J. S72023/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

FARUQ H. MCCOY, :

:

Appellant : No. 1868 MDA 2015

Appeal from the Judgment of Sentence February 4, 2015

In the Court of Common Pleas of Luzerne County 

Criminal Division at No.: CP-40-CR-0003964-2012

 

BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.: FILED DECEMBER 02, 2016

Appellant, Faruq H. McCoy, appeals from the February 4, 2015 

Judgment of Sentence entered in the Luzerne County Court of Common 

Pleas following his conviction by a jury of one count of Possession of a 

Controlled Substance With Intent to Deliver (“PWID”).1 Appellant challenges 

the trial court’s refusal to grant his discovery requests regarding a 

confidential informant’s (“CI”) prior work with police and prior payments for 

that work. After careful review, we affirm.

On July 23, 2012, police conducted a sting operation at Public Square 

in Wilkes-Barre, Pennsylvania. Officer Joseph Savage, along with several 

other officers from the Wilkes-Barre Police Department (“WBPD”) and the 

 

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30).
J. S72023/16

- 2 -

Pennsylvania Attorney General’s Drug Task Force, conducted a controlled 

buy with a CI, who purchased two packets of heroin from Appellant in 

exchange for $40 in pre-recorded buy money. Other officers made a video 

recording and took photographs of portions of the controlled buy.

Police arrested Appellant approximately one week later and charged 

him with one count of PWID. On December 4, 2014, Appellant filed a 

general pre-trial Motion for Discovery. The trial court described Appellant’s 

discovery request as follows:

This particular issue arose when, prior to the start of trial, the 

defense belatedly sought discovery information. Specifically, 

[Appellant] requested documents that pertain to payments the 

CI received (as the defense put it, “paychecks”) as well as the 

CI’s history of work with the WBPD. The defense also argued 

that the Assistant District Attorney (ADA) should have 

anticipated just such a request and acquired the information on 

[Appellant’s] behalf.8

8 The ADA was not accused of withholding discovery 

in her possession and sanctions were not sought.

* * *

Notwithstanding, the ADA stated she responded to the defense 

and informed them the records did not exist. Additionally, the 

ADA noted defense had the opportunity to speak with the police. 

Most significantly, the ADA spoke to the affiants, informed 

defense of the amount the CI was paid for the transaction at

issue, and stated there was no other consideration for any 

pending charges received by the CI. The ADA also disclosed that 

the CI worked for WBPD, in particular Officer Boyle[], a few 

times previously.

During the exchange regarding the defense discovery request, 

we made clear that the defense enjoyed the right to pursue the 

issues on cross-examination. For reasons not otherwise 

apparent in the record, defense counsel conducted a very limited 
J. S72023/16

- 3 -

inquiry on the subject. Notably, defense counsel did not 

question Boyle in any detail about the prior work with this CI, 

nor did defense counsel ask the CI a single question about her 

prior work with law enforcement to include remuneration 

received.

Trial Court Opinion, filed 2/1/16, at 3-4 (some footnotes omitted). The trial 

court concluded there was no discovery violation and did not grant Appellant 

any other form of relief in light of his belated discovery requests.

Appellant proceeded to a trial and a jury convicted him of one count of 

PWID. The trial court sentenced Appellant to a term of 24 months’ to 60 

months’ incarceration.

Appellant filed a timely Post-Sentence Motion, which the trial court 

granted in part2and held under advisement in part on June 3, 2015. 

On October 13, 2015, Appellant filed a Notice of Appeal.3 Both 

Appellant and the trial court complied with Pa.R.A.P. 1925.

 

2 The trial court granted additional time-credit, an issue not relevant to the 

instant appeal.

3 Ordinarily, the time for filing an appeal begins to run on the date the postsentence motion is denied either by the court or by operation of law. Here, 

the trial court failed to issue a final Order disposing of Appellant’s PostSentence Motion within 120 days as required by Pa.R.Crim.P. 720(B)(3)(a), 

and the motion was, thus, denied by operation of law. Rule 720(B)(3)(d). 

However, the clerk of courts did not enter and serve an order stating that 

the Motion had been denied by operation of law as required by Pa.R.Crim.P. 

720(B)(3)(c). Such an oversight constitutes a breakdown in the court 

system; and we will not find this appeal untimely filed under such 

circumstances. Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 

2003).
J. S72023/16

- 4 -

Appellant raises one issue on appeal:

Did the trial court err in failing to require the Commonwealth to 

provide specific discovery as requested prior to trial, namely 

specific documentation of the amount of payments made [to the] 

confidential informant witness in the instant case and prior cases 

regarding her work as a confidential information for the same 

police station and the number of times the confidential witness 

informant had been utilized as same by the same city police 

department?

Appellant’s Brief at 6 (capitalization removed).4

Appellant is challenging the trial court’s decision to deny a request for 

disclosure of information about a CI. We review that decision for an abuse 

of discretion. Commonwealth v. Watson, 69 A.3d 605, 607 (Pa. Super. 

2013).

Appellant asserts in his brief that the prosecution violated his 

Fourteenth Amendment due process rights by failing to divulge exculpatory 

evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1963). See 

Commonwealth v. Robinson, 122 A.3d 367, 373 (Pa. Super. 2015), 

appeal denied, 130 A.3d 1289 (Pa. 2015) (discussing Brady). 

“To establish a Brady violation, a defendant must demonstrate that: 

(1) the evidence was suppressed by the Commonwealth, either willfully or 

inadvertently; (2) the evidence was favorable to the defendant; and (3) the 

evidence was material, in that its omission resulted in prejudice to the 

 

4 Appellant has abandoned a second issue on appeal averring that the trial 

court improperly permitted cumulative testimony from multiple police 

officers. See Commonwealth v. Sanchez, 36 A.3d 24, 72 (Pa. 2011) 

(holding issue purposely abandoned on appeal is not reviewable).
J. S72023/16

- 5 -

defendant.” Id. “Evidence is favorable to the accused where, if disclosed 

and used effectively, it may make the difference between conviction and 

acquittal.” Commonwealth v. Chambers, 807 A.2d 872, 888 (Pa. 2002) 

(citation and quotation marks omitted).

To constitute a Brady violation, “the withheld evidence must have 

been in the exclusive control of the prosecution at the time of trial.” Id. Of 

course, the underlying premise in all Brady violations is that the evidence 

actually exists.

Appellant argues that the trial court abused its discretion in refusing to 

order any relief or a new trial because the Commonwealth’s failure “to turn 

over requested documents regarding the history of payments to a 

confidential informant witness ... amounts to a Brady violation because it 

meets the three-pronged Willis[5]test.” Appellant’s Brief at 10, 20. He 

insists that information about the CI’s work history with WBPD exists 

because “a police department must record their financial transactions for tax 

purposes[.]” Id. at 10, 19.

 

5

In Commonwealth v. Willis, 46 A.3d 648 (Pa. 2012) (Opinion 

Announcing the Judgment of the Court), our Supreme Court reviewed Brady

and held that “nondisclosed favorable evidence which is inadmissible at trial 

may be considered material for purposes of Brady, as long as there is a 

reasonable probability that, had the evidence been disclosed to the defense, 

the result of the proceeding would have been different.” Willis, supra at 

650. The Court noted that mere speculation was not enough to support a 

Brady violation. The Court ultimately reversed and reinstated Willis’ 

Judgment of Sentence, finding that the appellee had not established that 

there was a reasonable probability that had the challenged evidence been 

disclosed, the outcome of the trial would have been different.
J. S72023/16

- 6 -

Appellant further asserts that the complete history of payments 

provided to the confidential informant was vital impeachment evidence 

because the CI “is the only witness available to provide first hand testimony 

regarding Appellant’s criminal conduct.” Id. at 10. Appellant concludes that 

he could not “effectively” cross-examine and impeach the CI without the 

requested evidence and he, thus, suffered prejudice necessitating a new 

trial. Id. at 20.

In its Rule 1925(a) Opinion, the trial court concluded that Appellant’s 

“belated” discovery request lacked merit because the Commonwealth had 

informed Appellant that: (1) “the records did not exist[;]” (2) “the CI was 

paid [$50] for the transaction at issue[;]” (3) “there was no other 

consideration for any pending charges received by the CI[;]” and (4) “the CI 

worked for [], in particular Officer Boyle[], a few times previously.” Trial 

Court Opinion at 3-4. We agree with the trial court, and conclude that 

Appellant’s attempt to raise a Brady violation fails.

With respect to the first prong of the Brady test, as the trial court 

noted, Appellant presented no proof that the Commonwealth suppressed any 

evidence, either willfully or inadvertently. Appellant failed to demonstrate 

that the prosecutor possessed or controlled any discoverable materials and 

the trial court observed that there was no indication that the records or 

documents Appellant sought actually existed. Trial Court Opinion at 4. 

Although the hearing transcript is not contained in the certified record, the 
J. S72023/16

- 7 -

trial court noted “the ADA stated she responded to the defense and informed 

[counsel that] the records did not exist.” Id. at 3.

Appellant’s arguments to both the trial court and this Court contain a 

great deal of unsupported speculation about tax records, practices, and 

reports purportedly created and maintained by the Luzerne County District 

Attorney’s Office, the WBPD, and the Pennsylvania Attorney General’s Drug 

Task Force. None of Appellant’s averments shows that any of these law 

enforcement offices actually possessed any material information about this 

CI. Without any proof or a reasonable explanation supporting the existence 

of the evidence, there is no basis for concluding that the evidence was 

suppressed by the Commonwealth, “either willfully or inadvertently.” 

The second prong of the Brady test, i.e., that the evidence was 

favorable to the defendant, is, of course, premised on the existence of the 

evidence. If the evidence Appellant sought had existed, it would have been 

favorable in the sense that it would have provided Appellant with further 

evidence to impeach the credibility of the CI. However, there is no 

indication that the evidence would have been exculpatory, or otherwise 

made a difference in the verdict, in light of the video and photographic 

evidence showing Appellant committed the crime.

Moreover, Appellant admittedly had the following information with 

which to impeach the CI: (1) the CI’s prior work with the WBPD; (2) the 

payment the CI received for the work done on this case; and (3) the lack of 
J. S72023/16

- 8 -

any other consideration provided with respect to the CI’s pending charges. 

Appellant concedes that “the Court permitted [Appellant] to cross-examine 

the witnesses regarding this information; defense counsel chose not to do 

so.” Appellant’s Brief at 20. Appellant cannot satisfy the second Brady

prong that he was deprived of favorable evidence.

With respect to the third prong of the Brady test, we cannot conclude 

that Appellant suffered prejudice as a result of not getting evidence that was 

not available.6 The Commonwealth responded to Appellant’s December 4, 

2014 Motion for Discovery and, as noted above, was able to confirm (1) the 

amount of payments police had provided to the CI, (2) the CI’s drug 

addiction, (3) the CI’s prior convictions, and (4) the CI’s reliable participation 

in prior cases. Appellant did not seek a continuance to pursue the matter 

further and, after the trial court rejected his belated request for more 

information about the CI, Appellant did not demand any other alternative 

form of relief.

Moreover, at trial—despite ample opportunity to cross-examine and 

impeach the CI’s credibility—Appellant conducted a very limited crossexamination by asking only about the CI’s prior convictions and history of 

 

6 The trial court opined that Appellant waived the issue raised on appeal 

because defense counsel conducted a very limited inquiry on the subject 

when cross-examining Detective Boyle and the CI. See Trial Court Opinion 

at 4. Because Appellant had filed a discovery request and made these 

arguments in the lower court when it rejected his discovery request, we 

decline to find waiver.
J. S72023/16

- 9 -

drug addiction. He asked no questions about her prior work with police. 

Likewise, Appellant limited his cross-examination of Officer Boyle to the 

accuracy and completeness of his reports and asked no questions about 

Officer Boyle’s previous work with this particular CI. Considering that 

Appellant failed to cross-examine the CI or Officer Boyle regarding these 

credibility matters with the information that he had been provided, we are 

not persuaded that Appellant suffered any prejudice of the sort that would 

support a Brady claim.

After a careful review of the certified record, we discern no abuse of 

discretion by the trial court and, thus, affirm Appellant’s Judgment of 

Sentence.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/2/2016