*1 681 A.2d Pеnnsylvania, Appellee, COMMONWEALTH ROEBUCK, Appellant. Nathaniel Pennsylvania. Supreme Court of Oct. 1995. Submitted July Decided hearing prove appropriate an sufficient forth must set an offer reviewing may counsel upon can conclude trial which a court facts case, ineffective). appellee no offer of In the instant made have been Therefore, robbery proof regarding and arrest occurred. where evidentiary hearing Superior by remanding the an Court case for erred (trial not be ineffec- Id. counsel will deemed to create such record. regarding amenability failing gather defendant’s tive for evidence suggesting defendant is fails to reveal facts where the record treatment). special or amenable to rehabilitation Moreover, an eviden- appellate an court should remand a matter for hearing necessary there was a tiary it is to examine whether when Turner, actions. Commonwealth basis for trial counsel's reasonable (1976) (appellate court vacated the Pa. hearing evidentiary where for an judgment of sentence remanded trial actions could have failed to reveal whether counsel’s the record Here, basis). Superior this matter Court remanded had a rational stewardship, hearing evidentiary not to examine trial counsel's for an robbery on or arrest occurred off but establish whether the campus. This error. was *2 Carr, N. Roebuck. Pittsburgh, Alisa N. for Brown, Mericli, Pittsburgh, A. Com. Kemal Elizabeth ZAPPALA, CAPPY, FLAHERTY, C.J., NIX, amd Before NEWMAN, JJ. CASTILLE, NIGRO
OPINION CAPPY, Justice. the burdens in order to review
This Court allocatur granted applying Carter proof proper procedures and the a confidential where prosecutions Roviaro test1 to criminal the crime and defendant eyewitness informant is an *3 of purposes the for the of informant’s seeks disclosure a defense at trial. preparing Roebuck, -withtwo counts charged was
Appellant, Nathaniel Substance, § 35 P.S. 780- of a eaсh of Possession Controlled (a) Deliver, (16), § 35 P.S. 780- with Intent to Possession (a) Substance, (30), of 35 P.S. Delivery a Controlled (a) (30), § Pa.C.S.A. Conspiracy, 780-113 Criminal the of a drug involving § with sales use connection two eyewitness an to informant who was also police confidential of all the The convicted jury the transactions. Superior to appeal took an Court. charges. Appellant follow, which affirmed. For reasons Superior Court of the part Superior and affirm in order part we vacate Court. following. On December
A review of the record reveals Kacsuta of the 21,1990, p.m., 2:00 Detective Renee or about met with a confidentiаl infor Pittsburgh Department Police buy of narcot an undercover purpose making mant for the to Street drove Kacsuta Mt. Pleasant ics. The informant Carter, (1967); Roviaro 1. Commonwealth v. U.S., (1957) 77 S.Ct. 1 L.Ed.2d U.S. Heights Pittsburgh. According the Northview section of to Kacsuta, seller, Appell whom she later identified as the ant,2 approached the informant’s vehicle and leaned down car toward the window. Kacsuta testified that she leaned greeted forward and the seller. Thereafter the seller dis cussed with the informant a sale of a “bundle” of heroin. $180, quoting price up After the seller walked the street feet, an approximately fifty where hе met with individual later seller, identified as Keith Lee.3 Lee something handed whereupon, the seller returned to the vehicle and handed to a plastic baggie containing Kacsuta fifteen balloons filled with return, heroin. paid agreed price Kacsuta the seller the episode This entire lasted fifteen min approximately $180. utes, which Kacsuta was during able observe the seller’s appearance. transaction,
Immediately following drug according Kacsuta, Detective the informant told Kacsuta that the seller Nathaniel Upon returning police headquar- was Roebuck. ters, Kacsuta entered the namе of “Nathaniel Roebuck” into the BCI and received a computer description which matched that of man during whom she had observed the drug transaction. Kacsuta also removed a photograph Nathaniel office, Roebuck from the identification police and this she also identified as a photograph man from whom she and the purchased informant had the heroin. 23, 1991,
Subsequently, January on Detective Kacsuta re- Street, informant, turned to Mt. together Pleasant with the another purpose making purchase of heroin from the occasion, seller. On this Kacsuta was her own driving vehicle *4 and the informant was riding рassenger. Upon their Street, arrival at Mt. Pleasant the seller approached the driver’s side of the vehicle and asked Kacsuta what she “bundle,” wanted. When Kacsuta told the seller she wanted a replied price gone up he had When Kacsuta $190. Apparently, 2. Appellant prior Detective Kacsuta had never met December 1990. charged 3. Keith Lee was also in connection with his role in this separately. transaction. He was tried man who with a conferred affirmatively, the seller responded then entered Austin.4 Austin as Albert identified was later and, from upon emerging buildings, separate apartment two vehicle and handed Kacsuta’s approached building, the second with heroin. which were filled balloons a bundle of fifteen her Kacsuta, Austin gave in return $190. April on against Appellant filed complaint
A was criminal day. Appellant following was arrested and he seeking disclosure discovery motion pretrial filed a in the two under- participated who had confidential informant Appel- to his arrest. which had led drug transactions cover would be mistaken trial that his defense alleged lant the informant’s the belief that expressed and identification on this hearing pre-trial At a testimony might helpful. that, to his arrest day prior motion, testified on Appellant by police picked up he had been charges, drug on the instant incident be- shooting unrelated an regarding and questioned shooting. the victim of misidentified cause he had been an incident which an additional also related Appellant Edwards, in a his, police had observed Ivy acquaintance it, on picture Appellant’s which had poster a “wanted” station of another description the name but which contained the Court denied hearing, Following pre-trial individual. the infor- for disclosure of motion Appellant’s mant. not trial, that he had been testified
At that he had ever met and denied transaction drug еither regarding prior He also testified Kacsuta. Detective incident; shooting him in the unrelated misidentification observed the misla- having as to Edwards testified Ivy at a station. police photograph beled witness, and he admitted his as a Albert Austin also called 23,1991, denied January but in the transaction participation all the hearing After Appellant. had been that the other man of misidentifi- defense jury rejected Appellant’s testimony, charges. of all guilty found him cation and In a charged role in this transaction. for his Albert Austin was also guilty charges. pleaded to the separate proceeding, he *5 RULE OF CRIMINAL PENNSYLVANIA 305(B)(2) PROCEDURE parties present being gоverned by The this case as 305(B)(2)(a), pretrial discovery,5 to pertaining Pa.R.Crim.P. provides pertinent part: which (2) cases, In Discretionary With the Court. all court ex- (Disclosure provided as otherwise Rule 263 of Testi- cept if mony Investigating Jury), Before the defendant Grand discovery, may a motion for the court order the pretrial files attorney inspect to allow the defendant’s Commonwealth any following requested or of the copy photograph items, upon showing they prepara- are material to the request tion of the defense and that is reasonable: (a) eyewitnesses[.] the names and addresses of all Thus, quotеd implies, appellate as the above rule an court’s standard of review is to determine whether the Court of in denying Common Pleas abused its discretion a defendant’s See, Jones, request discovery. e.g., Commonwealth (1994). 97, 103, 1001, 1004 Pa.Super. essentially argues that he met his burden to show identity of the confidential informant is material to his defense and that his is reason- preparation request argues
able.
further
that he has shown that his
of the
informant in
identity
need for the
confidential
order
outweighed any privilege by
assure a fair trial
the Common-
confidentiality
wealth to maintain the
of the informant.
Commonwealth,
hand, argues
on the other
that Appel-
lant
that the
identity
did not meet his burden
show
Appellant’s
confidential informant was material to
defense or
addition,
request
was reasonable.
the Common-
weighed
wealth
that the trial court
argues
properly
Appel-
agree
5. Both
that Pa.R.Crim.P.
305(B)(2)(a)
provision.
Appellant’s
is the relevant
See
Brief to this
10-11;
Court at
Commonwealth’s Brief to this Court at 10-11. The
Roebuck,
Superior
agreed.
Court below
Commonwealth v.
No. 1149
5-6,
slip op.
(Pa.Super.
PGH
77, 80, we very a similar to case that: observed testified at the record reveals instant
[t]he
trooper
prior
that he had not met the
evidentiary hearing
3,
285,
Carter,
56,
3
A.2d at
n.
v.
427 Pa.
n.
233
In Commonwealth
(1967),
appellate
in Penn
we
nor
decision
stated that "neither statute
disclosing
from
sylvania
yet recognized
privilege”
to refrain
has
such
however,
Now
of confidential
informers
criminal trials.
clearly recognize
apply the
appellate
are
cases which
there
and/or
See,
Payne,
e.g.,
540 Pa.
privilege
jurisdictiоn.
Commonwealth v.
206,
(1994);
Washington, 463 Pa.
A.2d 77
Commonwealth v.
656
(1975);
Delligatti,
Pa.Super.
v.
371
A.2d
Commonwealth
(1988);
den.,
(1988),
In Payne, we went on to hоld that the defendant’s conviction Furthermore, had to be vacated. “the defendant cannot be expected predict exactly say what the informant would on Rather, Carter, in keeping the stand. with Roviaro and ‘all possibility the defendant must show is a reasonable anonymous informer could evidence that give would exonerate ” *7 Pritchett, 401, 408, him.’ Commonwealth v. Pa.Super. 225 added). 312 A.2d 438 In (1973)(emphasis light the foregoing, Appellant has clearly provided evidence which sug- gests that he was not at the scene and that there was a reasonable possibility that the confidential informer could give evidence would exonerаte him. Accordingly, we conclude that Appellant clearly showing has made a that the informa- Furthermore, sought tion was indeed material. in light of the defense, ie., nature of the misidentification Detective Kac- suta, request identity the for the of the confidential informant was reasonable.
Only after a showing by the defendant that the information sought is material and the request reasonable is the trial court upon called to exercise its discretion determine whether the Bonasorte, information is to be revealed. Commonwealth v. Pa.Super. 337 at 486 A.2d at In Commonwealth v. Carter, supra, this Court announced standards which should guide the trial in courts the exercise of their discretion in cases where the defendant the requests identity of a confiden- and, tial informant who is also an eyewitness response, the qualified privilege Commonwealth asserts its to maintain Carter, confidentiality the informant. we adopted the Court announced Supreme the United States guidelines which U.S., supra: Roviaro v. to disclosure respect no fixed rule with believe that [w]e justifiable. identity] informant’s is the confidential [of balancing public interest one that calls for is problem against the individual’s the flow of information protecting balance proper his Whether right preparе defense. on the must depend erroneous renders the nondisclosure case, taking into consider- of each circumstances particular defenses, possible possible charged, ation the crime relevant informer’s and other significance factors. Roviaro,
Carter,
(quoting
Pa. at
THE DECEMBER
CHARGES
charges
to the
foregoing
standards
Applying
21, 1990,
conclude that the
we are constrained to
December
Appellant’s request
in denying
trial court abused its discretion
confidential
of the confidential informant. The
to the entire transaction
only eyewitness
informer was
Thus,
significance
possible
than
Kacsuta.7
other
Detective
testimony сannot be underesti
of the confidential informant’s
This
in favor of disclosure.
clearly weighs
in this case.
mated
Pa.
Lloyd,
Commonwealth
Payne, supra,
Lee, 254
(1967),
supra,
Carter
(1978). Moreover,
the fact that
than the confi
the entire transaction other
only eyewitness to
was a
officer militates
favor
police
dential informant
*8
Lee was an
Contrary
7.
to the Commonwealth's
assertion that Keith
any
of
that he saw or heard
eyewitness, the record is devoid
evidence
seller of the
Detective Kacsuta and the
the initial encounter between
exchanged
the
drugs
they
greetings and when the informant and
when
negotiated
priсe.
also
that at the time
the
The record
establishes
seller
paid
actually
drugs
and she
handed the
to Detective Kacsuta
the seller
Lee,
him,
away
present,
if was
was at least
feet
from
Keith
he
still
Moreover,
of
spot
exchange occurred.
at
time
where the
trial,
participation in this
Appellant's
was under indictment
Lee
reasonably
asserts that Fifth
December 21st incident and
may
precluded
availability as wit-
Lee's
Amendment concerns
have
Appellant’s
trial.
ness
Carter,
disclosure.
[elemental as well as that constitution, embodied in the federal is the awareness that the testimonial perspective police officers is conditioned by competitive enterprise the “often out ferreting crime.” [citations This awareness make us reluctant omitted] permit the establishment of facts crucial to criminal guilt solely by police testimony based on a single observation where a more disinterested source is availa from ble,8 Payne, supra, Lloyd, Accord supra.
On the other equation, side of the a court should weigh, alia, inter public’s interest in maintaining the flow of information to police safety and the of the confidential informant. We note this that there regard was no evidence presented whatsоever that disclosure jeopardize would safety of the confidential informant or compromise any ongo ing investigation. Accordingly, light foregoing con weigh siderations which favor of disclosure and the fact that there has been no showing by the Commonwealth. of any considerations,9 countervailing clearly the trial court abused In this case there were two observations of the made seller and, thus, Detective regard. Kacsuta this case differs from Carter in this However, Arguably weighs maintaining privilege. in favor of Lee, legally this distinction is not determinative. See Commonwealth v. (1978)(holding 386 A.2d at appellant that the therein showеd a outweighed need for the information which privilege. despite police The court held this the fact that observed the separate span seller on three occasions within the of 24 hours. On eyewitness. each occasion the informant was also an The Court found particular significance only the fact that the informant was the actively participated "civilian” witness who in and witnessed the al- transaction, leged drug appellant produced and that the therein alibi trial.) witnesses at argues provide 9. The Commonwealth any it did not need to evidence that impair disclosure would the flow of information or jeopardize ongoing investigations endanger or the informant because demonstrating failed to his meet threshold burden of materially informant's would aid his defense. We have found thus, and, did indeed meet this threshold there was a required need for the Commonwealth to evidence. *9 to of the confidential failing compel its discretion disclosure judgement we of Accordingly, vacate the identity. informant’s charges arising out of the December sentence opinion. with this further consistent proceedings remand for 23, 1991 THE CHARGES JANUARY hearing, the trial court pre-trial evidentiary At the of produce to the the orally denied motion Appellant’s ruling judge is the Implicit confidential informant. this that his need the Appellant prove ment that failed to Common identity outweighed confidential informant’s the relates agree insofar as conclusion privilege. wealth’s We and, thus, January 23, the we cannot conclude charges to finding that trial abused its discretion that the court the Com outweighed failed that his need prove to stated, “I not think privilege. monwealth’s The trial court do [i.e., showing that ... has made a that Appellant] the Defense is critical to position the Cl in a to have information which was Cl.” N.T. production such to warrant the the defense 1992). this to be a determi p. (May We undеrstand that had made nation that fact Albert Austin light Appel in order to that testify himself available to sale,10 23,1991 January at the which present drug lant was not hearing, testify preliminary is Albert did not it While Austin judge clear knew of the existence of such witness and the that testimony. course of a discussion be- nature of that witness' Middleman, court, counsel, tween Ms. and the where defense defense present explaining going what she to counsel was further witnesses was hearing, inquired witnesses be pretrial at the the court if one going testify presented pre-trial hearing at the was drug was not at the transactions: [Appellant] guy going say he [i.e. witness] THE COURT: The is guy drugs]? j is not the sold the [who trial, Well, might I save that for Your MS. MIDDLEMAN: I think Honor. Okay. THE COURT: Moreover, 1992). argued (May prosecution at the p. N.T. at hearing availability Austin pre-trial evidentiary of Albert must prosecution balancing in the test Carter-Roviaro. considered argued: record, I has avail- Thirdly, appears it on the believe Defense purposes presenting whatever able other witnesses call for have, and, theory they being both Lee I Keith misidentification testimony, Appellant own failed to Appellant’s corroborated that he needed the of the confidential infor show *10 (2d Cir.l964)(no Simonetti, mant. U.S. v. 326 F.2d in where denying abuse of trial court’s discretion disclosure [i.е., testimony Special Employee “the of the the confidential cumulative.”); would have been at best Suarez v. informant] (5th Cir.1978)(no U.S., denying F.2d error in testimony in was not disclosure where the informant’s Suarez in appellant’s essential to the defense as was the case Roviaro represented because the confidential informant therein information.) Common only likely exculpatory source Cf. A.2d 877 Christy, (1995)(arguably wealth v. erroneous exclusion of some evidence was harmless because prejudice); other similar evidence was admitted and thus no Shadle, (1995)(erro Henery neous exclusion of evidence harmless where similar evidence admitted). was conclusion that the trial court did not abuse its discre-
Our in failed to his need for the deciding Appellant prove tion outweighed privilege information the Commonwealth’s is bol- the actual of Albert Austin at testimony Appellant’s stered essentially alleged testimony trial. Appellant theory confidential informant would have corroborated his Kacsuta identified mistakenly Appellant Detective as the sell- trial, testified, being present er. At and denied having the transaction or ever met Detective Kacsuta. Albert Austin, at, in admittedly present who was and involved January subsequently pleaded guilty transaction оn and and on possession, delivery conspiracy participation based his therein, Appellant’s testified at trial that was not best, present any way or involved with that transaction. At confidential informant’s testimony merely would have du- testimony. light Albert Austin’s of the fact that plicated believe, Austin, bullpen Howard who is in the for that [sic] purpose. availability Caselaw also indicates that the of other witnesses [sic] test, weighing balancing in a is to be considered and that if the other available, privilege witnesses are can remain intact while the presents Defendant still his defense and has a fair trial. 28, 1992). p. (May N.T. at Albert cumulative of been this would have best of discretion court’s exercise trial testimony, Austin’s January it to the relates the information denying 23,1991 was vindicated. charges arising sentence judgement affirm the
Accordingly, we 23,1991 charges. January out part is thus vacated Superior Court The order of in part. affirmed NIX, J., in which
NEWMAN, concurring opinion files a C.J., joins.
CASTILLE, J., dissenting opinion. files concurring Justice, NEWMAN, concurring. I case. majority
I with the agree am constrained *11 holding majority’s the separately emphasize that write situations, such the strictly should be limited case, the informant’s where a defendant demonstrates defense, in her and where aid his or identity materially would prove all to presents the no evidence at Commonwealth or jeоpardize his identity of the informant’s would disclosure any If ongoing investigations. or safety compromise her present, they weigh are countervailing considerations these Commonwealth to disclose requiring the heavily against identity. informant’s confidential Justice,
CASTILLE, dissenting. concurring judg- appellant’s I affirmance of majority’s with the agree 23, charges. 1991 January out arising ment of sentence However, I conclusion that majority’s with disagree be regarding must disclosed confidential informant’s 21,1990 Therefore, I dissent. incident. the December in my concurring opinion I in Commonwealth As stated (1994), 54, safety A.2d Payne, 540 Pa. 656 77 determining controlling is a factor confidentiаl informant an informant’s identity. his or her Before whether reveal disclosed, however, lay must be defendant identity should 484
an basis or foundation that confidential evidentiary infor mant relevant information that will possesses materially aid in presenting the defendant his or her defense and that the information is not obtainable from another source. See Com Herron, 461, (1977); monwealth v. 475 Pa. see also, Bradshaw, 22, 29, 238 Pa.Super. 364 702, (1975); Pritchett, A.2d Commonwealth v. 225 Pa.Su (1973). 401, 407, 434, 312 A.2d or per. Bare bald asser tions that the witness will aid in the defense are not sufficient. Herron, (1977) (“more 461, 466, 380 A.2d is necessary than a mere assertion the defendant that such might helpful establishing particular disclosure de fense”). Although expected defendant cannot be to pre dict what the witness would he or exactly say, she must demonstrate that there is a reasonable likelihood that witness will exonerate the defendant and that the evidence is not obtainable from another source. See Commonwealth v. Knox, 563, 568, (1980); Pa.Super. 417 A.2d see also, Pritchett,
(1973). case, appellant pre-trial the instant failed at the hearing fails his brief to this Court to demonstrate that the confidential informant would offer material evidence that him charged. would exonerate from the crimes provides absolutely nothing support his assertion that the informant would provide testimony support appellant’s misidentification defense.
Nonetheless, majority speculates “possible sig- nificance” of the testimony informant’s unknown cannot be because, Kacsuta, underestimated other than Detective confidential informant was the only eyewitness the transac- however, tions. majority, ignores The the record which dem- appellant onstrates that and Detective Kacsuta were not fact, only witnesses to the crimes. Keith Lee witnessed participated the first transaction and thereby would have in a position dispel appellant’s been to confirm or partic- Indeed, ipation. appellant himself concedes that Lee was (Brief 5, n. p. Appellant, first transaction. at the 2). Lee could not
However, in his brief that asserts appellant Fifth Amendment “potential because of called as a witness allegation, appellant Notwithstanding considerations.”1 that Lee would have been point at this only speculation offers Appel Fifth Amendment considerations. unavailable due to even so that Lee could testify not call this witness to lant did assuming he had such rights, Fifth Amendment assert his assert, court determine that that the trial rights request or so as privilege entitled to invоke the witness was of his claim. See Commonwealth demonstrate the merits (1967) (a Carrera, 551, 553-54, 424 Pa. is self-incrimination right against invokes his witness who trial court determines that only where the unavailable Hawthorne, justified); is witness’ silence (1968) (it for the always A.2d is justified). if is Under determine a witness’ silence court to and confi circumstances, safety I not require would these compromised appellant to be where dentiality of the informant the other necessary steps procure to take the has failed alleged to the transaction. witness the fact that Detective Kacsuta majority also overlooks of time and at a significant for a amount appellant observed one hour the first transaction. Within during close distance transaction, name into appellant’s the detective entered description photograph computer and obtained BCI person matched the which the detective concluded appellant Indeed, heroin. when just purchased from whom she had especially light the fact that position is curious at best 1. This yet respect with to Albert Austin he appellant made this same claim testify at trial in proceeded as a defense witness to to call Austin with the second transaction. connection appellаnt’s evident from the nature of defense is 2. The incredulous respect presented regarding the second transaction. With evidence he transaction, testify appellant Austin to that he was called to the second drugs, appellant that he was not person selling himself testified not the seller, Ivy to establish testimony of Edwards was offered and the Notwithstanding all of this police photograph was misnamed. that his evidence, jury Kacsuta’s more credible. found Detective *13 transaction, the the second detective testified about questioned recognized being the same immediately appellant that she as and purсhased from she heroin month before person whom person photograph. the same in the BCI as an axiom that at majority opinion appears adopt The to to the entire transaction other only eyewitness trial where the police was a officer then that than confidential informant in favor of the informant’s fact alone militates of disclosure in- another identity. places yet unfortunate conclusion This in the of effective law enforcement path surmountable obstacle Pennsylvania’s beleaguered in scourge drugs to combat the decision, elimi- By majority effectively this communities. buys by to drug nates the of confidential informants make use in a police acting a officer tandem with confidential informant. blithely mayhem and majority may ignore violence communities, in our but those
surrounding drug trafficking will police who wish aid the their enforcement efforts now will only peril. do so at their own Few confidential informants risk of retaliation a result of place deadly themselves at decision.
Unfortunately, long, nearly this case a unbroken represents from that shield string effectively decisions this Court criminal from crimes on responsibility defendants their greater a for criminal theory right privacy there exists jurisdictions in Pennsylvania through than in other suspects I, § interpretation this Court’s of Article 8 of the strained v. Ma- Pennsylvania e.g., Constitution. See (1996) (where tos, A.2d officers police persons who flee on their approach pursue inexplicably and then upon police own initiative arrival of their area contraband, discard evidence or such conduct will result police the discarded items even did not suppression though them, they police authority, police arrest did not halt to path not in manner their any upon departure did intrude White, area); from the Commonwealth v. Pa. (1995) (where prior obtain a police could warrant vehicle, а
searching evidence seized the absence of a search suppressed notwithstanding that officers warrant must notwith- cigarette in the vehicle and marijuana observed drugs police probable had cause believe standing *14 therein); were contained Common- drug paraphernalia and/or (1995) (evidence Banks, Pa. wealth v. though police officer ob- suppressed even veteran must in a high he to be a transaction drug what believes serves transaction); flee Common- suspect crime area and sees after (1994) Brion, (Pennsylva- Pa. wealth v. in their privacy have heightened expectation nia citizens a I, homes; therefore, Pennsylvania Article Section 8 taping of oral com- permits one-party consensual Constitution if has only home there occurring munications within one’s neutral, cause a probable determination prior been authority); Payne, Pa. judicial (1994) must disclose confidential (police A.2d 77 informant, fails notwithstanding that defendant to demon- information that possesses strate that informant relevant defense). And now the instant materially will aid defendant’s case.
Therefore, I it majority opinion from the insofar as dissent informant, given of the confidential compels disclosure another to do eyewitness could have called failed appellant so. A.2d Pennsylvania, Appellee,
COMMONWEALTH Jr., SMITH, Appellant. Howard Norman Supreme Pennsylvania. Court
Argued Dee. 1995. July
Decided