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The Pennsylvania Superior Court has reversed a ruling by a Blair County judge that would have allowed an Altoona man to appeal his conviction on drug-related charges.
Henry Charles Agnew, 42, initially had his appeal rights reinstated after a post-conviction hearing last year, in which he complained that his trial attorney and an appeals attorney failed to challenge the presentation of several text messages between himself and a police confidential informant during his trial.
The informant was deceased, and Agnew's attorney during his post-trial hearing, Kristen L. Anastasi, argued that the messages should not have been permitted into Agnew's 2016 trial because he never had the opportunity to confront the informant -- a constitutional right.
Senior Judge Hiram A. Carpenter, who presided over Agnew's post-conviction hearing, concluded that the defendant's attorney could have, and should have, included the alleged violation of the Confrontation Clause when Agnew initially appealed his conviction on three drug sales.
Carpenter found that Agnew was prejudiced because his appeals attorney did not raise the confrontation issue during his initial appeal.
The judge reinstated Agnew's appeal rights so he could argue that the deceased CI's text messages should not have been presented as evidence during his trial.
The prosecution, led by Deputy Attorney General Christopher J. Schmidt, appealed Carpenter's ruling to the Superior Court.
He argued that the text messages were not entered into the trial as evidence against Agnew, but instead to explain why police took certain actions during their ongoing investigation of the defendant's alleged drug activities.
In its review of the case, a panel of Superior Court judges that included Judith F. Olson, Victor P. Stabile and Mary P. Murray, reviewed testimony presented by Altoona Police Sgt. Christopher Moser, who explained that the CI prior to each drug buy was strip-searched to assure he had no drugs in his possession.
Moser explained that police were able to observe each of the buys by the CI and the fact that the CI came back from the buys with cocaine.
The Superior Court even noted that on the last buy, the CI returned $20 of the buy money he had been given.
The text messages between the CI and Agnew were entered into the testimony of Agnew's trial to explain Moser's actions to the jury, not for the truth of what was being stated in the texts, according to Schmidt.
"Because the texts were admitted, not for their truth, but to explain Sgt. Moser's actions, Agnew's claim of a Confrontation Clause violation would merit no relief," according to the Superior Court opinion published Friday afternoon.
The opinion continued: "Consequently, Agnew cannot establish actual prejudice resulting from prior counsel's failure to seek the addition of the (confrontation issue) to Agnew's (appeal)."
"Based on the foregoing, we conclude the (post-conviction judge) erred in granting Agnew relief and reinstating his direct appeal rights," the appeals court opinion concluded.
Agnew was sentenced on Oct. 28, 2016 to 33 to 66 months in prison on three counts of possession with intent to deliver and criminal use of a communication facility.
State court records indicate that the defendant was paroled on Oct. 9, 2021.