Com. v. McGowan, E.

J-S43037-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : EDWARD JOHN MC GOWAN : No. 245 MDA 2023

Appeal from the Order Entered January 18, 2023 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000537-2022

BEFORE: McLAUGHLIN, J., KING, J., and COLINS, J.* MEMORANDUM BY COLINS, J.: FILED: JUNE 14, 2024

The Commonwealth appeals from the order of the Court of Common Pleas of Bradford County (“trial court”) granting the petition for writ of habeas corpus filed by Appellee, Edward John McGowan, and dismissing the charges against Appellee. We reverse and remand for further proceedings.1

On August 15, 2022, the Commonwealth charged Appellee with two counts each of possession of a controlled substance, possession of a controlled substance with intent to deliver, and possession of drug paraphernalia2 related ____________________________________________

• • Retired Senior Judge assigned to the Superior Court.

1 Also before this Court is an application to withdraw filed by Appellee’s counsel, Richard A. Wilson, Esquire, on the basis that he is now employed by the Bradford County District Attorney’s Office. Subsequent to the filing of this application, Patrick L. Beirne, Esquire, entered an appearance for Appellee in this Court. We grant Attorney Wilson’s application to withdraw. 2 35 P.S. §§ 780-113(a)(16), (a)(30), and (a)(32), respectively.

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to two incidents where Appellee allegedly sold methamphetamine to a confidential informant (“CI”) in January 2022. At the September 21, 2022 preliminary hearing in this matter, the Commonwealth presented the testimony of Bradford County Detective David Hart, who had extensive training with drug investigations, including the use of CIs. N.T., 9/21/22, at 2-3.

Detective Hart testified that, on an unspecified date in January 2022, he met with a CI with the goal of conducting a controlled buy of drugs at an apartment building at 110 Washington Street in Towanda borough. Id. at 4. The target of the investigation was a Carly Johnson, who Detective Hart knew to reside in Apartment 5 of the building, although Detective Hart also was aware that Appellee was residing in and selling methamphetamine from the same apartment. Id. at 4, 12-14, 18. According to Detective Hart, the CI was searched before entering the apartment with no money or contraband found, and the CI was then provided with pre-recorded buy money. Id. at 5. The CI was transported to an area close to the target location, and Detective Hart watched the CI enter Apartment 5. Id. at 5, 14. While the CI was inside, Appellee was observed exiting Apartment 5, entering the building through a separate door to access another apartment, and then returning to Apartment 5. Id. at 21. Johnson was also seen leaving the apartment during this purchase. Id. at 12. Upon return, the CI indicated that a purchase of methamphetamine had been made from Appellee and that Appellee left

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Apartment 5 while the transaction was taking place to retrieve the drugs from another apartment. Id.

Detective Hart conducted a second controlled buy at 110 Washington Street one or two days later. Id. at 6. The CI was again searched, and no contraband was discovered; the CI was then provided with buy money and directed to proceed to Apartment 5. Id. at 6-7, 9. The CI returned with methamphetamine and again indicated that it was bought from Appellee. Id. at 7. The substances purchased during both buys later tested positive for methamphetamine. Id. at 8-9.

The CI did not testify at the preliminary hearing. At the conclusion of the preliminary hearing, the magisterial district judge bound the charges over for trial. Id. at 26.

Appellee filed a petition for writ of habeas corpus in the trial court asserting that the Commonwealth failed to establish a prima facie case of the identity of the individual who sold methamphetamine to the CI when it relied solely on the hearsay testimony of Detective Hart. The Commonwealth filed a responsive brief, in which it argued that it had presented sufficient evidence that the crimes were committed and that Appellee had committed them. The Commonwealth asserted that it held a well-recognized qualified privilege to withhold the identity of its confidential source and that it had no duty to disclose the identity in this case where the defendant had not even requested to reveal the CI’s identity. The Commonwealth further asserted that, if the trial court determined that the CI’s identity should be disclosed, the

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Commonwealth would make the CI available to testify at a hearing on the habeas petition.

The trial court granted the habeas petition in a January 18, 2023 order. In an accompanying opinion, the trial court relied on Commonwealth v. Harris, 269 A.3d 534 (Pa. Super. 2022) (“Harris I”), aff’d ___ A.3d ___, 2024 WL 2120894 (Pa., filed May 13, 2024), in which this Court held that, pursuant to Rule of Criminal Procedure 542(E), the Commonwealth is precluded “from relying on hearsay alone at a preliminary hearing to establish a prima facie case that the defendant committed a crime.” Id. at 548. In rejecting the Commonwealth’s argument that it was not required to divulge the CI’s identity in order to prevail at the preliminary hearing, the trial court stated that “[a]lthough the Commonwealth has a qualified privilege to withhold the identity of a confidential source, said privilege does not extend to not presenting non-hearsay evidence in support of material elements of a crime at a preliminary hearing.” Trial Court Opinion, 1/18/23, at 6.

The Commonwealth then filed this timely appeal,3 in which it raises the following two issues: ____________________________________________ 3 Although the charges were dismissed by the trial court without prejudice, we

nevertheless have jurisdiction over this appeal. See Harris I, 269 A.3d at 538-39 (citing Commonwealth v. Merced, 265 A.3d 786, 790-91 (Pa. Super. 2021)).

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A. Did the Suppression Court err in granting the Writ of Habeas Corpus on the grounds/reasoning of Harris/McClelland?[4]

B. Did the Suppression Court err in finding that the Commonwealth did not present a prima facie case at the preliminary hearing?

Commonwealth Brief at 3 (lower court answers and suggested answers omitted).

“[A]n appellate court will review a grant or denial of a petition for writ of habeas corpus for abuse of discretion, but for questions of law, our standard of review is de novo, and our scope of review is plenary.” Commonwealth v. Harris, ___ A.3d ___, 2024 WL 2120894, at *5 (Pa., filed May 13, 2024) (“Harris II”). Here, we are presented with a question of law regarding the evidentiary sufficiency of the Commonwealth’s prima facie case. Commonwealth v. Sutton, ___ A.3d ___, 2024 WL 1163627, at *2 (Pa. Super., filed March 19, 2024). “We review a decision to grant a pre-trial petition for a writ of habeas corpus by examining the evidence and reasonable inferences derived therefrom in a light most favorable to the Commonwealth.” Commonwealth v. Dantzler, 135 A.3d 1109, 1111 (Pa. Super. 2016) (en banc).

“At a preliminary hearing, the Commonwealth bears the burden of

proving the prima facie case, which is met when it produces evidence of each ____________________________________________

4 See Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2020). In McClelland, our Supreme Court held that, under Pa.R.Crim.P. 542(E), the Commonwealth may not rely exclusively on hearsay evidence to establish a prima facie case against a defendant at the preliminary hearing. Id. at 734- 36.

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of the material elements of the crime charged and establishes probable cause to warrant the belief that the accused committed the offense.” Sutton, 2024 WL 1163627, at *3 (quoting Commonwealth v. Wroten, 257 A.3d 734, 742 (Pa. Super. 2021)); see also Pa.R.Crim.P. 542(D) (“At the preliminary hearing, the issuing authority shall determine from the evidence presented whether there is a prima facie case that (1) an offense has been committed and (2) the defendant has committed it.”). “The evidence supporting a prima facie case need not establish the defendant’s guilt beyond a reasonable doubt, but must only demonstrate that, if presented at trial and accepted as true, the judge would be warranted in permitting the case to proceed to a jury.” Sutton, 2024 WL 1163627, at *3 (quoting Wroten, 257 A.3d at 742). Under Rule 542(E),

Hearsay as provided by law shall be considered by the issuing authority in determining whether a prima facie case has been established. Hearsay evidence shall be sufficient to establish any element of an offense, including, but not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property.

Pa.R.Crim.P. 542(E).5

In its first issue, the Commonwealth argues that the trial court erred in dismissing the charges against Appellee in the “unique situation” here where ____________________________________________ 5 To the extent Rule 542(E) uses the term hearsay, it should be understood

as referring only to inadmissible hearsay, i.e. an out-of-court statement offered for the truth of the matter asserted that does not fall under a hearsay exception. See Harris II, 2024 WL 2120894, at *6 n.8. Hearsay, as used in this memorandum, also refers only to inadmissible hearsay.

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it relied on the hearsay testimony of a CI at the preliminary hearing. Commonwealth Brief at 12. The Commonwealth states that it enjoys the qualified privilege to protect the CI, whose identity is known only to law enforcement at this time. While conceding that the privilege is not absolute, the Commonwealth asserts that it exists until the defendant makes a motion to disclose and prevails on that motion; here, Appellee has not even made such a request.6 The Commonwealth notes the policy rationale underlying the qualified privilege and states that upholding the trial court’s ruling here would “resonate throughout” the law enforcement community and “the frequency and willingness of CIs to work with law enforcement would” be greatly diminished. Id. at 14.

The Commonwealth distinguishes Harris I and the cases upon which it relies, including McClelland, as they involve the interpretation of 2013 amendments to Rule 542, see Harris I, 269 A.3d at 542, and did not address the qualified privilege that long predated the amendments under review in those cases. The Commonwealth contrasts Harris I, which involved the

testimony of a shooting victim who failed to appear at two preliminary hearing ____________________________________________

6 In order to overcome the qualified privilege, “a defendant must first establish, pursuant to [Pa.R.Crim.P.] 573(B)(2)(a)(i), that the information sought is material to the preparation of the defense and that the request is reasonable.” Commonwealth v. Ellison, 213 A.3d 312, 316 (Pa. Super. 2019) (citation omitted). “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. (citation omitted).

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listings and may never appear at trial, id. at 537, from the present case, where the Commonwealth avers that it remains in contact with the CI and has every intention of calling that individual to testify at trial.

This Court recently addressed this precise issue, on very similar facts, in Sutton. In that case, a detective testified at the preliminary hearing that, on two occasions, he verified that there were no drugs or money on a CI’s person, supplied the CI with pre-recorded buy money, observed the CI enter and exit Sutton’s residence, and the CI then handed over suspected methamphetamine with no other contraband or money found on their person. 2024 WL 1163627, at *1. The detective then repeated the CI’s out-of-court statement to him that Sutton was the individual who sold the methamphetamine. Id. After the charges were bound over, the trial court granted Sutton’s habeas petition and dismissed the charges pursuant to Harris I. Id. at *2.

We reversed, distinguishing Harris I on the basis that it did not involve the use of a CI and holding that our earlier decision “does not vitiate jurisprudence that has promoted an accountable, prescribed system recognizing a qualified privilege of keeping informants’ identities confidential and permitting use of their statements to law enforcement at preliminary hearings.” Id. at *4. We stated that Harris I does not represent “a sweeping, policy-changing holding that would undo” the qualified privilege at the preliminary hearing stage of the proceedings, recognizing that “such a result

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would hamper the effects of law enforcement to enforce the laws against the illegal use of controlled substances.” Id. at *5-6.

We concluded in Sutton that the trial court erred by granting the habeas petition, a ruling that effectively required the Commonwealth to disclose the CI’s identity at the preliminary hearing, particularly where “the Commonwealth certified with the trial court that the CI will be produced at trial” and Sutton “had not established at the preliminary hearing that the qualified privilege rubric required disclosure” of the CI’s identity. Id. at *4; see also id. at *6-7. We additionally noted that the Commonwealth had established a “connection” between Sutton and the controlled buys where the detective testified at the preliminary hearing that he had witnessed the CI enter Sutton’s residence possessing only pre-recorded buy money and exit possessing only methamphetamine. Id. at *6.

Subsequent to our decision in Sutton and the briefing of this appeal, our Supreme Court issued its decision affirming Harris I. The Court held in Harris II that,

based on the plain language of Rule 542, [] inadmissible hearsay alone may not be used to prove a prima facie case as to the defendant’s identity. This means the Commonwealth at a preliminary hearing is required to produce some non-hearsay or admissible hearsay evidence to sustain its prima facie burden as to the defendant’s identity.

Harris II, 2024 WL 2120894, at *8. Like this Court’s decision, Harris II did not address our qualified privilege jurisprudence. Nor does Harris II represent “a sweeping, policy-changing holding that would undo” the qualified

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privilege, Sutton, 2024 WL 1163627, at *6, as our Supreme Court’s decision was confined to a textual analysis of the interplay between Rule 542(D) and (E).7 Therefore, we conclude that Harris II does not impair our holding in Sutton providing that the Commonwealth is permitted to rely on the out-of-court statements of a CI as related to a law enforcement officer.

Accordingly, pursuant to Sutton, we conclude that the trial court erred in determining that the Commonwealth did not present a prima face case merely because it relied on hearsay testimony of Detective Hart regarding Appellee’s involvement in the delivery of methamphetamine. The Commonwealth produced other, non-hearsay evidence at the preliminary hearing, including Detective Hart’s testimony that he searched the CI before entering and upon exiting the apartment and found that the CI had obtained methamphetamine while inside the apartment during both controlled buys. Furthermore, Detective Hart provided non-hearsay testimony establishing Appellee as the perpetrator of the crimes, including his knowledge that Appellee also resided in and sold drugs out of Apartment 5 and the detective’s observation of Appellee going in and out of that apartment while the CI was inside. Cf. Harris II, 2024 WL 2120894, at *8 (providing that the Commonwealth may not rely on “inadmissible hearsay alone . . . to prove a ____________________________________________ 7 Harris II was a divided decision, and the lead opinion only carried a majority

to the extent it was based upon “an examination of the plain text of Rule 542” and not to the extent it “justifie[d] its conclusion for reasons other than the text of Rule 542.” 2024 WL 2120894, at *8 (Donohue, J., concurring).

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prima facie case as to the defendant’s identity”). Finally, as in Sutton, the Commonwealth states that it will produce the CI at trial.

Therefore, viewing the evidence in the light most favorable to the Commonwealth, see Dantzler, 135 A.3d at 1111, we conclude that the evidence was sufficient to establish a prima facie case that Appellee committed the charged offenses.8 See Sutton, 2024 WL 1163627, at *6-7; Commonwealth v. Strope, No. 249 MDA 2023, 2024 WL 1715348, at *3 (Pa. Super., filed April 22, 2024) (holding, under Sutton, that trial court erred when ruling that Commonwealth had failed to establish a prima facie case that Strope committed controlled substance offenses where Commonwealth relied on detective’s hearsay testimony repeating CI’s statement that Strope sold drugs to CI in addition to non-hearsay evidence establishing Strope’s identity as the wrongdoer and Commonwealth represented that CI would testify at trial) (non-precedential decision cited for its persuasive value, see Pa.R.A.P. 126(b)).

Order reversed. Application to withdraw granted. Case remanded.

Jurisdiction relinquished. ____________________________________________

8 Because Appellee only challenged the issue of whether the Commonwealth’s

proof was sufficient to establish his identity as the individual who committed the crimes in his habeas petition, we need not address whether the Commonwealth presented sufficient evidence to establish each of the elements of the three charged crimes. See Harris II, 2024 WL 2120894, at *5-6 (observing that Rule 542(D) places on the Commonwealth “dual” and “independent” burden at a preliminary hearing to “‘prove a prima facie case’ both with respect to the elements of the crimes and the defendant’s identity”) (quoting Pa.R.Crim.P. 542(D); emphasis in original).

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Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 6/14/2024

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