Commonwealth v. Ellison
Decision Date | 20 June 2019 |
Docket Number | No. 1670 MDA 2018,1670 MDA 2018 |
Citation | 213 A.3d 312 |
Parties | COMMONWEALTH of Pennsylvania v. Kevin C. ELLISON, Appellant |
Court | Pennsylvania Superior Court |
James J. Karl, Public Defender, Harrisburg, for appellant.
Ryan H. Lysaght, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
Kevin C. Ellison (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of three counts each of criminal use of a communication facility and delivery of a controlled substance.1 We affirm.
Appellant's convictions arose from three separate incidents in January and February of 2017. During each incident, Appellant sold crack cocaine to a confidential informant (CI). On June 1, 2017, the Commonwealth filed a criminal complaint against Appellant.
On April 16, 2018, Appellant filed a motion to compel discovery, in which he requested that the Commonwealth disclose the CI's identity. The Commonwealth filed an answer to Appellant's motion on April 18, 2018, and the trial court held a hearing on May 15, 2018. That same day, the trial court denied Appellant's motion.
On May 24, 2018, Appellant's case proceeded to trial. The trial court summarized the evidence presented as follows:
Trial Court Opinion, 12/31/18, at 1-3 ( ).
On May 24, 2018, the jury convicted Appellant of the above crimes. The trial court sentenced Appellant on August 21, 2018 to an aggregate 3 to 6 years of imprisonment, followed by 6 years of probation.
Appellant filed a timely post-sentence motion, which the trial court denied on September 13, 2018. Thereafter, Appellant filed this timely appeal. Both the trial court and Appellant have complied with Pennsylvania Rule of Appellate Procedure 1925.
Appellant presents the following two issues for our review:
Appellant's Brief at 5 (underlining omitted).
Appellant first claims that the trial court erred in denying his motion to compel the Commonwealth to reveal the CI's identity. "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. Washington , 63 A.3d 797, 801 (Pa. Super. 2013).
In his motion, Appellant stated, "[i]nitial discovery does not include the identity of the [CI]," and further averred that "[a] criminal defendant is entitled to know the identity of a confidential informant when the confidential informant is the only eyewitness to the entire transaction." Appellant's Motion to Compel Discovery, 4/16/18, at 1. In both his motion and appellate brief, Appellant cites our Supreme Court's decision in Commonwealth v. Roebuck , 545 Pa. 471, 681 A.2d 1279 (1996) to support his claim. See id. at 2; see also Appellant's Brief at 12.
Appellant incorrectly interprets Roebuck and improperly asserts that "[a] criminal defendant is entitled to know the identity of a confidential informant when the confidential informant is the only eyewitness to the entire transaction." Appellant's Motion to Compel Discovery, 4/16/18, at 1. In Roebuck , the Supreme Court stated that "the fact that the only eyewitness to the entire transaction other than the confidential informant was a police officer militates in favor of disclosure." Roebuck , 681 A.2d at 1284 (citation omitted). However, this statement may not be read in isolation. The Supreme Court recognized that the trial court must consider various factors in "exercis[ing] its discretion to determine whether the information is to be revealed ... [o]nly after a showing by the defendant that the information sought is material and the request reasonable." Id. at 1283 (citations omitted) (emphasis added). We have explained:
If materiality and reasonableness are proven, then the courts must balance the public interest in the police's ability to obtain information against the defendant's right to prepare his defense. In this connection, we consider the crime, the potential defense, and the significance of the [confidential informant's] testimony. The scales tip in favor of disclosure if the Commonwealth will be relying on police testimony based on a single observation. If other proof corroborates a police officer's testimony, disclosure is not mandated. Furthermore, the safety of the confidential informant can be a controlling factor in determining whether to reveal a source's identity.
Commonwealth v. Jordan , 125 A.3d 55, 63 (Pa. Super. 2015) (en banc ).
It is of further significance that:
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Commonwealth v. Rivera, No. 2101 EDA 2019
... ... Therefore, when an appellant's 1925(b) statement fails to specify the element or elements upon which the evidence was insufficient[,] ... the sufficiency issue is waived on appeal. Commonwealth v. Ellison , 213 A.3d 312, 320-21 (Pa. Super. 2019) (citations and quotation marks omitted). "Such specificity is of particular importance in cases where[ ] the appellant was convicted of multiple crimes[,] each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt." ... ...
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... ... 780-102(b). "Thus, for a defendant to be liable ... for the delivery of a controlled substance there must be evidence that he knowingly made an actual, constructive, or attempted transfer of a controlled substance to another person without the legal authority to do so." Commonwealth v. Ellison, 213 A.3d 312, 319 (Pa. Super. 2019) (quoting Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa. 2004) ). "A defendant actually transfers drugs whenever he physically conveys drugs to another person." Id. (citation omitted). There is no requirement that an exchange of money take place or that ... ...
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