J-S26027-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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Circulated 08/31/2020 11 :04 AM
IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA
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HONORABLE HIRAM A. CARPENTER, III SENIOR JUDGE
DAVID C. GORMAN, ESQUIRE SR. DEPUTY ATTY GENERAL
ROBERTS. DONALDSON, ESQUIRE COUNSEL FOR DEFENDANT
OPINION AND ORDER
This matter is presently before the Court after a trial by
jury before the undersigned concluding on Friday, August 19,
2016. At trial, the jury convicted this Defendant of nine
counts involving charges of possession of cocaine, possession
to deliver cocaine, and criminal use of a communication
facility. The convictions were based on four controlled buys
which occurred on July 20, 2015; July 23, 2015; July 31, 2015;
and September 23, 2015.
The case is now before us for determination of a
subsequent appeal by the Defendant to the Superior Court where
the matter is presently pending. The Court received on
September 21, 2017 a Concise Statement of Matters Complained of
on Appeal pursuant to Rule 1925(b) which filing raised a single
issue for our consideration - specifically, whether the fact of
the manner of the death of the confidential informant (Chad
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Barr) by suicide which occurred on or about February l9, 2016
shoUld have been dd s c Loae d to the jury. The defense first
raised the .Ls.sue of the disclosure of the confidential
informant's death by suicide after most of the evidence at
trial had been developed for the jury; (See trial transctipt
at pgs. 178-185 for the defense's first request on the record
that this disclosure take place). As;that sidebar discussion
reflects,. Senior Deputy Attorney General David Gorman
immediately questioned the relevancy q>f such a disclosure. As
the record also reflects, the defense presented nothing but a
general assertion in that regard. This is consist,ent with the
Defendant's 192 s {b) filing which also lacks any specific
assertion as to how this evidence could be relevant or
probative.
At the time of our ruling, we had heard most of the
evidence in the .case. Because the confidential informant was
deceaseq prior to (or about at the ti.me ) of the filing of thes.e
charges, the evidence the jury heard r1ecessarily consisted of
the. testimony of the officers who were present at the scene;
the testimony of the officers relating to the strip searches
conducted of the confidential informant prior to and after the
buys; the prior knowledge of the officers of the Defendant for
purposes of identifying him at the scepe of the buys consistent
with the photographic evidence; and the text messages between
the confidential informant and the Defendant arranging the
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locatio� and times of the.buys. Of course, the Defendant's
actual appearance at buys which he ha<;i arranged as to time and
location lent support to the veracity of the text messages.
Because of the nature of the evidence:which the jury actually
i
heard; this Case was tried without the confidential ;i.nforman:t's
credibility coming into question in aljy significant respect.
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Because of that fundamental truth, we:agreed with the
Commonwealth that the proffered evide�ce was irrelevant.
In so holding, we acknowledge the trial of a defendant
involved in a controlled buy (or series of buys) withoqt the
testimony of the confidential informant is an awkward endeavor.
However, as reflected in the record, the Commonwealth was
uniquely able to present this case "without" the confidential
informant. Because the ca se was presented in this manner,
admission of the details of this confidential informant's death
lacked both/either relevancy and probative value to the jury's
evaluation of this confidential informant's involvement in
these buys which occurred .s d.x months p'r ev i.ou s to his suicide.
Indeed, had we admi tted this evidence,' this dd s c'l oaur e would
have been simply "out t:here" leaving the jury to improperly
g-uess/speculate/blame Without any foundation as to what the
fact of his death by suicide meant to their determination.
Finally, even if this disclosure was relevant (which it
was not), Rule 403 of the Pennsylvania Rules of Evidence is
instructive in discussing the negativ:e characteristi.cs 0£
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ncertain" evidence. In this case, the confidential informant's
suicide was both remote {six months after these buys) and
incapable of explanation by any witness as to what it �ad to do
with the buys. As such, this disclosure uniquely possessed an
undue tendency or risk of suggesting a decision on an improper
(possibly even inflammatory) basis. For all these reasons, the
requested disclosure was properly excluded as irrelevant,
lacking probative value, and potentially prejudicial.
BY THE COURT:
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Honorable Hiram III
Senior Judge
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