J-S77014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

MARC S. BATES A/K/A MARC S. BATTES

Appellant No. 291 MDA 2016

Appeal from the Judgment of Sentence August 26, 2015

In the Court of Common Pleas of Lebanon County

Criminal Division at No(s): CP-38-CR-0001906-2014

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J. FILED FEBRUARY 13, 2017

Appellant, Marc S. Bates, appeals from the judgment of sentence 

entered after a jury found him guilty of delivery of a controlled substance, 

cocaine. Bates raises five challenges to the conviction, including the 

sufficiency of the evidence, weight of the evidence, and evidentiary rulings 

by the trial court. After careful review, we conclude that two of the trial 

court’s evidentiary rulings were based upon incorrect premises. In both 

instances, the trial court’s ruling precluded further development of the 

record to allow consideration of whether the evidence was ultimately 

admissible. As a result, we affirm in part, and vacate and remand for a 

hearing on the issues identified in this memorandum.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S77014-16

- 2 -

On October 14, 2014, the Commonwealth charged Bates with delivery 

of cocaine and criminal use of a communications facility. At trial, the 

Commonwealth presented evidence that Sergeant Brett Hopkins of the 

Lebanon County Drug Task Force utilized a confidential informant (“CI”) to 

introduce him to a cocaine dealer known only as “Mighty Mike.” N.T., Trial, 

6/10/15, at 4-8. The CI contacted Mighty Mike and arranged for a cocaine 

transaction. See id., at 9.

Shortly before 10 p.m., a white car, later determined to be Bates’s, 

pulled up on the street in front of Sergeant Hopkins and the CI. See id., at 

9; 33-34. Sergeant Hopkins testified that he saw, but could not identify, a 

Hispanic female driving the vehicle. See id., at 26. A black male exited the 

vehicle and approached the CI. See id., at 9. Sergeant Hopkins handed the 

CI $100 of “prerecorded drug task force funds,” and the CI immediately 

handed the money to the black male. Id. In exchange, the man handed the 

CI a white envelope containing crack cocaine and then quickly departed. See 

id., at 10.

The transaction lasted no more than a minute. See id., at 26. During 

that time, Sergeant Hopkins stood within inches of the black male. See id., 

at 17. He stated that he got a clear look at the man’s face. See id., at 28. 

Sergeant Hopkins positively identified Bates as the man who handed the 

envelope to the CI. See id., at 8.
J-S77014-16

- 3 -

Bates pursued a mistaken identity defense at trial. In furtherance of 

this strategy, he sought pre-trial disclosure of the identity of the CI. The trial 

court denied this request. Furthermore, Bates sought to present the 

testimony of his girlfriend, Ali Marinkov. Bates proffered that Marinkov would 

testify that during the time in question, she would take Bates’s car with 

people other than Bates to engage in narcotics transactions. The trial court 

barred Marinkov’s testimony on the grounds that she was an undisclosed 

alibi witness. Finally, Bates sought to introduce a picture of himself and his 

brother in an attempt to bolster his argument that Sergeant Hopkins had 

mistakenly identified him. The trial court denied admission of the photograph 

on the ground that Bates could not present the testimony of the person who 

had taken the photograph.

The trial court entered a directed verdict on the criminal use of a 

communications facilty charge, and the jury convicted Bates on the delivery 

of cocaine charge. Bates filed a post-sentence motion, which the trial court 

denied. This timely appeal followed.

In his first argument on appeal, Bates argues that the evidence at trial 

was insufficient to establish his identity as the perpetrator. Our standard of 

review for a challenge to the sufficiency of the evidence is to determine 

whether, when viewed in a light most favorable to the verdict winner, the 

evidence at trial and all reasonable inferences therefrom are sufficient for 

the trier of fact to find that each element of the crimes charged is 
J-S77014-16

- 4 -

established beyond a reasonable doubt. See Commonwealth v. Dale, 836 

A.2d 150, 152 (Pa. Super. 2003). “The Commonwealth may sustain its 

burden of proving every element of the crime beyond a reasonable doubt by 

means of wholly circumstantial evidence.” Commonwealth v. Bruce, 916 

A.2d 657, 661 (Pa. Super. 2007) (citation omitted). 

The facts and circumstances established by the Commonwealth need 

not preclude every possibility of innocence. See id. Any doubt raised as to 

the accused’s guilt is to be resolved by the fact-finder. See id. As an 

appellate court, we do not assess credibility nor do we assign weight to any 

of the testimony of record. See Commonwealth v. Kinney, 863 A.2d 581, 

584 (Pa. Super. 2004). Therefore, we will not disturb the verdict “unless the 

evidence is so weak and inconclusive that as a matter of law no probability 

of fact may be drawn from the combined circumstances.” Bruce, 916 A.2d 

at 661 (citation omitted).

As noted above, Sergeant Hopkins testified that he was within inches 

of the perpetrator as the transaction occurred. He positively identified Bates 

as the perpetrator. Furthermore, it is undisputed on appeal that the vehicle 

used by the perpetrator was Bates’s, and driven by Bates’s girlfriend, 

Marinkov. The jury was entitled to credit these facts and draw the 

reasonable inference that Bates was the perpetrator. Bates is due no relief 

on his first issue on appeal.
J-S77014-16

- 5 -

Next, Bates argues that the verdict was against the weight of the 

evidence. 

The weight of the evidence is exclusively for the finder of fact 

who is free to believe all, part, or none of the evidence and to 

determine the credibility of the witnesses. An appellate court 

cannot substitute its judgment for that of the finder of fact. 

Thus, we may only reverse the lower court’s verdict if it is so 

contrary to the evidence as to shock one’s sense of justice. 

Moreover, where the trial court has ruled on the weight claim 

below, an appellate court’s role is not to consider the underlying 

question of whether the verdict is against the weight of the 

evidence. Rather, appellate review is limited to whether the trial 

court palpably abused its discretion in ruling on the weight claim. 

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (internal 

citations omitted). 

When the challenge to the weight of the evidence is predicated 

on the credibility of trial testimony, our review of the trial court’s 

decision is extremely limited. Generally, unless the evidence is 

so unreliable and/or contradictory as to make any verdict based 

thereon pure conjecture, these types of claims are not 

cognizable on appellate review. 

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal 

quotes and citations omitted). 

The trial court found that the verdict did not shock its conscience due 

to Sergeant Hopkins’s positive identification. We cannot conclude that this is 

an abuse of discretion, and therefore Bates’s second issue on appeal merits 

no relief.1

____________________________________________

1 We base this analysis on the record as it currently exists. Obviously, the 

trial court’s evidentiary rulings shaped this record in ways that may 

(Footnote Continued Next Page)
J-S77014-16

- 6 -

In his third issue, Bates contends that the trial court erred in denying 

pre-trial disclosure of the identity of the CI. “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. 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 (internal citations omitted). 

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 

communications, is relevant and helpful to the defense of an 

accused, or is essential to a fair 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.

No 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 

(Footnote Continued) _______________________

ultimately be determined to be erroneous. We cannot reach that issue at this 

time.
J-S77014-16

- 7 -

charged, the possible defense, the possible significance of the 

informer’s testimony, and other relevant factors.

Commonwealth v. Marsh, 997 A.2d 318, 322 (Pa. 2010) (Opinion 

Announcing the Judgment of the Court) (citation omitted). 

The initial burden requires the defendant to “demonstrate a reasonable 

possibility the informant could give evidence that would exonerate him.” 

Commonwealth v. Belenky, 777 A.2d 483, 488 (Pa. Super. 2001) (citation 

omitted). A defendant does not meet this burden by “mere assertion” that 

disclosure of the CI’s identity would be helpful to the defense. Id.

The Supreme Court of Pennsylvania has held 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 defendant has presented evidence 

supporting a mistaken identity defense, justice requires the disclosure of the 

CI’s identity. See Commonwealth v. Payne, 656 A.2d 77, 80 (Pa. 1994). 

Disclosure could still be withheld, however, if the Commonwealth presents 

evidence that the CI’s safety would be threatened thereby. See Marsh, 997 

A.2d at 324.2

____________________________________________

2 The opinion announcing the judgment of the court in Marsh garnered the 

support of three Justices. A concurring opinion, which criticized the lead 

opinion’s analysis of evidence concerning safety of a CI, garnered the 

support of the three remaining Justices. Justice Greenspan did not 

participate in the decision. All six Justices agreed that safety of the CI was 

an appropriate concern; the concurrence held that the identity of the CI 

should not be withheld without evidence of a “reasonably specific type of 

danger.” 997 A.2d at 326 (citation omitted). We therefore conclude that 

(Footnote Continued Next Page)
J-S77014-16

- 8 -

Here, there was no hearing on Bates’s oral, pre-trial motion.3

However, given that Bates testified at trial, it is clear that he was prepared 

to testify during a hearing on this motion. At trial, Bates testified that he did 

not commit the crime. See N.T., Trial, 6/10/15, at 54-55. The only positive 

identification evidence that Bates was the perpetrator came from Sergeant 

Hopkins, who admitted that the transaction with the CI was the first time he 

had met Bates. See id., at 14. He did not arrest Bates at the time, but 

waited approximately one and one-half months to file charges. See id., at 

25.

Under these circumstances, we conclude that Payne controls the 

resolution of the first element of the balancing test. Bates established that 

the identity of the CI was material to his mistaken identity defense. 

Furthermore, he established that, absent evidence of a “reasonably specific 

type of danger” to the CI, disclosure of the identity was warranted. See 

Commonwealth v. Bing, 713 A.2d 56, 60 (Pa. 1998).

However, since the Commonwealth was also denied the chance to 

present evidence on this issue, we cannot rule as a matter of law on this 

record. At trial, the Commonwealth did present testimony of general 

(Footnote Continued) _______________________

Marsh did not alter the rule requiring evidence of a “reasonably specific type 

of danger” to the CI set forth in Bing, infra.

3 Neither the Commonwealth nor the trial court dispute Bates’s contention 

that he made such a motion in open court while the jury was being selected.
J-S77014-16

- 9 -

concerns about revealing the identity of a CI. See N.T., Trial, 6/10/15, at 8. 

This evidence would not establish a reasonably specific type of danger to the 

CI in this case. Since the issue of the CI’s safety was no longer directly 

relevant to the trial, it is possible that the Commonwealth could have 

adduced further evidence on this issue in a hearing on Bates’s motion. We 

would therefore remand for such a hearing in the trial court to determine if a 

new trial is necessary. Accorindingly, we vacate the trial court’s ruling in this 

regard and remand for a hearing.

Unfortunately, this is not the only error committed by the trial court in 

this matter. The trial court also impacted Bates’s mistaken identity defense 

by denying him the opportunity to present the testimony of Bates’s 

girlfriend, Ali Marinkov. Bates proffered that Marinkov would testify that, 

during the time in question, she was using drugs and that she would drive 

Bates’s car for other individuals, not Bates, to sell narcotics. See id., at 43-

44. The trial court denied the request, holding that Marinkov was an alibi 

witness of whom Bates had not provided sufficient notice to the 

Commonwealth. See id.

The trial court and the Commonwealth continue to argue that Marinkov 

was an alibi witness, as her testimony would place Bates somewhere other 

than the scene of the crime. However, Marinkov’s testimony did not place 

Bates at any particular place, and therefore did not constitute an alibi. See 

Commonwealth v. Bryant, 855 A.2d 726, 742 (Pa. 2004). Thus, the trial 
J-S77014-16

- 10 -

court erred in denying the request on this ground. In doing so, the court 

prevented further development of the proffer to allow for a thorough 

examination of the relevance of Marinkov’s testimony. We therefore cannot 

reach the issue, despite the Commonwealth’s arguments. Thus, we vacate 

this ruling and remand for both sides to be given an opportunity to provide 

proffers or evidence addressing the issue of relevance.

Finally, the trial court denied Bates’s request to enter a photograph of 

himself and his brother on the ground that Bates could not authenticate the 

photograph without the testimony of the person who took the photograph. 

Photographs “may be authenticated by testimony from a person who has 

sufficient knowledge that the photograph fairly and accurately reflects what 

the proponent is purporting that photograph to reflect.” Commonwealth v. 

Loughnane, 128 A.3d 806, 814 (Pa. Super. 2015). Bates proffered to 

identify himself and his brother in the photograph. See N.T., Trial, 6/10/15, 

at 51. This proffer would have been sufficient to authenticate the photo.

Once again, the Commonwealth argues that, in any event, the 

photograph was irrelevant. In this instance, we agree. Bates denied that he 

was accusing his brother of being the perpetrator. See id., at 56-57. “I don’t 

know who it was. I know it was my car used, I know that, but it wasn’t me.” 

Id., at 57. Pursuant to that the testimony, the photograph was not relevant 

to any issue at trial. Bates is therefore due no relief on this issue.
J-S77014-16

- 11 -

Judgment of sentence affirmed in part and vacated in part. Case 

remanded for proceedings consistent with this memorandum. Jurisdiction 

relinquished.

Judge Platt joins the memorandum.

Judge Olson files a concurring/dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/13/2017