The opinion
J-A11028-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA LYNCH
Appellant No. 673 EDA 2015
Appeal from the Judgment of Sentence February 9, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0006446-2013
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED June 24, 2016
Appellant, Joshua Lynch, appeals from the February 9, 2015 judgment
of sentence of 11½ to 23 months’ incarceration, imposed by the trial court
after a jury convicted Appellant of delivery of a controlled substance.1 After
careful review, we affirm on the basis of the trial court’s thorough and well-
reasoned opinion.
For context, we recite the factual background as stated by the trial
court as follows.
On July 31, 2013, Bristol Township Police
Officer Dennis Leighton began conducting an
investigation using a confidential informant
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
J-A11028-16
codenamed “Tin Man.” Officer Leighton,
accompanied by Detective Sean Harold of
Warminster Township, met with Tin Man at a
predetermined meet location within Bucks County.
Officer Leighton searched Tin Man’s person and his
clothing as Detective Harold searched his vehicle.
No contraband was discovered as a result of either
search. After conducting the search, the Officer and
Detective observed Tin Man place a phone call to a
number that he provided the Officers. Officer
Leighton witnessed the call, and could hear a male
voice on the other end of the phone speaking with
Tin Man.
Based on the information received from [Tin
Man], Officer Leighton contacted other officers to set
up a surveillance detail, and he further obtained two
hundred ($200) dollars in pre-recorded buy money.
Officer Leighton arranged for Officers O’Brien and
Phillips to be present in specific locations within
Foxwood Manor Apartment Complex in a parking lot
closest to the Veterans Highway entrance, with the
expected target driving a silver Toyota Camry.
Officer Leighton, Detective Harold, and Tin Man then
proceeded to Foxwood Manor Apartments, traveling
in separate vehicles. While [Tin Man] was driving to
the complex, he was within sight of an officer at all
times.
As a silver Toyota Camry entered the parking
lot, Officer Phillips could clearly view Appellant as the
driver and sole occupant of the vehicle. Officer
Phillips was able to photograph the Camry bearing
Pennsylvania registration JCF-2006. When Tin Man
arrived a short time after, he pulled into a parking
spot alongside of the silver Toyota Camry driven by
Appellant. There were no other vehicles in that row
of parking spots. [Tin Man] then exited his vehicle
and entered the passenger side door of the Camry,
staying in the car for approximately two minutes.
Upon leaving the car, Tin Man re-entered his own
vehicle and proceeded to leave the apartment
complex.
-2-
J-A11028-16
Moments after, Officer O’Brien, who was
positioned in a restaurant parking lot across
Veterans Highway, observed Appellant operating the
same silver Toyota Camry and talking on his phone
as he left the complex and passed the restaurant.
Officer O’Brien was later able to make an
identification of Appellant at a closer distance as
Appellant drove past a Wawa convenience store
where the Officer was present. Additionally, Officer
Phillips proceeded to follow the Camry southbound
down Veterans Highway as it initially left the
apartment complex, whereupon he pulled alongside
of the Camry at a stoplight and was then able to
again make a positive identification of Appellant as
the driver and sole occupant of the vehicle.
After [Tin Man] ceased contact with [Appellant]
in the silver Camry, he began to leave the parking
lot himself, followed by Officer Leighton in his own
vehicle. As the Camry turned southbound onto
Veterans Highway, Tin Man left his vehicle, walked
back to Officer Leighton’s car directly behind his
own, and provided the Officer with three (3) plastic
bags that contained crack cocaine. After Tin Man
gave the bags to Officer Leighton, Officer Leighton
followed [Tin Man] back to the original
predetermined meet location. Immediately after
arriving back at the location, Officer Leighton
conducted a thorough search of Tin Man’s person
and clothing, while Detective Harold again searched
his vehicle. No currency or contraband were
discovered during these searches. [Tin Man] was
never out of sight of law enforcement at any time
during this investigation and did not contact any
individual other than [Appellant] or the Officers.
The Officers traced the registration of the
Camry to a residence at 605 Winder Drive in Bristol,
PA. Based on this information, Officers Leighton,
Durle, O’Brien, and Phillips attempted to effectuate
an arrest warrant on Appellant at that location two
(2) days later on August 2, 2015. The Officers
located the Camry and began surveillance of the
-3-
J-A11028-16
property in undercover vehicles, waiting for
Appellant to enter the vehicle and become mobile.
Once Appellant entered the vehicle and began
driving, the Officers attempted to effectuate a traffic
stop of the Camry. At a red light, Officer Phillips
pulled in front of Appellant’s vehicle, while Officers
Durle and O’Brien pulled behind Appellant and
activated their red and blue emergency lights.
Officer Phillips, wearing his badge around his neck
and a ballistic vest with the word “Police” written in
large white lettering along the front, exited his
vehicle. The Officer instructed [Appellant] to stop
his vehicle and place it in park, while Officer Durle
exited the passenger side of his vehicle and
attempted to effectuate the arrest.
As the Officers attempted to arrest Appellant,
Appellant “put his car in reverse, backed up, made a
right, and jumped the curb, drove down the sidewalk
and then around [Officer Phillips’] vehicle and back
on the roadway. Officer O’Brien proceeded to follow
Appellant for approximately four (4) blocks, keeping
his emergency lights activated and engaging his
siren. Appellant then made a turn such that he was
driving against the flow of traffic down a one-way
street, whereupon Officer O’Brien discontinued the
pursuit due to safety concerns.
Trial Court Opinion, 7/1/15, at 1-4 (citations to notes of testimony omitted).
Ultimately, Appellant was arrested and charged with delivery of a
controlled substance and criminal use of a communications facility. A jury
trial was held on February 3-4, 2015, after which the jury found Appellant
guilty of delivery of a controlled substance, and not guilty of criminal use of
a communications facility. On February 9, 2015, the trial court sentenced
-4-
J-A11028-16
Appellant to 11½ to 23 months’ incarceration. Appellant filed this appeal on
March 6, 2015.2
On appeal, Appellant presents six issues for our review.
[1.] The evidence was insufficient to convict
Appellant of the drug charge when the sole witness
to the alleged buy did not testify, violating
Appellant’s Sixth Amendment constitutional right of
confrontation.
[2.] The [trial] court erred and abused its discretion
by denying the motion to identify the confidential
informant and his criminal history when the
confidential informant was the one who allegedly
purchased the drugs and there were no witnesses to
the claimed buy.
[3.] The [trial] court erred in failing to conduct an
in-camera review of the confidential informant to
determine there was, in fact, a confidential informant
who made the July 31, 2013 drug purchase.
[4.] The [trial] court erred in refusing to give a
missing witness an adverse witness instruction
regarding the confidential informant’s failure to
testify.
[5.] The [trial] court erred in allowing testimony
regarding the subsequent crime of “eluding police,”
when this testimony was not relevant, was more
prejudicial than probative, and the evidence [was]
insufficient to prove consciousness of guilt.
[6.] The effective assistance of counsel claim,
denying due process, should be decided on direct
____________________________________________
2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
-5-
J-A11028-16
appeal when the sentence is short, the
ineffectiveness claim obvious from the record, when
the Appellant is willing to waive collateral review,
and the ineffectiveness claim [is] ineligible for
collateral review once Appellant has served his
sentence.
Appellant’s Brief at i-ii.
Upon review of the parties’ briefs, the certified record and pertinent
legal authority, we conclude that the Honorable Wallace H. Bateman, Jr.,
sitting as the trial court, has appropriately and comprehensively addressed
the issues raised by Appellant in this appeal, citing the appellate standard of
review, relevant facts of record, and prevailing case law, such that further
commentary by this Court would be redundant. Accordingly, we adopt
Judge Bateman’s July 1, 2015 opinion as our own in affirming the February
9, 2015 judgment of sentence.3
Judgment of sentence affirmed.
____________________________________________
3
We note that Appellant raised a multitude of issues in his 11 page Rule
1925(b) statement, but abandoned several of those issues, including
evidentiary and suppression issues, in his brief on appeal. Therefore, we
express no opinion on the portions of the trial court’s July 1, 2015 opinion
addressing the issues abandoned by Appellant on appeal.
-6-
J-A11028-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2016
-7-
Circulated 06/09/2016 10:02 AM
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-09-CR-0006446-2013
v.
JOSHUA LYNCH
OPINION
Defendant Joshua Lynch (hereinafter "Appellant") appeals this Court's February 9, 2015
Judgment of Sentence and March 20, 2015 Denial of Motion to Reconsider Sentence. We file
this Opinion pursuant to Pennsylvania Rule of Appellate Procedure l 925(a).
PROCEDURAL HISTORY
On August 2, 2013, Bristol Township Police arrested and charged Appellant with
Delivery of Controlled Substances' and Criminal Use of a Communications Facility'. Appellant's
trial was held between February 3, 2015 and February 4, 2015, after which, a jury returned a
verdict convicting Appellant of the Delivery of Controlled Substances charge. Appellant was
found not guilty of Criminal Use of a Communications Facility.
On February 9, 2015, Appellant was sentenced to serve not less than eleven and one half
(11 112), nor more than twenty-three (23), months in the Bucks County Correctional Facility.
Appellant timely filed an appeal to the Superior Court on March 6, 2015.
FACTUAL BACKGROUND
On July 31, 2013, Bristol Township Police Officer Dennis Leighton began conducting an
investigation using a confidential informant codenamed "Tin Man." N.T. 02/03/15, pp. 20-21,
1
35 Pa.CS.A.§ 780-l 13(a)(30).
2
18 Pa.C.S.A. § 7512(a).
1
31. Officer Leighton, accompanied by Detective Sean Harold of Warminster Township, met with
Tin Man at a predetermined meet location within Bucks County. Officer Leighton searched Tin
Man's person and his clothing as Detective Harold searched his vehicle. No contraband was
discovered as a result of either search. N.T. 02/04/15, pp. I 2-17; 89-90. After conducting the
search, the Officer and Detective observed Tin Man place a phone call to a number that he
provided the Officers. Officer Leighton witnessed the call, and could hear a male voice on the
other end of the phone speaking with Tin Man. N.T. 02/04/15, pp. 18-20.
Based on the information received from the Confidential Informant, Officer Leighton
contacted other officers to set up a surveillance detail, and he further obtained two hundred
dollars ($200) in pre-recorded buy money. N.T. 02/04/15, pp. 20-21. Officer Leighton arranged
for Officers O'Brien and Phillips to be present in specific locations within Foxwood Manor
Apartment Complex in a parking lot closest to the Veterans Highway entrance, with the expected
target driving a silver Toyota Camry. N.T. 02/04/15, pp. 25-26, 115. Officer Leighton, Detective
Harold, and Tin Man then proceeded to F oxwood Manor Apartments, traveling in separate
vehicles. N.T. 02/04/15, p. 27. While the Informant was driving to the complex, he was within
sight of an officer at all times. N.T. 02/04/15, p. 91
As a silver Toyota Camry entered the parking lot, Officer Phillips could clearly view
Appellant as the driver and sole occupant of the vehicle. Officer Phillips was able to photograph
the Camry bearing Pennsylvania registration JCF-2006. See Exhibit C-5; N.T. 02/04/15, pp. 117-
I 9. When Tin Man arrived a short time after, he pulled into a parking spot alongside of the silver
Camry driven by Appellant. There were no other vehicles in that row of parking spots. N.T.
02/04/15, pp. 29-30, 125. The Informant then exited his vehicle and entered the passenger side
door of the Camry, staying in the car for approximately two minutes. Upon leaving the car, Tin
2
Man re-entered his own vehicle and proceeded to 1eave the apartment complex. N.T. 02/04/15,
pp. 125-26.
Moments after, Officer O'Brien, who was positioned in a restaurant parking lot across
Veterans Highway, observed Appellant operating the same silver Toyota Camry and talking on
his phone as he left the complex and passed the restaurant. N.T. 02/04/15, pp. 170-74. Officer
O'Brien was later able to make an identification of Appellant at a closer distance as Appellant
drove past a Wawa convenience store were the Officer was present. N.T. 02/04/15, pp. 176-77.
Additionally, Officer Phillips proceeded to follow the Camry southbound down Veterans
Highway as it initially left the apartment complex, whereupon he pulled alongside of the Camry
at a stoplight and was then able to again make a positive identification of Appellant as the driver
and sole occupant of the vehicle. N.T. 02/04/15, p. 128.
After the Informant ceased contact with the individual in the silver Camry, he began to
leave the parking lot himself, followed by Officer Leighton in his own vehicle. As the Camry
turned southbound onto Veterans Highway, Tin Man left his vehicle, walked back to Officer
Leighton's car directly behind his own, and provided the Officer with three (3) plastic bags that
contained crack cocaine. N.T. 02/04/15, pp. 31-32. After Tin Man gave the bags to Officer
Leighton, Officer Leighton followed the Informant back to the original predetermined meet
location. Immediately after arriving back at the location, Officer Leighton conducted a thorough
search of Tin Man's person and clothing, while Detective Harold again searched his vehicle. No
currency or contraband were discovered during these searches. N.T. 02/04/15, pp. 34-35, 96. The
Informant was never out of sight of law enforcement at any time during this investigation and did
not contact any individual other than the person in the Camry or the Officers. N. T. 02/04/15, pp.
95-96.
3
fl
The Officers traced the registration of the Camry to a residence at 605 Winder Drive in
Bristol, PA. Based on this information, Officers Leighton, Durle, O'Brien, and Phillips attempted
to effectuate an arrest warrant on Appellant at that location two (2) days later on August 2, 2015.
N.T. 02/04/15, pp. 49-50. The Officers located the Camry and began surveillance of the property
in undercover vehicles, waiting for Appellant to enter the vehicle and become mobile. N.T.
02/04/15, p. 132.
Once Appellant entered the vehicle and began driving, the Officers attempted to
effectuate a traffic stop of the Camry. N.T. 02/04/15, p. 132. At a red light, Officer Phillips
pulled in front of Appellant's vehicle, while Officers Durle and O'Brien pulled behind Appellant
and activated their red and blue emergency lights. Officer Phillips, wearing his badge around his
neck and a ballistic vest with the word "Police" written in large white lettering along the front,
exited his vehicle. The Officer instructed the driver to stop his vehicle and place it in park, while
Officer Durle exited the passenger side of his vehicle and attempted to effectuate the arrest. N. T.
02/04/15, pp. 133-34.
As the Officers attempted to arrest Appellant, Appellant "put his car in reverse, backed
up, made a right, and jumped the curb, drove down the sidewalk and then around [Officer
Phillips'] vehicle and back onto the roadway." N.T. 02/04/15, p. 136. Officer O'Brien proceeded
to follow Appellant for approximately four (4) blocks, keeping his emergency lights activated
and engaging his siren. Appellant then made a turn such that he was driving against the flow of
traffic down a one-way street, whereupon Officer O'Brien discontinued the pursuit due to safety
concerns. N.T. 02/04/15, pp. 181-83.
4
Based upon the above evidence, the jury returned a guilty verdict on the charge of
Delivery of a Controlled Substance. The jury found Appellant not guilty of Criminal Use of a
Comm uni cations Facility.
STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
On March 18, 2015, this Court issued a l 925(b) Order directing Appellant to file a
Concise Statement of Matters Complained of on Appeal within twenty-one days. Appellant filed
such a Statement on June 5, 2015, which raised the following issues, verbatim:
1. The Lower Court erred and abused its discretion in denying appellant's motion to provide
the identity of the Confidential Informant, since this information was relevant, material, and in
the interest of justice, and without which information appellant was unable to present a defense
to the accusation that appellant violated 35-§780-113 §§A30 by delivering crack cocaine to the
Confidential Informant. At the very least, the Lower Court should have conducted an in-camera
[sic] examination of the Confidential Informant to determine if a Confidential Informant actual! y
existed and determine whether the Confidential Informant confirmed that on July 31, 2013 he
received crack cocaine from appellant in exchange for the $200.00 marked money.
Under the 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 defendant makes a showing of material need and reasonableness,
as appellant has done in this matter.
The circumstances of this case reveal that it was the Confidential Informant to whom
appellant was alleged to have delivered the crack cocaine, and not an undercover police officer;
[sic] that the Confidential Informant was the individual who allegedly had appellant's phone
number and allegedly called the number to arrange a buy. Thus, it is clear appellant and the
Confidential Informant were acquainted prior to the alleged buy on July 31, 2013, and allegedly
met face to face. None of the testifying police officers at either the motion hearing or trial saw
any exchange or delivery from appellant to the alleged Confidential Informant. There was no
showing that disclosure of the Informant's identity would risk his safety or cause retaliation since
the facts as testified to by the police witnesses indicated appellant already knew the Confidential
Informant's identity. In fact, the police testified an intermediary threatened the Confidential
Informant on behalf of appellant, indicating that the Confidential Informant's identity was
already known to appellant so that providing contact information or producing the Confidential
Informant for a hearing or trial balanced in favor of disclosing the identity of the Confidential
Informant, if one actually existed.
Appellant's defense in this matter was that he did not participate in a drug sale on July 31,
2013 and that there was no Confidential Informant who would testify that he purchased crack
cocaine from appellant on that date. There was no evidence or any proof of delivery without
testimony from the Confidential Informant. Therefore, revelation of the Confidential Informant's
identity was crucial in this criminal case against appellant. There was no relevant inquiry made
by the Court regarding the relevance and materiality of the Confidential Informant's identity
5
being revealed, considering that without this information appellant was unable to research the
Confidential Informant's criminal record, his character, background, whether the events
describedby the police actually occurred, or whether appellant was, in fact, the person from
whom the Confidential Informant allegedly purchased drugs.
Misidentification was an issue raised by appellant, if a buy had actually taken place as the
police officers contended in their testimony.
A fact that favored the revelation of the Confidential Informant's identity, in addition to
the fact that his identity was material and relevant to appellant's defense - that the Confidential
Informant's phone number and person were allegedly already known to appellant - is that in an
official report filed on August 5, 2013 with the F.B.I., Detective Leighton stated the following:
A Confidential Human Source (CHS) who is in a position to testify, responded to
a predetermined location to conduct a controlled buy of crack cocaine from
Joshua Lynch.
It appears that on August 5, 2013, Detective Leighton, the investigating detective in this
case, did not perceive any safety threat to the Confidential Informant, and this report in and of
itself should have been persuasive with the Court. The report should have certainly tipped the
scales in favor of revealing to appellant the Confidential Informant's identity and information, or,
at the very least, the Court should have required the prosecution to produce the Confidential
Informant for a hearing.
Rule 573 of the Pennsylvania Rules of Criminal Procedure mandate the disclosure by the
Commonwealth of any evidence favorable to the accused, either to guilt or to punishment, and is
within the possession or control of the attorney for the Commonwealth. The Court allowed the
prosecuting attorney to violate the discovery rule by failing to order the prosecutor to tum over
the Confidential Informant's information, denying appellant the opportunity to subpoena the
Confidential Informant to court, since the prosecutor failed and refused to produce him at either
the suppressionmotion hearing or trial.
2. The Court erred in failing to conduct an in-camera [sic] review of the Confidential
Informant to determine if a Confidential Informant existed, and if a purchase of cocaine from
appellant had been made on July 31, 2013.
If the Court believes that the Commonwealth's privilege should prevail, then special
precautions may be necessary in the weighing process, such as an in-camera [sic] hearing to
determine whether the informant's testimony would in fact be helpful to the defendant. Com. v.
Payne, 540 Pa. 54 (Pa. 1994).
In the interest of justice, such an in-camera [sic] examination should have been
conducted.
3. Since the alleged Confidential Informant was the only witness to the alleged crime, the
Court erred in failing to give the missing witness adverse inference instruction requested by
appellant prior to and during the trial.
4. There was no chain of custody as to the drugs presented at trial after the Confidential
Informant allegedly gave them to the detective, and there was no lab technician who purportedly
tested the drugs who testified as to the lab results and the accuracy of the lab testing devices and
the results.
5. The Court should not have allowed evidence of other alleged crimes to be introduced at
trial, namely, evading and eluding police, of which appellant was charged in CP-09-CR-
0001696-2014. Pennsylvania Rule of Evidence 404(b) entitled "Character Evidence; Crimes or
Other Acts" states:
Evidence of a crime, wrong or other act is not admissible to prove a person's
character in order to show that on a particular occasion the person acted in
accordance with that character.
The Court should have excluded evidence of the eluding and evading the police crime,
denied by appellant, since it had no probative value to the charge of possession and delivery of
cocaine, and if there was any probative value it certainly was outweighed by unfair prejudice,
confusing the issues, misleading the jury. This evidence of another crime should have been
excluded. (Pa.R.E. 403).
6. The Court erred in failing to suppress the unlawful wiretap, since there was never a
consent signed by the Confidential Informant, who was dubbed "Tin Man" by the police, and
there was no Court authorized warrant or permission given by either the Court or the District
Attorney's Office allowing the wiretap of the alleged phone conversation between the
Confidential Informant and the alleged [sic) to be appellant on the other end.
The motion and supporting brief regarding suppression of the cell phone wiretap should
have been granted. The failure to grant this suppression motion was an abuse of discretion.
Moreover, the recording of the conversation was never produced nor turned over to appellant
despite the fact that a recording was allegedly made. Also, the recording, without explanation,
was never produced at either the suppression hearing or trial.
7. The evidence was insufficient to convict appellant of the possession and delivery of
crack cocaine since the only evidence produced at trial was from the police officers who claimed
they had suspicion that he was selling drugs but [ sic J set forth no basis or reason for their
suspicions. The police had made appellant a "target" of their investigation based on their
unsubstantiated suspicion that appellant was a drug dealer.
The police provided no testimony as to the probable cause it had to believe the alleged
Confidential Informant's accusation that appellant was a drug dealer, since there was no evidence
of the alleged Confidential Informant's reliability, how many other buys he had arranged, or any
other informationpresented which [sic J would justify this sting operation directed toward
appellant. At best, the evidence was entirely circumstantial, with no fingerprints, recording,
Confidential Informant, marked money, etc. introduced into evidence, without which [sicJ the
evidence was insufficient to convict.
8. It was error for Police Officer Phillips to identify appellant after he was only shown
appellant's photo from a J Net System and without a photo array or lineup allowed to identify
appellant as the man he observed in the car with the Confidential Informant on July 31, 2013.
Other police officers were permitted to testify they knew appellant in the conununity and/or had
prior dealing with him, allowing the jury to infer that appellant had had prior contact with the
police, and most probably, arrests and a criminal record, which [sic] criminal arrest and record is
prohibited from being introduced into evidence.
9. Ineffective assistance provided by trial counsel, who failed to make objections to the
introduction of evidence, and other errors, including:
a. allowing testimony regarding other crimes, eluding police, for which appellant
was facing charges;
b. allowing police witnesses to testify that they knew or were familiar with
appellant, allowing the jury to infer appellant had prior arrests and/or a
criminal record;
c. allowing Detective Leighton to testify as to the lab results showing crack
cocaine;
d. allowing lab results into evidence without raising a custody/chain of
possession issues, with Detective Leighton testifying he did not know who
transported the drugs to the Bucks County lab;
e. allowing a copy of the lab report to be introduced by a police officer and not
the lab technician who performed the test;
f. not arguing that there were no fingerprints or DNA showing appellant ever
had possession of the drugs;
g. allowing testimony that appellant was a target of an investigation, which
allowed the jury to infer that the F.B.I. or the police had information that
appellant was drug dealing prior to the ] uly 31, 2013 alleged drug transaction;
h. not getting the police logs of the officers involved in the July 31, 2013 drug
deal as alleged by the officers;
1. failing to get the phone logs for appellant's phone;
J. failing to introduce any defense evidence, including evidence that defendant
did not own an automobile, including a silver Camaro;
k. not objecting or filing a motion to suppress Officer Phillips' identification of
appellant from a sole photograph of appellant being shown to him and not a
photo array;
1. allowing testimony of the separate offense of eluding police;
m. failing to present any evidence on appellant's behalf including character
evidence;
n. failing to object to the Court not giving a missing witness instruction;
o. failing to object to the consciousness of guilt charge by the Court from which
the jury could infer appellant's alleged flight from police, which was
prejudicial to appellant;
p. failing to follow up with alibi witnesses and have the witnesses testify,
including appellant's employer, grandmother and ex-girlfriend;
q. failing to present evidence that upon learning that appellant's grandmother
was contacted by police regarding an arrest warrant, on August 12, 2013,
appellant voluntarily turned himself into police;
r. failing to cross-examine the police witnesses as to why they did not make any
attempt to arrest appellant immediately following the alleged buy and recover
the marked money that the Confidential Informant allegedly gave to appellant
in exchange for drugs;
s. failing to make proper objections and motions in order to preserve issues for
appeal;
t. failing to introduce exculpatory evidence and provide any defense for
appellant, resulting in his being found guilty for a crime of which appellant is
innocent.
ANALYSIS
As a threshold matter, we note that "the fact [Appellant] filed a timely Pa.R.A.P. 1925(b)
statement does not automatically equate with issue preservation." Tucker v. R.M. Tours, 939
A.2d 343, 346 (Pa. Super. 2007). The Superior Court made clear that "Pa.R.A.P. 1925(b) is not
satisfied by simply filing any statement. Rather, the statement must be "concise" and coherent as
to permit the trial court to understand the specific issues being raised on appeal." Id. When
appellants raise an "outrageous" number of issues in a 1925(b) statement, the appellants "have
deliberately circumvented the meaning and purpose of Rule 1925(b) and have thereby effectively
precluded appellate review of the issues they now seek to raise." Kanter v. Epstein, 866 A. 2d
394, 401 (Pa. Super. 2004).
A voluminous 1925(b) statement does "not identify the issues that [Appellant] actually
intend[ s J to raise on appeal because the briefing limitations contained in Pa.R.A.P. 2116( a)
makes the raising of so many issues impossible." A voluminous 1925(b) statement "makes it all
but impossible for the trial court to provide a comprehensive analysis of the issues." Tucker, 939
A.2d at 346 (internal citations omitted).
Appellant's Concise Statement covers nine (9) pages. It features nine (9) separate
Matters, with the ninth Matter consisting of twenty (20) subsections. Appellant's first Matter
extends over three and one half (3 1/2) pages. This Court finds that such a statement can hardly
be considered concise, and the "voluminous" nature of the statement impedes this Court's ability
to provide a comprehensive analysis of the relevant issues.
I. Sufficiency of the Evidence
9
07
Appellant contends that the evidence presented at trial was not sufficient to sustain the
jury's verdict. We demonstrate herein that the Commonwealth presented sufficient evidence to
the jury to prove beyond a reasonable doubt that Appellant committed the crimes of which he
was convicted.
The Pennsylvania Supreme Court has articulated that the well-settled standard of review
in judging the sufficiency of the evidence is whether, when viewing the evidence in a light most
favorable to the Commonwealth as the verdict winner and drawing the proper inferences
favorable to the Commonwealth, the trier of fact could reasonably have found that all of the
elements of the crime were established beyond a reasonable doubt. Commonwealth v. Hagan,
654 A.2d 541, 543 (Pa. 1995); Commonwealth v. Heberling; 678 A.2d 794, 795 (Pa. Super.
1996). The Superior Court has elaborated:
In applying [the above] test, we may not weigh the evidence and substitute our
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 innocence. 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 Commonwealth may sustain its burden of proving every 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 believe all, part or none of the evidence.
Commonwealth v. Ventrini 734 A.2d 404, 406-07 (Pa. Super. 1999) (citations omitted).
Clearly, in finding Appellant guilty of Delivery of a Controlled Substance, the jury
believed the testimony of the Commonwealth's witnesses and accepted the Commonwealth's
evidence to the extent it established beyond a reasonable doubt the elements of the offense.
Based on the foregoing facts and in viewing the facts most favorable to the Commonwealth as
verdict winner, it is apparent that the Commonwealth presented sufficient evidence to the jury to
prove beyond a reasonable doubt that Appellant committed this offense.
A Delivery of a Controlled Substance occurs under the following circumstance:
Except as authorized by this act, the manufacture, delivery, or possession with
intent to manufacture or deliver, a controlled substance by a person not registered
under this act, or a practitioner not registered or licensed by the appropriate State
board, or knowingly creating, delivering or possessing with intent to deliver, a
counterfeit controlled substance.
35 Pa.C.S.A. § 780-113(30).
Delivery is specifically defined as "the actual, constructive, or attempted transfer from
one person to another of a controlled substance, other drug, device or cosmetic whether or not
there is an agency relationship." 35 Pa.C.SA. § 780-102. "Thus, for a defendant to be liable as a
principal for the delivery of a controlled substance there must be evidence that he 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, 1233-34
(2004). A defendant actually transfers drugs when he physically conveys drugs to another
person. Id.
The evidence in the light most favorable to the Commonwealth was sufficient to support
the jury's finding that a delivery of a controlled substance occurred. Officer Leighton testified
that he conducted a thorough search of a Confidential Informant before leaving for a prospective
drug buy. Officer Leighton confirmed that he did not find any currency or contraband on the
Informant at that time. N.T. 02/04/15, pp. 14-17. Meanwhile, Detective Harold searched the
Informant's vehicle and similarly uncovered no currency or contraband. N.T. 02/04/15, pp. 89-
90.
The Commonwealth further presented testimony that, after being searched, the Informant
met with an individual driving a silver Toyota Camry at an apartment complex to conduct a
purchase of narcotics with pre-recorded currency. N.T. 02/04/15, pp. 124-26. After meeting this
individual, the Informant furnished Officer Leighton with three (3) bags of crack cocaine. N .T.
02/04/15, pp. 31-32. Upon another extensive search of his person, clothing, and vehicle, no other
currency or contraband was found. N.T. 02/04/15, pp. 34-35, 96. During the entire duration of
this operation, the Informant was always in view of the Officers and did not meet with any other
person. N. T. 02/04/15, pp. 95-96. The foregoing evidence was sufficient to find that the
individual in the silver Camry delivered a controlled substance to the Confidential Informant.
The evidence presented was further sufficient to support the jury's finding that Appellant
was the individual in the silver Camry. Officer Phillips testified that he could clearly identify
Appellant as the driver and sole occupant of the Camry as it entered the parking lot. N.T.
02/04/15, pp. 117-18. After the Camry left the apartment complex, Officer Phillips was able to
further identify Appellant as the driver of the Camry as he pulled alongside the vehicle at a
nearby red light. N.T. 02/04/15, p. 128. Additionally, Officer O'Brien testified that he was able to
make multiple identifications of Appellant. Officer O'Brien observed Appellant operating the
Camry and talking on a cell phone as he left the complex and further identified him moments
later as Appellant drove by the entrance to a Wawa convenience store where the Officer was
present. N.T. 02/04/15, pp. 170-74, 176-77. Lastly, after tracing the registration of the Camry to
a Winder Drive address in Bristol, Officers Phillips and Durle observed Appellant driving that
same silver Camry at that address. N.T. 02/04/15, pp. 132, ]56. Viewed in light most favorable
to the Commonwealth, this evidence was sufficient for the jury to find that Appellant was the
individual in the silver Camry who delivered controlled substances to the Confidential
Informant.
II. Denial of Motion to Discover Identity of Confidential Informant
12
to
Under Pa.R.Crim.P. 573, "a trial court has the discretion to require the Commonwealth to
reveal the names and addresses of all eyewitnesses, including confidential informants."
Commonwealth v. Marsh, 97 A.2d 318, 321 (Pa. 2010). Specifically, Pa.R.Crim.P.
573(b)(2)(a)(i) provides:
(a) In all court cases, except as otherwise provided in Rule 230 (Disclo~ure of
Testimony Before Investigating Grand Jury), if the defendant files a motion for
pretrial discovery, the court may order the Commonwealth to allow ~he
defendant's attorney to inspect and copy or photograph any of the _followmg
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 ....
The Commonwealth enjoys a qualified privilege to withhold the identity of a confidential
informant. Marsh, 997 A.2d at 321; See Commonwealth v. Roebuck, 681 A.2d 1279, 1283 (Pa.
1996). To overcome the Commonwealth's privilege, an appellant must make a showing "that the
information sought is material to the preparation of the defense arid that the request is
reasonable." Roebuck, 681 A.2d 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." Marsh, 997 A.2d at 321-22. The
Pennsylvania Supreme Court has provided the following guidance:
No fixed rule with respect to disclosure is justifiable. The problem is one that
calls for balancing the public interest in protecting the flow of information against
the individual's right to prepare his defense. Whether a proper balance renders
nondisclosure erroneous must depend on the particular circumstances of each
case, taking into consideration the crime charged, the possible defenses, the
possible significance of the informer's testimony, arid other relevant factors.
Commonwealth v. Carter, 233 A.2d 284, 287 (Pa. 1967) (quoting Roviaro v. United
States, 353 U.S. 53, 60--62 (1957)). "Protecting the identity of informants is recognized as a vital
public interest because it is necessary to protect the flow of information from informants as well
13
ti
as to insure the safety of informants." Commonwealth v. Bonasorte, 486 A.2d 1361, 1372 (Pa.
Super. 1984). The Pennsylvania Supreme Court went even further, holding that the safety of a
confidential informant is a "controlling factor" in determining whether to disclose an informant's
identity. Commonwealth v. Bing, 713 A.2d 56, 5 8 (Pa. 1998). "If the Commonwealth makes a
reasonably specific showing that the informant or that informant's family or friends would be
harmed or killed in retaliation for the confidential informant's assistance to the police, the
Commonwealth's privilege should prevail." Commonwealth v. Payne, 656 A.2d 77, 81 (Pa.
1994).
Appellant claims that the Confidential Informant's identity is material to his defense, as
the Informant was the sole witness of the alleged drug transaction that resulted in his conviction.
However, it is important to note that four (4) separate officers provided testimony to Appellant's
delivery of the crack cocaine. Officer Leighton and Detective Harold testified to searching the
Informant, his clothing, and his vehicle both before and after the transaction. Officers Phillips
and O'Brien each identified Appellant as the sole occupant of the vehicle where the illegal
transaction was alleged to have occurred. Despite the fact that the Informant was the only
witness, other than Appellant, to directly observe any transaction that occurred within the
vehicle, there was corroborating testimony provided by four (4) Officers concerning the
transaction. Therefore, Appellant's claim that the Confidential Informant's identity is material to
his defense is exaggerated.
However, even if the Informant's identity is material to Appellant's defense, this Court's
denial of Appellant's request for the identity was a valid exercise of our discretion based on a
weighing of several factors. While Appellant does have a right to prepare his defense, this Court
found the Informant's safety to be the determinative issue. At Appellant's Suppression Hearing,
14
this Court heard testimony from Officer Leighton that the Confidential Informant received a
threat from Appellant that was communicated through a third party3. As a direct result of this
threat, the Informant was concerned for his/her safety. N.T. 05/01/14, pp. 34-35. Given that the
Pennsylvania Supreme Court has held that an informant's safety is a "controlling factor" in
determining whether disclosure is appropriate, and this Court made a similar determination as a
result of the threat received by the Informant, we submit that the denial of Appellant's request for
the Informant's identity was a valid exercise of this Court's discretion.
III. In Camera Review
Appellant claims that this Court erred in not conducting an in camera review of the
Informant. We will address this contention herein.
There is no case law in Pennsylvania mandating that this Court conduct an in camera
review to aid in the determination of a motion to compel the identity of an informant. Appellant's
cited authority for this complaint is Commonwealth v. Pavne, supra. However, Payne stands for
the proposition that "special precautions may be necessary in this weighing process, such as an in
camera hearing to determine whether the informant's testimony would in fact be helpful to the
defendant." Payne, supr;'!, 656 A.2d at 81 (emphasis added). The Payne Court specifically
referenced Commonwealth v. Pritchett, 312 A.2d 434 (Pa. Super. 1973) as supporting authority,
yet Pritchett held that "disclosure should be denied or special precautions ordered if the
Commonwealth makes an affirmative and convincing showing of exceptional circumstances or
compelling reasons." Pritchett, 312 A.2d at 439 (emphasis added). This Court found that the
Commonwealth made a convincing showing that the Informant's safety was threatened, and as
3
Appellant makes issue of a report prepared by Officer Leighton indicating that the Informant "is in a position to
testify." However, the threat was communicated to the Informant after Officer Leighton completed his report. N.T.
02/03/15, pp. 37-38.
such, we denied disclosure to Appellant. We submit that this Court was well within our
discretion in not ordering an in camera review where applicable case law does not require it.
IV. Missing Witness Instruction
Appellant complains that this Court erred in failed to give a missing witness instruction
requested by Appellant at trial. However, a plain reading of the record indicates that Appellant
never requested this Court provide such an instruction. Therefore, we submit that this Court did
not err in failing to give an instruction that was never requested. Nevertheless, a missing witness
instruction would have been inappropriate given the facts of this case and the relevant law.
A missing witness instruction is appropriate when a potential witness is available to only
one party to a trial, "and it appears this witness has special information material to the issue, and
this person's testimony would not be merely cumulative." Commonwealth v. Manigault, 462
A.2d 239, 241 (Pa. 1983). If that party fails to produce the testimony of that witness at time of
trial, "the jury may draw an inference it would have been unfavorable." Id. A trial court may
provide for a missing witness instruction against the Commonwealth as follows:
In order for the "missing witness" adverse inference rule to be invoked against the
Commonwealth, the witness must be available only to the Commonwealth and no
other exceptions must apply. In order to determine whether a witness was
"available" to a party, the trial court must ascertain whether the witness was
"peculiarly within the knowledge and reach" of one party.
Commonwealth v. Evans, 664 A.2d 570, 574 (Pa. Super. 1995). "An inference may not
be drawn where there exists a satisfactory explanation as to why the party failed to call such
witness." Commonwealth v. Jones, 637 A.2d 1001, 1005 (Pa. Super. 1994). A satisfactory
explanation exists where the Commonwealth has a genuine concern for a witness' safety. Id.
As discussed above, the record reflects that the Commonwealth presented testimony at
Appellant's Suppression Hearing that the Informant received a threat from Appellant through a
third party. Such a threat directly caused the Informant to fear for his/her safety. This Court
found that the evidence supported the Commonwealth's genuine concern for the Informant's
safety, and we submit that the Commonwealth provided a satisfactory explanation such that
providing an adverse witness instruction would have been inappropriate.
V. Evidentiary Decisions
Appellant raises four (4) separate claims concerning the admission of evidence at trial.
We begin our analysis by noting that the Pennsylvania Supreme Court has consistently held that
the admission of evidence at trial is addressed to the sound discretion of the trial court, and such
evidentiary rulings will not be disturbed absent an abuse of that court's discretion. See
Commonwealth v. Champney, 832 A.2d 403, 416 (Pa. 2003); Commonwealth v. Ragan, 645
A.2d 811, 818 (Pa. 1994).
Moreover, a party must make a timely and specific objection in order to preserve an issue
for appeal. Commonwealth v. Brown, 701 A.2d 252, 254 (Pa. Super. 1997). "The Superior Court
will not consider a claim on appeal which was not called to the trial court's attention at a time
when any error committed could have been corrected." Commonwealth v. Montalvo, 641 A.2d
1176, 1184 (Pa. Super. 1994). Appellant's individual claims will be discussed herein.
1. Challenge to the Admission of the Narcotics and Lab Report
Appellant objects to the entry into evidence of the three (3) bags of crack cocaine and the
report prepared by the Bucks County Crime Lab. This Court submits that because Appellant did
not object to the admissibility of this evidence at trial, Appellant has thereby waived any claims
arising there from. However, even if Appellant has preserved his claim, we submit that any such
evidence was validly admitted.
Appellant specifically objects to the lack of a chain of custody for the bags of crack
cocaine presented at trial. The Superior Court has consistently held:
The Commonwealth need not produce every individual who came into contact
with an item of evidence, nor must it eliminate every hypothetical possibility of
tampering. A complete chain of custody is not required so long as the
Commonwealth's evidence, direct and circumstantial, establishes a reasonable
inference that the identity and condition of the exhibits have remained the same
from the time they were first received until the time of trial. Any gaps in
testimony regarding the chain of custody go to the weight to be given the
testimony, not to its admissibility.
Commonwealth v. Cugnini, 452 A.2d 1064, 1065 (Pa. Super. 1982).
In the case sub judice, Officer Leighton testified that he received three (3) bags of crack
cocaine from the Confidential Informant immediately after the Informant's meeting with the
individual identified as Appellant. Officer Leighton further testified that he submitted those bags
into Bristol Township Police Evidence for testing. Officer Leighton detailed the procedure by
which Bristol Township Police maintains evidence, and identified retired Officer Hairhoger as
the evidence custodian. The report prepared by the Bucks County Crime Lab further identified
Officer Hairhoger as the individual who submitted the three (3) bags for testing, and confirmed
that those bags contained crack cocaine. Through the testimony of Officer Leighton, the
Commonwealth established a reasonable inference that the identity and condition of the bags of
crack cocaine remained the same from the time that the Informant relinquished them to the
Officer until their presentation at trial.
Furthermore, the corresponding lab report was validly admitted into evidence. The
Pennsylvania Supreme Court has held that a police crime lab is "firmly rooted in the business
record exception to the hearsay rule," and its admission without the corresponding testimony of
the forensic analyst who prepared the report does not violate the Confrontation Clause.
Commonwealth v. Carter, 932 A.2d 1261 (Pa. 2007). The Court further concluded that "drug
tests are basic, routine, and highly reliable. The forensic chemists use standardized, precise
calculations in determining the presence of a controlled substance and in ascertaining its weight,
11
arriving at a final result that leaves little room for error. Id.
Given the above law, the Commonwealth was not required to produce the testimony of
the lab technician who authored the report. However, the record does show that this Court
inquired of Appellant's counsel if the identity of the lab technician was relevant to Appellant's
defense. The relevant portion of the Notes of Testimony is reproduced below:
MR. GANNON: Your Honor, ifl just may for the record, the analyst is listed as
Joanne Szpanka, S-Z-P-A-N-K-A, and the date is August 13th of '13.
THE COURT: Are you [, Mr. Busico,] going to cross examine him on that?
MR. BUSICO: Ms. Szpanka, no.
N.T. 02/04/15, p. 42. As the Commonwealth complied with the relevant case law and
Appellant's trial counsel did not seek to cross-examine the Officer concerning the author of the
report, we submit that this Court was within our discretion to admit the lab report into evidence.
2. Evidence of Other Crimes
Pa.R.E. 404(b )(2) provides that evidence of other crimes is admissible for purposes other
than to show propensity, "such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is
admissible only if the probative value of the evidence outweighs its potential for unfair
11
prejudice.
Regarding evidence of flight in particular, the Pennsylvania Supreme Court has held that
"when a person comm.its a crime, knows that he is wanted therefor [sic], and flees or conceals
himself, such conduct is evidence of consciousness of guilt, and may form the basis in
connection with other proof from which guilt may be inferred." Commonwealth v. Coyle, 203
19
t7
A.2d 782, 789 (Pa. I 964). The Superior Court has explained the basis for admitting evidence of
flight as follows:
The theory for admitting evidence of flight is based upon a premise that the
person who flees does so in recognition of his wrongdoing and is seeking to avoid
punishment for that conduct. Evidence of the misconduct of a party in connection
with the trial is admissible as tending to show that the party guilty of the
misconduct is unwilling to rely on the truth of his cause, or is conscious that it is
an unjust one.
Commonwealth v. Barnes, 593 A.2d 868, 870 (Pa. Super. I 991) (internal citations
omitted).
Evidence of Appellant's flight from police officers is admissible as its probative value is
greater than its potential for unfair prejudice against Appellant. Evidence of flight is highly
probative of Appellant's consciousness of guilt. In driving over a curb and sidewalk to avoid
apprehension after officers had clearly identified themselves and were in the midst of attempting
to make an arrest, a jury could reasonably infer that Appellant fled "in recognition of his
wrongdoing" and sought to "avoid punishment for that conduct. "4
Evidence of flight is also probative of Appellant's identity, which is a purpose that
Pa.RE. 404(b) explicitly permits. Appellant's main defense proffered at trial was that of
mistaken identity. Multiple officers testified to observing Appellant as the driver and sole
occupant of a silver Camry where the drug transaction that forms the basis of Appellant's charges
occurred, yet Appellant claims that he was not driving the vehicle. When Appellant fled from
police officers on August 2, 2013, multiple officers again observed Appellant driving the same
Camry that was involved in the July 31, 2013 drug transaction. As the evidence of Appellant's
flight corroborated the fact that Appellant did have access to the silver Camry, it was highly
probative of the identity of the person driving the Camry when the crime occurred. The evidence
4
This Court gave a standard jury instruction concerning consciousness of guilt. When presented with the
opportunity, Appellant's counsel did not object to this instruction.
20
tf'
was highly probative of both Appellant's consciousness of guilt and the identity of the person
who delivered a controlled substance, and this Court therefore submits that it was admissible to
the jury.
3. Officer Phillips' Identification of Appellant
Appellant complains that this Court erred in permitting Officer Phillips to testify that he
was able to identify Appellant after viewing a departmental photo rather than by a photo array or
(- lineup. We submit that because Appellant did not object to this testimony at trial, Appellant has
thereby waived any claims arising there from. However, even if Appellant has preserved his
claim, we submit that the testimony was validly admitted into evidence.
Pa.RE. 70 l provides that "if a witness is not testifying as an expert, testimony in the
form of an opinion is limited to one that is (a) rationally based on the witness's perception and
(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue."
When testifying concerning an out-of-court identification, "any indefiniteness and uncertainty in
the identification testimony goes to its weight." Corrunonwealth v. Orr, 38 A.3d 868, 874 (Pa.
Super. 2011 ).
There is no case law in Pennsylvania that mandates that a police officer in the midst of
conducting an investigation must identify a target only after viewing a photo array or lineup.
Officer Phillips testified that after viewing the driver of a vehicle suspected of delivering
narcotics, he viewed a departmental photograph of the Appellant, who was the target of the
investigation, to confirm that the driver and the target were the same person. Officer Phillips
concluded that Appellant was the driver of the vehicle that he witnessed. Appellant's trial counsel
received an opportunity to cross-examine Officer Phillips concerning his identification of
-···-----····- ·-·-. ·--- -----·-···· ·-··· ·-
Appe~-~i-~~-~~~I'!~_i11ty revealed. would have gone ~qF.wds the weight of the evidence. As
·------- ....... - - --·- ..
21
6f
Officer Phillips testified based on his perception and the testimony concerning his investigation
was helpful to the jury, this Court submits that the Officer's testimony was admissible evidence.
4. Officer O'Brien's Prior Knowledge of Appellant
Appellant objects to any references by police officers to having prior knowledge of
Appellant. This Court submits that because Appellant did not object to any testimony at trial
-------<
---
concerning an officer's prior familiarity with hi_!!!.,_Ap_pellant has there by waived any claims
arising there from. However, even if Appellant has preserved bis claim, we submit that any such
---------------------
testimony was validly admitted as evidence.
- - ..--------··--- ..-----
..
The Pennsylvania Supreme Court has established that "if a testimonial reference ...
indicates to the jury the accused has been involved in prior criminal activity, reversible error has
been committed. This is not to say, however, that. all references which may indicate prior
criminal activity warrant reversal." Commonwealth v. Nichols, 400 A.2d 1281, 1282 (Pa. 1979)
(internal citations omitted). To warrant reversal, "the record must illustrate that prejudice results
from the reference. Prejudice results where the testimony conveys to the jury, either expressly or
(
by reasonable implication, the fact of a prior criminal offense." Id.; See Commonwealth v.
Riggins, 386 A.2d 520 (Pa. 1978). In a case where a witness referenced a defendant having prior
"contact with the police," the Pennsylvania Supreme Court specifically held:
... the "statement regarding "contact with the police" focused only on prior
contact with the police and did not reasonably imply prior criminal conduct. The
prior contact with the police could have occurred under a variety of circumstances
that were not criminal in nature including involvement in a motor vehicle accident
or violation, as a witness to a crime, or as a victim of a crime.
Commonwealth v. Young, 849 A.2d l 152, 1156 (Pa. 2004).
Appellant submits that Officer O'Brien's testimony that he was "familiar with Mr. Lynch
in [his] interaction with the community" was prejudicial in that it inferred that Appellant had
22
70
criminal arrests or some sort of criminal record. However, Officer O'Brien's specific testimony
does not expressly or by reasonable implication convey the existence of any criminal history to
the jury. His reference to prior familiarity with Appellant, as in Young, could refer to various
, circumstances unrelated to a prior criminal record. Therefore, no prejudice was done to
Appellant, and Officer O'Brien's statement was admissible testimony.
;, Additionally, Officer O'Brien's testimony was probative of Appellant's identity, as his
(~~: ;knowledge aids in his identification of Appellant as the individual driving the silver Camry
used in the drug transaction. Therefore, his testimony was relevant and validly submitted to the
jury,
VI. Denial of Motion to Suppress
Appellant argues that this Court erred in failing to grant Appellant's Motion to Suppress
the recording of an alleged conversation between Appellant and the Confidential Informant. This
contention will be discussed below.
It is well established that Pennsylvania Courts will not decide moot questions. In re
Gross, 382 A.2d 116, 119 (Pa. 1978). "Generally, a case will be dismissed as moot if there exists
no actual case or controversy." Mistich v. Com., Pa. Bd. of Prob. & Parole, 863 A.2d 116, 119
(Pa Cornrow. Ct. 2004). The existence of a case or controversy requires:
(1) a legal controversy that is real and not hypothetical, (2) a legal controversy
that affects an individual in a concrete manner so as to provide the factual
predicate for a reasoned adjudication, and (3) a legal controversy with sufficiently
adverse parties so as to sharpen the issues for judicial resolution.
Id. "A legal question can become moot on appeal as a result of an intervening change in
the facts of the case." Id. An appellate court will only decide an otherwise moot case "when the
case presents an issue capable of repetition yet evading review, or an issue of great public
importance." Fitzpatrick v. Fitzpatrick, 811 A.2d 1043, 1045 (Pa. Super. 2002).
23
7/
Appellant challenges this Court's denial of Appellant's Motion to Suppress an alleged
recording of a conversation between Appellant and a Confidential Informant. However, the
Commonwealth did not introduce evidence of an audio recording at trial, nor did it reference the
existence of such a recording in any way. As such, Appellant's complaint is moot, as the
evidence at issue did not have any impact the verdict. Therefore, as this Court's ruling on
Appellant's pre-trial motion did not affect Appellant in a concrete manner as required by law, we
submit that the issue is moot and inappropriate for appellate review.
Appellant further complains that this recording was never turned over to defense counsel
at or before time of trial. Even if Appellant did not receive a copy of the recording, we note that
( its existence was disclosed to Appellant at the Suppression Hearing. Appellant, therefore, had
) access to the recording and could have requested the Commonwealth to furnish a copy at any
l time. If Appellant believed the recording could provide evidence favorable to his defense,
Appellant could have introduced it himself at trial. We submit that Appellant's failure to request
a copy of the recording was a voluntary strategic decision and does not present a meritorious
issue on appeal.
VII. Ineffective Assistance of Counsel
__________.
Appellant further claims that his trial counsel was ineffective, citing twenty (20) alleged
deficiencies in his representation. We will discuss this contention below.
As a general rule, The Pennsylvania Supreme Court has held that "a petitioner should
wait to raise claims of ineffective assistance of trial counsel until collateral review. Thus, any
ineffectiveness claim will be waived only after a petitioner has had the opportunity to raise that
claim on collateral review and has failed to avail himself of that opportunity." Commonwealth v.
Grant, 813 A.2d 726, 738 (Pa. 2002); See Commonwealth v. Liston, 977 A.2d 1089, 1094 (Pa.
24
73'
2009). The Supreme Court further held that absent certain narrow circumstances, "claims of
ineffective assistance of counsel are to be deferred to PCRA review; trial courts should not
entertain claims of ineffectiveness upon post-verdict motions; and such claims should not be
reviewed upon direct appeal." Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). An
exception to the general rule exists when such claims have been raised and fully developed by
hearings at the trial court level. See Commonwealth v. Bomar, 826 A.2d 831, 853-54 (Pa. 2003).
In the case subj udice, Appellant raises twenty (20) separate claims of ineffective
assistance of trial counsel on direct appeal. The general rule established by the Pennsylvania
Supreme Court prevents this Court from addressing Appellant's claims at this level. Moreover,
these claims do not fall into the exception to the general rule, as Appellant's contentions have not
....-------- ----
been fully developed through a hearing or by any other process. Therefore, we submit that
Appellant's claims of ineffective assistance of counsel are premature and better suited for post-
conviction review, in accordance with established case law. 5
CONCLUSION
For the foregoing reasons, this Court perceives that the issues of which Appellant has
complained in this appeal are without merit, and that this Court's March 4, 2015 Judgment of
Sentence was supported by both the law and the record in this case. We respectfully request the
Superior Court affirm this Court's decision.
BY THE COURT:
5
Appellant has since filed an uncounseled Post-Conviction Relief Act Petition on June 22, 2015.
j
25
73