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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANGEL MANUEL DEJESUS, :
:
Appellant : No. 715 MDA 2017
Appeal from the Judgment of Sentence March 27, 2017
in the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007275-2015
BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 31, 2018
Angel Manuel DeJesus (Appellant) appeals from his judgment of
sentence imposed following convictions in a bench trial for two counts of
delivery of heroin. Specifically, Appellant challenges the denial of his pre-trial
motion to compel disclosure of the identity of a confidential informant. We
affirm.
The Commonwealth filed a criminal complaint on September 16, 2016,
charging Appellant with the aforementioned offenses. Prior to trial, Appellant
filed an omnibus pre-trial motion seeking an order directing the
Commonwealth to disclose the identity of the confidential informant used
during police-controlled drug buys. Appellant averred in his motion that the
Commonwealth had not disclosed the identity of the informant and it was
unclear how many informants were used during the transactions. Motion,
*Retired Senior Judge assigned to the Superior Court.
J-S73031-17
7/22/2016, at ¶¶ 4-5. Appellant argued that because the informant was the
only witness to confirm or deny the transactions, he had the right to confront
the informant. Id. at ¶¶ 6-7. Appellant also argued that his right to
confrontation greatly outweighed the Commonwealth’s privilege to keep the
informant’s identity confidential. Id. at ¶ 8.
On October 5, 2016, the trial court conducted a hearing on Appellant’s
motion. The only witness, Officer Patrick Gartrell, Jr., was called by the
Commonwealth. Officer Gartrell testified that on July 22, 2015, a confidential
informant told him that the informant could purchase heroin from Appellant.
Officer Gartrell instructed the informant to call Appellant on the telephone to
request that Appellant sell a bundle of heroin to the informant. N.T.,
5/6/2016, at 8. The informant did so in the presence of Officer Gartrell. Id.
Officer Gartrell heard the informant’s side of the conversation, but could not
hear anything on the other end of the call except that the informant was
speaking to someone with a male voice. Id.
Prior to the meeting to conduct the transaction, Officer Gartrell searched
the informant and the informant’s vehicle and found both to be free of drugs,
money, or other contraband. Id. at 9, 18-19. Officer Gartrell provided the
informant with $100 in cash with previously recorded serial numbers. Id.
Officer Gartrell kept the informant under continuous surveillance until they
reached the meeting location chosen by Appellant, a Turkey Hill convenience
store, where another officer, Trooper Shawn Wolfe, was then able to surveil
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the informant. Id. at 9-10. Meanwhile, a third officer, Trooper Dembowski
watched Appellant exit his residence at 1:51 p.m. and proceed to enter the
informant’s vehicle three minutes later. Id. at 10. The only two people in the
vehicle were the informant and Appellant. Id. at 10-11. The vehicle exited
the parking lot and drove approximately half of a block before Appellant exited
the vehicle and returned to his residence. Id. at 11. Officer Gartrell continued
to surveil the informant to the next location, where the informant turned over
ten bags of heroin. Id. at 11-12. The Commonwealth entered into evidence
surveillance photographs taken by Trooper Wolfe. One of the photographs
depicted a man Officer Gartrell identified as Appellant standing next to the
informant’s car at the Turkey Hill. Id. at 12-13.
Six days later, Officer Gartrell requested that the informant arrange
another drug transaction with Appellant. Id. at 13. Once again, in Officer
Gartrell’s presence, the informant contacted Appellant at the same phone
number he used the previous week and requested that Appellant sell him a
bundle of heroin. Id. at 13-14. As with the previous transaction, Officer
Gartrell searched the informant and the informant’s car, and provided the
informant with official funds. Id. at 14. On the way to the transaction, the
informant contacted Officer Gartrell and informed him that Appellant changed
the location of the meeting at the last minute. Id. at 15. Officer Gartrell
followed the informant to the new meeting point. Id. When they arrived,
Appellant was present already on foot, and Officer Gartrell observed him
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getting into the informant’s vehicle. Id. Only the informant and Appellant
were present in the vehicle. Id. at 16. The police were unable to take
surveillance photographs during the second meeting due to the last-minute
change in location, but Officer Gartrell observed Appellant from approximately
half of a block away prior to Appellant’s entering the informant’s vehicle at
11:44 a.m. Id. Officer Gartrell followed Appellant and the informant as the
vehicle drove a short distance. Id. at 16-17. Officer Gartrell observed
Appellant exit the vehicle and Detective Hoover saw Appellant walking back
into his residence at 11:46 a.m. Id. Officer Gartrell then followed the
informant until the informant met him and turned over a bundle of heroin. Id.
at 17. The police once again searched the informant and his car and did not
locate any contraband. Id.
Appellant did not present any witnesses at the hearing, but argued that
he had a right to confront the informant because the informant was the only
witness who observed the actual transactions. Further, Appellant contended
the fact that Appellant was not arrested until almost two months after the
second transaction “[lent] more of a possible issue as to mistaken identity.”
Id. at 20-21.
At the conclusion of the hearing, the trial court denied Appellant’s
motion, reasoning that there was sufficient evidence from more than one
source to establish Appellant’s identity at the transactions, his travels to and
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from the transactions, and the receipt of drugs from the informant after the
transactions. Id. at 24.
Subsequently, the trial court conducted a bench trial, and found
Appellant guilty of the aforementioned charges. On March 27, 2017, the trial
court sentenced Appellant to an aggregate term of four to eight years’
incarceration. Appellant timely filed the instant appeal. Both Appellant and
the trial court complied with Pa.R.A.P. 1925.
Appellant’s sole issue on appeal is whether the trial court erred in
denying his request to compel disclosure of the confidential informant’s
identity. Appellant’s Brief at 4.
We review claims that a trial court erred in its disposition of a request
for the disclosure of an informant’s identity for abuse of discretion. See
Commonwealth v. Washington, 63 A.3d 797, 801 (Pa. Super. 2013). The
Commonwealth enjoys a qualified privilege to withhold the identity of a
confidential source. Commonwealth v. Marsh, 997 A.2d 318, 321 (Pa.
2010) (plurality opinion). In order to overcome the Commonwealth’s privilege
and obtain disclosure of a confidential informant’s identity during pretrial
discovery, the defendant must establish that the informant’s identity is
material to the preparation of a defense and that the request is reasonable.
Commonwealth v. Jordan, 125 A.3d 55, 63 (Pa. Super. 2015) (en banc);
Pa.R.Crim.P. 573(B)(2)(i). The trial court may not exercise its discretion to
determine whether disclosure is required until the defendant makes the
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threshold showing of materiality and reasonableness. Jordan, 125 A.3d at
63. If the defendant is able to make the threshold showing,
then the courts must balance the public interest in the police’s
ability to obtain information against the defendant’s right to
prepare his defense. In this connection, we consider the crime,
the potential defense, and the significance of the [confidential
informant’s] testimony. The scales tip in favor of disclosure if the
Commonwealth will be relying on police testimony based on a
single observation. If other proof corroborates a police officer’s
testimony, disclosure is not mandated. Furthermore, the safety of
the confidential informant can be a controlling factor in
determining whether to reveal a source’s identity.
Id.
In the instant case, the trial court determined that Appellant did not
make the threshold showing of materiality and reasonableness because
Appellant “failed to present any evidence or lay an evidentiary foundation to
show that the confidential informant would … materially aid his defense.” Trial
Court Opinion, 7/23/2017, at 3-4.
Appellant disputes the trial court’s determination that he failed to meet
his initial burden. Appellant’s Brief at 14. Appellant contends through cross-
examination of Officer Gartrell he established factual support for his defense
of misidentification, namely that there was no evidence from anyone other
than the informant proving that he sold heroin to the informant. Id. Appellant
asserts that the change in location during the second transaction casts doubt
on whether Appellant was the individual at the new transaction location. Id.
He argues his request was reasonable because the Commonwealth failed to
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present any evidence that disclosure would create danger to the informant or
compromise ongoing investigations. Id. at 15.
It is clear that “allegations alone do not supplant the need to make an
actual evidentiary showing” that disclosure of a witness’s identity is material
to a defense. Marsh, 997 A.2d at 322. “[B]efore disclosure of an
inform[ant’s] identity is required in the face of the Commonwealth’s assertion
of privilege, more is necessary than a mere assertion by the defendant that
such disclosure might be helpful in establishing a particular defense.”
Commonwealth v. Herron, 380 A.2d 1228, 1230 (Pa. 1977) (holding that
the defendant failed to provide a “sufficient factual foundation to enable the
trial judge to conclude that knowing the inform[ant]’s identity might be helpful
in establishing an entrapment defense;” defendant failed to establish specific
facts supporting entrapment through witnesses or, at a minimum, an offer of
proof). Cf. Commonwealth v. Payne, 65 A.2d 77, 80 (Pa. 1994) (concluding
that Appellant established materiality to his mistaken identity defense by
testifying “at the evidentiary hearing that he had not met the trooper prior to
this arrest and that he had not been at the apartment complex where the
transaction occurred on the night in question”).
While cross-examination of the Commonwealth’s witnesses may be
enough in some cases to lay an evidentiary foundation for materiality and
reasonableness, we discern no abuse of discretion in the trial court’s
determination that the cross-examination in this case was insufficient to meet
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the defense’s burden. Appellant is correct that the only witness to the actual
transactions was the informant. Nevertheless, multiple police officers
observed Appellant and the informant on two occasions leading up to and
immediately after the transactions, with circumstantial evidence
demonstrating the occurrence of illegal drug transactions. The police had the
opportunity to observe Appellant during daylight hours in relatively close
range on both occasions. Furthermore, prior to the first transaction, the police
captured Appellant in a photograph outside the informant’s car at the meeting
point arranged by Appellant. Appellant was reachable at the same telephone
number and made the same arrangements for the second meeting, save for
Appellant’s decision to change the meeting location at the last minute.
To the extent that Appellant claims he was not present at the scene,
Appellant offered no evidence to support this claim of mistaken identification,
such as facts establishing an alibi or demonstrating the person in the
photograph does not match his appearance. Despite Appellant’s contention
in his brief that he “made the threshold showing that his request for disclosure
of the [informant] was reasonable and material” based upon a defense of
misidentification, Appellant primarily relies upon the argument his counsel
made at the motion hearing as opposed to actual testimony or an offer of
proof. Appellant’s Brief at 14 (citing N.T., 10/5/2016, at 21, 24). Beyond
this, Appellant points to the last-minute change in location and the lack of
photographs from the second transaction to support his claim for mistaken
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identity. Id. (citing N.T., 10/5/2016, at 12, 16). These facts alone, however,
do not constitute an “actual evidentiary showing” that Appellant was not the
person at the scene or otherwise demonstrate that disclosure of a witness’s
identity is material to a mistaken identity defense. Marsh, 997 A.2d at 322.
Appellant cannot rely on “mere assertion” alone. Herron, 380 A.2d at 1230.
Based on the foregoing, we hold the trial court did not abuse its
discretion in concluding that Appellant failed to make a threshold showing of
materiality.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/18
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