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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY NATHANIEL GREEN :
:
Appellant : No. 1937 EDA 2019
Appeal from the Order Entered June 5, 2019
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000383-2018
BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 06, 2020
Timothy Nathaniel Green (Appellant) appeals from the judgment of
sentence imposed after a jury convicted him of two counts of possession of a
controlled substance, and one count each of possession with intent to deliver
a controlled substance, possession of drug paraphernalia, persons not to
possess firearms, and criminal use of a communications facility.1 We affirm.
On January 8, 2018, Detective Christopher Shelly (Detective Shelly) of
the Stroudsburg Area Regional Police Department, arranged for a confidential
informant (CI) to engage in a controlled purchase of narcotics from Appellant’s
residence, located at 166 North Courtland Street, East Stroudsburg,
Pennsylvania (the Property), which Appellant shared with other individuals.
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1 35 P.S. § 780-113(a)(16), (30), (32); 18 Pa.C.S.A. §§ 6105(a)(1), 7512(a).
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The CI used a cell phone to contact Appellant to arrange the controlled
purchase. Detective Shelly provided the CI with identifiable U.S. currency and
observed the CI enter the Property, and then exit a few minutes later.
Immediately thereafter, the CI gave Detective Shelly heroin that the CI had
purchased while inside the Property.
One day later, Detective Shelly again used the CI to conduct a controlled
purchase at the Property, employing the same procedure as the prior
controlled purchase.2 After exiting the Property, the CI provided Detective
Shelly with two bags of heroin that were marked “Sexy Lady.” Based on the
controlled buys, Detective Shelly sought and obtained a search warrant for
the Property.
Police executed the search warrant on January 12, 2018. The police
located Appellant in his bedroom, and discovered in that room 30 bags of
heroin marked “Sexy Lady,” crack cocaine, 2 digital scales, a cell phone, and
$500 in U.S. currency. The phone number of the cell phone seized matched
the same number that the CI had previously contacted to arrange the
controlled buys. The police also recovered two firearms, one in the basement
and the other in a closet area.
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2We collectively refer to the controlled purchases conducted on January 8 and
9, 2018 as “the controlled buys.”
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Following the search, the police arrested Appellant and transported him
to the police station for questioning, prior to which police advised him of his
Miranda3 rights. Detective Shelly testified that during the video-recorded
interview, Appellant “admitted that that was his heroin[,]” and “admitted that
he sells this heroin to various customers.” N.T., 3/14/19, at 46. Appellant
further admitted to owning all of the contraband seized from the Property,
including the firearms. See id. at 41-42, 46. The police charged Appellant
with the above-mentioned crimes.4
The matter proceeded to a jury trial on March 14, 2019. On the morning
of the first day of trial, after the jury had been sworn in, Appellant’s counsel
filed a motion in limine, seeking to suppress any mention of the controlled
buys, and to reveal the identity of the CI.5 The trial court discussed the motion
with defense counsel and the prosecutor at sidebar, and denied the motion.
At the close of trial, the jury rendered its guilty verdicts.
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3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
4 Importantly, the charges pertained only to the contraband seized from the
Property. The Commonwealth did not charge Appellant with regard to the
controlled buys. Moreover, Detective Shelly never testified that Appellant was
the individual inside the Property who sold the heroin to the CI during the
controlled buys.
5 Appellant never filed a pretrial discovery motion seeking to reveal the
identity of the CI.
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On June 5, 2019, the trial court imposed an aggregate sentence of 7 to
14 years in prison. Appellant filed a timely notice of appeal, followed by a
court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal.
Appellant now presents the following issues for our review:
I. Whether the trial court erred and abused its discretion in
denying Appellant’s Motion in Limine to prohibit testimony
related to any drug transactions which involved a Confidential
Informant[,] which was the sole basis for obtaining a search
warrant for Appellant’s home[?]
II. Whether the trial court erred in failing to compel the
Commonwealth to produce the Confidential Informant at trial
or disclose his/her identity, therefore depriving Appellant of
his Sixth Amendment right to confront his accuser[?]
Brief for Appellant at 6 (suggested answers to questions omitted).
Appellant addresses both of his issues simultaneously in the argument
section of his brief; we will do likewise. Appellant contends that the trial court
erred in failing to (1) preclude the Commonwealth from introducing evidence
of the controlled buys; and (2) compel disclosure of the CI’s identity. See id.
at 11-14. According to Appellant, “[t]he identity of the CI is of crucial
importance to the defense in that the case consisted entirely of information
derived from a witness who was shielded from cross-examination[,] and
whose credibility could not be questioned.” Id. at 13.
Our standard of review of a denial of a motion in limine is as follows:
When ruling on a trial court’s decision to grant or deny a motion
in limine, we apply an evidentiary abuse of discretion standard of
review. The admission of evidence is committed to the sound
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discretion of the trial court, and a trial court’s ruling regarding the
admission of evidence will not be disturbed on appeal unless that
ruling reflects manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support to be clearly erroneous.
Commonwealth v. Mangel, 181 A.3d 1154, 1158 (Pa. Super. 2018) (citation
omitted). Moreover, “[o]ur 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.” Commonwealth v. Jordan, 125 A.3d 55,
62 (Pa. Super. 2015) (en banc) (citation omitted).
Pursuant to 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 a
defendant makes a showing of material need and reasonableness.
Commonwealth v. Marsh, 997 A.2d 318, 321 (Pa. 2010) (citing
Pa.R.Crim.P. 573(B)(2)(a)(i)). Our Supreme Court “has repeatedly
recognized the importance of the Commonwealth’s qualified privilege to
maintain the confidentiality of an informant in order to preserve the public’s
interest in effective law enforcement.” Marsh, 997 A.2d at 324 (citation
omitted); see also id. (stating that the safety of the CI is a controlling factor
in determining whether to reveal his or her identity). In order for a defendant
to overcome the Commonwealth’s qualified privilege, the defendant “must
demonstrate at least a reasonable possibility the informant’s testimony would
exonerate him.” Commonwealth v. Withrow, 932 A.2d 138, 141 (Pa.
Super. 2007). “Only after the defendant shows that the identity of the
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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.” Commonwealth v. Koonce, 190 A.3d 1204, 1209 (Pa.
Super. 2018) (citation omitted).
Here, Appellant is incorrect in asserting that the Commonwealth’s “case
consisted entirely of information derived from [the CI.]” Brief for Appellant at
13. Rather, the Commonwealth’s case was predicated upon the contraband
seized from the Property, which Appellant admitted to possessing. See
Withrow, 932 A.2d at 141-43 (holding that the trial court erred in granting
defendant’s motion to disclose the identity of the CI who had witnessed the
defendant and a police officer engage in a drug transaction, because the
transaction was not the basis of the charges; rather, the charges were based
on the narcotics that police discovered while executing a search warrant of
defendant’s home); see also id. at 141 (emphasizing that “the CI was not an
eyewitness to the offense with which the defendant was charged.” (emphasis
in original)).6 Further, Appellant did not raise a challenge to the lawfulness of
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6 Moreover, Appellant fails to advance any plausible explanation of how
disclosure of the CI’s identity, and cross-examination of him or her, could have
exonerated Appellant, or even aided the defense, where the charges pertained
only to the contraband found in the Property. See Commonwealth v.
Belenky, 777 A.2d 483, 488 (Pa. Super. 2001) (stating that a defendant must
establish more than a mere assertion that disclosure of the CI’s identity “might
be helpful.”).
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the search warrant before the trial court, see Pa.R.A.P. 302(a), nor does he
on appeal. See Withrow, 932 A.2d at 142 (stating that “[b]ecause Withrow
did not attack the validity of the warrant, the CI’s testimony was not material
to his defense.”). Accordingly, the trial court did not abuse its discretion in
denying the motion in limine, and Appellant’s issues do not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/20
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