Com. v. Davis, P. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
PETIE P. DAVIS :
: No. 1971 MDA 2016
Appellant
Appeal from the Judgment of Sentence November 4, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002199-2016
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 14, 2017
Appellant, Petie P. Davis,1 appeals from the judgment of sentence
entered following a jury trial in the Dauphin County Court of Common Pleas.
Appellant challenges the trial court’s denial of his pre-trial motions as well as
evidentiary rulings made during trial. We affirm.
On January 7, 2016, Officer Nicolas Licata contacted a Confidential
Informant (“CI”) to utilize in a controlled buy operation. Officer Licata
instructed the CI to call a drug dealer and order a “brick” 2 of heroin. Once the
telephone call was placed, Officer Licata marked $200 in Dauphin County drug
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 Former justice specially assigned to the Superior Court.
1Trial transcripts suggest Appellant’s actual name is Audry Petie Davis. See
N.T., Trial, 11/3/16, at 3. For the sake of consistency, we utilize the name
presented in the caption of the notice of appeal.
2 Officer Licata testified a “brick” amounts to 50 bags of heroin.
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funds and gave it to the CI. Officer Licata searched the CI and his vehicle for
contraband, and, finding nothing, proceeded to follow the CI in an unmarked
police vehicle to a location where a black male stood outside.
Officer Licata, and a second officer, Officer Dennis Simmons, observed
the black male enter the CI’s vehicle and emerge from the vehicle a short time
later. The CI proceeded to a predetermined location where Officer Licata
performed another search. Officer Licata did not find the pre-marked buy
money on the CI but did find a brick of heroin. Simultaneously, the police
arrested the male, later identified as Appellant.
During a search of Appellant, police found the pre-marked drug fund
money as well as a cell phone matching the number dialed by the CI in the
presence of Officer Licata. Upon recovering the pre-marked bills, Officer Licata
returned them to the drug fund to use in further investigations.
Appellant was charged with delivery of a controlled substance and
criminal use of a communication facility.3 During pre-trial proceedings,
Appellant moved to dismiss his case due to the police’s failure to preserve the
marked money used in the transaction and to reveal the identity of the CI. At
the hearing on the motions, Appellant failed to present any evidence.
However, the Commonwealth presented the testimony of Officer Licata who
described the danger involved in revealing the CI’s identity. The trial court
denied both motions.
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3 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 7512(a), respectively.
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Appellant’s case proceeded to a jury trial. Prior to the commencement
of trial, Appellant argued the trial court should exclude any testimony related
to the recovery of the pre-marked buy money as a violation of the best
evidence rule. The trial court denied the motion and allowed the
Commonwealth’s witnesses to testify about their use and recovery of the pre-
marked buy money. Appellant did not present any evidence but cross-
examined all of the Commonwealth’s witnesses. During the testimony of one
of the Commonwealth’s witnesses, Appellant attempted to question the
witness about the credibility of a supervisor. The Commonwealth objected to
this line of questioning, and this objection was seemingly sustained by the
trial court.4 Following deliberations, the jury convicted Appellant of both
charges. This appeal follows.
Prior to addressing Appellant’s issues on the merits, we must determine
if Appellant has properly preserved his issues for review. In his final issue on
appeal, Appellant contends that the trial court erred in granting the
Commonwealth’s objection to Appellant’s line of questioning regarding a
witness’s supervisor. See Appellant’s Brief, at 9-10, 36-38. To preserve a
claim of error following a trial court’s decision to exclude evidence, our Rules
of Evidence provide that a party offering the evidence must inform the court
of its substance through an offer of proof. See Pa.R.E. 103(a)(2). Additionally,
it is an Appellant’s duty to ensure that the certified record contains the
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4The trial court failed to place its ruling on the record. See N.T., Trial, 11/3/16
at 53-54.
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information necessary to allow a complete assessment of the issues raised.
See, e.g., Fiore v. Oakwood Plaza Shopping Ctr., 585 A.2d 1012, 1019
(Pa. Super. 1991).
Here, following the Commonwealth’s objection to Appellant’s question,
all parties convened at the court’s sidebar. None of the conversation
concerning the nature of the objection, or even the trial court’s ultimate ruling
on the objection, was placed on the official record. While we can presume the
objection was sustained based upon Appellant’s cessation of his line of
questioning, we have no information of record to confirm that Appellant
preserved this issue for our review. Additionally, despite Appellant’s
contention, there is no information of record to support his claim that the trial
court sustained the Commonwealth’s objection without sufficient support.
Without this information, which was Appellant’s duty to provide, we cannot
review this claim.
Moving to Appellant’s first preserved issue, Appellant challenges the trial
court’s denial of his motion to dismiss. See Appellant’s Brief, at 9, 19-26.
Specifically, Appellant contends the “currency used in this case is material in
proving a delivery occurred and [the Commonwealth’s] intentional failure to
preserve said funds [is] a violation of Appellant’s due process rights.” Id., at
19. The Commonwealth, on the other hand, argues it did not act in bad faith
in failing to preserve the buy money because the money itself was not material
and it was not feasible for the police to retain the money. See
Commonwealth’s Brief, at 8-12.
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“The decision to grant a pretrial motion to dismiss a criminal charge is
vested in the sound discretion of the trial court and may be overturned only
upon a showing of abuse of discretion or error of law.” Commonwealth v.
Totaro, 106 A.3d 120, 123 (Pa. Super. 2014) (citations omitted). Specifically,
in relation to the Commonwealth’s duty to preserve evidence for trial, our
Supreme Court has explained that, pursuant to Brady v. Maryland, 373 U.S.
83 (1963),
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material to either guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution. This Court has held that to
prove a Brady violation, the defendant has the burden of
demonstrating that: (1) the prosecution has suppressed evidence;
(2) the evidence, whether exculpatory or impeaching, is helpful to
the defendant, and (3) the suppression prejudiced the defendant.
Prejudice is demonstrated where the evidence suppressed is
material to guilt or innocence. Further, favorable evidence is
material, and constitutional error results from its suppression by
the government, if three is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.
Commonwealth v. Koehler, 36 A.3d 121, 133 (Pa. 2012) (internal quotation
marks and citations omitted).
Appellant has failed to meet his burden of demonstrating a Brady
violation where evidence is material to either guilt or punishment. While
Appellant’s petition contains numerous allegations concerning the materiality
of the pre-marked buy money, Appellant failed to present any evidence at the
hearing to demonstrate that the production to the buy money would be helpful
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to his case. Further, Appellant failed to show how the lack of this evidence
would prejudice him. The trial court did not prevent Appellant from
questioning the officers’ testimony relating to the drug money and it was the
duty of the jury to judge the credibility of the testimony related to the buy
money.
Alternatively, assuming the buy money was potentially useful rather
than materially exculpable evidence, Appellant argues that his due process
rights were violated due to the Commonwealth’s bad faith destruction of the
buy money. See Appellant’s Brief, at 23-26. When the Commonwealth fails to
preserve potentially useful evidence, the defendant must prove that the
Commonwealth acted in bad faith in order to show a due process violation.
See Commonwealth v. Chamberlin, 30 A.3d 381, 399 (Pa. 2011) (citation
omitted). Bad faith exists where evidence is destroyed under circumstances
“in which the police themselves by their conduct indicate that the evidence
could form a basis for exonerating the defendant.” Arizona v. Youngblood,
488 U.S. 51, 58 (1988).
Once again, Appellant has failed to meet his burden. Appellant offers no
evidence Officer Licata acted in bad faith in re-circulating the buy money.
Officer Licata testified that the policy of the department was to re-circulate
buy money so as not to hold up drug funds in litigation. Appellant did not
present any evidence to challenge this policy. Thus, as Appellant is unable to
show that the Commonwealth’s failure to preserve the buy money violated his
constitutional rights, we find this issue meritless.
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Next, Appellant asserts the trial court erred by allowing to keep the
identity of the CI confidential despite the CI’s status as the sole eyewitness to
the controlled buy. See Appellant’s Brief, at 26-32. “Our standard of review
of claims that a trial court erred in its disposition of an informant’s identity is
confined to abuse of discretion.” Commonwealth v. Watson, 69 A.3d 605,
607 (Pa. Super. 2013) (citation omitted).
The Commonwealth enjoys a qualified privilege to withhold the
identity of a confidential source. In order to overcome this
qualified privilege and obtain disclosure of a confidential
informant’s identity, a defendant must first establish, pursuant to
Rule 573(B)(2)(a)(i), that the information sought is material to
the preparation of the defense and that the request is reasonable.
Only after the defendant shows that the identity of the 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.
Id., at 607-608 (citations omitted).
Appellant averred the CI’s materiality as the sole eyewitness to the
controlled buy. However, at the pre-trial hearing on his motion, Appellant
offered no evidence in support of this claim, or any other claim related to the
materiality of the CI’s identity to the defense. The only testimony presented
at the pre-trial hearing was that of the Commonwealth’s witness, Officer
Licata, concerning the safety risks to revealing the identity of the CI.
Appellant’s unsupported allegations, without more, cannot meet Appellant’s
burden. Thus, Appellant’s second issue on appeal fails.
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Finally, Appellant asserts the trial court violated the “best evidence rule”
by denying his motion in limine to exclude reference to the buy money during
trial. See Appellant’s Brief, at 9, 33-35. Because the trial court permitted the
Commonwealth to testify concerning the uniquely marked buy money at trial,
despite their failure to produce the actual money, Appellant contends the best
evidence rule was violated. See id.“Generally, a trial court’s decision to grant or deny a motion in limine is
subject to an evidentiary abuse of discretion standard of review.”
Commonwealth v. Reese, 31 A.3d 708, 715 (Pa. Super. 2011) (en banc)
(citations omitted). The success of Appellant’s argument hinges upon the
application of the best evidence rule. Under this rule, “[a]n original writing,
recording, or photograph is required in order to prove its content unless these
rules, other rules prescribed by the Supreme Court, or a statute provides
otherwise.” Pa.R.E. 1002. “Courts apply the best-evidence rule when the
contents of documentary evidence are at issue – that is, if the terms of the
writing must be proven to make a case or provide a defense.”
Commonwealth v. Ribot, 169 A.3d 64, 67 (Pa. Super. 2017) (citation
omitted).
Despite Appellant’s contention, the application of the rule is inapposite
here. Our analysis of the rule in a similar case is illustrative. In
Commonwealth v. Harris, 719 A.2d 1049 (Pa. Super. 1998), a panel of this
court explained that the “best evidence” rule did not apply where
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[t]he material issues in this case were whether [the defendant]
knowingly possessed and delivered a controlled substance. The
Commonwealth clearly made out its case with the testimony of
the undercover officer who identified appellant as the individual
who sold him the substance identified as cocaine. The testimony
about the twenty dollar bill, specifically, the serial number, was
mere cumulative evidence, corroborating a crime which had
already been established. In these circumstances, where the
“contents of the documentary evidence” (i.e. the writing on the
bill) were not at issue, the best evidence rule does not apply, and
the trial court did not abuse its discretion in admitting the
photocopy of the marked twenty dollar bill[] or the oral testimony.
Id., at 1052 (internal citations omitted).
Applying the rationale used by the panel in Harris, we find the trial
court did not abuse its discretion in denying Appellant’s motion in limine. As
there, the issue here was whether Appellant knowingly possessed and
delivered a controlled substance. The Commonwealth proved its case with the
testimony of Officer Licata and Officer Simmons regarding their observation
of the transaction, Officer Licata’s recovery of the brick of heroin from the CI,
and the discovery of the cell phone with the same number Officer Licata
witnessed the CI dial. Officer Licata’s testimony regarding the mark placed on
the buy money was not required to prove Appellant’s guilt, and thus, the
contents of the buy money were not required to be produced at trial.
Appellant’s final issue on appeal fails.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2017
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