Com. v. Ward, A.

J. S63044/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

ALAN JOSEPH WARD, : No. 739 WDA 2017

:

Appellant :

Appeal from the Judgment of Sentence, April 25, 2017,

in the Court of Common Pleas of Mercer County

Criminal Division at No. CP-43-CR-0001906-2015

BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 12, 2017

Alan Joseph Ward appeals the judgment of sentence in which the

Court of Common Pleas of Mercer County sentenced him to serve a term of

27 to 60 months’ imprisonment for possession with intent to deliver (heroin)

(“PWID”). The trial court also sentenced appellant to a term of 27 to

54 months for criminal conspiracy to commit PWID to run concurrently with

the PWID sentence. After careful review, we affirm.

The relevant procedural history, as recounted by the trial court, is as

follows:

[Appellant] was arrested on December 12,

2015, and charged with [PWID], Possession of Drug

Paraphernalia and Criminal Conspiracy. These

charges arose out of the discovery of 22.02 grams of

heroin during a search of 928 Fruit Avenue in the

City of Farrell that same day.

J. S63044/17

....

On September 12, 2016, the Commonwealth

filed a Notice pursuant to Pennsylvania Rule of

Evidence 404(b)(3) of its intent to introduce . . .

three prior uncharged unlawful deliveries to a

confidential informant.

On September 26, 2016, [appellant] filed a

motion seeking disclosure of the confidential

informant’s identity.

Both motions were heard before Judge

Robert G. Yeatts on September 30, 2016.

Judge Yeatts entered an order granting the

Commonwealth leave to introduce the three

uncharged undercover buys at trial and denying the

motion to disclose the identity of the confidential

informant.

A jury trial commenced on February 21, 2017.

On February 22, 2017, the jury returned GUILTY

verdicts on the charges of [PWID] and Criminal

Conspiracy of [PWID] and NOT GUILTY of Possession

of a Controlled Substance and Criminal Conspiracy to

Possession of a Controlled Substance.

On April 25, 2017, [appellant] was sentenced

to concurrent terms of imprisonment of not less than

27 months nor more than 60 months. This sentence

was in the standard range of the Sentencing

Guidelines.

On May 3, 2017, [appellant] filed a Motion for

Judgment of Acquittal. The motion was denied

without a hearing that same day.

On May 4, 2017, [appellant] filed a Motion to

Modify Sentence alleging that the sentence imposed

was manifestly excessive in length because it was

not specifically tailored to the nature of the offense,

the ends of justice and society and the rehabilitative

needs of [appellant]. That motion was denied that

same day without a hearing.

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Trial court opinion, 6/14/17 at 1-3 (footnote omitted).

Appellant filed a notice of appeal to this court on May 19, 2017. On

May 19 2017, the trial court directed appellant to file a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely

filed his statement of errors on appeal. The trial court then filed its

Rule 1925(a) opinion.

Appellant raises the following issues for this court’s review:

[1.] Challenge to 404(b)(3) Evidence – Whether

the Pre-Trial Court erred when it allowed

evidence of three prior controlled buys as prior

bad acts against [appellant] where appellant

was only involved in one of the three and

whether such evidence’s prejudicial effect

outweighed it probative value.

[2.] Challenge to Denial of Confidential Informant

Identity – Whether the Pre-Trial Court erred

when it granted the admission of prior bad act

evidence in the form of three controlled buys

and also denied [appellant’s] request to reveal

the identity of the confidential informant as the

confidential informant’s testimony was the only

direct evidence of the prior controlled buys and

access to such witness was [appellant’s] only

means to properly defend against said

evidence.

[3.] Challenge to the Sufficiency of Evidence –

Whether the Trial Court erred when it denied

[appellant’s] Motion for Judgment of Acquittal

when the Commonwealth clearly failed to

produce sufficient evidence to prove the

element of possession in regard to the charge

of [PWID] and the conspiracy thereof.

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[4.] Challenge to the Discretionary Aspect of

Sentence – Whether the Trial Court erred when

it issued a clearly unreasonable sentence to

[appellant] for [PWID] resulting in a 27 month

to 60 month state penitentiary sentence and

Conspiracy to Possess a Controlled Substance

with the Intent to Deliver resulting in a 27 to

54 month concurrent state penitentiary

sentence and weather [sic] it violated the

fundamental norm that a sentence of

confinement should address a defendant’s

rehabilitative needs.

Appellant’s brief at 13-14.

Initially, appellant contends that the trial court erred when it allowed

evidence of three prior controlled buys as prior bad acts against appellant

where appellant was only involved in one of the three buys and such

evidence was more prejudicial than probative.

On September 12, 2016, prior to trial, the Commonwealth notified

appellant pursuant to Rule 404(b)(3) of the Pennsylvania Rules of Evidence

that the Commonwealth intended to introduce at trial evidence of appellant’s

participation in prior crimes and prior bad acts for purposes of motive,

opportunity, intent, preparation, plan, knowledge, identity, and absence of

mistake or lack of accident.

The Commonwealth alleged that on December 10, 12, and 13, 2015,

the Mercer County Drug Task Force made a series of controlled buys from

appellant and his cousin, Gregory George Weidner (“Weidner”). The

Commonwealth further alleged that the uncharged buys demonstrated the

conspiracy of appellant and Weidner to possess large amounts of heroin with

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intent to deliver and are prior bad acts that help explain why the search

warrant was issued and why appellant and Weidner were tied to the search

location. (“Commonwealth’s Notice Pursuant to PA.R. [sic] 404(b)(3)” at

7-8, ¶¶ 54-55.) In the December 10, 2015 buy, a confidential informant

(“CI”) telephoned Weidner to set up a purchase. Appellant arrived at the

meeting site driving Weidner’s mother’s BMW X5. Appellant exited the BMW

and walked to the CI’s vehicle and entered it. Two minutes later, appellant

left the vehicle. He drove back to the house on Federal Street. The CI

produced what appeared to be heroin. (Id. at 9, ¶¶ 56-72.) The other two

buys were set up with Weidner near 928 Fruit Avenue. The residence at

Fruit Avenue, where the heroin was found, was owned by Valerie Balbirsingh

in care of her mother, Verna McKeithan, who had an oral agreement to sell

the property to Heidi Harris, aka Heidi Williams, who was Weidner’s mother

and appellant’s aunt. (Id. at 12-13, ¶¶ 107-109.)

In an order dated September 30, 2016, the trial court permitted

evidence of the controlled buys and reasoned:

After review, the Court has determined that

the Commonwealth will be permitted to enter the

evidence of the controlled buys under the

res gestae exception to the prohibition, on prior bad

acts. Res gestae evidence describing other crimes

or bad acts is admissible to tell the complete story

only if the probative value of the evidence outweighs

its potential for unfair prejudice. The controlled buys

allow the prosecution to tell the complete story of

the case, as they are part of the same chain as the

charged crime, and form an integral part of the

police investigation. The controlled buys were used

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as the basis for the search warrant that led to the

seizure of 22.04 grams of heroin from the residence

at 928 Fruit [Avenue], Farrell. These three

uncharged instances of selling narcotics to

undercover agents are necessary to establish the

background of the search warrant, and to show the

course of investigative conduct leading up to

[appellant]’s arrest. Not allowing the

Commonwealth to introduce such evidence would

lead [sic] a large gap in the history of the

investigation, and is not unfairly prejudicial to

[appellant].

Trial court order, 9/30/16 at 2 (citation omitted).

Appellant argues that his only connection to the buys involving

Weidner is that he is Weidner’s cousin and suggestions that appellant is

related to a person who is involved in criminal activity would have the effect

of prejudicing appellant in front of a jury.

“On appeals challenging an evidentiary ruling of the trial court, our

standard of review is limited. A trial court’s decision will not be reversed

absent a clear abuse of discretion.” Commonwealth v. Aikens, 990 A.2d

1181, 1184 (Pa.Super. 2010) (citations omitted). “Abuse of discretion is not

merely an error of judgment, but rather 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.” Id. at

1184-1185 (citations omitted).

Generally, evidence of prior bad acts or

unrelated criminal activity is inadmissible to show

that a defendant acted in conformity with those past

acts or to show criminal propensity.

Pa.R.E. 404(b)(1). However, evidence of prior bad

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acts may be admissible when offered to prove some

other relevant fact, such as motive, opportunity,

intent, preparation, plan, knowledge, identity, and

absence of mistake or accident. Pa.R.E. 404(b)(2).[1]

In determining whether evidence of other prior bad

acts is admissible, the trial court is obliged to

balance the probative value of such evidence against

its prejudicial impact.

Id. at 1185 (citations to case law omitted).

1

Rule 404. Character Evidence; Crimes or Other

Acts

....

(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. 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 the

character.

(2) Permitted Uses. This evidence

may be admissible for another

purpose, 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 prejudice.

(3) Exceptions for a Witness.

Evidence of a witness's character

may be admitted under Rules 607,

608, and 609.

Pa.R.E. 404(b)(1)-(3). Rules 607-609 address the impeachment of

witnesses.

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The evidence was admissible as part of the natural development of the

facts of the case. See Commonwealth v. Burton, 770 A.2d 771, 778

(Pa.Super. 2001), appeal denied, 868 A.2d 1197 (Pa. 2005), overruled

on other grounds by Commonwealth v. Mouzon, 812 A.2d 617 (Pa.

2002) (evidence of other crimes, wrongs, or bad acts is admissible where

they were part of a chain or sequence of events which formed the history of

the case and were part of its natural development, also known as the

“complete story” rationale). This court finds that the trial court did not

abuse its discretion. As the trial court stated, allowing the admission of this

evidence provides the jury with the necessary background as to why the

search at the Fruit Avenue address was conducted. Further, the

Commonwealth alleged that there were much closer connections between

appellant and his cousin with respect to drug transactions than just their

familial relationship.

Appellant also challenges the admission of evidence concerning the

one controlled buy in which the Commonwealth alleged that he did play a

part. Once again and for the same reasons, the trial court did not abuse its

discretion when it permitted the Commonwealth to introduce this evidence.

Appellant next contends that the trial court erred when it denied his

request to reveal the identity of the CI as the CI’s testimony was the only

direct evidence of the prior controlled buys and access to the witness was his

only means to properly defend against such evidence. Appellant argues that

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because the CI was the only eyewitness to the buys and that testimony from

the police officers would be circumstantial, fairness required that he be given

the identity of the informant prior to trial.

When reviewing the denial of a motion to disclose the identity of a CI,

our standard of review is “to determine whether the trial court abused its

discretion in denying appellant’s request for discovery.” Commonwealth v.

Belenky, 777 A.2d 483, 487 (Pa.Super. 2001), citing Commonwealth v.

Roebuck, 681 A.2d 1279, 1282 (Pa. 1996).

The ability to compel disclosure of the identity of a confidential

informant flows from the right to discovery contained in the Rules of

Criminal Procedure. Pa.R.Crim.P. 573 (B)(2)(a)(i), 42 Pa.C.S.A. A

defendant has a qualified right to discovery of the names of eyewitnesses.

However, when the eyewitness is a confidential informant, police

departments have a well-placed reluctance to disclose the identity of such

eyewitnesses and, in fact, a recognized privilege to refuse disclosure of the

identity of informants. Commonwealth v. Bing, 713 A.2d 56, 58 (Pa.

1998). The privilege is not absolute, however, and must give way under

appropriate circumstances.

When moving for disclosure, the defendant must first show “that the

information sought is material and the request is reasonable.” Interest

of D.B., 820 A.2d 820, 822 (Pa.Super. 2003). If the defendant satisfies this

burden, then the trial court must apply a balancing test, with “the balance

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initially weigh[ing] in favor of maintaining confidentiality of the informant’s

identity in order to preserve the public’s interest in effective law

enforcement.” Commonwealth v. McCulligan, 905 A.2d 983, 989

(Pa.Super. 2006).

“The defendant need not predict exactly what the informant will say,

but he must demonstrate a reasonable possibility the informant could give

evidence that would exonerate him. More than a mere assertion that

disclosure of the informant’s identity might be helpful is necessary.”

Belenky, 777 A.2d at 488 (citation omitted). “[T]he defendant must lay an

evidentiary basis or foundation that the confidential informant possesses

relevant information that will materially aid the defendant in presenting his

or her defense and that the information is not obtainable from another

source.” Commonwealth v. Hritz, 663 A.2d 775, 780 (Pa.Super. 1995).

See Commonwealth v. Eicher, 605 A.2d 337, 348 (Pa.Super. 1992),

appeal denied, 617 A.2d 1272 (Pa. 1992) (appellant seeking disclosure of

informant must have “concrete evidence” corroborating defense theory

“other than his own self-serving allegations”; absent “more specific

evidence,” the trial court is not required to compel disclosure and allow the

defense to conduct a fishing expedition). Only if the defendant makes this

threshold showing must the trial court weigh the competing interests to

determine whether the informant’s identity should be revealed.

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Commonwealth v. Marsh, 997 A.2d 318, 322 (Pa. 2010) (plurality); Bing,

713 A.2d at 58; Belenky, 777 A.2d at 488.

In the same September 30, 2016 order where the trial court permitted

the admission of evidence of the controlled buys, the trial court denied

appellant’s motion to disclose the identity of the CI. The trial court

reasoned:

Although the Commonwealth argues that the

identity of the [CI] is not material to the present

case, the Court must disagree. The Commonwealth

believes that because the buys themselves are

uncharged, there is no material evidence to be

brought from these incidents. However, it is

apparent from the record that the informant was an

integral part of the conspiracy case against the co-

defendants, making his identity material to the

present matter. Having reached this determination,

the Court balanced the parties[’] interest[s] and

concluded that the Commonwealth is not required to

disclose the witness[.] The Commonwealth asserts

that it can make its case based entirely on the

testimony of police officers, and that it does not need

any direct statement from the informant. Moreover,

this testimony is not that of a lone officer, but the

combination of several officers’ testimony concerning

the situation surrounding the controlled buys and

other corroborating evidence such as unmarked bills.

Not only is the testimony of the informant not

necessary to the prosecution of the case, but

revealing the identity of the informant raises a risk of

harm to the informant and has the potential to

disincentivize [sic] other citizens to participate in this

form of police reconnaissance. Both defendants in

this case possess substantial criminal records,

including aggravated assaults and weapons

convictions. The Commonwealth is reasonably

concerned about preserving its informant’s safety,

and ensuring that other informants feel safe working

with law enforcement.

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Trial court order, 9/30/16 at 3-4.

Here, the trial court determined that appellant met the threshold that

the CI’s testimony would be material and the request was reasonable. The

trial court then determined that the testimony of several police officers as

well as other evidence could prove the Commonwealth’s case such that the

testimony of the CI would not necessarily prove helpful to appellant.

Further, the trial court reasoned because both appellant and Weidner had a

history of aggravated assault and weapons convictions that the CI could be

in some danger if his or her identity were revealed. Appellant does not

persuade this court that the trial court abused its discretion when it did not

allow the identity of the CI to be revealed.

Appellant next contends that the trial court erred when it denied his

motion for judgment of acquittal when the Commonwealth clearly failed to

produce sufficient evidence to prove the element of possession in regard to

the charge of possession of a controlled substance with the intent to deliver

and the conspiracy thereof.

Before addressing the merits of appellant’s argument, this court notes

that in his statement of errors complained of on appeal, appellant only

stated that there was not sufficient evidence to establish a conviction for

conspiracy. Appellant did not raise a sufficiency issue concerning the PWID

conviction. The failure to include an issue in the statement of errors

complained of on appeal results in a waiver of that issue. See

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Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). Consequently,

appellant waived the issue of the sufficiency of the evidence concerning the

conviction for PWID.

We shall now review the merits of appellant’s appeal as it pertains to

the conspiracy conviction.

A claim challenging the sufficiency of the

evidence is a question of law. Commonwealth v.

Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751

(2000). In that case, our Supreme Court set forth

the sufficiency of the evidence standard:

Evidence will be deemed sufficient to

support the verdict when it establishes

each material element of the crime

charged and the commission thereof by

the accused, beyond a reasonable doubt.

Commonwealth v. Karkaria, 533 Pa.

412, 625 A.2d 1167 (1993). Where the

evidence offered to support the verdict is

in contradiction to the physical facts, in

contravention to human experience and

the laws of nature, then the evidence is

insufficient as a matter of law.

Commonwealth v. Santana, 460 Pa.

482, 333 A.2d 876 (1975). When

reviewing a sufficiency claim the court is

required to view the evidence in the light

most favorable to the verdict winner

giving the prosecution the benefit of all

reasonable inferences to be drawn from

the evidence. Commonwealth v.

Chambers, 528 Pa. 558, 599 A.2d 630

(1991).

Id. at 319, 744 A.2d at 751.

Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).

Conspiracy is defined in Section 903 of the Crimes Code as follows:

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A person is guilty of conspiracy with another person

or persons to commit a crime if with the intent of

promoting or facilitating its commission he:

(1) agrees with such other person or persons

that they or one or more of them will

engage in conduct which constitutes such

crime or an attempt or solicitation to

commit such crime; or

(2) agrees to aid such other person or

persons in the planning or commission of

such crime or of an attempt or

solicitation to commit such crime.

18 Pa.C.S.A. § 903.

The underlying offense, possession with intent to deliver, is defined as:

(a) The following acts and the causing thereof

within the Commonwealth are hereby

prohibited:

....

(30) 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 P.S. § 780-113(a)(30).

To sustain a conviction for criminal conspiracy, the

Commonwealth must establish that the defendant

(1) entered into an agreement to commit or aid in an

unlawful act with another person or persons, (2) with

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a shared criminal intent and (3) an overt act was

done in furtherance of the conspiracy.

Commonwealth v. Hennigan, 753 A.2d 245, 253

(Pa.Super. 2000). “This overt act need not be

committed by the defendant; it need only be

committed by a co-conspirator.” Id.

As our Court has further explained with respect to

the agreement element of conspiracy:

The essence of a criminal conspiracy is a

common understanding, no matter how it

came into being, that a particular

criminal objective be accomplished.

Therefore, a conviction for conspiracy

requires proof of the existence of a

shared criminal intent. An explicit or

formal agreement to commit crimes can

seldom, if ever, be proved and it need

not be, for proof of a criminal partnership

is almost invariably extracted from the

circumstances that attend its activities.

Thus, a conspiracy may be inferred

where it is demonstrated that the

relation, conduct, or circumstances of the

parties, and the overt acts of the

co-conspirators sufficiently prove the

formation of a criminal confederation.

The conduct of the parties and the

circumstances surrounding their conduct

may create a web of evidence linking the

accused to the alleged conspiracy beyond

a reasonable doubt. Even if the

conspirator did not act as a principal in

committing the underlying crime, he is

still criminally liable for the actions of his

co-conspirators in furtherance of the

conspiracy.

Commonwealth v. Johnson, 719 A.2d 778, 784-

785 (Pa.Super. 1998).

Commonwealth v. McCall, 911 A.2d 992, 996 (Pa.Super. 2006).

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Appellant argues that there was no evidence to suggest that there was

a conspiracy between Weidner and appellant to possess the heroin that was

recovered at the Fruit Avenue address.

The trial court determined that the following evidence was sufficient to

establish a conspiracy:

In the case at hand, [appellant] and Weidner

are cousins. In the first buy, [appellant] shows up in

a vehicle owned by Weidner’s mother. The phone

number used is linked to a phone found with

Weidner. The second and third buys are set up

using the same telephone number for the first buy

and occurred at the residence where the drugs at

issue were found. [Appellant] and Weidner are

together when they [sic]search warrants are issued.

Trial court opinion, 6/14/17 at 9.

Appellant argues that these facts are insufficient to establish a

conspiracy. However, the same phone number was used to arrange the buy

handled by appellant and the two handled by Weidner. The two buys

handled by Weidner were conducted at or near the Fruit Avenue address

where the heroin was found. Further, appellant drove to the buy in a vehicle

owned by Weidner’s mother. As appellant himself admits, a conspiracy can

be proven by circumstantial evidence. See Commonwealth v. Perez, 931

A.2d 703, 708 (Pa.Super. 2007). Viewing the evidence in the light most

favorable to the prevailing party, the evidence presented by the

Commonwealth was sufficient to establish conspiracy.

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Finally, appellant contends that the trial court erred when it imposed a

clearly unreasonable sentence in violation of a fundamental norm where a

sentence of confinement should address a defendant’s rehabilitative needs.

Appellant challenges the discretionary aspects of his sentence.

[T]he proper standard of review when

considering whether to affirm the sentencing court’s

determination is an abuse of discretion.

....

Challenges to the discretionary aspects of sentencing

do not entitle an appellant to review as of right.

Commonwealth v. Sierra, [752 A.2d 910, 912

(Pa.Super. 2000)]. An appellant challenging the

discretionary aspects of his sentence must invoke

this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to

determine: (1) whether appellant has

filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the

issue was properly preserved at

sentencing or in a motion to reconsider

and modify sentence, see Pa.R.Crim.P.

[720]; (3) whether appellant’s brief has

a fatal defect, Pa.R.A.P. 2119(f); and

(4) whether there is a substantial

question that the sentence appealed

from is not appropriate under the

Sentencing Code, 42 Pa.C.S.A.

§ 9781(b).

Moury, 992 A.2d 162, 169-170 (citation omitted).

Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging the discretionary

aspects of his sentence. First, appellant timely filed his notice of appeal.

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Second, appellant raised the issue that the trial court imposed a sentence

that was excessive and did not take into account his rehabilitative needs in

his post-sentence motion which essentially is the issue before this court.

However, appellant included a Rule 2119(f) statement in his brief in which

he avers that even though he was sentenced within the sentencing

guidelines, it is clearly unreasonable to stay within the guidelines because

his convictions were highly speculative. Similarly, in the argument section of

his brief, appellant addresses the speculative nature of his convictions.

While appellant does not strictly comply with Rule 2116(a) of the

Pennsylvania Rules of Appellate Procedure in that the issue raised is not

exactly raised in the argument section of the brief, this court will address the

issue raised in the argument and in the Rule 2119(f) statement because we

can render meaningful appellate review.

Appellant does not cite to any statute or case law to indicate that he

has raised a substantial question in that his role in the possession of heroin

and the conspiracy to possess heroin is highly speculative such that he

should receive a lighter sentence. This court does not find that he raised a

substantial question. Appellant was found guilty by a jury of his peers and

was sentenced by the trial court within the standard range. Appellant’s

belief that the facts of the case were speculative does not raise a substantial

question that the trial court imposed a sentence that was not appropriate

under the Sentencing Code.

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/12/2017

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