Confidential Informants, Prosecutorial Misconduct, and Traffic Stops (some aided by the “Find My iPhone” App)

Comm. v. Koonce, 2018 PA Super 169 (June 15, 2018)

Out of Montgomery County.  Koonce was convicted following a stipulated non-jury trial of possession with intent to deliver.  Pre-trial he filed a motions to suppress evidence and to produce a confidential information used to build the case against him.  The trial court denied these motions.  He was subsequently convicted.

Really the issue on appeal that likely warranted publication concerned the confidential informant.  Generally speaking, “the Commonwealth enjoys a qualified privilege to withhold the identity of a confidential source.”  “In order to overcome this qualified privilege and obtain disclosure of a confidential informant’s identity, a defendant must first establish . . . that the information sought is material to the preparation of the defendant and that request is reasonable.”  Release of the identity of the confidential information is within the trial court’s discretion.

Here, Koonce’s defense theory was one that the confidential informant “framed” him.  Thus, because the confidential informant was the only eyewitness to the alleged drug transaction, only the disclosure of the confidential informant could  advance the defense theory.

The Superior Court wasn’t buying this argument.  The Court noted that Koonce wasn’t pursuing a “misidentification” defense here, and confidential informant’s trustworthiness wasn’t at issue since the officer on the case credibly established the informant to have provided valuable information that led to prior narcotics arrests.  Moreover, even though the confidential informant may have been the only witness to the actual hand-to-hand transaction, the police observed every other aspect of the transaction.  The Superior Court really dismissed the grasping nature of this appeal by highlighting the following:

Appellant is correct that the only witness to the actual transaction in the CI’s vehicle was the CI; however, multiple police officers observed Appellant and the informant in relatively close range during daylight hours in the moments leading up to and immediately after the transaction both inside the Wendy’s restaurant and in the area surrounding the vehicle in which the transaction occurred.  The CI met with no other individual other than Appellant in Wendy’s, and officers had searched the CI and his vehicle [beforehand] to ensure he was not in possession of any contraband or U.S. currency.  In addition, the vehicle was under constant police surveillance, and no one other than Appellant and the CI approached or entered the automobile.  Appellant was arrested moments after the drug buy, at which time only Appellant and the CI were inside the car.  The CI was in possession of a black backpack which contained a sealed bag of approximately one pound of marijuana, and Appellant possessed $3,600 belonging to law enforcement.  Under these circumstances, Appellant’s position he was framed is wholly untenable.

Thus, if not otherwise obvious, Appellant failed to show any materiality to the disclosure of the CI’s identity.  The trial court, therefore, acted within its discretion to withhold the CI’s identity.

Comm. v. Jones, 2018 PA Super 173 (June 20, 2018)

Out of Philadelphia. This was a first-degree murder case.  Appellant had been convicted by a jury.  The underlying facts are not so much important as is the procedural aspects of the case, namely the preservation of issues.

Here, following his conviction and sentencing, Appellant’s attorney raised three issues in a timely post-sentence motion.  The issues were these: (1) whether the prosecutor engaged in misconduct during closing by referencing the impact of the victim’s death on his family; (2) whether the prosecutor engaged in misconduct during closing for deriding defense counsel for allegedly questioning the prosecutor’s integrity; and (3) whether the verdicts were against the weight of the evidence due to inconsistencies in the identification evidence.

After the post-sentence motion was denied and the trial court requested the statement of errors that Appellant would lodge on appeal, Appellant then listed the same three issues he put in his post-sentence motion.  However, when he then presented his brief to the Superior Court for consideration, Appellant listed four issues for resolution: one attacked the sufficiency of the evidence for the first-degree murder conviction; one challenged the weight of the evidence (but on different grounds than raised before); and the remaining two rehashed the prosecutorial-misconduct issues.

The Superior Court found the sufficiency and the weight issue to be waived.  It proceeded on the merits of the prosecutorial-misconduct issue.  To fully appreciate the prosecutorial-misconduct claims, seeing what the prosecutor actually said is necessary.  The prosecutor’s statements are as follows:

[PROSECUTOR]: Every one of us, every one of us, [Appellant], [defense counsel], all of us have the right to tomorrow, the chance to better ourselves. He stole those days from Ricky Rodriguez. All of them. But there is a flip side to that coin. Because tomorrow will go on, and tomorrow, Jose Alvarado, Ricky Rodriguez’s friends and family, they will wake up, but they will never be right.

Ladies and gentlemen, losing someone that you love cuts a hole in you that will never be filled.

*       *       *

[PROSECUTOR]: And I want to talk a little bit because [defense counsel] brought this up, and it actually makes me angry, because he’s impugning my integrity as well as the detectives. Ms. Davis, when we spoke to her and you heard Detective Bartol say, we looked for her, we tried to show her a photo array to see if she could make an identification, and we could never find her. Remember, at that point she told you she was willing to do anything to find heroin. She was taking trains all over town, she was in a bad place. The detectives tried to find her and show her an array, and they couldn’t. She came down last week, and Detective Marano told you that she said, because of the time lapse, since then, I really couldn’t say that I could identify him. I couldn’t. And that was the end of it. Ladies and gentlemen, I didn’t ask her if she could identify him because that’s against the rules, and [defense counsel] knows it.

In both instances, while the trial court deemed these issues to be waived notwithstanding defense counsel’s timely objections—i.e. the trial court believed a failure to request a mistrial or curative instructions waived any later remedy for a new trial—the Superior Court side-stepped waiver and deemed that these alleged errors were sufficiently cured by the trial court’s standard instructions to the jury.  Thus, the Superior Court held that prosecutor’s statements did rise to the level that they would warrant a new trial.

Comm. v. Thorne, 2018 PA Super 177 (June 22, 2018)

Out of Philadelphia.  The trial court had suppressed evidence, thus hindering the Commonwealth’s prosecution.  Accordingly, the Commonwealth appealed and the Superior Court held in its favor.  The important underlying facts, when boiled down, were these.  Officers were on patrol in a high-crime area of Philadelphia, an area where one of the officers of only two years had made 8-10 arrests in that time. At approximately 9:15 p.m., the officers in a marked patrol car witnessed the car that Thorne was the front-seat passenger in run a stop sign. The officers made a traffic stop.

Contact was made with the driver of the vehicle and his identification was produced.  As his information was being run through the patrol car’s mobile data system, one of the officers “observed [Thorne] . . . dip down like towards the floor as well as leaning towards the console.”  Though the database returned no information for outstanding warrants or other legal issues, the driver did come back as being “a known gang member.”

Given this background, when the officers returned to the vehicle, both the driver and Thorne were asked to exit the vehicle to be frisked for weapons. Thorne refused. The officers noted that both he and the driver appeared nervous and their voices were quivering. Nonetheless, when Thorne refused, the officers opened the passenger-side door, used controls to the remove him from the vehicle, but he lunged toward the center consul.  Inevitably, once Thorne was removed, the officers conducted a sweep of the car’s passenger area.  They, of course, recovered a loaded handgun.

In this case, the Superior Court deemed the search of the vehicle to be reasonable.  They distinguished the facts of this case from another case, Commonwealth v. Reppert,814 A.2d 1196 (Pa. Super. 2002) (holding that pre-stop furtive movements by themselves may not justify investigation detention after conclusion of valid traffic stop), and held that the totality of the circumstances warranted the conclusion that the officer believed his safety to be compromised, thus enabling him to conduct the search that he and his partner did.  Even as the trial court conceded, the Superior Court reiterated that this was “prudent police activity.”  The suppress order, therefore, was reversed.

Comm. v. Milburn, 2018 PA Super 178 (June 22, 2018)

Out of Philadelphia.  This is a case of the inherent pitfalls of technology for the modern-day criminal.  Briefly, the facts were these.  Milburn had robbed a guy at gunpoint on North Broad Street in Philadelphia at 11:50 p.m.  The guy he robbed, he took his iPhone 6 and backpack containing clothing and medication.  The victim got a good look at Milburn’s face because it happened nearly right under a streetlight.  Milburn would eventually let the victim go, telling him to “walk away,” and when the victim did, being sure that Milburn had left the scene with the person he was with, he immediately called 911, giving the dispatcher the description of his assailant.

Police arrived on scene where the victim had called from.  Utilizing the “Find my Phone” application on one of the officer’s iPhone’s, the officer’s phone received a notification (or ping) that the victim’s phone was in the area of 5th Street and Erie Avenue.  They proceeded to that area with the victim.  Once in the area the officers came upon a van that had driven up onto the curb, nearly hitting a street sign, so suspecting that the driver was either not paying attention or nervous, the officers conducted a traffic stop.

While conducting the traffic stop the victim remained in the car.  When the officers approached the stopped car and instructed the occupants to place their hands on the wheel and dashboard, the passenger did not. (One of the officers observed the passenger place a small handgun under his seat.)  Accordingly, the passenger was removed from the vehicle, and once he was moved to the rear of the vehicle, the victim in the patrol car “began jumping in his seat . . . pointing at [Milburn] as the perpetrator.”  The victim would emphatically confirm that Milburn was his assailant.  Ultimately, the victim’s backpack, medication, and clothing were recovered from the stopped vehicle, and the victim’s iPhone 6 was recovered from Milburn’s pocket.

Prior to trial, Milburn challenged the stop and ensuing search as unconstitutional, i.e. lacking reasonable suspicion. (Milburn also raised an issue of an unduly suggestive identification, but that is not addressed here—the Superior Court affirmed the trial court’s finding that the identification was not suggestive.)  The Superior Court had this to say in turn about the stop:

Officer James’s conclusion that the individuals in the van that he observed in the parking lot of the A-Plus Mini Market may have been involved in criminal activity was reasonable because: (1) he had experience with the reliability of the “Find My iPhone” app; (2) he arrived quickly at the location identified by the “ping;” (3) no other vehicles or individuals were present at the location; (4) the driver of the vehicle was operating it in a manner consistent with nervousness; and (5) he knew that the “pinged” location was a high crime area.

The totality of the circumstances, of which the “Find My iPhone ping” was but one factor, establish that Officers James and Taylor had specific and articulable reasonable facts that led them to conclude that the individuals in the van were engaged in criminal activity. Thus, reasonable suspicion existed for them to conduct an investigatory detention of Appellant.