*1 trial, 16 time until the period during their mother months later. emergency- the merits of mother’s decline to address
We final order. appeal custody is an from the since this petition note, however, that the trial court did not focus We do during to their mother the last attachment the children’s award; rather, recognized the court making its months their strong emotional bond with the children had since caretaker birth. primary mother was their who ruling for the trial courts support find adequate We its order. custody and we affirm this matter affirmed. Order A.2d 547 Pennsylvania, Appellant,
COMMONWEALTH Cases). (Two Henry REDMOND William Pennsylvania. Superior Court Aug. Argued 1989. May
Filed 1990. Reargument July Denied *3 Elias, Com., Deputy Media, L. Dist. Atty., Sandra appellant. Defender, Media, Asst. Public Malloy,
Michael J. appellee. CIRILLO, KELLY and Judge,
Before President and CERCONE, JJ.
CERCONE, Judge: appeals These are from two orders of the Court of of Delaware County, ordering Common Pleas the Common- wealth to disclose the of a confidential informant precluding trooper a state as a testifying Com- trooper’s monwealth witness as a result of the refusal identity. quash appeal reveal informant’s We one of the orders and affirm the other order of the lower court.
The instant case arose out of the unsolved murder of an Trainer, eight year girl Pennsylvania, old which occurred victim, ago. On thirty-nine years April Jane Althoff, was found dead of in the of a asphyxiation cab grounds truck on the of a local carnival. She had been *4 sexually investigation molested. The murder sever- yielded Redmond, suspects, including Henry appellee, al William A who at the time of the murder was a carnival worker. warrant for Redmond’s arrest was issued but never served. The last enforcement in activity prior law the case to the the in leading present events action occurred 1969. investigation In of Althoff’s murder May, Jane A reopened. two-year inquiry by trooper was state Mal- colm led to the issuance of a criminal and Murphy complaint in Appellee was Ne- appellee. warrant for arrested
arrest transported train to Murphy and was by trooper braska and other officers. County by Murphy police Delaware made state- During trip, appellee allegedly inculpatory a to Murphy. ments in the nature of confession murder,1 charges of formally arraigned was Appellee manslaughter,3 as manslaughter,2 involuntary voluntary ravish,4 March, kidnapping.5 and sault with intent particulars under request he a for a bill of filed Pa.C.S.A., Pa.R.Crim.P., 304(a), 42 the Com Rule which request also respond. Appellee not filed monwealth did appellee’s 305. discovery under Rule One of pretrial infor of the confidential discovery was name requests report. Trooper Murphy’s investigation mant referred to Murphy, the informant had According report, to that told murder, of Murphy’s investigation course of another Trainer, Pennsylvania Althoff in that the murder of Jane in the suspects and that one of remained unsolved chief police had been the former Althoff murder Trainer, Triplett. The informant “Whitey” Pennsylvania, and Triplett information provided Murphy concerning activities, including protec his involvement in criminal gambling prostitution the time of the by police tion at in many Despite associated with carnivals. activities investiga given Triplett, Trooper Murphy’s formation about Redmond, appellee, him conclusion was tion led to the that Appellee of the Althoff murder. asserted perpetrator discovery the confi hearing request on his at for him necessary in order dential informant’s defense, light age prepare particularly evidence, fact case, the lack and the consequent physical many appropri- of the individuals who would have been Pa.C.S.A. 2502. 1. 18 §
2. Id. 2503. § §
3. Id. 2504.
4. Id. 4722. § Id. 4725. §
291 re- Murphy Trooper are now deceased. as witnesses ate identity. the informant’s to disclose fused and the Com- discovery request on the hearing After a information, requested provide failure monwealth’s 1988, 30, on September an order entered lower court the name and ad- to disclose directing the Commonwealth trooper again informant. The of the confidential dress whereupon the identity, the informant’s to reveal refused 25, precluding 1988 on October an order court issued lower aspect as to any from testifying Trooper Murphy filed the Commonwealth case. On October instant September orders of the lower court’s appeal notice of 25, 1988. and October 30 contends the Commonwealth appeal, appellant,
On (1) appel- erroneous because court’s orders were the lower was requested information that the failed to establish lee (2) confidential material, necessary, exculpatory, only back- investigating officer with provided informant knowledge of the no firsthand information but had ground officer was a states that the further Appellant murder. the Com- without whom witness necessary Commonwealth proceeding. prevented monwealth con- (appellant’s) the Commonwealth’s considering Before addressed, must be first issue which appeal, tentions appeala- is the party, neither it has raised although been v. orders. the lower court’s See bility of (1982) A.2d 746 Hunter, Pa.Super. appeal argu- of an to hear (issue jurisdiction the court’s sponte). raised sua may interlocutory ably from final appeals limited to this court is jurisdiction pleas. common Pa.C.S.A. the courts of § orders of appeal only may defendant a criminal Generally, v. Bol sentence. Commonwealth judgment from the (1977); A.2d 90 den, 472 Pa. (1984). An appeal 479 A.2d Pa.Super.
Reagan,
however, in excep
permitted,
will be
final judgment
before
circumstances,
necessary
an
appeal
such as where
tional
prevent
great
defendant,
to the
injustice
or where an
*6
rights
great
issue of basic human
or
public importance is
Bolden,
involved. Commonwealth v.
472
Pa. at
610-11,
In the instant the appeals of the orders Septem- 30, 25, ber 1988 and present October no exceptional circumstances. appeal Neither is necessary prevent a great defendant, injustice to the or involves an issue of rights great public Thus, basic human importance. nei- ther appeal justified can be under any exceptions of these However, judgment final rule. the Commonwealth has suggested its that this proceeding brief would properly be characterized as appeal order, an from a suppression permitting appeal thus direct from the orders herein. For reasons, following accept we the Commonwealth’s char- acterization as to the October 1988 order but not in regard to the order September, 1988. Iannaccio, Commonwealth v. 505 Pa. 480 A.2d (1984), cert. denied U.S. 106 S.Ct. (1985),
L.Ed.2d 78 an initial appeal was taken from an order directing the lower court produce Commonwealth to a confidential informant for an in hearing. camera The order was entered after a hearing pursuant to the defen request dant’s for discovery Pa.R.Crim.P., under Rule 305 B, (requiring disclosure Pa.C.S.A. permit defense and certain information to the specified certain informa to order disclosure of other
ting
court
tion). Permission to
the order
the lower court
appeal
Pa.R.A.P.,
under
Rule
granted was
1311, 42
The
the lower
Superior Court reversed
Pa.C.S.A.6
Supreme
Pennsylvania
appeal,
court’s order and
order as
this court’s characterization of the
Court criticized
that the
supreme
matter. The
found
suppression
as
discovery pro
more
proceeding
properly
treated
ceeding pursuant
to Rule
supra. Commonwealth
423-24,
A.2d at
Iannaccio, 505 Pa.
at
30, 1988
order of the low
September
disclosure
*7
Iannaccio,
in
to
in
that it
supra
er court is similar
the order
to
a confidential infor
produce
directs
Commonwealth
charac
by revealing
identity.
mant
his
We would therefore
30,
order as a
September
terize the lower court’s
1988
305,
supreme
to Rule
as the
court
discovery
pursuant
order
in
interlocutory
Since a
order
discovery
did
Iannaccio.
nature,
September
procedure
appeal
for
proper
30,
petition
permission
1988
would have been a
for
order
under
1311.
interlocutory
from an
order
Rule
See
appeal
426,
Iannaccio,
appeal by permission); id., Pa.R.A.P., (requiring Rule 1311 petition for permission appeal order); an interlocutory Commonwealth v. Pfender, 417, 421 Pa.Super. A.2d (1980) (Superior Court jurisdiction ap- without to hear peal where petition Commonwealth did not file for permis- sion to appeal required 1311). as Rule
As to the order of October
we find it
similar
suppression
to a
prevents
because it
from using
all its
against
available evidence
appellee
order,
and the effect of the
which prohibits the
Commonwealth’s chief witness from testifying, is to termi
nate the prosecution. See Commonwealth v. Bosurgi, su
pra,
411 Pa.
(Commonwealth’s
at
S.Ct. (1969). L.Ed.2d 773 Contempt sanctions may *8 be warranted where the ignores Commonwealth an order of court issued pursuant to the Pennsylvania rules proce Tillia, Commonwealth v. dure. 359 Pa.Super. (1986).
A.2d 1246
In considering an appeal from a contempt
order, great reliance must
placed
the
upon
discretion of
the trial judge.
Hawkins,
Commonwealth v.
322 Pa.Super.
(1983).
Pa.C.S.A. favor- evidence attorney “[a]ny the defendant’s wealth to or guilt is to to which material either to the accused able or control of possession the and which is within punishment, Commonwealth____” Id., Rule 305 attorney for court, with the discretionary it B(l)(a). The rule also makes discovery, to pre-trial motion of defendant upon to: permit to the defendant order the following any or copy photograph inspect items, are material to upon showing they a requested defense, request of the and that the preparation reasonable: by the defen-
(d) specifically other evidence identified any dant, additionally can establish provided defendant justice. its disclosure would be in the interests of requirements comply Id. If a fails to with party Rule permit discovery order such or may party
the court continuance, grant may prohibit such inspection, may disclosed, introducing from evidence not other than party defendant, of the or it enter such other testimony may just as it deems under the circumstances. order Id., Rule 305 E. E, indicated, just permits
Rule 305 as we have the court an “it under the circum- just to enter order which deems with Rule 305. party’s comply stances” failure 25, 1988, in which the The order October lower testifying aspect as precluded Murphy any Officer case, instant issued the lower court because had failed to comply determined that prior prior September its order. The in response appellee’s request discovery was issued Therefore, B. lower court acted within under Rule 305 issuing E in authority of Rule the order of apparent *9 25, October 1988 because it determined that the Common- wealth had failed to with comply prior its order issued pursuant to Rule 305 B. since the Common- Additionally, wealth, in failing provide appellee with the name of the informant, confidential ignored an order of court issued pursuant Pennsylvania procedure, to the rules of the lower court was warranted imposing contempt sanctions. Tillia, supra. Commonwealth v. there,
Our
does not end
inquiry
however. We have
determined
previously
that we are
jurisdiction
without
appeal
consider the Commonwealth’s
from the lower court’s
September 30,
order of
1988. Since we
not possess
do
jurisdiction
order,
it
appeal
appear
that
would
that
precluded
we are
considering
However,
its merits.
determining
propriety of the lower court’s order of
October
find
we
that
the merits of
September
30,
require
1988 order
inescapably
our
is
review. That
authority
E,
because
to issue a
under Rule
remedy
if
granted only
“a party has failed to comply with
Pa.R.Crim.P.,
E,
Pa.C.S.A.,
rule.”
Rule 305
refer
ring generally to Rule 305. The facts of the case indicate
the Commonwealth
did not comply with the lower
therefore,
court’s
of September
1988;
we must
examine the
non-compliance
Commonwealth’s
with the dis
closure order to determine if
non-compliance
was equiv
alent to
non-compliance
Rule
thus permitting the
lower
pursuant
act
the remedy provision
of Rule
E.
This
will
inquiry
logically require us to examine the
September 30,
However,
merits of the
1988 order.
in doing
so, we
not resurrecting
are
the quashed appeal of that
order;
we are simply considering whether
the October
1988 order was proper
considering
the prior disclosure
Howe,
See Okkerse v.
order.
521 Pa.
Our first inquiry determining whether the Common- wealth failed to comply with Rule 305 when it refused to obey the lower court’s order September 1988 is to
297 with the issued accordance if that order was determine record that of the rule. The reveals requirements “pursu- for discovery a request filed with the court appellee 305(A) Criminal Procedure to Rule of Pennsylvania ant [sic] motion, appellee 305(b) hearing and At a [sic].” the confidential infor- of requested identity specifically report. The court Murphy’s mant to in Officer referred advisement, 30, September and on took under the matter 1988, requiring the Commonwealth dis- issued an order 25, name. informant’s On October close the confidential had that the failed discovering after order, court, the lower with her disclosure comply prior Prescott issued a decree presiding, the Honorable Rita E. by the officer. prohibiting any testimony Appellant September claims that the disclosure of (1) for two reasons: Officer Mur 1988 was erroneous appellee’s did not contain evidence material to phy’s report (2) innocence, did not establish that guilt appellee or and disclosure of the confidential informant’s was mate defense, reasonable, or in preparation rial to the Pa.R.Crim.P., required as Rule 305 justice by interests of indicated, B(l) B(2)(d). As Rule 305 previously we have is requires that evidence which favorable the accused and is guilt punishment subject which is material to either or to in all by disclosure the Commonwealth mandatory Pa.R.Crim.P., B(1), 42 cases. Rule 305 Pa.C.S.A. 305 rule
The comment to Rule indicates that is guarantees mandated in apply intended to the constitutional 1194, 10 373 U.S. 83 S.Ct. L.Ed.2d Brady Maryland, v. (1963) Pa.R.Crim.P., subsequent and decisions. Rule 305, comment, 42 requires Pa.C.S.A. disclosure Brady is government exculpatory of evidence that both Starusko, (3d v. F.2d 256 material. United States Cir.1984). includes “material Exculpatory evidence guilt heart the defendant’s or innocence as goes to the might jury’s judgment well as that which well alter prosecution of a Id. at credibility crucial witness.” States, 150, 154, citing 405 U.S. v. United S.Ct. Giglio 763, 766, (1972). L.Ed.2d 104 When the of a reliability given innocence, may guilt witness determinative affecting nondisclosure evidence credibility wit- general ness falls rule of Brady, making within such States, v. exculpatory. supra. evidence United Giglio See Starusko, also v. at 260. supra Exculpatory United States also been as evidence has defined “evidence which extrinsi- cally tends to establish defendant’s innocence of the crimes charged, which, although as differentiated from favor- able, merely impeaching.” collateral or Gee, (1976). A.2d 467 Pa. *11 case, Murphy the instant Officer was to be the chief prosecution. witness for the The he evidence which would provide part in no of consisted small the confession which appellee allegedly travelling made to him while in custody case, from the age Nebraska. Because of of the other unavailable, therefore, evidence is and the case would turn largely on Officer Murphy’s testimony. The information possessed the informant concerning confidential another had a suspect individual who once in case been the could strength information, certainly, depending the of that affect the credibility factfinder’s evaluation the of the testimony Officer would offer. Murphy being That the case, the of the informant exculpatory was informa- tion under the test in States, set forth Giglio v. United supra. See United v. Bagley, also States 473 U.S. (1985) S.Ct. 87 L.Ed.2d (impeachment evidence rule). falls within Brady
However,
indicate,
Brady
admissible,
as
and Giglio
to be
exculpatory evidence must also be material. Evidence is
if
“only
that,
material
there is a
probability
reasonable
had
defense,
evidence been disclosed to
result of
A
proceeding
prob
would have been different.
‘reasonable
ability’
probability
is a
sufficient to undermine confidence in
39, 57,
Pennsylvania
Ritchie,
outcome.”
v.
480 U.S.
(1987),
S.Ct.
94 L.Ed.2d
quoting
United
Bagley,
682, 105
States
U.S. at
at
supra
S.Ct.
3383,
and where required was of sentence a judgment reversal In this exculpatory evidence. disclose a failure to there of the evidence materiality case, must evaluate we us to require this will Unfortunately, standpoint. pre-trial a outcome of a possible concerning in speculation engage However, to do. matter, reluctant we are which trial of this in this case evidence requested conclude that we can in suspect a alternative about a to information related other sources case which old murder year thirty-nine case. We age due to the unavailable evidence are satisfy such evidence sufficient existence of find the su- Bagley, set forth standard probability” “reasonable view, in our probability, is a reasonable There pra. defense, information, would make if to the disclosed information case. The in the outcome of the difference itself, suffi- could, produce the informant possessed by perpe- as the appellee the identification cient doubt about uncertain. guilty verdict the murder as to render trator of excul- was both requested that the evidence conclude We Therefore, of the re- it meets two material. patory B(l)(a) disclo- concerning mandatory of Rule 305 quirements *12 require- The third evidence the Commonwealth. sure of the be “within rule is that the evidence ment of that for the Common- attorney or control possession B(l)(a), 42 Pa.R.Crim.P., Pa.C.S.A. Rule See wealth.” not within requested here was the evidence While it attorney, certainly can Commonwealth’s possession sense that control it was within his said that chief witness for as the presented was to be Murphy Officer unable to ob- If was the Commonwealth prosecution. revealing its own witness cooperation of tain the mandatory disclo- as under the identity required informant’s reason B, any fail to discern of Rule 305 we provisions sure precluding the lower court logic prohibit that would that since Com- We conclude testimony. that witness’ under Rule disclose the evidence required monwealth B, the lower court did not err in ordering such disclo- sure on September 1988.. Rule See 305 E. Further- more, since the Commonwealth failed to comply with the disclosure order which we have found to be en- properly tered, the lower court acted within its authority under Rule 305 E to “enter such other order as it deems just under the circumstances” it 25,1988. when issued its order of October find, also although
We
it is not necessary given our
above,
decision
the lower court acted appropriately
B(2)(d)
under Rule 305
in ordering disclosure of the infor
mant’s identity
September 30,
B(2)(d)
1988. Rule 305
permits the court
to order disclosure of a confidential
tipster
iswho
not an
as
eyewitness
long
production
as
(1)
the informant
defense;
(2)
would be:
material to the
reasonable;
(3) in
justice.
interests of
Common
Bonasorte,
wealth v.
337 Pa.Super.
486 A.2d
(1984).
1372-73
In analyzing the latter requirement,
Bonasorte
held that the balancing test of Roviaro v.
States,
United
U.S.
S.Ct.
L.Ed.2d 639
(1957),
applied.
should be
Bonasorte,
Commonwealth v.
352-53,
at
Pa.Super.
Where the disclosure of an informer’s or of identity, contents of his communication is relevant and helpful accused, the defense of an or is essential to a fair cause, determination of a privilege [government’s privilege to withhold identity of confidential informants] give must In these way. situations the trial court may and, require disclosure if the Government withholds the information, dismiss the action.
We believe that no fixed rule with
respect
disclosure
justifiable.
problem
is one that calls for balancing
*13
public
in
interest
protecting the flow of information
against
right
individual’s
to prepare his defense.
errone-
renders nondisclosure
balance
proper
Whether
of each
particular
circumstances
depend
must
ous
charged,
case,
into consideration
the crime
taking
defenses,
of the inform-
possible significance
possible
and other
relevant
factors.
testimony,
er’s
States,
supra,
61-62,
Roviaro v. United
U.S. at
S.Ct.
Bonasorte,
supra,
In
628-29,
Pa.Super. at Iannaccio, (1984) wealth v. 414, 480 A.2d 505 Pa. Larsen, J.). Reversal, Specifically, in (Opinion Support the Roviaro test the Bonasorte circum- court to the applied case, included a factual record present that which stances suppression demonstrated a basis which the which misrepresentations were could have found probable regarding in the affidavit of cause present therein, the information was source of information cause, there was finding probable to a and that essential the nonex- no other for the defendant substantiate way informant, produc- than to his request other istence tion. case involves a somewhat differ
While the instant Bonasorte situation, the rationale of no ent factual we find finds Bonasorte “materially The dissent applicable. less no search from the instant case because distinguishable” tips was involved and because the informant’s warrant Redmond. alleged did not lead to the confession herein also finds it a “mere fortuitous coincidence” The dissent of the infor Murphy, that Officer who knows mant, allegedly is the same officer to whom Redmond agree. confessed. We do not While no search warrant was case, in the instant the information contained involved investigative report led to the issuance Murphy’s Officer addition, appellant’s arrest. while a warrant alleged tips informant’s this case did not lead to the this fact is not decisive because appellant, confession *14 Murphy through Officer chose not to follow on the informa- concerning tion for reasons In Triplett, which are unclear. addition, can discern no compelling we reason to limit Bonasorte application of the rationale to pre-trial matters involving search warrants. The information here sought defense, while it did not lead to issuance of the warrant arrest, of was nevertheless essential information to the case, discussed, for the reasons previously we have as was Thus, in Bonasorte. the withheld information apply we will the Bonasorte test to the facts of the instant case. requirement
The first is that of the production informant Bonasorte, be material to the defense. Commonwealth v. at Pa.Super. 486 A.2d at In the case, instant the confidential informant told Murphy Officer that a in the Althoff suspect Jane murder had been Trainer, former police chief of of Pennsylvania, Herman Triplett. The informant “Whitey” explicated length at re- ports Triplett’s activities, of in involvement criminal includ- ing protection illegal activities associated with carnivals. The informant also indicated that a rumor had been circulat- ed in community had Triplett been involved in the information, Althoff murder. Such involving potential case, in suspect alternate certainly material defense, appellant’s preparation of a particularly light age of the case and the consequent lack of physical and testimonial evidence. addition,
In the request was reasonable. See Common- Bonasorte, wealth v. supra. Again, age of the case is a significant, overriding factor. Since physical evidence is nonexistent and testimonial evidence cannot be obtained because of the death of many potential witnesses, appellant lacks the usual sources of evidence from which a defense addition, can be normally prepared. the Com- monwealth has not alleged that disclosure of the infor- mant’s result danger would to the informant. Therefore, appellant’s request we find reasonable.
Finally, the request disclosure of the informant must the interests of justice. Commonwealth v. Bona- sorte, determination, In making supra. the court must public’s balance the interest in protecting the flow infor- mation with the right prepare defendant’s his defense. Id.; Roviaro, Here, United States as supra. we have stated, already the case is hoary age and involves very crimes, including serious first degree murder. Most age evidence is unavailable due to the case. There- fore, possible type every properly of evidence should *15 have procured been just disposition order to ensure a of this severely delayed prosecution. The lower court’s serious concern appellant’s to his ability prepare defense was misplaced fact, not in these circumstances. the officer’s refusal to disclose the information casts a cloud suspicion of his investigation. The officer indicated that this was anot case in which the information could not be disclosed potential because of danger to the informant. Nor did he allege informant an ongoing source of infor- circumstances, mation. In these find ability we that the of appellee to prepare his own outweighed defense Commonwealth’s interest in protecting the flow of informa- Thus, tion to the police. the lower court’s Septem- order of ber proper B(2)(d). 1988 was under Rule 305 The comment to Rule also supports result. That comment provides criteria for evaluating extent of discovery under the “Discretionary with the Court” sections of Rule B(2)(d) Rule is one of those sections. Specifically, the provides: comment
(a) Procedure to prior trial should serve the following needs:
(i) to promote expeditious an as well as fair determina- of tion the charges, plea trial; whether by or (ii) to provide accused sufficient information to plea; make an informed
(iii) to permit thorough preparation for trial and mini- trial; mize surprise at
(iv) to avoid unnecessary repetitious and by trials ex- posing procedural any latent or constitutional issues and affording trial; prior remedies therefor to by of trial
(v) interruptions complications to and reduce and guilt collateral innocence identifying issues trial; and determining prior them time, and money (vi) judicial to effect economies and minimizing paperwork, repetitious talents professional issues, and hear- separate the number assertions ings.
(b) by: These needs can be served
(i) discovery; fuller and
(ii) procedures; and more efficient simpler (iii) expediting processing procedural pressures of cases. Discovery. 1.2: Scope
Sec. informed In order information for provide adequate trials, expedite surprise, opportuni- minimize afford pleas, cross-examination, require- and meet the for effective ty should be process, discovery prior ments due trial protection as consistent with possible as full free enforcement, the adversary sys- law persons, effective *16 tem, and security. national Comment, Pa.R.Crim.P., 305, 42 (emphasis Rule Pa.C.S.A. added). to indicates, of the comment are language judges
As free discovery apply- of full and guided by principles of ing “Discretionary requirements with the Court” is not Rule 305. This case one which effectiveness by be diminished disclosure of the law enforcement will Therefore, order the lower court’s requested information. 30, intent of September 1988 consistent with the rule as the Court” sections of the “Discretionary with in the comment to Rule expressed The dissent One final issue must be addressed. of its contends that the lower court addressed sanctions 25, In the wrong 1988 to the party. order October for failure to with the view, any comply dissent’s sanctions 30, addressed properly order of 1988 were September
305 individually Officer rather than to Murphy the Common- disagree. wealth. We
When a
is confronted
with
failure
party’s
305,
with
it
an
comply
choosing
Rule
has broad discretion in
Gordon,
v.
Commonwealth
appropriate remedy.
364 Pa.
(1987);
v.
Super.
Nonetheless, find we it more appropriate this situation to rely on a different rule of law. That rule relates to the remedy available a court in a situation in which an informant’s is ordered disclosed the govern- ment comply refuses to disclosure order. such *17 case, “[wjhere a the disclosure of an informer’s or identity, of the contents of his communication, help- relevant and ful to accused, the defense of an or is essential to a fair cause,” determination of a the may court dismiss the action government’s the failure to comply. Commonwealth Carter, v. (1967), Pa. 233 A.2d quoting States, already supra. v. United We have deter-
Roviaro identity of the informant’s was mined that the disclosure in relevant, appellee to the helpful preparation would be defense, to determination of this essential a fair his and was on court’s October While the lower action cause. dismissal, of the ruling a the effect was did not constitute standard of Carter and same, therefore, and under the the Roviaro, supra, not an abuse discretion. conclusion, also the court
In
we note
reaching
Bonasorte,
the
Commonwealth v.
affirmed
lower
the
produced by
police
suppression
all evidence
court’s
to
case after the
refused
search
a
following
informant
the
of a confidential
disclose
B(2)(d).
Rule 305
As we have
discovery request under
above,
of the instant case are
the circumstances
indicated
as
re-
Bonasorte
distinguishable
not
sufficiently
view,
informant’s
in our
a different result. While the
quire,
information in Bonasorte
led
to the issuance of the
directly
not,
sought
the
warrant,
in this case did
information
and
and
for a fair determination
just
necessary
here is
as crucial
case,
forth,
supra.
we have set
for the reasons
in this
Thus,
for the
case
appropriate
it was
Trooper Murphy.
possessed by
all evidence
suppress
the
addition,
proposi-
cited
the dissent for
In
the cases
the
imposed
the
must be
penalty
contempt
tion that
not, in our
that result.
offending
opinion, require
officer do
Carson,
Pa.
[t]he time; failure of more than mere must involve to a justice prejudice involve a failure of failure must discharge criminal action. justify defendant to
307 involved, such not offending party interests are the When the may defeating public be otherwise sanctioned without interest. Such was not demonstrated here.
Id., Thus, Pa. 510 at the court 510 at A.2d 1235. found court properly imposed that lower could have on of offending representative the Commonwealth sanction did contempt penalties. of with its various What court find not was that the Commonwealth cannot suffer a dis- of an the offending missal action where or, here, explain official fails to to as appear his/her failure informant, to of fails disclose the a confidential in a of case involves a failure to a justice prejudice case, In such a of defendant. dismissal the action is justi- fied. opinion,
In our
officer in this
to
failure
case
disclose the confidential
informant
involved
failure
to
justice
appellee
and a
it
prejudice
prevented
because
Thus,
appellee from
a viable
preparing
defense.
even under
Carson,
lower
did not
err in
its
imposing
1988 order on the
October
Common-
for
Murphy’s
wealth
Officer
failure to comply.
Commonwealth v.
552
Ferguson,
Pa.Super.
A.2d
(1988),
dissent,
by
cited
is also
In
distinguishable.
case,
the court
sanction,
stated that a financial
if
appropriate because of the
of Department
failure
agent
appear
Welfare claims
appellees’
at
sentencing
following
plea
guilty
charges
fraud,
their
of welfare
upon
agent
should be visited
the claims
in his individual
“not
capacity
upon
and
taxpayers of this Common
via
right
wealth
forfeiture of their collective
to restitution
of the moneys fraudulently
by appellees.” Id.,
obtained
Pa.Superior
However,
Ct. at
Finally, justice the affirmance 25,1988 may order. While it perhaps lower court’s October that the should not agreed be generally be defeat of some of made to suffer a trial because dereliction of duty part employees, on the of one its neither should deprived case right defendant in such a suffer be of his ipso No can prepare a defense. determination facto depend made in case. The outcome will on all the such a record. some circumstances of There will be instances the required which will be shoulder the of of its failures. In this responsibility employees’ burden case, have since the forty years passed almost occurrence subject crime is the of this action. there Surely the which matter. impose should be some final resolution to this To officer hold- contempt upon sanction the derelict without the for the ing non-compliance Commonwealth accountable its of court employee only permit to a valid order would case to end. the trial predictable continue without This condone, agree remedy court would not and we her only selected court recourse at lower was dealing consequences of the disposal fairly with officer’s recalcitrance. properly
We conclude that lower ordered disclose Commonwealth to confidential statute, Except provided by punishment of com- as otherwise provided (relating contempt mitment for ment and contempts in section 4132 to attach- summary punishment contempts) only shall extend open contempts All other shall be committed court. only. punished by fine informant, possessed the authority and therefore to issue prohibiting any testimony by its October 1988 order concerning Officer this case. Murphy Appeal quashed September 80,1988; order 1988 affirmed. October KELLY, J., files a dissenting opinion.
KELLY, Judge, dissenting: I I respectfully agree dissent. the September 1988 disclosure order interlocutory, immediately appealable by permissive I only appeal. agree further the majority’s conclusion that the October 1988 dis- covery appealable, sanctions order is as well as with the majority’s that, statement "in determining the propriety of lower 25,1988, court’s order of October we find that the *20 30,1988 merits of September inescapably requires our review.” supra, at 555. opinion, However, Majority unlike the I find that majority, the disclosure order was Moreover, improper. I find additionally that assuming, arguendo, disclosure order was proper, sanc- imposed tion violation the disclosure order was still an abuse of discretion. I would vacate both orders. reasons as My are follows.
I. Hydraulic Forces and
Principles
Well-Settled
Holmes, Jr.,
Associate Justice Oliver Wendall
writing in
States,
dissent Northern Securities v. United
193 U.S.
197, 24
(1903),
S.Ct.
Great hard make bad law. For great are great, cases called not by reason of their real impor- tance in shaping future, of the law but because of some accident of overwhelming immediate interest which appeals feelings the judgment. distorts These immediate interests exercise a of hydraulic pressure kind which makes what clear previously doubtful, seem of law will principles well-settled which even
and before
bend.
468,
193 U.S. murder of notorious highly case involves The instant After so girl, thirty years ago. nine old eight year an brought has before time, aged suspect an been much a of murder. Under charge courts to answer of our bar conclude circumstances, might tempted one ordinary doubt must arise from the that reasonable out-of-hand time; in great period of so passage simple fact alleged of an case, however, there is evidence the instant recent confession. candor, that, “the clearly has stated in all majority, in their overriding factor” significant the case is a
age of 302-303). I respect Opinion, at (Majority analysis. share) regarding age concerns (and extent their to some Nonetheless, I am to allow those unwilling of this case. force bends the hydraulic which concerns become disposition control the of law which principles well-settled this appeal. to no statute of subject are
Though prosecutions murder 5551), due restrictions (42 process limitations Pa.C.S.A. § in certain circumstances. See prosecution may preclude Marion, 404 U.S. States v. S.Ct. United Patterson, 392 Pa. Commonwealth v. (1971); L.Ed.2d Com- (1990); 331, 339-340, A.2d 1262-63 Super. Akers, 170, 183-185, 572 A.2d monwealth v. Pa.Super. *21 Graizer, 391 Pa.Su- v. 746, (1990); 752-53 (1990). 202, Knowing appellant A.2d 1054 per. 570 via a due “age directly, of the case” issue may address I I am less inclined than charges, to the process challenge “age of the case” to exert permit otherwise to might be settled analysis princi- of the well upon my force hydraulic discovery sanc- control our review of ples which ap- this Court on currently order before tions/suppression 311 peal.1
II. Jurisdiction agree I that the disclosure order was in entered accord with the ance trial court’s determination that the identity of the officer’s confidential informant was discoverable under 305(B)(2)(d). such, As Pa.R.Crim.P. order was immedi appealable only special ately by permissive allowance of Iannaccio, appeal. 414, See v. Pa. (1984), 830, A.2d 966 cert. 96, denied 474 106 S.Ct. U.S. (1984). Hence, quashal L.Ed.2d of the appeal taken from 30, court’s order September the trial I required. 1988 is agree portion with that analysis. of the majority’s agree
I also
the majority
that when the trial court
a
imposes
discovery
305(E)
sanction under Pa.R.Crim.P.
evidence,
suppression
which directs the
finality
of such
appealability
an order
in
must
determined
ac-
cordance with
the rationale
Commonwealth v. Dugger,
(1985)
506 Pa.
As the challenge appeal waives a interlocutory seek permissive imposing final order appeal from a the disclosure order of the order. for violation disclosure discovery sanctions that—permissive. are interlocutory appeals just Permissive of the disclo- to the merits challenge To a imply waiver inter- permissive to seek based failure sure order a order, to create self-con- appeal of the would be locutory interlocutory appeal. permissive tradictory mandatory, Hence, so I to do here. properly The has declined majority of the that review majority’s conclusion agree with order. of the disclosure requires review sanction prop- is appeal has certified that this The Commonwealth sanction order and because the Bosurgi er under Dugger of Redmond’s suppressed here crucial evidence involved confession, handi- thus alleged substantially recent and I Consequently, agree with capped prosecution. us for properly the sanction order before majority that review.
III. the Disclosure Order Merits of Murphy interviewed confiden- October Officer case. regarding wholly unrelated murder tial informant ap- mentioned the Althoff murder which informant The informant subsequently charged. herein pellant of the police’s he/she was aware that one indicated that former Chief of Police that murder had been suspects “Whitey” Triplett. no personal indicated that he/she had
The informant of Police Chief Tri- knowledge possible culpability source of information was and that his/her sole plett, community. report, In his Officer “common rumor” probably rumor had arisen as conjectured that the Murphy Triplett’s general reputation of Police the result Chief illegal unreport- and (shaking down motorists for corruption illegal hire fines, and offering protection ed traffic regard operations, especially gambling prostitution carnivals) he fact that had left town with a and the “counselling.” Murphy's had Officer teenage girl he been report original further indicated that “review of the case *23 Detectives does not prepared by [County] file that suggest (General in the Triplett was involved murder Althoff.” Investigation 4). added). at Report (Emphasis 10/10/87 facts,
Notwithstanding these the majority considers the and ma- identity of the confidential informant exculpatory I terial. grounds do not. The its majority conclusion on premise in a thirty-nine year that old murder case the may slenderest reed be sufficient to sustain a reasonable here, True, perhaps. all, doubt. But there is no reed at only conjecture. baseless that,
The majority’s suggestion Murphy “Officer chose not on through concerning follow the information Tri- plett, unclear,” reasons are Opinion, which (Majority’s 302), at wholly is unfounded. The uncontradicted evidence in this record establishes that Murphy Officer did follow-up on the informant’s tip but that it him carried no i.e. unsubstantiated rumor. genesis, further than its The stated that his/her confidential informant infor- mation was all second hand hearsay based recollec- tion a rumor which years circulated earlier.
rumor investigated had been in and Officer Murphy reported that his relating review the file to that investi- gation in 1987 indicated that Police Triplett Chief was not involved the Althoff In 1987, murder. Officer Murphy concluded plausible that a but insubstantial basis rumor had been discovered and that further investigation of the confidential informant’s “tip” would be fruitless. Final- ly? by the time of Officer Murphy’s investigation Triplett Police Chief was dead. What inaction would the majority have Officer Murphy explain? I can discern none. material,
For evidence to exculpatory and I would find that it must at least be admissible or lead to admissible Here, evidence. is hearsay there only report recollection of common rumor circulated years earlier.
Suppose the word (and officer’s to the informant value of his word to all subsequent, prospective informants) of this informant were identity to be and
were broken is the least scintilla of There not then? disclosed. What could that the informant support conjecture evidence Indeed, exculpatory evidence. or lead to admissible provide could not. the informant there is clear indication refusal to disclose Yet, finds the officer’s majority suppression of to have involved the identity informant’s I find this un- exculpatory evidence. both material and law fact, to well settled contrary and directly founded this point. has held bears Court Supreme
Our defendant of a that disclosure to establish burden “in the interest informant “reasonable” confidential *24 Iannaccio, supra, v. 480 See Commonwealth justice.” burden, disclo (where could not meet A.2d at 972 defendant Tolassi, v. Commonwealth 489 required); could not be sure (same); Common 55, 1003, (1980) 41, 413 1009-10 Pa. A.2d Herron, 461, 466, 1228, v. 380 A.2d 1230 wealth 475 Pa. burden). This Court (1970) (defendant to meet his failed that vague assertion disclosure has held that repeatedly exculpatory that it lead to might helpful, might e.g. not meet the burden. See evidence does defendant’s Bonasorte, 356, v. 332, 486 Commonwealth Pa.Super. 337 Fleck, 324 Pa. Commonwealth v. 1361, (1984); 1374 A.2d Commonwealth 547, (1984); 471 A.2d 550 Super. Davis, 515, 669, (1983); v. 507, 465 A.2d 672 Pa.Super. 318 Knox, 568, v. 563, 417 A.2d Commonwealth Pa.Super. 273 v. Dorsey, Pa.Super. 266 Commonwealth 1192, 1194 (1980); Commonwealth 442, 516, (1979); 447-48, 405 519-20 A.2d 29, Bradshaw, 22, 702, (1975); v. Pa.Super. 238 364 A.2d 706 Williams, 190, v. Pa.Super. 184, 236 345 Commonwealth Pritchett, 225 Commonwealth v. 267, (1975); A.2d 270 401, 407-08, 434, (1973). 438 312 A.2d Our Su Pa.Super. Herron, thing held the same preme precisely Court supra, 380 A.2d at no hand knowledge fact the informant “had first that (if case,” weighs not plainly heavily conclusively), When informant is an
against disclosure. the compelling
315 issue, the crime at can be eyewitness compelling case Garvin, 448 Pa. made for disclosure. Commonwealth v. Carter, (1972); Commonwealth v. 258, 427 Pa. 293 A.2d (1967). 53, when informant is Conversely, 233 A.2d not an diminished basis disclosure is eyewitness, Herron, v. Commonwealth A.2d considerably. the informant was not an eye- at 1231 that (emphasizing Culberson, v. witness); 467 Pa. 429- (1976) (distinguishing Carter 358 A.2d and Garvin because not was an eyewitness); informant Garcia, Pa.Super. 296, A.2d not an (1978) informant (emphasizing was Culberson). It eyewitness, citing then, follows that when not is not an only eyewitness, informant had “no but case,” knowledge first hand and provided had merely tips based in the form solely hearsay of common rumor wholly unrelated to the alleged participation defendant’s charged, the crime considerably case disclosure is weaker still.
Culberson relevant particularly respect. Culberson Supreme our held Court that disclosure of a confidential informant’s identity was not when appropriate establish failed defendant informant an eyewitness, provided by when information *25 not did relate to the is pre- Such informant defendant. cisely the that instantly, except case here it is conceded that the informant was not an first eyewitness had no hand crime, the of knowledge of which course case makes the denying stronger disclosure here still. sum, there is no any evidence this record of likeli-
hood that the whatsoever informant could or any would Hence, way Redmond. an exculpate exercise of trial compel court’s discretion to disclosure was a abuse manifest discretion, as the necessary prerequisite for the exercise Common- of that had See discretion not been established. Bonasorte, wealth v. supra, 486 A.2d at contrary order was to well-established The disclosure order, and the I the sanction precedent. would vacate disclosure order as well. underlying Inappropriateness Suppression IV. also effective dismissal of majority
The concludes an charges against appropriate discovery Redmond was impose. discretion to which was the Court’s sanction within agree. at 304-309. I cannot Opinion, Majority supra, 305(E) are as The of Pa.R.Crim.P. follows: provisions Remedy it course of during proceedings
If at time any party that a has brought to attention rule, may the court order comply failed grant permit discovery inspection, may party such continuance, or prohibit party a such intro- may from disclosed, testimony other than evidence not ducing defendant, enter order as may or. it such other it deems under the circumstances. just added). merely “pro- not did (Emphasis sanction introducing from evidence police not hibit [the officer] disclosed,” suppressed it evidence of kind any any officer, alleged evidence Redmond’s recent including If this authorized at confession to officer. sanction was all, then, it must come then under the residual authoriza- such it deems under just tion to “enter order as as the authorization As broad residual circumstances.” it our law demonstrates that does appear, prior case may include the exercised in this case. authority not comply has failed to with a party It is true when order, the trial court has broad discovery Pa.R.Crim.P. appropriate remedy. an Common- choosing discretion Gordon, 540-41, A.2d Pa.Super. v. wealth “However, (1987) (citing cases). found termi- we have ‘a too drastic’ prosecution penalty nation of the far discovery rules.” Common- prosecutor’s violation Gordon, 641; A.2d at wealth v. Woodell, 344 Pa.Super. 496 A.2d
317 446, (1985) ; Parente, 452, Pa.Super. Commonwealth v. 294 549, (1982) (appeal denied); 440 A.2d 552 Commonwealth v. Yost, (1985). 502 A.2d Pa.Super. The Common asserts, conceeds, majority readily agree, wealth and I that order imposed inexorably the sanction here leads just by suppressing result evidence of Redmond’s alleged along recent confession all other from evidence Murphy. Officer Bonasorte, v. Commonwealth Court did
affirm a
suppression
arising
police
officer’s
produce
refusal to
a confidential informant for an in cam
However,
era interview.
is materially
Bonasorte
distin
in
guishable
First, the
respects.
two critical
defendant’s
in
clearly
disclosure burden was
met
fact
Bonasorte
that the informant was a
primary source
information
affidavit,
included
a search
probable
warrant
cause
and
the trial court found that
the Commonwealth’s
evi
own
hearing
dence in the suppression
challenging the warrant
raised serious
alleged
doubts as to the existence of the
Second, suppression
informant.
was
required
that case
upon the
based
trial court’s determination that the probable
false,
cause affidavit
wilfully
the search unconstitution
al,
tainted,
and the
fruits
search
as a
not
discovery
sanction
failure to disclose the
identity 1371-74;
informant. 486 A.2d at
see also Franks
Dela
v.
ware,
(1978);
U.S.
S.Ct.
Here, no Moreover, search warrant was involved. informant’s in no tips way led to the crucial evidence Rather, suppressed by the sanction order. it was a mere fortuitous coincidence the officer who knew the identi- ty the confidential informant was also officer to confessed, whom Redmond allegedly developed and who and, other evidence fact, unrelated to contrary to the tips. informant’s “tip” informant’s and his/her *27 of any inculpatory unrelated to the evidence wholly were the order. suppressed by sanction More Appropriate V. Existence of Sanctions Alternative dissent, is a grounds these for there more basic Beyond and, I to think, ground upon more which dissent. compelling punished the wrong people being The are officer’s contempt/non-compliance. alleged I do find the officer to have been error this case. not right the legal improper I find he had to resist every order; and, duty even a moral to resist. perhaps disclosure Nonetheless, that he was even assuming, arguendo, wrong, I agree contemptuously wrong, cannot obstinately Redmond should therefore be charges against the Rather, burden sanctions for the any dismissed. alleged contempt/non-compliance upon should fall the offi- cer, upon rather than the Commonwealth and individually, of justice. interests
The the Commonwealth for the officer’s majority blames alleged contempt. theory upon The which “construc- based, is that even contempt finding though tive” informant, did not know the prosecutor had “control” of information. prosecutor (Majority 299). at Opinion, supra, prosecutor power
How so? Could the have exercised Certainly which trial could not? over the officer court not. court had the disclosure on authority compel The contempt. hand, on the other could pain prosecutor, is, course, no ask compliance, do more than which an ground upon prosecution’s insufficient which rest sought. The con- presumed “control” over information alone, tempt, existed, if the officer’s and not the any Commonwealth’s. Carson, 510 Pa. A.2d
(1986), explained: Supreme our Court regulate
While a trial must have at- authority its upon authority tendance schedule and concomitant the sanction must be visited upon breach, sanction a upon and not public interests justice. offender The failure of a party to observe the orders of a court may result a loss to action, in a civil party because there the upon loss falls private interests and those who invoke the power of a court must be obedient to its orders Criminal or lose its powers to serve purposes. their cases involve issues public justice; issues that tran- scend the parties. cases, immediate In criminal sanc- tions may imposed individuals, including *28 side; counsel either sanctions that vindicate the for authority the court to maintain its schedule and its orders. enforce
510 A.2d at (Emphasis added). 1234. Carson requires
The reasoning sanction, that any if appropriate for the failure to comply with the disclosure order, imposed upon be the officer, recalcitrant and not upon the Commonwealth and the interests of public justice. Commonwealth v. Ferguson, Pa.Super. 51-02, 381 Cf. 552 A.2d (1988) (identical 1089-90 reasoning with regard to imposed sanctions on Commonwealth for a Com- monwealth witness’ failure to appear at a sentencing hear- ing). There is no reason the why police officer’s alleged contempt, if any, should be made to inure to the benefit of Carson, See Commonwealth v. the defendant. supra, A.2d at (Papadakos, J., concurring); v. Ferguson, A.2d at 1090. As this Court Ferguson: explained
No Commonwealth employee is cloaked with an agency which would authorize wilful misconduct such as con- court; tempt of consequently, we see no reason why sanction for contempt by a Commonwealth employee should be imposed upon Commonwealth, rather than directly employee. 42 Pa.C.S.A. Cf. 8542(a)(2), (a local agency may not be held §§ liable for the wilful misconduct of its and an employee, employ- immunity no official agency enjoys
ee of a local misconduct). from wilful injuries arising for liability 1090.2 552 A.2d contempt
Here, readily imposed trial could have (fine compliance or with imprisonment) compel sanctions Instead, imposed the trial court the disclosure order. and all from the prohibiting any sanction evidence discovery officer, entirely the evi regardless of whether recalcitrant tip. to the informant the informant’s dence related was real price too to exact for no benefit— high This was far along alleged suppressed confession was Redmond’s recent properly obtained, prosecu and the other evidence impaired, officer not substantially tion’s but the case alleged non-com personal any price made pay contempt.3 pliance/ Carson suggests may distinguished be majority Carson. shown prejudice
in that no
defendant was
rule
I
I consider it a fundamental
that sanctions should
note that
triggers
greatest
party
borne
whose conduct
sanction
expressed
previously
variety
in a
possible.
I
this view
extent
have
J.S.,
432, 449-53,
e.g.
Pa.Super.
See
In re
A.2d
contexts.
J.,
(the
(1989)
concurring
dissenting)
remedy
(Kelly,
477-78
hearings
failing
required
an
to hold
civil commitment
should be
hearing,
imposed directly
parties
with sanctions
immediate
*29
detention;
responsible
patient
improper
for the
release of the
without
n
regard
patient’s need for treatment or restraint serves no
to
interests);
Ferguson, supra,
A.2d
v.
at 1089-90
Commonwealth
J.) (financial
(per Kelly,
sanctions for failure of Commonwealth
hearing
by
appear
sentencing
be
to
at a
should
borne
witness
witness,
Zeitlen,
taxpayers);
v.
rather than
Commonwealth
78, 86-87,
900,
(sanctions
(1987)
Pa.Super.
A.2d
for coun-
904-05
briefing
possible by
be
sel’s
rules should
borne whenever
violation
responsible,
powerless
rather
a client who was
to
the counsel
than
violations).
prevent
always
possible
impose
While it will not
be
sanctions, they
preferred
be
direct
should
indirect sanctions when-
practicable.
ever
high
evidence
societal cost
3. Exclusion of otherwise relevant
exacts
always
right
justified
to be vindicated. See New
which is not
— U.S. -,
1640,
Harris,
(1990);
York
110 S.Ct.
VI. Focus Regarding In upholding order, the discovery/suppression majori- ty appears to focus the prejudice they assume had 25, 1951, April arisen between the murder on and the non-compliance with the trial court’s disclosure order on September IWhile find no established prejudice respect time period (given patent irrele- vance of the identity informant, of the confidential evidence), his/her I hearsay period find that irrele- wholly vant to a determination of appropriateness of the sanc- tion imposed.
Rather, the relevant time period was the time between the disclosure September 30, order on 1988 and the sanction order on October period non-compliance. If prejudice dates, no occurred between those then there could no justification for the trial court’s failure to even attempt simply officer, direct compliance by the on pain I contempt. find no evidence of prejudice suggest- even ed as to that time period. sum, I find that the discovery imposed sanction was in
no “just sense under the circumstances.” Pa.R.Crim.P. 305(E). I would vacate the order as a manifest abuse of discretion.
Conclusion *30 foregoing reasons, For all of the I dissent. While the appeal taken from the September 30, disclosure order of 1988 must quashed, both the disclosure order and the appeal should in the be vacated
sanction 1988. sanction order October A.2d 564 Pennsylvania COMMONWEALTH HAYNES, Appellant. Angelo P.
Superior Pennsylvania. Court
Submitted March 1990. Filed June