’s third sub-argument.

Malik cites to Commonwealth v. Britton, 380 A.2d 807 (Pa. Super.

1977), in support of the allegation that the trial court abused its discretion by

improperly limiting questioning. In Britton, the trial court precluded the

defendant from cross-examining the victim and describing the appearance of

the witness’ brother. Id. at 810. The Britton Court determined that the trial

court violated the defendant’s right to develop a theory of mistaken

identification and constitutional right of confrontation. “Appellant was entitled

to pursue this line of questioning in order to refute inferences or deductions

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arising from the direct testimony or to qualify or destroy the direct testimony

relating to identification.” Id. at 811 (quotation marks omitted). The case

here is not the same. Malik was not attempting to put forth a theory of

mistaken identity, nor did the CI, in fact, testify.

Malik further asserts that the trial court incorrectly stated that “the

police did not rely on the word of the informant in their investigation.”

Appellant’s brief, at 22. Although Trooper Wolfe relied on the CI to obtain

Malik’s name and set up the drug buy, the entire investigation was observed

and overseen by Trooper Wolfe and other members of law enforcement. The

CI’s potential bias is irrelevant because law enforcement observed and

controlled the entire transaction. Trooper Wolfe testified that, “we never lost

sight of the confidential informant during the entire arranged transaction.”

N.T. Trial, 3/29/23, at 44. This argument fails.

In summary, we conclude that the evidence was sufficient to sustain the

verdict, Brewer, supra, that the trial court did not err when it denied Malik’s

post-sentence motion that the verdict was against the weight of the evidence,

Mucci, supra, and that Malik waived his third issue that the trial court abused

its discretion in its evidentiary rulings. Distefano, supra.

Judgment of sentence affirmed.

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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 09/10/2024

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