J-S33038-18

2018 PA Super 169

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* Former Justice specially assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA

v.

JONATHAN KOONCE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 804 EDA 2017

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.

OPINION BY STEVENS, P.J.E.: FILED JUNE 15, 2018

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 CI2to set up a controlled buy. 

(Motion to Suppress 1/17/2017 pp. 4, 5). Detective Schwartz is 

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1 35 Pa.C.S.A. § 780-113(a)(16). 

2 The abbreviation CI will be used throughout this Opinion in reference to the

confidential informant. 
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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. 
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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 emptyhanded. 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. 
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 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 communications between confidential informant and 

[Appellant]? 

2. Whether the [t]rial [c]ourt committed error by finding 

probable cause existed, allowing the police to seize/arrest 

[Appellant], where police had not seen [Appellant] in possession 

of any contraband? 

Brief for Appellant at 3. 

 When considering Appellant’s first claim, we are mindful of the 

following:
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“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).

Under Pennsylvania Rule of Criminal Procedure 573, a trial 

court has the discretion to require the Commonwealth to reveal

the names and addresses of all eyewitnesses, including 

confidential informants, where a defendant makes a showing of 

material need and reasonableness:

(a) In all court cases, except as otherwise provided in 

Rule 230 (Disclosure of Testimony Before 

Investigating Grand Jury), if the defendant files a 

motion for pretrial discovery, the court may order 

the Commonwealth to allow the defendant's 

attorney to inspect and copy or photograph any of 

the following requested items, upon a showing 

that they are material to the preparation of the 

defense, and that the request is reasonable:

(i) the names and addresses of eyewitnesses....

Pa.R.Crim.P. 573(B)(2)(a)(i).

The Commonwealth enjoys a qualified privilege to withhold 

the identity of a confidential source. Commonwealth v. Bing,

[551 Pa. 659, 713 A.2d 56 (1998)]; Commonwealth v. 

Roebuck, 545 Pa. 471, 681 A.2d 1279, 1283 n. 6 (1996). 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. Roebuck, supra at 1283. 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. Bing, supra at 58; Commonwealth v. Herron,

475 Pa. 461, 380 A.2d 1228 (1977).

In striking the proper balance, the court must consider the 

following principles:

A further limitation on the applicability of the privilege 

arises from the fundamental requirements of fairness. 

Where the disclosure of an informer's identity, or of the 

contents of his communication, is relevant and helpful to 

the defense of an accused, or is essential to a fair 
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determination of a cause, the privilege must give way. 

In these situations[,] the trial court may require 

disclosure and, if the Government withholds the 

information, dismiss the action.

[N]o fixed rule with respect to disclosure is justifiable. 

The problem is one that calls for balancing the public 

interest in protecting the flow of information against the 

individual's right to prepare his defense. Whether a 

proper balance renders nondisclosure erroneous must 

depend on the particular circumstances of each case, 

taking into consideration the crime charged, the possible 

defenses, the possible significance of the informer's

testimony, and other relevant factors.

Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284, 

287 (1967) (quoting Roviaro v. United States, 353 

U.S. 53, 60–62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)).

Commonwealth v. Marsh, 606 Pa. 254, 260–261, 997 A.2d 318, 

321–322 (2010).

Commonwealth. v. Watson, 69 A.3d 605, 607–08 (Pa.Super. 2013) 

(quotation marks omitted). 

 Herein, Appellant maintains:

 . . . the defense theory is that the confidential informant 

“framed” [Appellant], and because the confidential informant was 

the only eyewitness to the transaction, this theory would be 

plausibly aided by the identity of the informant. 

Evidence that the CI framed [Appellant] could affect the 

outcome of the trial. Therefore, [Appellant] has satisfied the 

threshold requirement of materiality and reasonableness by 

showing that the evidence of record supports a reasonable 

possibility that the information he seeks would be helpful.

Brief for Appellant at 8. Appellant posits that “only [Appellant] and the CI saw 

what changed hands in the controlled buy [which] mitigates in favor of 

disclosure.” Id. at 9. Appellant stresses the Commonwealth produced no 

evidence that the CI would be endangered were his identity revealed, and he 
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cites to the testimony of Detective Schwartz that conceded Appellant had not 

been threatened and indicated an uncertainty as to any danger to Appellant 

were the identity of the CI revealed. Id. at 9. Appellant further notes the 

chance of possible threats is lessened by the fact that he and the CI met for 

the first time on the day of the drug buy, as Appellant was from New York, 

and he had known nothing about the CI previously. Id. 

 Upon our review of the record, we find the suppression court did not 

abuse its discretion in finding Appellant had failed to make the threshold 

presentation of materiality and reasonableness. Appellant does not pursue a 

misidentification defense. Instead, he baldly asserts that he was “framed,” 

and, therefore, as the CI was the only eyewitness to the transaction, he should 

have had the opportunity to confront the CI. The record belies Appellant’s 

claim, for the CI’s trustworthiness was established through the credible 

testimony of Officer Schwartz who stated he and other officers had gained 

valuable information from the CI which led to narcotics arrests in the past. 

N.T. Suppression, 1/17/17, at 5-6. 

 Also, the testimony of Officers Schwartz and Millan concerning their 

personal observations of the transaction substantiated the information the CI 

had provided. Moreover, as the suppression court explains, most problematic 

with Appellant’s claim is that “[a]lthough the CI was the only witness to the 

actual hand-to-hand drug transaction, the police, both Detective Schwartz and 
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Detective Millan saw every other aspect of the transaction.” Trial Court 

Opinion, 5/1/17, at 11.

 Even had Appellant satisfied the threshold presentation of materiality 

and reasonableness before the suppression court, he has neither presented 

record support for his defense he was “framed” nor provided a plausible 

explanation as to how the CI’s testimony could have benefitted him. See

Watson, supra, at 609. It is clear that “allegations alone do not supplant 

the need to make an actual evidentiary showing” that disclosure of a witness's 

identity is material to a defense. Marsh, 606 Pa. at 261, 997 A.2d at 322. 

“[B]efore disclosure of an inform[ant's] identity is required in the face of the 

Commonwealth's assertion of privilege, more is necessary than a mere 

assertion by the defendant that such disclosure might be helpful in 

establishing a particular defense.” Commonwealth v. Herron, 475 Pa. 461, 

466, 380 A.2d 1228, 1230 (1977) (holding that the defendant failed to provide 

a “sufficient factual foundation to enable the trial judge to conclude that 

knowing the inform[ant]'s identity might be helpful in establishing an 

entrapment defense” where defendant failed to establish specific facts 

supporting entrapment through witnesses or, at a minimum, an offer of proof). 

Cf. Commonwealth v. Payne, 540 Pa. 54, 60, 656 A.2d 77, 80 (1994) 

(holding that where a single police officer is the only eyewitness to a crime 

other than the CI, the arrest was not made shortly after the crime, and the 
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defendant has presented evidence supporting a mistaken identity defense, 

justice requires the disclosure of the CI's identity).

While cross-examination of the Commonwealth's witnesses may be 

enough in some cases to lay an evidentiary foundation for materiality and 

reasonableness, the cross-examination herein was insufficient to meet the 

defense's burden. To the contrary, Appellant’s questioning of Officers 

Schwartz and Millan failed to show how the revelation of the CI’s identity and 

his or her subsequent testimony would have aided Appellant’s defense or 

otherwise exonerated him. Moreover, unlike the defendant in Payne, supra, 

Appellant failed to offer any other evidentiary showing that would demonstrate 

the identity of the CI was material to his defense. 

Appellant is correct that the only witness to the actual transaction in the 

CI’s vehicle was the CI; however, multiple police officers observed Appellant 

and the informant in relatively close range during daylight hours in the 

moments leading up to and immediately after the transaction both inside the 

Wendy’s restaurant and in the area surrounding the vehicle in which the 

transaction occurred. The CI met with no other individual other than Appellant

in Wendy’s, and Officers had searched the CI and his vehicle prior thereto to 

ensure he was not in possession of any contraband or U.S. currency. N.T. 

Suppression, 1/17/17, at 7-17, 48, 52-55. In addition, the vehicle was under 

constant police surveillance, and no one other than Appellant and the CI 

approached or entered the automobile. Id. at 15-16. Appellant was arrested 
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moments after the drug buy, at which time only Appellant and the CI were 

inside the car. The CI was in possession of a black backpack which contained 

a sealed bag of approximately one pound of marijuana, and Appellant 

possessed $3,600.00 belonging to law enforcement. Id. at 17. Under these 

circumstances, Appellant’s position he was framed is wholly untenable. 

Furthermore, Detective Schwartz testified he believed the CI’s safety 

would be jeopardized were the trial court to compel the disclosure of his 

identity. The Detective explained, “this informant has worked on several cases 

beyond [Appellant’s] case. Was a valuable asset that led to what I would 

deem significant seizures. He has directly told myself and my partner his fear 

in cooperating, his fear of retaliation, and I find it to be extremely reasonable.” 

N.T. Suppression, 1/17/17, at 18. Therefore, based on the foregoing, we find 

no abuse of discretion in the suppression court’s determination that disclosure 

was not mandated in light of Appellant’s failure to make a threshold showing 

of materiality and in its finding that revealing the identity of the CI would 

jeopardize his or her safety. See Trial Court Opinion, filed 5/1/17, at 11.

Thus, Appellant’s first claim lacks merit. 

 Appellant next contends officers lacked probable cause to arrest him. 

Appellant reasons that there was insufficient evidence the CI’s tip was reliable 

and no corroborating evidence existed to substantiate the information the CI 

had provided, other than Officer Schwartz’s representations that this CI had 

been reliable in the past and had provided information that led to arrests and 
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seizure of narcotics. Brief for Appellant at 10. Appellant argues the paucity 

of information the CI provided, coupled with the lack of support of any 

investigation which is evident in the fact that officers were unable to 

corroborate cell phone information, lacked a physical description of Appellant, 

and never observed him with contraband either prior to or at the time of 

arrest, reveals no probable cause existed to justify a warrantless arrest. Id. 

at 10-11. 

 When considering the instant claim, we are mindful of the following: 

Our standard of review ... is whether the record supports the trial 

court's factual findings and whether the legal conclusions drawn 

therefrom are free from error. Our scope of review is limited; we 

may consider only the evidence of the prosecution and so much 

of the evidence for the defense as remains uncontradicted when 

read in the context of the record as a whole. Where the record 

supports the findings of the suppression court, we are bound by 

those facts and may reverse only if the court erred in reaching its 

legal conclusions based upon the facts.

Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa.Super. 2011) (en 

banc) (citation omitted), appeal denied, 615 Pa. 753, 40 A.3d 120 (2012). 

Additionally, “[a]ppellate courts are limited to reviewing only the evidence 

presented at the suppression hearing when examining a ruling on a pretrial 

motion to suppress.” Commonwealth v. Bush, 166 A.3d 1278, 1281-82 

(Pa.Super. 2017) (citation omitted), appeal denied, 176 A.3d 855. “It is within 

the suppression court's sole province as factfinder to pass on the credibility of 

witnesses and the weight to be given their testimony.” Id. at 1282 (citation 

omitted).
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In evaluating Appellant's argument that he was unlawfully arrested

because officers did not corroborate the unreliable information they had 

received from the CI, and, therefore, the evidence recovered pursuant to his

arrest should be suppressed, we take note that law enforcement authorities 

must have a warrant to arrest an individual in a public place unless they have 

probable cause to believe that (1) a felony has been committed; and (2) the 

person to be arrested is the felon. See Commonwealth v. Martin, 101 A.3d 

706, 721 (Pa. 2014). As we have stated:

Probable cause is made out when the facts and circumstances 

which are within the knowledge of the officer at the time of the 

arrest, and of which he has reasonably trustworthy information, 

are sufficient to warrant a man of reasonable caution in the belief 

that the suspect has committed or is committing a crime. The 

question we ask is not whether the officer's belief was correct or 

more likely true than false. Rather, we require only a probability, 

and not a prima facie showing, of criminal activity. In determining 

whether probable cause exists, we apply a totality of the 

circumstances test.

Commonwealth v. Thompson, 614 Pa. 198, 203, 985 A.2d 928, 931 (2009) 

(emphasis in original) (citations and quotation marks omitted).

An officer’s determination of probable cause based upon information

received from a confidential informant depends upon the informant's reliability 

and basis of knowledge viewed in a common sense, non-technical manner. 

Commonwealth v. Gagliardi, 128 A.3d 790, 795 (Pa.Super. 2015) (citing 

Commonwealth v. Clark, 611 Pa. 601, 28 A.3d 1284, 1288 (2011). 

Information provided by a CI “may constitute probable cause where police 

independently corroborate the tip, or where the informant has provided 
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accurate information of criminal activity in the past, or where the informant

himself participated in the criminal activity.” Id. at 795-96.

Herein, the suppression court found:

 the information that the police possessed and the manner in 

which they carried out the investigation supports an abundant 

finding of probable cause. Initially, the CI [ ] gave to Detective 

Schwartz the source of his information. In other words, the 

detective knew how the CI got his information, and it was from 

the direct communication between the CI and [Appellant]. In 

addition, the controlled buy happened in the way that the police 

had planned it. Detective Schwartz was told by the CI that the 

buy had taken place when he went to the trunk, retrieved the 

backpack with the $3,600 in prerecorded U.S. currency and got 

back into his car. The police observed conduct consistent with 

illegal drug activity by [Appellant], and based on that at the bare 

minimum, they certainly had reasonable suspicion that criminal 

activity was afoot, justifying the brief detention. This quickly 

ripened into probable cause upon the finding of the marijuana with 

the CI and the money with [Appellant]. 

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

 The record supports the suppression court's findings that Appellant's 

arrest was supported by probable cause that he was involved in the felonious 

sale of drugs to the CI, and thus, we are bound by those findings. See 

Galendez, supra. The information from the CI, who had provided accurate 

information to Detective Schwartz in the past, coupled with and substantiated 

by the officers' direct observation of the conduct of Appellant and the CI, was 

sufficient to warrant a person of reasonable caution to believe that Appellant 

delivered to the CI the marijuana officers discovered in the black backpack in 

the vehicle. See id.; see also Gagliardi, supra. Thus, Appellant's 

warrantless arrest was lawful, and the contraband seized was admissible.
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 Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/15/18