J-S35031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, which 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 charge is not at issue in this case.
J-S35031-16

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On appeal, 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 to 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 evidence. 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 most 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-finder. 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 inconclusive 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. Moreover, 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 to 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

- 3 -

In his first claim, Carrol argues that the evidence was insufficient to 

sustain his conviction of criminal use of a communication 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. 

Carrol 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 purpose 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 circumstances analysis, such as the four jars found in his 

house, a lack of other paraphernalia, the use of a confidential informant, and 
J-S35031-16

- 4 -

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 and 

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 conviction 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

- 5 -

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 discretion.” 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 has 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 its 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 reasoning of the trial court for the purpose of 

this appeal. See id. 

Judgment of sentence affirmed.
J-S35031-16

- 6 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/11/2016
1 

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·· 

CP-51-CR-0012260-2008 Comm. v. Carrol. Lamont Anthony 

Opinion the 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 se Post Conviction Relief Act (PCRA) Petition. He later filed two Supplemental 

run consecutively to the above captioned matter. 1 On June 8, 2012, the appellant filed a timely 

Firearm by a Prohibited Person and was sentenced to two (2) to four (4) years incarceration to 

On March 9, 2012, the appellant egtered 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 merged 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 

LAMONT CARROL, APPELLANT 382 EDA 2015 

v. CP-51-CR-OO 12280-2008 

COMMONWEALTH OF PENNSYLVANIA TRIAL DIVISION 

\' 

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 PM
2 

3 The Cl had been used between 50-100 times by Officer Galazka and is currently being used by the same officer in 

other investigations. N.T. l/18/12, p. 37. 

2 Copied verbatim from the appellant's Statement of Matters Complained on Appeal 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 gave 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. Additionally, 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 insufficient 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. On 
4 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 packets of crack cocaine includes 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 of 
5 

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 (10111 

Facilitation has been defined as "any use of a communication facility that makes easier the 

·~..;;.μt:!'"'· 

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 underlying felony either 

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 there 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 challenge to the sufficiency of the evidence, the appellate court "must 

1. The verdict was sufficient as a matter of law as to the charge of Criminal Use of a 

Communication Facility. 

DISCUSSION 

·1J!..~~ 

·~" 
6 

6 The law of attempt 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 Dcli~~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-~Vl' 

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 ~~Tdence 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 is 
7 

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 verdict was sufficient as a matter of 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).,;il 

each of the appellant's actions were substantial steps toward his attempt to commit PWID. For 
8 

·¢"'" 

7 Although the appellant does not contest his K+I conviction, it tthuld 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 thereafter, 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 

investigation 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 phone 

In 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$~ 

during the 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 of 
11 

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. Secona, 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 law 

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 informer·-;,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 

confidential informant (CI). This court disagrees. Before Cl's identity may be revealed, the 

-e-. ~.;.:w-"'·· 

The appellant's final contention is that the court 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 himself 
12 

8 All of the police collaboration in this case rendered the Cl's identity and testimony less significant. 

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.9ne 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 the 
By the Court, 

13 

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claims should be denied. 

For the aforementioned reasons, this court respectfully submits that the appellant's 

CONCLUSION"