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Commonwealth v. Koonce

Superior Court of Pennsylvania

June 15, 2018


          Appeal from the Judgment of Sentence January 25, 2017 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0000620-2016

          BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS [*], P.J.E.


          STEVENS, P.J.E JUDGE

         Appellant Jonathan Koonce appeals from the judgment of sentence of four years' reporting probation entered in the Court of Common Pleas of Montgomery County on January 25, 2017, following his conviction in a stipulated non-jury trial of possession with intent to deliver (marijuana).[1] We affirm.

         The trial court aptly set forth the relevant facts revealed at the suppression hearing as follows:

The credible testimony of the Commonwealth witnesses, Detective Christopher Schwartz of the Plymouth Township Police Department and Detective Iran Millan of the Montgomery County Detective Bureau established the following facts. In November of 2015, Detective Christopher Schwartz of the Plymouth Township Police Department met with a CI[2] to set up a controlled buy. (Motion to Suppress 1/17/2017 pp. 4, 5). Detective Schwartz is an experienced police officer, with specific training and experience in drug enforcement. Id. at 4. The detective testified that he has worked with this CI on or about two or three prior occasions, and that the CI has been reliable in the past. Id. at 5-6. He also indicated that the CI had provided information to other detectives about eight times. Id. at 5. In every case that [ ] Detective Schwartz investigated using this CI, the information was corroborated and led to arrests and seizure of drugs. Id. at 6.
On November 23, 2015, Detective Schwartz met with this particular CI to establish a plan. Id. at 6. The CI informed that he had arranged a delivery of one pound of marijuana from an individual named Pope. Id. He and Pope met online and later spoke by phone, and the CI provided the detective with this individual's cell phone number. Id. The CI told Detective Schwartz that he believed Pope was from the New York area. Id. at 7. The detective was able to confirm that the cell phone number was a New York number, but he was unable to identify it as having come from a person named Pope. Id. at 21-22, 34. The CI also believed that Pope would be traveling with a female named Ava, or some variation of that. Id. All of the CI's information came from the communication between the CI and Pope.
They decided to do the controlled buy. The police had the CI come down to the police department, and as per the usual protocol with informants on controlled buys, the Cl's person was searched to assure that no contraband or U.S. currency was present on the Cl. Id. The police also thoroughly searched the CI's vehicle for any contraband or U.S. currency. Id. Neither search turned up anything improper. Id. at 8. The CI was provided with prerecorded U.S. currency of $3, 600, which had been established as the going price from [sic] high-end marijuana at that time. Id. at 8. Detective Schwartz physically placed the $3, 600 into a black backpack and then placed it in the trunk of the CI's vehicle for transport to the scene. Id. at 8. The CI was instructed that in the event that the person from New York delivered the marijuana to him, he was to go to the trunk, retrieve the money and get back into his vehicle. Id. at 8-9. It was significant to this controlled buy that the backpack with the money would be in the trunk because it was the signal to law enforcement that the delivery transaction took place. Id. at 8-9.
The CI never left the officers' presence. Id. at 9. The location of the drug transaction was to be at Wendy's restaurant in Conshohocken, Plymouth Township. Id. Several detectives established surveillance at the meet location parking lot. Id. There were police officers positioned across the street. Id. at 10. Further, Detective Schwartz was in a position to view the Cl's vehicle and Wendy's. Id. at 9.
The detective followed directly behind the CI from the police station to meet location. Id. The CI did not do anything he was not supposed to do. Id. at 9-10. The CI did not make any stops on the way and no one other than the CI was in the vehicle. Id. at 9. Detective Schwartz arrived at the Wendy's parking lot and set up surveillance. Id. at 10. There were two main surveillance detectives, Detective Schwartz and Detective Iran Millan from the Montgomery County Detective Bureau. Id.
Once the CI was in the Wendy's the CI did not go to the bathroom and the CI did not talk to anyone else. Id. at 11. The CI did meet with the individual who was later identified as [Appellant] inside the Wendy's. Id. The individual arrived on foot empty-handed. Id. at 12-13. The meeting was brief. Id. at 13. [Appellant] left the restaurant, and went back in the direction where he had come from. Id. at 14. [Appellant] returned a short time later carrying a black backpack. Id. at 14. He got into the CI's vehicle. Id.
Less than three minutes after [Appellant] got into the vehicle, the CI exited the vehicle and went to the trunk where the backpack full of the prerecorded currency was located. Id. at 15. After retrieving the money, the CI got back into his vehicle. Id. The police waited less than a minute so the transaction could be completed, then they moved in and made the arrest. Id. at 15-16. At that time, the police found the marijuana with the CI and the money with [Appellant]. Id. at 16-17
Detective Schwartz testified and explained that the CI's safety would be jeopardized if the [c]ourt compelled the disclosure of the CI's identity. Id. at 17-18.

Trial Court Opinion, filed 5/1/17, at 5-8.

         Appellant filed a motion to suppress physical evidence on May 11, 2016. Also contained therein was a motion to produce confidential informant. A suppression hearing was held on January 17, 2017, and following the hearing, the suppression court denied both Appellant's motion to suppress and his motion to produce confidential informant in separate orders entered on January 19, 2017.

         A stipulated non-jury trial was held on January 25, 2017, at which time the testimony obtained at the suppression hearing was incorporated and the trial court admitted the stipulated bench trial colloquy. See N.T. Trial, 1/25/17, at 10. At the conclusion of trial, Appellant was found guilty of the aforementioned offense and immediately sentenced as previously indicated. Id. at 11. Appellant did not file a post-sentence motion; however, he filed a timely notice of appeal on February 22, 2017. On February 24, 2017, the trial court entered its Order directing Appellant to file a concise statement of the matters complained of on appeal pursuant to Pa.R.A.P. 1926(b), and Appellant complied on March 13, 2018, wherein he presented four claims for the trial court's review.

         In his appellate brief, Appellant sets forth the following Statement of Questions Presented:

1. Whether [t]rial [c]ourt committed error by not ordering Commonwealth to disclose the identity of a confidential informant who was the only eyewitness to defendant being in possession of controlled substance, and was only person with knowledge of the content of ...

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