J - S35031 - 16

NON - PRECEDENTIAL DECISION - SEE SUPERIOR C OURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : LAMONT ANTHONY CARROL , : : Appellant : No. 382 EDA 2015 Appeal from the Judgment of Sentence March 9, 2012 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP - 51 - CR - 0012280 - 2008 BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E. and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J. : FILED MAY 11, 2016 Lamont Anthony Carrol (“Carrol”) appeals from the judgment of sentence imposed following his convictions of possession with intent to deliver a controlled substance, possession of a controlled substance, and criminal use of a communication facility. 1 We affirm. The trial court aptly summarized the factual and procedural history of this case, whi ch we adopt for the purpose of this appeal. See Trial Court Opinion, 7/6/15, at 1 - 4. 2 Following a jury trial, Carrol was convicted of the above - mentioned crimes. On March 9, 2012, the trial court sentenced Carrol to 45 to 90 months in prison.

1 35 P.S. §§ 780 - 113(a)(30), (a)(16); 18 Pa.C.S.A. § 7512. 2 Carrol entered a separate negotiated guilty plea for possession of a firearm by a prohibited person. See Trial Court Opinion, 7/6/15, at 1 n.1. However, the firearms cha rge is not at issue in this case.J - S35031 - 16

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On appe al, Carrol raises the following questions for our review: I. Whether the verdict was contrary to law as to the charge of criminal use of a [communication] facility[?] II. Whether the verdict was contrary to law as to the charge of possession with intent t o deliver[?] III. Whether the trial court abused its discretion in not allowing the identity of the confidential informant to be revealed[?] Brief for Appellant at 8 (capitalization omitted). Carrol’s first two claims challenge the sufficiency of the ev idence. We apply the following standard of review when considering a challenge to the sufficiency of the evidence: The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial the in the light mo st favorable to the verdict winner, there is sufficient evidence to enable the fact - finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact - fin der. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact - finder unless the evidence is so weak and in conclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Mo reover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact[,] while passing upon the credibility of witnesses and the weight of the evidence produced is free t o believe all, part or none of the evidence. Commonwealth v. Talbert , 129 A.3d 536, 542 - 43 (Pa. Super. 2015) (citation omitted).J - S35031 - 16

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In his first claim, Carrol argues that the evidence was insufficient to sustain his conviction of criminal use of a communica tion facility. Brief for Appellant at 15, 17. Carrol concedes that the Commonwealth satisfied its burden as to the first two elements, because he had used a cell phone in the commission of the crimes and the underlying charge is a felony. Id. at 16. Ca rrol asserts that his conversation with Officer Jeffrey Galazka (“Officer Galazka”) does not constitute a substantial step toward the commission of the underlying crime. Id. In its Opinion, the trial court addressed Carrol’s claim, set forth the relevant law regarding criminal use of a communication facility, and determined that the Commonwealth presented sufficient evidence to sustain the conviction. See Trial Court Opinion, 7/6/15, at 5 - 7. We adopt the sound reasoning of the trial court for the purpos e of this appeal. See id. In his second claim, Carrol argues that the evidence was insufficient to sustain his conviction of possession with intent to deliver. Brief for Appellant at 17. Carrol claims that his possession of a large number of individual packets containing crack cocaine is not sufficient, without more, to show an intent to deliver. Id. at 18. Carrol asserts that there was insufficient evidence to prove an intent to deliver, even when considering other factors in a totality of the circum stances analysis, such as the four jars found in his house, a lack of other paraphernalia, the use of a confidential informant, andJ - S35031 - 16

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inconsistencies between Officer Galazka’s description and Carrol’s physical appearance. Id. at 18 - 19. In its Opinion, the trial court addressed Carrol’s claim, set forth the relevant law regarding possession with intent to deliver, and determined that the Commonwealth presented sufficient evidence to sustain his conviction. See Trial Court Opinion, 7/6/15 , at 7 - 10. 3 We adopt the sound reasoning of the trial court for the purpose of this appeal. See id. ; see also Commonwealth v. Daniels , 999 A.2d 590, 595 (Pa. Super. 2010) (stating that “intent to deliver may be inferred from an examination of the facts a nd circumstances surrounding the case[,]” including the form and packaging of the drug, and the behavior of the defendant); Commonwealth v. Morrow , 650 A.2d 907, 912 (Pa. Super. 1994) (stating that there was sufficient evidence to sustain appellant’s convi ction for possession with intent to deliver where appellant sold marijuana to an informant, who subsequently turned the marijuana over to the police). In his third claim, Carrol asserts that the trial court erred in denying his Motion to compel disclosure of the identity of the confidential informant. Brief for Appellant at 19. Carrol argues that he should have had the opportunity to examine and question the confidential informant because the

3 With regard to Carrol’s claim regarding inconsistencies in Officer Galazka’s description of Carrol, this claim goes to the weight of the evidence. The fact - finder was free to weigh the evidence and make a credibility determination, and we will not disturb the fact - finder’s judgment. See Commonwealth v. Hanible , 836 A.2d 36, 40 ( Pa. 2003).J - S35031 - 16

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confidential informant was the only disinterested witness, and because the confidential informant was an active participant in the transaction. Id. at 21 - 22. “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 d iscretion.” Commonwealth v. Washington , 63 A.3d 797, 801 (Pa. Super. 2013). “The Commonwealth enjoys a qualified privilege to withhold the identity of a confidential source.” Commonwealth v. Watson , 69 A.3d 605, 607 (Pa. Super. 2013). The trial court h as the discretion to require the Commonwealth to reveal the names of confidential informants where a defendant makes a showing that “they are material to the preparation of the defense, and that the request is reasonable.” Pa.R.Crim.P. 573(B)(2)(a). In i ts Opinion, the trial court addressed Carrol’s claim and determined that Carrol did not demonstrate that the confidential informant’s identity was material to the preparation of his defense. See Trial Court Opinion, 7/6/15, at 11 - 12. We adopt the sound r easoning of the trial court for the purpose of this appeal. See id. Judgment of sentence affirmed.J - S35031 - 16

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Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/11/20161 

## 1111111111111111111111111 7315972731 I The docket number for the Possession of a Firearm by a Prohibj1~P Person conviction is (CP-51-CR-0002697- 20 I I) . - """ w · · C P-51-CR- 0 0 12 2 6 0- 200 8 Comm . v . C a rrol. L a mont A n thony O p inion th e PCRA relief and reinstated his appellate rights . and an Amended PCRA Petition on November 12 , 2013. On January 12, 2015 , the court granted Memorandums of Law in support of the PCRA Petition on October 16, 2012 and May 9 , 2013 

## ·- ·

~ ~ .:', .:'. pro s e Post Conviction Relief Act (PCRA) Peti tion. He later filed two Supplemental run consecutively to the above captioned matter. 1 On June 8, 2012, the appellant filed a timel y Firearm by a Prohibited Person and was sentenced to two (2) to four (4) years incarceration to On March 9 , 2012 , the appellant e g tered into a . l].egotiated guilty plea for Possession of a - --i, ##

:.JS$_. ~ conviction for purposes of sentencing. The appellant was also ordered to pay a fine of $800 . 00 . Communication Facility conviction. The K + I charge merg e d with the appellant's PWID PWID conviction. The court imposed no further penalty on the appellant's Criminal Use of a On March 9 , 2012 , the court sentenced the appellant to 45 to 90 months incarceration on his

.,... , , · - ~ ~ Communication Facility (F3) , and Intentional Possession of a Controlled Substance (K + I) ( Ml ). appellant was convicted of Possession with Intent to Deliver (PWID) ( Fl), Criminal Use of a On January 19 , 2012, the appellant (Lamont Carrol) was found guilty by a jury. The OPINION 382 EDA 2015 LAMONT CARROL, APPELLANT CP-51-CR-OO 12280-2008 

## v. TRIAL DIVISION COMMONWEALTH OF PENNSYLVANIA \' 

## S:35"0 3/-1 

# h RECEIVED 

## JUL O 6 2015 APPEALS/POST TRIAL IN THE COURT OF COMMON PLEAS FOR THE COUNTY OF PHILADELPHIA Circulated 04/22/2016 04:04 PM2 3 The Cl had been us e d between 50-100 times by Officer Gal a zk a and is currently being used by the same officer in other inve s tigations . N.T . l/18 / 12, p. 3 7. 2 Copied verbatim from the appellant's Statement of Matters Compl a ined on App e al pursuant to Pa . R . A.P . l 925 ( b ) . CI to purchase narcotics from the appellant. N.T . 1/18 / 12, p. 39. Galazka and several other investigation. Id. Galazka ga v e the CI $20 dollars in pre-recorded buy money and instructed the The investigating officer (Jeffery Galazka) used a confidential informant (CI) to assist him in the Agate Street. N.T. 1/18/12 , p. 36. Their main objective was to investigate the appellant, who was

__ . , . ;.c :f! ,!;' " '

~ ~ r suspected of selling narcotics from a house located at 3093 Agate Street. 3 N.T. 1/18 / 12, p. 38. On August 5, 2008, Philadelphia police officers set up surveillance on the 3000 block of FACTS 3. The Court was in error in not allowing the identity of the confidential informant to be revealed. 

### - ~ r~ · 2. The verdict was insufficient as a matter of law as to the charge of possession with intent to deliver. There was nothing to connect the defendant to the controlled buy. There is no doubt that the defendant was . a . •user of drugs and that he had drugs when arrested on his person. The money taken from the defendant at the time of his arrest was not indicative of the defendant being a seller or [sic] drugs. Add i tionally , nothing was found in the house that would indicate defendant was a seller of drugs. Additionally , the weight of the drugs was suspect . Initially, it was 2.4 grams and then three months later it was 4.6 grams . 1. The verdict was insu f ficient as'a matter of.law as to the charge of criminal use of a communication facility. There was no evidence that correlated the telephone call to any crime to be committed or to have been committed. There was no active conduct by the defendant. There was no evidence he acted intentionally, knowingly and recklessly. raised the following issues on appeal: 2 Appeal pursuant to Pa. R.A.P. l 925(b) . On March 17 , 2015, the appellant filed his Statement and February 4, 2015, the Court ordered counsel to file a Statement of Matters Complained of on On January 21, 2015, the appellanrfiled a Noticeof Appeal to the Superior Court. On4 The officer called this cell phone number: 267-230-0827 .

Officer Johnson arrested the appellant. N.T. 1/18/12, p . 56. Johnson recovered from the N.T . 1/18/12, p. 55. Based on Galazka's observations and conversation with the appellant , 

### · . . , . ~ ...

= --- ~ ~- I said, ' Yo Mont, it's Jeff. Can I get rock?' He [the appellant] said, 'Yeah,' and he gave me a brief description of what he was wearing, which I already knew , and then he said , 'Come onto the block.' facilitate drug sales. Id. Galazka testified that following conversation occurred: Galazka called the number because he believed that the appellant was using his phone to

. .,... ~~~ ~ · previously given to him, and he saw the appellant answer the phone . 4 N . T. 1/18/12 , p. 38, 54. After observing this transaction, Galazka called a phone number that the CI had did not stop or apprehend these individuals. Id. gave the appellant an unknown amount of money in exchange for small objects, but the police

"' " · ~ ~ ' " ' exit 3093 Agate and approach the unidentified man and woman. Id. Both the man and woman woman walk on to the 3000 block of Agate Street. N . T. 1/18/12, p. 53 . He then saw the appellant 3093 Agate Street. N.T. 1/18/12, p. 52. On this day, Galazka observed an unidentified man and On August 8, 2008, the police continued their investigation by setting up surveillance of

~ , . - ..

":. ~ ~ ~ ").,. 1/18/12 , p. 49. N . T. 1/18/12, p. 49, 129. The police then prepared a search warrant for 3093 Agate Street. N . T. tested and weighed the narcotics at headquarters, and the drugs were determined to be cocaine . two orange-tinted Ziploc packets containing crack cocaiae. N.T. 1/18/12, p. 42. The police later

~ --? later, and handed the CI small objects. Id. The CI returned to the police vehicle and gave Galazka recorded buy money. Id. The appellant walked into 3093 Agate Street, exited several minutes officers stayed inside of their vehicle and observed t.2;J:I interact with the appellant. N.T. 1/18/12 , p . 41. The CI had a brief conversation with the appellant and then handed him the pre-4 5 The reference to the 46 p a ckets of crack cocaine include s the 42 recovered from the appellant and the two packets purchased by the Cl. had a total value of $420 dollars. N . T. 1/18/12, p. 148.

_ ,,... =

~ ~ · ." 143 , 148. The appellant also conceded that the 42 packets of crack cocaine (at $10 dollar each) admitted that he "had crack cocaine in my [his] pocket" when he was arrested. N.T. 1/18/12 , p. the total weight of the marijuana was 1.88 grams. 5 N.T. 1/18/12, p. 131. Moreover, the appellant chemist, the total weight of the 46 packets

- of crack c,2.s:aine was approximately 4.752 grams and weighed between 90 milligrams and 180 milligrams each. N.T . 1/18/12, p . 130. According to the each. Id. He also opined that the 42 packets of crack cocaine recovered from the appellant crack cocaine purchased by the CI. N.T . 1/18/12, p. 129-130. These packets weighed 0.123 mg recovered from the house. N.T. 1/18/12, p , - 90. A chemist weighed the two Ziploc packets of believed these jars were used to store marijuana and crack cocaine. Id. No drugs or money were empty jars from a closet in the living room. N.T. 1/18/12, p. 51-52, 62. Galazka testified that he When the police later executed a warrant on 3093 Agate Street, they recovered four appellant's cell phone again (after his arrest) , it rang:.J'rr- T. 1/18/12, p. 62. similar those that the CI purchased on August 5 , 2012. Moreover, when Galazka called the was $420 dollars. N.T . 1/18/12, p. 60 . The crack packets recovered from the appellant was According to Galazka , the retail value of the 42 packets of crack cocaine at $10 dollars a piece crack cocaine, $129 dollars, a small bag of marijuanaand a cell phone. N.T. 1/18/12, p. 57 , 131. appellant's pants a clear plastic sandwich bag containing 42 orange-tinted Ziplock packets of5

Circ.1991 ). Moreover, the charge of Criminal Use of a Communication Facility also includes commission of the underlying felony." United States v. Davis , 929 F . 2d 554, 559 (10 111 Facilitation has been defined as "an y use of a communication facility that makes easier the · ~ ..;;.μ t:!'"'· occurred or was attempted. Commonwealth v. Moss ~ 852 A.2d 374, 382 (Pa. Super 2004) . intentionally or recklessly facilitated an underlying felony; and (3) the und e rlying felony eithe r knowingly and intentionally used a communication facility ; (2) the defendant knowing, Criminal Use of a Communication Facility , the record must show that: (1) the defendant Criminal Use of a Communication Facility. This court disagrees. To support a conviction of In this appeal , the appellant argues that th e re is insufficient evidence to charge him with that, as a matter oflaw, no probability of fact can be drawn from the combined circumstances . " ~ ~ ~ · · doubt must be determined by the fact finder , unless the "evidence is so weak and inconclusive Aguado , 760 A . 2d 1181 , 1185 (Pa. Super. 2000)). Rather, the question as to whether there is any "absolutely incompatible with the defendant ' s innocence ." Id. (quoting Commonwealth v. proven beyond a reasonable doubt." Id. It is not necessary for the established facts to be __, ~ , - ' '":'i.f.-..? ·"' then determines whether the fact finder could have found that "every element of the offenses was (citing Commonwealth v. Simpson , 754 A.2d 1264, 1269 (Pa. Super 2000) ). The appellate court to . . . the verdict winner." Commonwealth v . Conaway, 791 A.2d 359 , 362 (Pa. Super. 2002) view the evidence , and all reasonable inferences drawn therefrom, in the light most favorable In reviewing a ch a llenge to the sufficiency of the evidence , the appellate court "must 1. The verdict was sufficient as a matterof law as to the charge of Criminal Use of a Communication Facility. DISCUSSION · 1 J!..~~

· ~ "6 6 The law of a ttempt states that attempt requires a substantial step toward the commission of the specific underlying crime. 18 Pa.C.S.A §901 (a). The substantial step factor puts emphasis on "what the defendant has done" and not on • ' the acts remaining to be done before the actual commission of the crime. Commonwealth v . Zingarelli, 839 A.2d l 064 , I 069 (Pa.Super . 2003 ). third element requires that the underlying felony either occurred or was attempted. In this case , The third element of Criminal Use of a Communication Facility was also established. The ~ ,.> . · the underlying felony of Possession with Intent to D cl i ~ ~r (PWID) . appellant's drug-related telephone conversation with Galazka facilitated his attempt to commit intentionally used a cell phone to assist him in selling narcotics. Without question, the underlying felony. The second element was met because the appellant knowingly and r ~~ ;; , 'f;;,ir- · Communication Facility requires a person to knowingly , intentionally, or recklessly facilitate an The evidence further established the second element of this offense. Criminal Use of a meet Galazka on the 3000 block of Agate Street. Id. cocaine. N.T. 1/18/12, p. 54-55. The appellant described what he was wearing and agreed to · -<-- · -« !'

tj[;I. /f-~ V l' watched the appellant answer his phone, and then asked the appellant if he could buy crack conversation with Officer Galazka. N.T. 1/18/12, p. 38, 54. Galazka called the appellant, narcotics. The evidence also showed that the appellant engaged in a drug-related telephone knowingly and intentionally used a communication facility (a cell phone) to discuss selling . . . ~ ~- of Criminal Use of a Communication Facility. The ~~ T dence established that the appellant In the case at bar, there is sufficient evidence in the record establishing the first element (D . C . Circ.1990). doubt that the underlying felony did in fact occur. United States v. Iennaco, 893 F.2d 394, 396 - ~ 7 - ~ ?

~ ...;.; . .;, . . also well settled that a conviction for this crime cannot stand without proof beyond a reasonable one's attempt to commit an underlying felony through his use of a communications facility. 6 It is7

Commonwealth may use circumstantial evidence to demonstrate a defendant's constructive Commonwealth v. Chenet, 373 A.2d 1107_, 1108 (Pa . .. Super . 1977). It is well settled that the



# ~ .- ~ dominion over the controlled substance, coupled with his intent to exercise that control. possessed the drug. Id. Constructive possession is defined as one ' s ability to exercise a conscious Commonwealth may satisfy its evidentiary burden by proving that the defendant constructively found on the [defendant ' s] person . " Id. If the contraband . were not found on the defendant, the

c: ~ '~ ' (Pa. 1983). Actual possession is proven "by showing ... [that the] controlled substance [was] actual possession or constructive possession . Commonwealth v. Macolino, 469 A.2d 132, 134 The Commonwealth can establish possession of a controlled substance through either the same. Conaway, 791 A.2d 359, 362 (2002). reasonable doubt that the defendant possessed a controlled substance with the intent to deliver This court disagrees. In order to establish PWID, the Commonwealth must prove beyond a The appellant next argues that there was insufficient evidence to convict him of PWID. 2. The verdictwas sufficient as a matterof law as to the charge of Possession With Intent to Deliver appellant committed the crime of Criminal Use of a Communication Facility. his pants. N.T. 1/18/12, p. 57, 131. With all of this evidence, the jury could infer that the Ziplock packets of crack cocaine, $129 dollars , a small . bag of marijuana, and a cell phone from

· -c, ,;; >' 41 , 53. Lastly, when the appellant was arrested , Officer Johnson recovered 42 orange-tinted him conduct two separate drug transactions earlier with the CI and two buyers. N.T. 1/18/12, p. also know that the appellant actually possessed and delivered drugs because Galazka had seen one thing, the appellant discussed selling drugs to Galazka on the phone. N.T. 1/18/12, p . 55. We

· ,~1).,;i l each of the appellant's actions were substantial steps toward his attempt to commit PWID . For8 · ¢" '" 7 Although the appellant does not contest his K+I conviction , it tth uld be noted that the Commonwealth also presented sufficient evidence to sustain the K +I conviction. on to the 3000 block of Agate Street. N.T. 1/18/12, p . 53. Shortly th e reafter, the appellant exited During the second transaction, Galazka observed an unidentified man and woman walk packets of crack cocaine. Id. prerecorded buy money to the appellant who, in tum, gave the CI two orange-tinted Ziploc approached the appellant, and they briefly conversed . N.T. 1/18/12, p. 41.The CI then gave separate drug transactions. N.T. 1/18/12, p. 41, 53. During the first transaction, the CI in v estigation of the appellant. N.T. 1/18/12, p. 38. He observed the appellant conduct two

... ....- -,. ~{,iii;, :..~ -=, testimony of Officer Galazka. Galazka testified that he used a CI to assist him in his The Commonwealth also established the second element of the PWID through the the police seized from him , is sufficient to establish the first element of PWID. 7 for a total of $420 dollars. N.T. 1/18/12 , p. 148. The appellant's admission , along with the drugs

· - · , ~ ;: ~ · ·olb, "; f.' , . • 1/18/12 , p. 57 , 59. Furthermore, the appellant himself testified that he purchased the 42 packets possession) by showing that the appellant had 42 packets of crack cocaine in his pocket. N.T . appellant's PWID conviction. The Commonwealth established the first element of PWID (actual In the case at bar, the Commonwealth presented sufficient evidence to sustain the

, c., ,- ··· · ~ ~ . : 'f . <M ~ !'.", the form of the drug , and the behavior of the defendant. Id. factors courts have considered when determining intent to deliver are the method of packaging , inferred from the totality of the circumstances. Conaway, 791 A.2d at 362-363. Some of the The Commonwealth can also establish intent to deliver by direct evidence or it can be

- ~~,;,,,;p , · Bentley , 419 A . 2d 85, 87 (Pa . Super. 1980)) . possession of a controlled substance. Maco lino, 469 A.2d at 13 5-136 ( citing Commonwealth v.9

four empty jars from a closet in the living room. N.T • .,c.::- 171'8/12 , p. 62. Galazka testified that he importantly, when the police executed their search warrant on 3093 Agate Street , they recovered "blunts" or other drug paraphernalia from the appellant. N.T. 1/18/12, p. 147-151. Just as cocaine and the marijuana together to put into a "blunt" to smoke, the police never recovered any corroborated his intent to sell. Although the appellant

- testified that he was going to mix the crack crack cocaine he was carrying in his pants pocket. The crack the appellant possessed credible. Moreover , the evidence suggests that the appellant intended to sell the 42 packets of p . 148 . However , the jury apparently did not find the appellant's testimony in this regard to be did not intend to sell the crack cocaine, but rather the-drugs were for personal use . N.T . 1/18 / 12, from the appellant's pants. N.T. 1/18/12, p. 57, 131. During trial, the appellant testified that he tinted Ziplock packets of crack cocaine , $129 dollars, a small bag of marijuana, and a cell phoneIn addition, when the appellant was later arrested, Officer Johnson recovered 42 orangesales. Id. This conversation confirmed that the appellant was using the phone to facilitate his narcotics 'Yo Mont, it's Jeff. Can I get rock?' He [the appellant] said 'Yeah,' and he gave me a brief description of what he was wearing, which I already knew, and then he said, 'Come onto the block.' Galazka, he and the appellant had the following conversation: respond to his inquiry about purchasing crack cocaine. N.T . 1/18/12, p. 38. According to number belonged to the appellant and that he saw the appellant answer the phone and the CI had previously given to him. N.T. 1/18/12 , p. 38, 54. Galazka testified that the phone After Galazka observed these transactions, he ,. used a phone to call the cell phone number the appellant an unknown amount of money in exchange for small objects. 3093 Agate and approached the unidentified man and woman. Id. At that point, they both handed . _ ,... ._, , 

### . . . , ,. ~ ~ -10

weight of the cocaine was 4.752 grams. N.T. 1/18/12, p. 130. As the weight of the crack cocaine N.T. 1/18/12, p. 28. The court further instructed the jury that the parties stipulated that the total "when the Assistant District Attorney and counsel for the defense stipulate, that is, when they agree that a certain fact is true ; ' tl { ~i~ stipulation is evidence of that fact and, you should regard the stipulated or agreed fact as proven." by both attorneys . The court instructed : In our case, the court instructed the jury that the weight of the cocaine was agreed upon 2014). to establish PWID beyond a reasonable doubt. Com. v. Fennell, 105 A.3d 13 , 20 (Pa. Super. .,..,.,,. Chemical Corp., 661 A.2d 1375 , 1378 n.5 (1995) . Therefore , the parties ' stipulation also helped intent of the parties, which is not within the four comers of the stipulation . " Cobbs v. Allied [is] clear and unambiguous on its face , we are prohibited from examining evidence , as to the Rizzuto, 777 A.2d 1069, 1088 (2001 ). The appellate courts have held that " where the stipulation ~"f." - .. n -&. # ~ · proven[, and a] valid stipulation must be enforced according to its terms." Commonwealth v. (Pa.Cmwlth.1996). It is also clear that "a stipulation is a declaration that the fact agreed upon is stipulated are controlling and conclusive." Tyson v. Commonwealth, 684 A.2d 246 , 251 n.11 131. This stipulation was binding on bothparties as w~U. . as the court, as "facts effectiveiy
' W$ ~ duringthe trial that the total weight of the cocaine was 4.752 grams. N.T. 1/18/12, p. 128- This court is unsure how the appellant now calculates 4.6 grams when both attorneys stipulated "initially [the weight of the drugs] was 2.4 grams and then three months later it was 4 . 6 grams . " The appellant also claims that " theweight of 

## ~1-1~ . .drugs was suspect." He contends that "l-,8,V deliver. the evidence, the Commonwealth established that the appellant possessed drugs with the intent to believed these jars were used to store marijuana and crack cocaine. Id. Based on the totality of11

observing the CI give the money to the appellant. Id . Fourth , the CI immediately gave Galazka N . T. 1/18/12 , p . 41. Third , Galazka gave the CI $20 dollars in pre-recorded buy money before Officer Galazka independently observed the appellant sell narcotics to the CI on August 5, 2008. ;£ ¢ _.,il,l.. . - , would help prove he was not selling narcotics. Seco n a , the Commonwealth established that When asked, the appellant could not demonstrate how the court ' s revealing the Cl ' s identity identification of the CL First, the CI' s identity was not material to the preparation of his defense. In the current case, there were numerous reasons why the court did not reveal the A.2d 1228 , 1229 (1977) . enforcement ." Id., Commonwealth v. Carter, 233 A.2d 284 , 287 , Commonwealth v. Herron, 380 privilege of non-disclosure "in order to preserve the public's interest in effective l a w Pennsylvania Supreme Court has also recognized the importance of the Commonwealth's CI' s identity should be disclosed, the court considers such factors as the crime charged, the possible defenses, and the significance of;he inform er ·- ; , testimony . Id. at 58. However , the discretion to determine whether the information is to be revealed " Id. In deciding whether the sought is material and the request reasonable is the trial court called upon to exercise its and that the request is reasonable. Commonwealth v. Roebuck, 681 A . 2d 1279, 1283 (Pa. 1996), Commonwealth v . Bing, 713 A.2d 56, 58 ( 1998). 

# "Oii!y after a showing [t]hat the information defendant must establish that the information sought is material to the preparation of the defense confidenti al informant (CI) . This court disagrees. Before Cl's identity may be revealed, the -e- . ~. ;. : w- "'·· The appellant's final contention is that the co u rt erred by not revealing the identity of the 3. The court did not err by not revealing the identity of the confidential informant. stipulated to the weight of the drugs. was not in dispute, the appellant cannot now claim that he was treated unfairly when he himself12 8 All of the police collaboration in this case rendered the Cl's identity and testimony less significan t. why the court did not disclose the Cl's identity . justifying why the Commonwealth's privilege should be breached. This was yet another reason N.T . 1/18/12, p. 37. Moreover, the appellant did not provide the court with an exception-ecaeCl's identity would have put the Cl's safety at risk as well as compromise future investigations . currently being used in other investigations. N.T. 1/18/12, p. 37. Consequently, revealing the our case , Galazka testified that the CI had been used between 50- 100 times and that the CI was law enforcement. Bing, 713 A.2d at 58, Carter, 233 _!. \2d at 287 , Herron, 380 A.2d at 1229 . In

· ~ disclosure privilege. This privilege was established to preserve the public's interest in effective Even if these reasons were not enough, the Commonwealth had a qualified nonall of these reasons, it was not necessary to reveal the Cl ' s identity. 8 appellant agreed to meet Galazka during their cell P ! l. 9 ne conversation. N . T. 1/18/12, p. 55 . For woman exchange money for small objects with the appellant. N.T. 1/18/12, p. 53. Sixth, the appellant. N.T . 1/18/12 , p. 42, 129 . Fifth, on August 8, 2008, Galazka later saw a man and two orange-tinted Ziploc packets containing crack cocaine after the Cl's transaction with theBy the Court,

13 • $ : #'-, , · · ~ v."1> ~ · ,;,;... claims should be denied. For the aforementioned reasons , this court respectfully submits that the appellant's CONCLUSION

"