J-S70037-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TERRENCE FULLER, :
:
Appellant : No. 1272 EDA 2014
Appeal from the Judgment of Sentence Entered January 24, 2013,
in the Court of Common Pleas of Montgomery County,
Criminal Division at No(s): CP-46-CR-0004317-2011
BEFORE: LAZARUS, MUNDY, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 15, 2014
Terrence Fuller (Appellant), pro se, appeals nunc pro tunc from the
judgment of sentence entered following his convictions of four counts of
possession with the intent to deliver a controlled substance, four counts of
simple possession, and three counts of criminal use of a communication
facility.1 We affirm.
The relevant background underlying this matter can be summarized as
follows. On May 24, 2011, with the assistance of a confidential informant
(CI), Pennsylvania State Trooper Terron Buchanon arranged to purchase 3.5
grams of cocaine from Appellant. After the trooper and CI met Appellant,
Appellant sold the trooper cocaine. On June 6, 2011, Trooper Buchanon
contacted Appellant by phone and arranged to purchase a half ounce of
1
35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(16), and 18 Pa.C.S.
§ 7512, respectively.
* Retired Senior Judge assigned to the Superior Court.
J-S70037-14
cocaine. Later that day, the trooper purchased cocaine from Appellant. On
June 8, 2011, Trooper Buchanon again called Appellant to purchase cocaine.
The trooper met Appellant, and when Appellant got into the trooper’s vehicle
to complete the transaction, other troopers removed Appellant from the
vehicle and arrested him.
Appellant filed several pretrial motions, including a motion to disclose
the identity of the CI. The trial court denied those motions, and following a
three-day trial, a jury found Appellant guilty of the above-noted crimes. The
trial court sentenced Appellant on January 24, 2013. The following day,
despite being represented by counsel, Appellant filed pro se a post-sentence
motion. The trial court denied that motion on February 26, 2013.
On April 3, 2013, Appellant filed pro se a notice of appeal. On
September 13, 2013, this Court issued a per curiam order dismissing
Appellant’s appeal due to his failure to file an appellate brief.
In December of 2013, Appellant filed a petition pursuant to the Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. He requested that the
lower court reinstate his right to a direct appeal. In February of 2014,
Appellant filed a “Motion for Waiver of Counsel.”
On April 10, 2014, the lower court granted Appellant’s “Motion for
Waiver of Counsel.” The next day, the court issued an order stating that,
after a video hearing and full colloquy regarding Appellant’s desire to
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represent himself, the court granted Appellant’s request to reinstate his
direct appeal rights.
Appellant timely filed a notice of appeal. The trial court directed
Appellant to comply with Pa.R.A.P. 1925(b). After successfully seeking
additional time to comply with the court’s 1925(b) order, Appellant filed a
1925(b) statement. In his brief to this Court, Appellant asks us to consider
the questions that follow.
[1.] Did the trial court err in denying Appellant the right to
confront and cross-examine the witness against him by refusing
to allow Appellant to confront the [CI]?
[2.] Did the trial court violate Appellant’s discovery and due
process rights when it failed to order disclosure of a CI material
to Appellant’s defense?
Appellant’s Brief at 4 (trial court answers and unnecessary capitalization
omitted).
In support of his first issue, Appellant argues that the trial court erred
by allowing Trooper Buchanon to offer hearsay testimony regarding what the
CI told the trooper about Appellant. It is well settled that, in order to
preserve such a claim for appellate review, Appellant had to present it to the
trial court. See Pa.R.E. 103(a) (stating, in relevant part, that a “party may
claim error in a ruling to admit [] evidence only … if … [the] party, on the
record … makes a timely objection, motion to strike, or motion in limine; and
… states the specific ground, unless it was apparent from the context”);
Commonwealth v. Pearson, 685 A.2d 551, 555 (Pa. Super. 1996)
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(“Failure to raise a contemporaneous objection to the evidence at trial
waives that claim on appeal.”); Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
Appellant’s brief fails to identify where in the record he preserved this claim,
in violation of Pa.R.A.P. 2117(c) and 2119(e).
The Commonwealth contends that Appellant waived this issue by
failing to preserve it in the trial court. Commonwealth’s Brief at 8-10. In his
reply brief, Appellant suggests that he preserved this issue by filing his
motion to disclose the CI’s identity. Appellant’s Reply Brief at 1-2.
Appellant’s motion to disclose the identity of the CI makes no mention
of hearsay testimony from Trooper Buchanon; moreover, Appellant did not
present any argument on such an issue at the hearing on the motion.
Appellant did lodge one hearsay objection to Trooper Buchanon’s trial
testimony. N.T., 11/15/2012, at 63-64. However, the objected-to
testimony was related to Trooper Buchanon testifying about what another
trooper had told him. Id. Accordingly, because Appellant raises this issue
for the first time on appeal, it is waived.
In support of his second issue, Appellant argues that the trial court
erred by denying his motion to disclose the identity of the CI. “Our standard
of review of claims that a trial court erred in its disposition of a request for
disclosure of an informant's identity is confined to abuse of discretion.”
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Commonwealth v. Watson, 69 A.3d 605, 607 (Pa. Super. 2013) (citation
omitted).
With this standard in mind, we reviewed the parties’ briefs, the
certified record, and the pertinent law and have concluded that the opinion
of the trial court, the Honorable Garrett D. Page, adequately addresses and
properly rejects the issue and argument Appellant presents on appeal. We,
therefore, adopt the court’s opinion and affirm Appellant’s judgment of
sentence on the basis of that opinion. Trial Court Opinion, 6/20/2014, at 4-
9. The parties shall attach a copy of the trial court’s June 20, 2014 opinion
to this memorandum in the event of further proceedings.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2014
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IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
No. 4317-2011
ILly
VS. ~1 EDA2014
TERRANCE FULLER
OPINION OF THE COURT
Page, J. June 20,2014
-<
FACTS AND PROCEDURAL HISTORY
On November 14, 2012, a three-day jury trial was held on the above-captioned docket,
and Appellant was found guilty of four counts of Possession with Intent to Deliver Cocaine (35
P.S. §780-113(a)(30)), four counts of Simple Possession (35 P.S. §780-113(a)(16)), and three
counts of Criminal Use ofa Communication Facility (18 Pa. C.S. § 7512). On January 24,2013,
Appellant was sentenced to five to ten years of imprisonment followed by three years probation.
Appellant filed a pre-trial Motion to Disclose the Identity of the Confidential Informant,
and said Motion was denied on the basis that Appellant failed to prove that the confidential
informant's testimony would eXCUlpate him and assist him in proving a defense of entrapment.
At the pre-trial hearing on Appellant's Motion, Trooper Terron Buchanon testified that he
was involved as an undercover officer to purchase cocaine from Appellant, who was a suspected
drug dealer. (N.O.T. 11114/2012, p.39). Trooper Buchanon enlisted the assistance of a
confidential informant to arrange a drug purchase of 3.5 grams of cocaine from Appellant on
May 24, 2011. Id. The confidential informant contacted Appellant by telephone, and they agreed
to meet at the Wal-Mart in East Norriton. Id at 40. However, Appellant told Trooper Buchanon
and the confidential informant that the correct location was the Walgreens in Norristown and not
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the Wal-Mart in East Norriton. ld at 41. The informant and Appellant ultimately agreed to meet
at the CVS located a block west of the Walgreens on Main Street. ld. at 42. After Trooper
Buchanon and the informant arrived at the CVS, the confidential informant identified Appellant
as the person to whom he spoke with on the telephone to arrange the drug purchase. ld. Trooper
Buchanon handed Appellant two-hundred dollars to purchase the cocaine, and Appellant
accepted the money and placed it into his pocket. ld. at 42. However, after Appellant accepted
the money, he became suspicious of the confidential informant and requested to talk to the
informant outside of the presence of Trooper Buchanon. Id. Appellant then handed the money
back to Trooper Buchanon. ld. Appellant and the informant engaged in a brief conversation
approximately fifteen feet away from Trooper Buchanon, and at the end of the conversation,
Appellant sold 1.9 grams of cocaine to Trooper Buchanon, Id at 43. The purchase was conducted
in Trooper Buchanon's vehicle in the presence of the confidential informant. Id. at 44.
On May 25, 2011, the day after the first drug transaction, Appellant called Trooper
Buchanon and stated that he did not trust the confidential informant because he was concerned
that the informant could possibly get him and Trooper Buchanon arrested. Id. at 47. Appellant
further questioned whether Trooper Buchanon had a valid driver's license and valid tags on his
vehicle. Id.
A second drug purchase was arranged by Trooper Buchanon on June 6, 2011. Trooper
Buchanon called Appellant on the same cell phone number as previously used during the first
buy on May 24, 2011. Subsequently, Appellant sold Trooper Buchanon a half ounce of cocaine
in Trooper Buchanon's vehicle. Id. at 48.
Trooper Buchanon then arranged a third and final drug purchase on June 8, 2011,
whereby Trooper Buchanon was to purchase an ounce of cocaine. Id. at 50. Appellant informed
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Trooper Buchanon that he would meet him at the Applebee's in Limerick which was outside of
Norristown where both parties had met for the previous transactions. Id. at 52. Trooper
Buchanon was concerned for his safety because this transaction involved a larger quantity of
cocaine and Appellant was known to have had someone robbed in the past. Id. For this reason,
Appellant was arrested before execution of the third sale. Id.
After a jury trial on November 16, 2012, Appellant was found guilty and then sentenced
on January 24, 2013 to 5 - 10 years on Possession With the Intent to Deliver and related charges.
On April 3, 2013, Appellant filed an appeal challenging this Court's February 26, 2013
Order which denied Appellant's Motion for Post-Verdict Relief. Consequently, this Court issued
a June 13, 2013 Opinion addressing the issues contained in the May 20, 2013 Statement of
Matters Complained of on Appeal. However, the Superior Court dismissed the appeal on
September 24,2013 for counsel's failure to file a Brief for Appellant. Appellant proceeds pro se.
This Court granted Appellant's Petition to Reinstate Appeal before the Superior Court of
Pennsylvania in an April 11,2014 Order, and on April 21, 2014, Appellant filed a second appeal.
In the second Statement of Matters Complained of on Appeal filed on May 19, 2014, Appellant
has rephrased the same issues contained in the initial Concise Statement. As the substance of this
appeal is identical to the initial Opinion, this Court will incorporate the reasoning of the prior
Opinion.
ISSUES
In the Concise Statement of Matters Complaint of on Appeal, Appellant raises the
following issues:
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1. Did the trial court err in denying Appellant the right to confront and cross-
examine the witnesses against him by refusing to allow him to confront the
confidential informant?
2. Did the trial court violate Appellant's discovery and due process rights when it
failed to order disclosure of a confidential informant material to his entrapment
defense?
3. Appellant files this motion under the laws, statues [sic] and protection of the
United States and Pennsylvania Constitution.
STANDARD OF REVIEW
The standard of review for a trial court's denial of a request to disclose the identity of a
confidential informant is abuse of discretion. Com. v. Withrow, 932 A.2d 138, 140 CPa. Super
2007).
ANAYLYSIS
A. THE COURT PROPERLY DENIED APPELLANT'S PRE-TRIAL
MOTION TO DISCLOSE THE IDENTITY OF A CONFIDENTIAL
INFORMANT.
A trial court has the discretion to require the Commonwealth to disclose the identity of a
confidential informant despite its qualified privilege of nondisclosure where a defendant can
demonstrate that disclosure is material to the defense, reasonable, and in the interests of justice.
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Com. v. Carter, 233 A.2d 284, 285 (Pa. 1967); Com. v. Johnson, 33 A.3d 122, 127 (Pa. Super.
2011); Com. v. Washington, 63 A.3d 797, 801 (Pa. Super. 20l3). The Confrontation Clause is
not "like a scythe that indiscriminately cuts down both the wheat and the chaff." Com. v.
Herrick, 660 A.2d 51, 59 (Pa. Super. 1995). Courts must apply a balancing test when deciding a
request for production of a confidential informant, and the balance initially weighs in favor of
~i' ". if,
maintaining the confidentiality of an informant's identity to preserve the public's interest in
effective law enforcement. Com v. Baker, 946 A.2d 691, 695 (Pa. Super, 2008). Accordingly, to
overcome this presumption, a defendant must demonstrate a nexus between a defense theory and
the informant's potential helpfulness in establishing that defense. Com. v. Davis, 465 A.2d 669,
673 (Pa. Super. 1983). A defendant must allege a defense theory such as mistaken identity or
entrapment which would require the testimony of a confidential informant. Baker, 946 A.2d at
695.
In the instant case, Trooper Terron Buchanon testified that he was involved as an
undercover officer to purchase cocaine from Appellant, who was a suspected drug dealer.
(N.O.T. 11114/2012, p.39). Trooper Buchanon enlisted the assistance of a confidential informant
to arrange a drug purchase of 3.5 grams of cocaine from Appellant on May 24, 2011. Id. The
confidential informant contacted Appellant by telephone, and they agreed upon a location at
which to meet. Id. at 40. However, there was a discrepancy as to whether the parties were to
meet at the Wal-Mart in East Norriton or the Walgreens in Norristown, Id. at 41. The informant
then spoke to Appellant on the telephone a second time after the informant and Trooper
Buchanon arrived at Wal-Mart since there was anonther discrepancy as to the agreed upon
location. Id. The informant and Appellant had athird conversation in which Appellant told the
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infonnant to meet him at the CVS located a block west of the Walgreens on Main Street. Jd. at
42.
After Trooper Buchanon and the infonnant arrived at the CVS, the confidential infonnant
identified Appellant as the person with whom he spoke on the telephone to arrange the drug
' ' 't, purchase. Id. Trooper Buchanon handed Appellant two-hundred dollars to purchase the cocaine,
and Appellant accepted the money and placed it into his pocket. Id at 42. However, after
Appellant accepted the money, he became suspicious, requested to talk to the confidential
infonnant alone, and gave the money back to Trooper Buchanon. Id. Appellant and the infonnant
engaged in a brief conversation approximately fifteen feet away from Trooper Buchanon, and at
the end of the conversation, Appellant sold 1.9 grams of cocaine to Trooper Buchanon. Id at 43.
The purchase was conducted in Trooper Buchanon's vehicle in the presence of the confidential
infonnant. Id at 44. On May 25, 2011, the very next day after the first drug transaction,
Appellant called Trooper Buchanon and stated that he did not trust the confidential informant
because he was concerned that the infonnant could possibly get him and Trooper Buchanon
arrested Id. at 47. Therefore, Appellant did not want the confidential infonnant to have any
subsequent involvement in the purchases. Id.
There was a subsequent drug transaction on June 6, 2011 whereby Trooper Buchanon
called Appellant and arranged a purchase of a half-ounce of cocaine without the assistance of the
confidential infonnant. Id at 48. The two met at the Walgreens on Main Street, and Appellant
sold Trooper Buchanon a half-ounce of cocaine in Trooper Buchanon's vehicle. Id. Lastly, on
June 8, 2011, Trooper Buchanon again called Appellant and arranged a third drug purchase
without the help of the infonnant, ld at 50.
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The Pennsylvania Superior Court has held that in cases where the informant is not an
eyewitness and has no firsthand knowledge about the incident, the need for disclosure of the
confidential informant's identity is greatly reduced. Com. v. Mascardelli, 774 A.2d 754, 757 (Pa.
Super 2001). Here, the confidential informant was merely used to introduce Trooper Buchanon
to Appellant for the purpose of making the first drug purchase on May 24, 2011. See, Id. at 39.
The confidential informant was not used for the subsequent June 6, 2011 and June 8, 2011
purchases. See, Id. at 48, 50. Notably, Trooper Buchanon was able to identify Appellant during
the second and third drug purchase without the confidential informant by using the same
telephone number that was used during the first arranged purchase on May 24, 2011 and
firsthand observation of Appellant. Id at 75. Trooper Buchanon was present for all stages of the
three arranged purchases, and therefore, he was best able to testify as a police officer-affiant
about the facts of the drug purchases from the Appellant. Therefore, testimony from the
confidential informant was not needed since the informant did not possess any material facts or
information outside of Trooper Buchanon's knowledge.
Although Appellant properly raised the defense theory of entrapment, Appellant was not
able to overcome the Commonwealth's qualified privilege of non-disclosure of a confidential
informant's identity and demonstrate facts that the informant's testimony would have exculpated
him in establishing the elements of entrapment. See, Com. v. Hritz, 663 A.2d 775, 779 CPa. Super
1995). A mere assertion that disclosure would be helpful in establishing a defense is not enough
to override the Commonwealth's qualified privilege. Id. The two elements Appellant must prove
are: first, evidence that the defendant is not disposed to commit the crime, and second, evidence
of conduct likely to entrap the innocently disposed. Id. The second element is an objective test.
ld. Appellant was required to prove that disclosure of the confidential informant's identity would
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have materially aided him in presenting his defense and that the information was not obtainable
from another source. Id at 780.
Here, this Court applied the objective test of entrapment, and Appellant failed to show
that disclosure of the informant's identity would have assisted him in proving the two
abovementioned elements of entrapment. Appellant argued at the time of his pre-trial Motion
that there was some possible enticement to execute the purchase by the confidential informant
since the informant and Appellant had a brief conversation outside of the presence of Trooper
Buchanon. However, this conversation followed certain actions by the Appellant that undermine
the argument that the criminal scheme originated with the informant. Leading up to the first drug
transaction on May 24, 20111, Appellant agreed to a meeting, brought cocaine to the arranged
meeting to sell to Trooper Buchanon, and got into Trooper Buchanon's vehicle to execute the
sale. N.O.T. 11114/2012, at 43-44.
Additional evidence weighs against the argument for entrapment, unrelated to the timing
of the conversation outside the presence of Trooper Buchanon. First, Appellant arranged the
meeting place at the Walmart in East Norriton and was irritated that Trooper Buchanon and the
confidential informant misinterpreted the location as the Walgreens in Norristown Id. at 40-41.
Second, Appellant contacted Trooper Buchanon by telephone on May 25, 2011 and expressed
his suspicion of the confidential informant, and stated that he did not want the informant to have
further involvement in the transactions. Id at 47. Appellant further stated his concern that the
confidential informant was going to get Appellant and Trooper Buchanon arrested, and
Appellant questioned whether Trooper Buchanon had a valid driver's license and valid tags on
his vehicle. Id. Appellant's actions indicate that he was, in fact, disposed to commit the crime
and that there was no conduct likely to entrap the innocently disposed.
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It is clear that Appellant was evading a potential arrest. The fact that Appellant returned
the two-hundred dollars back to Trooper Buchanon which was given to purchase the cocaine, is
insignificant since Appellant's motive for doing so was distrust of the confidential informant.
Therefore, Appellant did not demonstrate the two elements of entrapment set forth in Hritz,
ir"d Appellant's right to confrontation were not violated by non-disclosure of the confidential
informant, use of the confidential informant by law enforcement was proper, and the Court did
not abuse its discretion in denying Appellant's request to disclose the identity of the confidential
informant.
CONCLUSION
For all of the aforementioned reasons, this Court's decision and sentence should be
AFFIRMED AND UPHELD.
Copies of the above Opinion
Mailed on (,--)..0--],0 \'1
By Interoffice Mail to: ,!l.A.../-
Anne Schools, Court Administration
Montgomery County District GARRETT D. PAGE,
Attorney- Appellate Division
By FiJ"st Class Mail to:
Terrence Fuller, Defendant
~ ~rtL&l L:j;d£fC
Judicial Secret ry
9