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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RICHARD GAINES :
:
Appellant : No. 1053 EDA 2019
Appeal from the Judgment of Sentence Entered March 8, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0007807-2016
BEFORE: SHOGAN, J., LAZARUS, J., and COLINS, J.*
MEMORANDUM BY SHOGAN, J.: FILED MAY 01, 2020
Appellant, Richard Gaines, appeals from the March 8, 2019 judgment of
sentence entered in the Montgomery County Court of Common Pleas following
a jury trial. We affirm.
The trial court summarized the procedural history and facts of the crime
as follows:
[Appellant], represented by Attorney Marc Frumer, was
found guilty of two counts of possession with intent to deliver,1
two counts of possession of a controlled substance,2 and two
counts of paraphernalia delivery,3 following a two-day jury trial on
October 10, 2018[,] and October 11, 2018.
1 35 P.S.780-113(a)(30)[.]
2 35 P.S 780-113(a)(16)[.]
3 35 P.S.780-113(a)(33)[.]
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* Retired Senior Judge assigned to the Superior Court.
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Prior to trial, [Appellant] filed a motion in limine to preclude
all testimony, statements, and evidence or information obtained
from the confidential informant.4 The Commonwealth filed a
response to [Appellant’s] motion, and included a prior bad acts
motion within that response.5 Argument was held on December
19, 2017[,] on both motions. By Order dated March 6, 2018, this
[c]ourt denied [Appellant’s] blanket pre-trial motion[,] which
sought to preclude all evidence obtained from the confidential
informant. However, the [c]ourt ordered that [Appellant] be
permitted to object and argue against the admission of specific
evidence should the Commonwealth seek to admit it. Additionally,
the [c]ourt denied the Commonwealth’s [Pa.R.E.] 404(b) Motion
in its Order dated March 6, 2018.6 See Trial Court Order dated
March 6, 2018.
4 [Appellant’s] Motion in Limine Precluding all
Testimony, Statements, and Derivative Evidence
and/or Information Obtained from the Confidential
Informant at Trial, dated December 5, 2017.
5 Commonwealth’s Response dated December 12,
2017.
6 In May, 2016, [Appellant] filed a Motion to disclose
the identity of the informant, which was later deemed
Moot as the informant passed away shortly thereafter.
A jury trial was held on October 10, 2018[,] and October 11,
2018. The charges brought against [Appellant] resulted from two
drug purchases arranged by the Cheltenham Police Department
and conducted through a confidential informant, hereinafter “CI.”
The first purchase occurred on April 27, 2016[,] and the second
on May 16, 2016. (N.T., October 10, 2018, pp. 37, 54)[.]
For the April 27, 2016 transaction, the CI made contact with
a drug dealer known as Bee and arranged the transaction. (N.T.,
October 10, 2018, p. 37). Just prior to the meeting with Bee, the
CI was searched, so as to assure he/she was free from contraband
and money, and was given one hundred and eighty dollars ($180)
in prerecorded currency to use for the drug purchase. (N.T.,
October 10, 2018, pp. 38, 47). Sergeant Michael Regan of the
Cheltenham Township Police Department carefully monitored the
CI during the drug transaction and observed the entire purchase.
(N.T., October10, 2018, pp. 46-50).
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The CI was observed getting into the passenger side of a
green Mercury Mountaineer. The vehicle then drove through a
parking lot for several minutes before the CI exited the vehicle.
(N.T., October 10, 2018, p. 48). From his surveillance position,
Sergeant Regan identified [Appellant] as the driver of the green
Mercury Mountaineer.7 (N.T., October, 10, 2018, p. 48). Upon
returning to the police, the CI turned over two (2) bundles of
heroin and was re-searched in order to confirm that the CI did not
have any additional drugs or money on him/her. (N.T., October
10, 2018, p. 51).
7 The green Mercury Mountaineer was found to be
registered to [Appellant]. (N.T., October 10, 2018, p.
54).
The second transaction between the CI and [Appellant] took
place on May 16, 2016. The CI contacted the same phone number
that was called for the first transaction. (N.T., October 10, 2018,
p. 54). Similar to the first transaction, the CI was searched by
the offices [sic] so as to confirm that he was free of contraband
and money. The CI was again given one hundred and eighty
dollars ($180) in prerecorded currency. (N.T., October 10, 2018,
p. 55). The CI walked to the same location as the last purchase
and was again followed by police. (N.T., October 10, 2018, p. 55).
Sergeant Regan, in addition to Officer O’Donnell, Officer Chifello,
and Officer Diaz, had the CI under surveillance during the entire
transaction. (N.T., October 10, 2018, p.56).
For the second transaction, the CI again got into the
vehicle[,] which drove a short distance in the parking lot[] and
was dropped back off near the entrance. (N.T., October 10, 2018,
p. 58). The entire transaction was once again observed by
Sergeant Regan. (N.T., October 10, 2018, p. 58). The CI
returned with two (2) bundles of heroin. (N.T., October 10, 2018,
p. 59).
At the conclusion of deliberation, the [j]ury found
[Appellant] guilty on all six charges. [Appellant] was sentenced
on March 8, 2019. Prior to sentencing [Appellant] made an oral
motion for extraordinary relief, which was denied by the [c]ourt.8
[Appellant] asserted that the Commonwealth failed to provide
[Appellant] with information regarding the confidential informant,
which he argued was discoverable Brady9 material. (N.T., March
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8, 2019, p. 9). The Commonwealth countered that such
information did not exist, but if it did, it was protected with the
informant’s identity, which was to remain confidential.
8 [Appellant] initially filed a written motion, however,
as such motions may only be made orally,
[Pa.R.Crim.P. 704(B),] the [c]ourt disregarded
[Appellant’s] written motion, but allowed [Appellant’s]
attorney to make the oral motion prior to sentencing.
9 Brady v. Maryland, 373 U.S. 83 (US Supreme Ct.
1963).
On April 5, 2019, the instant timely notice of direct appeal
was filed with Superior Court of Pennsylvania. By Order dated
April 9, 2019, the undersigned directed [Appellant] to file a
statement of errors complained of on appeal, pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b).
Trial Court Opinion, 6/12/19, at 1–4. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
I. Whether the trial court abused its discretion in denying
[A]ppellant[’]s Motion for disclosure of the identity,
statements, and discovery concerning the [CI] because the
informant had died prior to trial?
II. Whether the Commonwealth withheld requested Brady
material, and erred in denying [A]ppellant[’]s Motion for
Extraordinary relief by failing to disclose the agreement
made with the police and/or district attorney’s office for
“working off” the charges?
III. Whether this Court should review the issues raised herein in
this appeal, or grant remand for purposes of allowing newly
appointed counsel on direct appeal to file [a] Post-Sentence
Motion Nunc Pro Tunc as a result of trial counsel ineffective
assistance?
Appellant’s Brief at 6.
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Appellant first argues that the trial court abused its discretion in denying
his motion to disclose the identity of the CI. Appellant’s Brief at 21. “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.” Commonwealth v. Jordan, 125 A.3d 55, 62 (Pa. Super. 2015)
(en banc)). Jordan delineated the applicable Pennsylvania Supreme Court
precedent outlining the test employed to determine whether the
Commonwealth must reveal the identity of a confidential informant, as set
forth in Commonwealth v. Bing, 713 A.2d 56 (Pa. 1998). The
Commonwealth retains a qualified privilege to withhold the identity of a
confidential source. Commonwealth v. Watson, 69 A.3d 605, 607 (Pa.
Super. 2013). In order to overcome the Commonwealth’s privilege and obtain
disclosure of a CI’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. Jordan, 125 A.3d at 63;
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
threshold showing of materiality and reasonableness. Jordan, 125 A.3d at
63.
Appellant asserts that the CI’s identity should have been disclosed to
Appellant prior to trial because the CI was “the only eyewitness to the hand-
to-hand exchange.” Appellant’s Brief at 24. Appellant suggests that Sergeant
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Regan, observing from his vehicle at a distance “could not see and/or hear
what was occurring inside the vehicle.” Id. Thus, Appellant maintains that
“the jury had to rely upon circumstantial evidence.” Id.
This issue is waived. First, Appellant substantiates no such denial order
by the trial court. Appellant’s Brief at 21–25. To the extent that the trial court
indicated at a December, 2017 hearing that based upon the law, the court
would have denied the motion, defense counsel stated, “Yes, I agree with
that.” N.T., 12/19/17, at 3. Second, the trial court explained, “At a hearing
before the [c]ourt in October 2017[,] it was brought to this [c]ourt’s attention
that the CI had passed away. At that time, it was agreed upon by the
parties that the Defense motion seeking to disclose the CI’s identity
was deemed moot.” Trial Court Opinion, 6/12/19, at 6 (emphasis added).
We note that the record certified to us on appeal does not contain notes of
testimony from an October, 2017 hearing.1 However, Appellant, by new
counsel on appeal, acknowledges defense counsel indeed concurred that the
issue of the CI’s identity was moot and suggests that trial counsel “should not
have agreed that the pre-trial Motion became moot upon the death of the
informant . . . .” Appellant’s Brief at 34. Thus, we agree with the trial court’s
determination that the issue is waived. The trial court stated:
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1 “It is an appellant’s duty to ensure that the certified record is complete for
purposes of review.” Commonwealth v. Lopez, 57 A.3d 74, 82 (Pa. Super.
2012).
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Counsel is not permitted to raise the merits of an issue for the first
time on appeal. The Pa[.] Rules of Appellate Procedure clearly
state that issues not raised in the lower court cannot be raised for
the first time on appeal. Pa.R.A.P. 302(a). Prior to this [c]ourt
addressing the merits of the motion to disclose, [Appellant] and
the Commonwealth, by agreement, determined that the motion
was moot, thereby waiving [Appellant’s] right to now litigate the
merits on appeal.
Trial Court Opinion, 6/12/19, at 6. Accord Commonwealth v. Torres-
Kuilan, 156 A.3d 1229, 1231 (Pa. Super. 2017) (issues not raised in lower
court are waived and cannot be raised for the first time on appeal).
Appellant’s second issue asserts that the Commonwealth withheld
Brady material, and the trial court erred in denying his Motion for
Extraordinary Relief. Appellant’s Brief at 25. Appellant fails to analyze the
procedural posture of his request. This issue is waived.
At sentencing, the trial court addressed Appellant’s written Motion for
Extraordinary Relief. N.T. (Sentencing), 3/8/19, at 3. The trial court informed
counsel that such motion must be made orally. See Pa.R.Crim.P. 704(B)(1)
(“Under extraordinary circumstances, when the interests of justice require,
the trial judge may, before sentencing, hear an oral motion in arrest of
judgment, for a judgment of acquittal, or for a new trial”) (emphasis added).2
____________________________________________
2 The comment to this rule provides that it:
is intended to allow the trial judge the opportunity to address only
those errors so manifest that immediate relief is essential. . . .
[T]he basic purpose of the rule [is as follows:] when there has
been an egregious error in the proceedings, the interests of justice
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See also Commonwealth v. Fisher, 764 A.2d 82 (Pa. Super. 2000) (Plain
terms of predecessor rule to Pa.R.Crim.P. 704, governing oral motions for
extraordinary relief, do not permit the filing of a written motion for such relief
prior to sentencing). After the court called Appellant’s attention to his
noncompliance with the rule, defense counsel then made an oral motion
reiterating the arguments in his written motion. N.T. (Sentencing), 3/8/19,
at 3. The trial court entertained argument by both Appellant and the
Commonwealth and denied the motion. Id. at 4–20.
Appellant did not raise his Brady claim at the earliest opportunity. He
could have raised it pretrial, as soon as he learned that the prosecutor did not
intend to provide him with the requested information. He also could have
raised it at trial when he learned during Sergeant Regan’s testimony that the
CI was “working off” charges. N.T. (Jury Trial), 10/11/18, at 9–10. Most
importantly, Appellant did not raise the claim in a post-sentence motion.
Instead, he raised it only by way of the motion for extraordinary relief, which
did not preserve it for appellate review. See Pa.R.Crim.P. 704(B)(3) (“A
motion for extraordinary relief shall have no effect on the preservation or
____________________________________________
are best served by deciding that issue before sentence is imposed.
Because the relief provided by this section is extraordinary,
boilerplate motions for extraordinary relief should be summarily
denied.
Pa.R.Crim.P. 704, cmt.
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waiver of issues for post-sentence consideration or appeal.”). The comment
to this section of the rule explains as follows:
Paragraph (B)(3) is intended to make it clear that a motion for
extraordinary relief is neither necessary nor sufficient to
preserve an issue for appeal. The failure to make a motion for
extraordinary relief, or the failure to raise a particular issue in such
a motion, does not constitute a waiver of any issue. Conversely,
the making of a motion for extraordinary relief does not, of itself,
preserve any issue raised in the motion, nor does the judge’s
denial of the motion preserve any issue.
Pa.R.Crim.P. 704(B)(3), cmt (emphasis added). For these reasons, the issue
is waived.
Even if not waived, we would agree with the trial court that the issue
lacks merit. Under Brady:
“a prosecutor has an obligation to disclose all exculpatory
information material to the guilt or punishment of an accused,
including evidence of an impeachment nature.” Commonwealth
v. Spotz [610 Pa. 17], 18 A.3d 244, 275–76 (Pa. 2011) (citation
omitted). To establish a Brady violation, [an] appellant must
demonstrate: the evidence at issue was favorable to him, because
it was either exculpatory or could have been used for
impeachment; the prosecution either willfully or inadvertently
suppressed the evidence; and prejudice ensued. Id., at 276
(citation omitted). “The evidence at issue must have been
‘material evidence that deprived the defendant of a fair trial.’ ...
‘Favorable evidence is material ... if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.’” Id.
(citations omitted).
Commonwealth v. Champney, 65 A.3d 386, 397 (Pa. 2013).
Speaking to the merits, the trial court stated:
[Appellant], in his motion for extraordinary relief, alleged that it
was clear from the testimony of Sergeant Regan that the
Commonwealth was withholding information regarding the CI.
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Sergeant Regan explained to the jury the process of how a CI
operates and that in some cases, a CI may be “working off
charges.” (N.T., October 10, 2018, p. 31). [Appellant] assumed
this testimony to indicate that the CI in this case was “working
off” charges for the police and that documentation regarding that
would exist. However, it is clear from his testimony that when
Sergeant Regan[] stated[,] “[G]enerally they are working off
charges...” he was broadly explaining confidential informants to
the jury and not describing this specific CI (N.T., October 10,
2018, p. 31). Therefore, it is clear to this [c]ourt that [Appellant’s]
claim of a Brady violation via the motion for extraordinary relief
was without merit.
Trial Court Opinion, 6/12/19, at 7–8.
The evidence that Appellant argues was suppressed was information
that the CI “worked off” charges. Appellant’s Brief at 27. He claims that such
evidence would have demonstrated the CI’s bias and motive to lie, thus
casting doubt on the Commonwealth’s case. Id. Notwithstanding the fact
that the CI did not testify, to the extent he would have been impeached, in
effect, he was impeached. Appellant presented the allegedly impeaching
evidence to the jury when Sergeant Regan testified on cross-examination that
the CI was “working off” charges and had “something to gain” by helping
police. N.T. (Jury Trial), 10/11/18, at 10. Defense counsel used that
information—the very information Appellant now complains was withheld—to
subsequently aver during summation that the CI was a “polluted source” who
generally could not be trusted and otherwise cast doubt over the entire
investigation. Id. at 84–85. We agree with the Commonwealth that under
these circumstances, Appellant cannot show that the outcome of his trial
would have been different because he actually presented the sought-after
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information. Commonwealth’s Brief at 12. Thus, even if not waived, we would
find the issue lacks merit.
Finally, Appellant suggests this Court should remand this case to permit
counsel to file a post-sentence motion nunc pro tunc “as a result of trial
counsel[’s] ineffective assistance.” Appellant’s Brief at 29. Appellant is
incorrect. Rather, any claims of ineffective assistance of counsel are deferred
to be raised in a subsequent petition pursuant to the Post-Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546.
In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme
Court considered “the reviewability of claims of ineffective assistance (“IAC”)
of counsel on post-verdict motions and direct appeal.” Id. at 563. Following
a comprehensive review of the language codified in the PCRA and decisions
from our courts, the Holmes Court revisited the exception to
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), as described in
Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), and held that absent
either good cause or exceptional circumstances and a waiver of PCRA review,
IAC claims must await collateral review. See also Commonwealth v.
Barnett, 25 A.3d 371, 373 (Pa. Super. 2011) (en banc) (“[T]he Supreme
Court has limited the applicability of Bomar” such that most assertions of
ineffective assistance of counsel “are appropriately raised only on collateral
review.”); Commonwealth v. Britt, 83 A.3d 198, 203 (Pa. Super. 2013)
(“[A]bsent either good cause or exceptional circumstances and a waiver of
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PCRA review, ineffective assistance of counsel claims must await collateral
review.”).
We note that Holmes applies to ineffectiveness claims themselves, not
the underlying substantive claims, which herein, are trial court error and the
withholding of alleged Brady material. However, to the extent that Appellant
has even articulated proper ineffectiveness claims, there is no indication in the
record that good cause or extraordinary circumstances exist such that
Appellant’s claims warrant review on direct appeal or that Appellant expressly
waived his right to PCRA review. See also Barnett (holding that this Court
cannot review IAC claims on direct appeal absent a defendant’s waiver of PCRA
review). Consequently, we decline to address Appellant’s claims in the context
of ineffective assistance of counsel and/or remand to the trial court without
prejudice to his ability to raise the issues in a subsequent PCRA petition, if he
so chooses.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2020
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