PA Superior Court: Trial Court Properly Permitted Commonwealth to Inform Jury Confidential Informant Had Died
Philadelphia Criminal Defense Lawyer Zak Goldstein
The Pennsylvania Superior Court decided the case of Commonwealth v. Caulk. The court held that the trial court properly permitted the Commonwealth to explain that the confidential informant in the case had died so that the jury would not question why the confidential informant did not testify. The defendant had objected to the introduction of this evidence because defense counsel believed that the jury would likely suspect that the defendant had been involved in the informant’s death.
Commonwealth v. Caulk
On March 21, 2016 and April 20, 2016, Pennsylvania State Troopers Bromberg and Garcia conducted controlled drug purchases from the defendant through a confidential informant. Before the first controlled buy on March 21, 2016, Trooper Bromberg thoroughly searched the informant and his vehicle to make sure there were no secret compartments in the vehicle where he could hide weapons, contraband, or money. Trooper Bromberg gave the informant $4,800 in United States currency, which he instructed the informant to purchase 125 grams of cocaine from the defendant. The informant also had a recording device in his pocket.
The controlled buy took place on Lindbergh Boulevard in Philadelphia. A Jeep with Connecticut license plates pulled behind the informant’s car, and Trooper Bromberg, watching from nearby, recognized the defendant exiting the driver’s side of the Jeep. The defendant entered the passenger’s side of the informant’s vehicle and met with the informant for about one minute before returning to the Jeep. Nobody else approached or was inside the informant’s vehicle. The recording device in the informant’s pocket recorded his conversation with the defendant. The defendant and the informant’s voices could be heard on the recording.
Following the transaction, the informant drove to a pre-arranged location where he met with the troopers. He made no stops and had no contact with anyone else between the controlled drug buy and the post-buy meeting with the troopers. The troopers had the informant under surveillance during the entire trip. At the pre-arranged location, troopers searched the defendant and found a large plastic bag containing cocaine that the informant purchased with the $4,800. The Pennsylvania State Police crime lab determined that the bag contained 124.5 grams of cocaine.
Before the second controlled buy on April 20, 2016, Trooper Bromberg searched the informant’s vehicle to ensure that there were no drugs, contraband, weapons or money on the informant’s person or in his vehicle. Troopers gave the informant another $4,800 with pre-recorded serial numbers. The informant again possessed a recording device. At the last minute, the location of the controlled drug buy changed from Lindbergh Boulevard in Philadelphia to Fifth and Welsh Street in Chester, Pa. The Drug Enforcement Agency performed aerial surveillance in addition to the troopers’ ground surveillance. This entire transaction was videotaped. The video showed the defendant driving a white Mitsubishi and was waiting at the new location for the informant. The informant exited his vehicle and entered the defendant’s vehicle and they drove around and then returned to the new meetup location. Although the conversation was recorded and there was ambient noise, there was no conversation, no phone calls, and no mention of cocaine distribution.
At the conclusion of the meeting, the defendant drove away but was arrested by a Chester police officer. The informant drove away in his vehicle directly to a meeting with the troopers, who recovered a bag containing 124.64 grams of cocaine that the informant purchased with the pre-recorded currency. There was no other money, drugs, or contraband found on the informant’s person or in his vehicle.
The defendant was subsequently charged with two counts of Possession with the Intent to Deliver (hereinafter “PWID”). Prior to trial the Commonwealth sought a continuance which was granted. Shortly after this, the informant was murdered. The defendant filed a motion in limine to preclude any reference to the informant’s death. The trial court denied his motion. During the trial, Trooper Broomberg testified that the informant could not testify because he was deceased. The Commonwealth did not present any evidence concerning the cause of his death. Additionally, the Commonwealth played the various tape recordings and video that was generated during the troopers’ surveillances.
The defendant also testified on his own behalf and denied selling drugs to the informant. Additionally, his attorney argued that the Commonwealth’s case failed without the testimony of the informant. The jury disagreed and the defendant was found guilty of two counts of PWID and sentenced to 100-240 months of imprisonment. The defendant then filed a timely appeal. On appeal, the defendant raised several issues. Only the issue of whether the trial court improperly denied his motion in limine will be addressed in this article.
What is a Motion in Limine?
A motion in limine is a motion that either the defense attorney or prosecutor can file before trial to keep out or introduce certain evidence. Usually, these are only done when a defendant elects to have a jury trial, but they may also be used in bench trials. Defense attorneys will frequently file these before trials because they not only want to keep out harmful evidence, but also they want to know what evidence will actually be presented to the jury. Additionally, defense attorneys file motions in limine to avoid objecting to specific evidence in front of the jury. The reason this is significant is because a defense attorney may not want to give the impression that they are trying to hide something from the jury. As such, this is usually a strategic decision by the defense.
The Superior Court’s Decision
The Superior Court denied the defendant’s appeal. The Superior Court found that the trial court did not abuse its discretion when it denied the defendant’s motion in limine concerning the informant’s death. The reason was because the trial court did not allow the Commonwealth to introduce the cause of his death and thus the defendant’s argument that he was prejudiced was not supported by the record. Additionally, the Superior Court found that the jury could have blamed the Commonwealth for the informant’s absence and this would have unfairly prejudiced the Commonwealth. Because the Superior Court found that the trial court did not abuse its discretion and the Superior Court did not grant any of the defendant’s other arguments, he will not get a new trial and will be forced to serve his sentence.
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