J-S26027-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HENRY CHARLES AGNEW 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1662 WDA 2019

Appeal from the Judgment of Sentence Entered October 28, 2019

In the Court of Common Pleas of Blair County Criminal Division at No(s): 

CP-07-CR-0000586-2016

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 17, 2020

Henry Charles Agnew appeals the judgment of sentence entered 

following his conviction for multiple crimes related to drug trafficking.

1 Agnew 

argues the court erred in sustaining the Commonwealth’s objection when 

Agnew attempted to question the Commonwealth’s witness regarding the 

confidential informant’s cause of death. We affirm based on the trial court 

opinion.

Agnew’s charges concerned three controlled purchases of cocaine in 

2015 by a confidential informant (“CI”) working with Blair County’s Drug Task 

Force. At Agnew’s jury trial, the Commonwealth presented the testimony of 

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* Retired Senior Judge assigned to the Superior Court.

1 A jury convicted Agnew of three counts each of delivery of a controlled 

substance, possession of a controlled substance, and criminal use of a 

communication facility. See 35 P.S. §§ 780-113(a)(30) and (a)(16), and 18 

Pa.C.S.A. § 7512(a), respectively.
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Sergeant Christopher Moser, who heads the Narcotics and Vice Unit for the 

City of Altoona, is on the Drug Task Force, and who testified as an expert in 

drug investigations; Corporal Mathew Plummer; and Patrol Manager Andrew 

Crist. The law enforcement officers testified about meeting with the CI before 

and after each controlled purchase, and through their testimony, the 

Commonwealth introduced surveillance photographs of the controlled 

purchases and text messages between Agnew and the CI. 

Sergeant Moser testified that the CI was not available for Agnew’s trial

because he had died. Agnew’s counsel asked Sergeant Moser how the CI had 

died. The Commonwealth objected based on relevance. Following a sidebar 

discussion, the court sustained the objection.

The jury found Agnew guilty. The court sentenced him to serve an 

aggregate of 33 to 66 months’ incarceration. Agnew appealed.

2,3

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2 The appeal met with much delay. We dismissed Agnew’s first attempt at an 

appeal in February 2018, after his counsel failed to file a brief. Agnew filed a

timely Post Conviction Relief Act (“PCRA”) petition, and in June 2019, the PCRA 

court reinstated Agnew’s direct appeal rights, appointed counsel, and gave 

Agnew 30 days in which to file a new notice of appeal. Counsel filed the notice 

of appeal after the 30-day deadline, and we quashed the appeal as untimely 

in August 2019. The PCRA court reinstated Agnew’s direct appeal rights again 

in October 2019, and Agnew thereafter filed the instant timely appeal.

3 After filing the instant notice of appeal, Agnew filed a PCRA petition under 

both the above docket number and another docket number. See PCRA Pet., 

11/4/19. The PCRA court has acknowledged that the petition should be 

dismissed, insofar as it relates to the instant docket number, as it was filed 

while the case was on appeal. See Order, 3/5/20, at 2 (citing See

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)). As these issues are 

not properly before us, we decline to comment further.
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Agnew raises one issue: “Whether the Trial Court erred in not permitting 

the confidential informant’s reason for his unavailability at trial and not 

allowing [Agnew] to explore the reasons for [the CI’s] death at trial?” Agnew’s 

Br. at 4.4

Agnew argues that the CI committed suicide, and that he should have 

been able to question the Commonwealth on the cause of the CI’s death, 

because the CI’s credibility was an issue for the jury. According to Agnew, the 

CI had performed a substantial number of controlled purchases, and “the jury 

could have determined the [CI] committing suicide was due to a guilty 

conscience from his work with the Blair County Drug Task Force making 

controlled purchases[.]” Id. at 12. Agnew argues that because the 

Commonwealth’s case was based on circumstantial evidence, the exclusion of 

the evidence of the CI’s suicide was an abuse of discretion and reversible 

error.

We review a trial court’s ruling on the admission of evidence for an abuse 

of discretion. Commonwealth v. Caulk, 220 A.3d 1102, 1108 (Pa.Super. 

2019) (citing Commonwealth v. Kane, 188 A.3d 1217, 1229 (Pa.Super. 

2018)). Evidence is generally admissible if it is relevant, meaning that it is 

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4 Agnew also devotes several pages of his brief to arguing the court erred in 

allowing the Commonwealth to admit the text messages into evidence. Agnew 

contends the text messages were not properly authenticated and contained 

inadmissible hearsay. However, Agnew did not include this issue in his 

Questions Presented, and, more importantly, did not include this issue in his 

Rule 1925(b) statement of errors complained of on appeal. The issue is 

therefore waived, and we decline to address it. See Pa.R.A.P. 1925(b)(4)(vii); 

Pa.R.A.P. 2116(a).
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probative of a material issue, and if the probative value is not outweighed by 

“unfair prejudice, confusing the issues, misleading the jury, undue delay, 

wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403; 

see also Pa.R.E. 401, 402.

In its opinion, the trial court explained that due to the nature of the 

Commonwealth’s evidence – including officer testimony, photographic 

evidence, and text messages – “this case was tried without the [CI’s] 

credibility coming into question in any significant respect.” Trial Court Opinion, 

filed 11/16/17, at 3. The court also explained that details regarding the CI’s 

death, which took place six months after the controlled buys that formed the 

facts of the case, “lacked both/either relevancy and probative value to the 

jury’s evaluation of this CI’s involvement.” Id. The court found the testimony 

would leave “the jury to improperly guess/speculate/blame without any 

foundation as to what the fact of [the CI’s] death by suicide meant to their 

determination.” Id.

We agree with the trial court’s analysis. The CI’s credibility was not at 

issue in the case, and, moreover, Agnew has not offered any reason why the 

suicide would be probative of the CI’s credibility, rather than the source of 

unhelpful speculation. We find no abuse of discretion, and therefore affirm on 

the basis of the opinion by the Honorable Hiram A. Carpenter III, which we 

adopt and incorporate herein. See Tr. Ct. Op. at 1-4; see also Caulk, 220 

A.3d at 1109 (holding trial court did not abuse discretion by allowing testimony 

that a CI had died, but excluding testimony that CI had been shot to death, 
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because the CI’s unexplained absence at trial may have been prejudicial to 

the Commonwealth, but the details of the death may have caused the jury to 

speculate that the defendant shot the CI, confused the jury, and 

“transform[ed the defendant’s] drug-trafficking trial into a mini-trial about 

[the CI’s] demise”).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/17/2020