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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
HENRY CHARLES AGNEW :
:
Appellant : No. 1662 WDA 2019
Appeal from the Judgment of Sentence Entered October 28, 2019
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0000586-2016
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 17, 2020
Henry Charles Agnew appeals the judgment of sentence entered
following his conviction for multiple crimes related to drug trafficking.1 Agnew
argues the court erred in sustaining the Commonwealth’s objection when
Agnew attempted to question the Commonwealth’s witness regarding the
confidential informant’s cause of death. We affirm based on the trial court
opinion.
Agnew’s charges concerned three controlled purchases of cocaine in
2015 by a confidential informant (“CI”) working with Blair County’s Drug Task
Force. At Agnew’s jury trial, the Commonwealth presented the testimony of
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* Retired Senior Judge assigned to the Superior Court.
1 A jury convicted Agnew of three counts each of delivery of a controlled
substance, possession of a controlled substance, and criminal use of a
communication facility. See 35 P.S. §§ 780-113(a)(30) and (a)(16), and 18
Pa.C.S.A. § 7512(a), respectively.
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Sergeant Christopher Moser, who heads the Narcotics and Vice Unit for the
City of Altoona, is on the Drug Task Force, and who testified as an expert in
drug investigations; Corporal Mathew Plummer; and Patrol Manager Andrew
Crist. The law enforcement officers testified about meeting with the CI before
and after each controlled purchase, and through their testimony, the
Commonwealth introduced surveillance photographs of the controlled
purchases and text messages between Agnew and the CI.
Sergeant Moser testified that the CI was not available for Agnew’s trial
because he had died. Agnew’s counsel asked Sergeant Moser how the CI had
died. The Commonwealth objected based on relevance. Following a sidebar
discussion, the court sustained the objection.
The jury found Agnew guilty. The court sentenced him to serve an
aggregate of 33 to 66 months’ incarceration. Agnew appealed.2,3
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2 The appeal met with much delay. We dismissed Agnew’s first attempt at an
appeal in February 2018, after his counsel failed to file a brief. Agnew filed a
timely Post Conviction Relief Act (“PCRA”) petition, and in June 2019, the PCRA
court reinstated Agnew’s direct appeal rights, appointed counsel, and gave
Agnew 30 days in which to file a new notice of appeal. Counsel filed the notice
of appeal after the 30-day deadline, and we quashed the appeal as untimely
in August 2019. The PCRA court reinstated Agnew’s direct appeal rights again
in October 2019, and Agnew thereafter filed the instant timely appeal.
3 After filing the instant notice of appeal, Agnew filed a PCRA petition under
both the above docket number and another docket number. See PCRA Pet.,
11/4/19. The PCRA court has acknowledged that the petition should be
dismissed, insofar as it relates to the instant docket number, as it was filed
while the case was on appeal. See Order, 3/5/20, at 2 (citing See
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)). As these issues are
not properly before us, we decline to comment further.
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Agnew raises one issue: “Whether the Trial Court erred in not permitting
the confidential informant’s reason for his unavailability at trial and not
allowing [Agnew] to explore the reasons for [the CI’s] death at trial?” Agnew’s
Br. at 4.4
Agnew argues that the CI committed suicide, and that he should have
been able to question the Commonwealth on the cause of the CI’s death,
because the CI’s credibility was an issue for the jury. According to Agnew, the
CI had performed a substantial number of controlled purchases, and “the jury
could have determined the [CI] committing suicide was due to a guilty
conscience from his work with the Blair County Drug Task Force making
controlled purchases[.]” Id. at 12. Agnew argues that because the
Commonwealth’s case was based on circumstantial evidence, the exclusion of
the evidence of the CI’s suicide was an abuse of discretion and reversible
error.
We review a trial court’s ruling on the admission of evidence for an abuse
of discretion. Commonwealth v. Caulk, 220 A.3d 1102, 1108 (Pa.Super.
2019) (citing Commonwealth v. Kane, 188 A.3d 1217, 1229 (Pa.Super.
2018)). Evidence is generally admissible if it is relevant, meaning that it is
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4 Agnew also devotes several pages of his brief to arguing the court erred in
allowing the Commonwealth to admit the text messages into evidence. Agnew
contends the text messages were not properly authenticated and contained
inadmissible hearsay. However, Agnew did not include this issue in his
Questions Presented, and, more importantly, did not include this issue in his
Rule 1925(b) statement of errors complained of on appeal. The issue is
therefore waived, and we decline to address it. See Pa.R.A.P. 1925(b)(4)(vii);
Pa.R.A.P. 2116(a).
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probative of a material issue, and if the probative value is not outweighed by
“unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403;
see also Pa.R.E. 401, 402.
In its opinion, the trial court explained that due to the nature of the
Commonwealth’s evidence – including officer testimony, photographic
evidence, and text messages – “this case was tried without the [CI’s]
credibility coming into question in any significant respect.” Trial Court Opinion,
filed 11/16/17, at 3. The court also explained that details regarding the CI’s
death, which took place six months after the controlled buys that formed the
facts of the case, “lacked both/either relevancy and probative value to the
jury’s evaluation of this CI’s involvement.” Id. The court found the testimony
would leave “the jury to improperly guess/speculate/blame without any
foundation as to what the fact of [the CI’s] death by suicide meant to their
determination.” Id.
We agree with the trial court’s analysis. The CI’s credibility was not at
issue in the case, and, moreover, Agnew has not offered any reason why the
suicide would be probative of the CI’s credibility, rather than the source of
unhelpful speculation. We find no abuse of discretion, and therefore affirm on
the basis of the opinion by the Honorable Hiram A. Carpenter III, which we
adopt and incorporate herein. See Tr. Ct. Op. at 1-4; see also Caulk, 220
A.3d at 1109 (holding trial court did not abuse discretion by allowing testimony
that a CI had died, but excluding testimony that CI had been shot to death,
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because the CI’s unexplained absence at trial may have been prejudicial to
the Commonwealth, but the details of the death may have caused the jury to
speculate that the defendant shot the CI, confused the jury, and
“transform[ed the defendant’s] drug-trafficking trial into a mini-trial about
[the CI’s] demise”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2020
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Com. v. Agnew, H.
Combined Opinion