J-S28022-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ERIC BETHEA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1688 MDA 2021

Appeal from the Judgment of Sentence Entered October 18, 2021

In the Court of Common Pleas of Dauphin County Criminal Division at 

No(s): CP-22-CR-0005173-2018

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: DECEMBER 16, 2022

Eric Bethea appeals the judgment of sentence imposed following his 

convictions for possession with intent to deliver a controlled substance 

(“PWID”) and criminal use of a communication facility.1 He challenges the 

weight and sufficiency of the evidence. He also challenges the court’s denial 

of his request to give a missing witness instruction and limiting his crossexamination. We affirm. 

The Commonwealth presented the following evidence at trial. Trooper 

William Dubbs, Corporal Matthew Yingst, Detective Cory Dickerson, and 

Detective Keith Ocker were involved in conducting a controlled drug buy with 

a confidential informant (“CI”). The CI knew Bethea by the name of “BooKiss.” Trooper Dubbs testified that the identity of the CI is generally kept 

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1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 7512(a), respectively. 
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confidential “because of their safety because we’re dealing with dangerous 

people.” N.T., Trial, 3/12/20 - 3/13/20, at 76. He also stated that there is a 

fear of “[r]etaliation. Possibly death, possibly assault.” Id. Trooper Dubbs met 

with the CI at an undisclosed location on June 7, 2018. Id. at 79. Trooper 

Dubbs searched the CI and Detectives Dickerson and Ocker searched the CI’s 

car. Id. at 81. They searched the CI “to make sure that they have no drugs, 

money, contraband, anything else that’s on them.” Id. They did not recover 

anything from the search. Id. at 81-82. After searching the vehicle and the 

CI, Trooper Dubbs gave the CI $700 to purchase a half ounce of crack cocaine 

from Bethea. Id. at 82. 

The CI then drove to meet Bethea at Choice Cigarettes. Bethea arrived 

at the location in his vehicle. Id. at 142-43. Detective Dickerson testified that 

he observed Bethea alone in the vehicle, in the driver’s seat. Id. at 142. The 

CI got out of their vehicle and entered the front passenger side of Bethea’s 

car. Id. at 143. After being in Bethea’s car for about two minutes, the CI 

exited, returned to their vehicle and drove back to the undisclosed location. 

Id. at 143-44. The CI did not make any stops before or after meeting with 

Bethea. Id. at 140, 144. Detective Dickerson remained in constant view of 

the CI outside of the CI entering Bethea’s vehicle. At the undisclosed location,

the CI handed Detective Dickerson a Newport box containing crack cocaine. 

Id. at 145. Detective Dickerson then searched the CI and the CI’s vehicle and 

again did not recover anything. Id. at 146-147. 
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Before trial, counsel requested that the court give a missing witness 

instruction. Id. at 9. The Commonwealth objected and cited Commonwealth 

v. Jones, 637 A.2d 1001 (Pa.Super. 1994). N.T., Trial, 3/12/20 - 3/13/20, at 

9.The court stated that it would resolve the issue before the closing and before 

charging the jury. Id. During trial, defense counsel asked Detective Dickerson

on cross-examination for the name of the CI. The Commonwealth objected 

and the court sustained the objection. Id. at 102. The court directed counsel 

not to ask questions that were “identifying” in nature. Id. at 103.

Before closing arguments, defense counsel again requested a missing 

witness instruction. Id. at 211. The Commonwealth objected, stating that it 

had a “genuine concern for the safety of the confidential informant[.]” Id. The 

court denied the request:

Well, the missing witness instruction is usually when there’s 

no explanation for the witness’s absence. I think the 

witnesses that did testify said that it’s part of their 

protection plan for their informants and for that reason I 

don’t think it falls within. And I think it’s more than 

adequately used and is not testified to so I’m going to deny 

the request and you have an exception on the record.

Id.. 

The jury found Bethea guilty of the above-referenced crimes. The trial 

court sentenced him to two and one-half to five years’ incarceration. Bethea 

filed a post-sentence motion which the trial court denied. This timely appeal 

followed. 

Bethea raises the following issues:
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I. Whether the trial court committed an abuse of 

discretion by failing to give a missing witness jury 

instruction where the Commonwealth failed to call the 

only eyewitness.

II. Whether the trial court erred in preventing trial 

counsel from asking questions regarding the 

confidential informant. 

III. Whether the trial court committed an abuse of 

discretion in accepting the jury’s verdict which was so 

contrary to the weight of the evidence where the 

informant is the only one who the Commonwealth 

proved delivered a controlled substance. 

IV. Whether the trial court erred in accepting the jury’s 

verdict where the evidence presented was insufficient 

to establish [Bethea] delivered a controlled substance. 

Bethea’s Br. at 5.

Bethea claims that the trial court erred in failing to give a missing 

witness instruction based on the Commonwealth not calling the CI to testify. 

He maintains that the factors outlined in Commonwealth v. Evans, 664 A.2d 

570 (Pa.Super. 1995), “to preclude the instruction [do] not specially include 

‘confident informant.’” Id. at 16. He argues that the Commonwealth did not 

give a satisfactory reason for failing to call the CI, other than stating that they 

generally do not call confidential informants as witnesses and that drug 

dealers are dangerous people. Thus, he maintains that the Commonwealth’s 

explanation lacked specificity and as such the court erred in failing to give the 

instruction. 

We review jury instructions for an abuse of discretion. “The trial court is 

not required to give every charge that is requested by the parties and its 
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refusal to give a requested charge does not require reversal unless the 

appellant was prejudiced by that refusal.” Commonwealth v. Scott, 73 A.3d 

599, 602 (Pa.Super. 2013) (internal quotation marks and citations omitted). 

Where the appellant claims that the court erred in failing to give a particular 

instruction, this Court must determine “whether such charge was warranted 

by the evidence in the case.” Commonwealth v. Boyle, 733 A.2d 633, 639 

(Pa.Super. 1999) (citations omitted).

Our Supreme Court has articulated the circumstances in which a missing 

witness instruction should be given: 

When a potential witness is available to only one of the 

parties to a trial, and it appears this witness has special 

information material to the issue, and this person’s 

testimony would not merely be cumulative, then if such 

party does not produce the testimony of this witness, the 

jury may draw an inference that it would have been 

unfavorable.

Commonwealth v. Manigault, 462 A.2d 239, 241 (Pa. 1983) (quotations, 

citations and emphasis omitted). 

A missing witness instruction need not be given where there is a 

satisfactory explanation for the failure to call the witness. Evans, 664 A.2d at

574. Nor is the instruction necessary where the witness’s testimony would be 

“comparatively unimportant, cumulative, or inferior to that already 

presented[.]” Id. at 573. 

The Commonwealth has a “qualified privilege to withhold the identity of 

a confidential source.” Commonwealth v. Marsh, 997 A.2d 318, 321 (Pa. 
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2010). In Evans, this Court discussed factors that when considered may 

obviate the need for a missing witness instruction. These factors include: 

1. The witness is so hostile or prejudiced against the party 

expected to call him that there is a small possibility of 

obtaining unbiased truth;

2. The testimony of such a witness is comparatively 

unimportant, cumulative, or inferior to that already 

presented;

3. The uncalled witness is equally available to both parties;

4. There is a satisfactory explanation as to why the 

party failed to call such a witness;

5. The witness is not available or not within the control of 

the party against whom the negative inference is desired; 

and,

6. The testimony of the uncalled witness is not within the 

scope of the natural interest of the party failing to produce 

him.

Evans, 664 A.2d at 573-574 (emphasis added).

Here, the trial court determined that the Commonwealth offered “a 

satisfactory explanation for the failure to call the CI to the stand[,]” specifically 

its concern “for the safety of the CI.” Rule 1925(a) Opinion, filed 3/8/22, at 7. 

We agree. This concern satisfactorily explained the failure to call the CI as a 

witness. See Jones, 637 A.2d at 1005. The court heard testimony from 

Trooper Dubbs that the identities of confidential informants are generally kept 

confidential for fear for their safety, including retaliation, death, or assault. 

The court in denying Bethea’s request concluded that there was sufficient 

testimony that the purpose of keeping the identity of the informant concealed 
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was a matter of protection. Bethea’s reliance on Evans is unavailing. No relief 

is due.

Next, Bethea claims that the court erred in limiting his questions on 

cross-examination about the CI. He maintains that the court hindered his 

defense by restricting his questions of Trooper Dubbs regarding the identifying 

markers of the CI since part of his trial strategy “was to attack the lack of 

details and challenge the witness’s memory.” Bethea’s Br. at 21. 

It is within the court’s discretion to grant or deny a request to compel 

the identity of a CI. Marsh, 997 A.2d at 321. The court should consider 

whether the defendant has shown “that disclosure of an informant’s identity 

would yield information material to his or her defense[.]” Id. If the court finds 

that the defendant has shown that the informant’s testimony is material, the 

court should then consider “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 essential 

to a fair balancing of the competing interests involved.” Id.

Here, Bethea failed to show that disclosure of the informant’s identity 

was material to his defense. At no point at trial did Bethea offer any reason 

that the CI’s identity was material to his defense. See N.T., at 102-104. The 

court did not err in concluding that “[Bethea] offered no suggestion that the 

CI’s identity would aid in [the] exoneration of [Bethea] or was material to his 

defense.” 1925(a) Op. at 6. 
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For his remaining two issues, Bethea challenges the weight and 

sufficiency of the evidence for the PWID conviction. He argues because the CI 

did not contact him in the presence of officers and because no one observed 

the actual drug transaction, the jury’s verdict is against the weight of the 

evidence. He also argues that the Commonwealth failed to present any 

evidence that he sold drugs to the CI. He states that “[t]he Commonwealth’s 

entire case rested on the legitimacy of this unknown informant who was never 

questioned and did not have to appear in court.” Bethea’s Br. at 26. 

“Appellate review of a weight claim is a review of the exercise of 

discretion, not of the underlying question of whether the verdict is against the 

weight of the evidence.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 

2013) (citation and emphasis omitted). “[T]he finder of fact while passing 

upon the credibility of witnesses and the weight of the evidence produced, is 

free to believe all, part or none of the evidence.” Commonwealth v. 

Roberts, 133 A.3d 759, 767 (Pa.Super. 2016) (citation omitted).

Additionally, when reviewing a challenge to the sufficiency of the 

evidence we must determine “whether viewing all the evidence admitted at 

trial in the light most favorable to the [Commonwealth], there is sufficient 

evidence to enable the fact-finder to find every element of the crime beyond 

a reasonable doubt.” Id. (citation omitted). The Commonwealth may sustain 

its burden “by means of wholly circumstantial evidence.” Id. (citation 

omitted). “Moreover, . . . the entire record must be evaluated and all evidence 

actually received must be considered.” Id. (citation omitted). 
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To carry its burden for PWID, the Commonwealth was required to prove 

beyond a reasonable doubt that Bethea manufactured, delivered, or 

possessed with intent to manufacture or deliver, a controlled substance and 

that he was not registered within the Drug Act to do so. See 35 P.S. § 780-

113(a)(30). “A defendant actually transfers drugs whenever he physically 

conveys drugs to another person.” Commonwealth v. Murphy, 844 A.2d 

1228, 1234 (Pa. 2004).

Here, the trial court rejected both of Bethea’s claims. 

While the hand-to-hand transaction occurred outside the 

view of officers conducting surveillance, multiple officers 

otherwise observed the entirety of the transaction. No other 

individuals were either in the CI’s car or [Bethea’s] car. The 

CI did not stop anywhere or interact with anyone on the way 

to and from the arranged buy . . . .

The testimony established that the buy location at Choice 

Cigarettes was no more than five minutes from the secured 

location where the CI was searched. Further, regardless of 

the passage of time, the CI and his car had been thoroughly 

searched prior to and after the arranged buy, ensuring that 

the CI had not obtained any drugs except that which he 

bought from [Bethea]. 

***

In the present case, the weight of the evidence supports the 

conviction. [Bethea] asserts that “[t]he evidence merely 

established that [Bethea] drove to Choice Cigarettes, not 

that he partook in a drug transaction.” On the contrary, the 

CI and his car were thoroughly searched at a secure location 

and were then observed traveling from the secure location 

to the location of the arranged buy at Choice Cigarettes. 

Detective Dickerson then observed the CI enter [Bethea’s] 

car, exit the car, and followed the CI from Choice Cigarettes 

back to the secure location where the CI gave police the 

purchased drugs and was again searched. [Bethea] failed to 

establish a satisfactory explanation for the drugs, and 
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merely questioned the thoroughness of the search and the 

length of time of travel between the secure location and the 

buy location. 

1925(a) Op. at 12-14 (citations to record omitted). 

Viewing the evidence in the light most favorable to the Commonwealth, 

the evidence was sufficient. As the court concluded, the Commonwealth 

presented evidence that Bethea met with the CI, gave the CI crack cocaine, 

and that no intervening circumstances happened before, during, or after the 

drug purchase. Despite Bethea’s claim that the Commonwealth’s case rested 

solely on the legitimacy of the informant, the testimony at trial consisted of 

Detectives Ocker and Dickerson, Trooper Dubbs, and Corporal Yingst. The 

testimony demonstrated that after Trooper Dubbs and Detectives Ocker and 

Dickerson thoroughly searched the CI and his vehicle, the CI met with Bethea 

to purchase crack cocaine. Before meeting with Bethea, no drugs were 

recovered from the CI’s person or car. Upon returning from his meet-up with 

Bethea, the CI handed over a Newport cigarette box containing crack cocaine. 

Detective Dickerson, who followed the CI, testified that the CI did not make 

any stops before or after meeting with Bethea. The evidence supports the 

conviction, and the court did not abuse its discretion in ruling on the weight 

claim. Therefore, Bethea is not entitled to relief on his weight and sufficiency 

claims. 

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/2022