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HomeMy WebLinkAbout94-2239 CriminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : : NO. 94-2239 CRIMINAL TERM : CHARGE: UNLAWFUL POSSESSION OF MICHAEL E. MATTESKY : SCHEDULE I CONTROLLED OTN: E726644-2 : SUBSTANCE IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., June 22, 1995. This case arises out of an incident in which Defendant, while an inmate at the Cumberland County Prison, allegedly possessed LSD in his cell. Prior to trial on the resulting charge of possession of a controlled substance,~ Defendant filed an omnibus pretrial motion for relief, in the form of a motion to compel disclosure of the identity of a confidential informant.2 A hearing on Defendant's motion was held by the writer of this Opinion on Monday, March 6, 1995. Based upon the evidence presented at the hearing, the following Order was entered: AND NOW, this 6th day of March, 1995, upon consideration of the Defendant's Omnibus Pretrial Motion in the form of a Motion To Compel the Production of the Identity of the Confidential Informant, and following a hearing, the Motion is DENIED. A jury trial on the charge was thereafter held with the Honorable George E. Hoffer presiding on Tuesday, March 14, 1995, and Defendant was found guilty. He was sentenced by Judge Hoffer on Tuesday, April 18, 1995. From the judgment of sentence Defendant has appealed to the ~ Act of April 14, 1972, P.L. 233, §13(a)(16), as amended, 35 P.S. ~780-113(a)(16). 2 Defendant's Omnibus Pretrial Motion, filed March 1, 1995. NO. 94-2239 CRIMINAL TERM Superior Court.3 In a statement of matters complained of on appeal, he contends, inter alia, that "[t]he pretrial court erred in denying the Defendant's Motion to Compel the Production of the Identity of the Confidential Informant."4 This Opinion in support of the Court's ruling on Defendant's pretrial motion is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS On Wednesday, August 10, 1994, Defendant Michael Edward Mattesky was an inmate at the Cumberland County Prison.~ On that date, Corrections Officer Chris Allen Durnin received information from another inmate that two days earlier the inmate had seen LSD in the sweat pants of Defendant in Defendant's cell.6 This inmate had supplied accurate information to prison authorities in the past regarding other inmates.7 Officer Durnin relayed the information he had received to the deputy warden of security,8 who ordered a search of Defendant's 3 Notice of Appeal, filed May 18, 1995. 4 Defendant's Concise Statement of Matters Complained of on Appeal, paragraph 1. ~ N.T. 13, Hearing, March 6, 1995, Commonwealth v. Mattesky, No. 94-2239 Criminal Term (hereinafter N.T. __). N.T. 13, 16, 18-19. N.T. 9. N.T. 14-15. 2 NO. 94-2239 CRIMINAL TERM cell.9 The search was conducted within "a matter of hours" of the receipt of the information by Officer Durnin.~° In conducting the search, prison authorities summoned Defendant from a picnic table in the prison dayroom so that he could witness the search.~ In the waistband of Defendant's sweatpants, which were located on the top bunk of his cell, two packets of wax paper containing material with LSD were found in the search.~2 As of the hearing on Defendant's motion to compel disclosure of the identity of the informant, the informant was still an inmate at the prison.~ At the hearing, the prison's rationale for a policy against disclosure of the identities of informants who are prisoners was expressed by Warden Earl F. Reitz, Jr., as follows: Basically, there's two reasons. The first reason that we do not disclose the identity of confidential informants is we want to maintain, during the operation of the institution, that trust an inmate will put in the administration about bringing information to the administration or the institution, and, secondly, releasing the identity of a confidential informant could breed violence 9 N.T. 10. ~0 N.T. 8. ~ N.T. 17-18. ~2 N.T. 14-16. ~ N.T. 12. NO. 94-2239 CRIMINAL TERM within the institution.TM In support of Defendant's motion, Defendant's counsel argued at the hearing that knowledge of the identity of the informant could conceivably be helpful to the defense: Now, this person - there may be questions of bias. There may be questions of motivation or reason to lie. This person is the only one who says they saw these drugs in this person's unlocked cell. I think that that's material to any defense - to the defense that we plan on raising at trial, and we need to know who this person is to see if there is potential issues as far as lack of credibility, as far as constitutional standards, not necessarily Cumberland County Prison disciplinary procedures. We need to see if they pass constitutional muster in terms of credibility and reliability. As I said before, there are also issues, potentially, on behalf of this witness, bias, reasons why they would be untruthful, and we have no way of trying to attack that if we don't know who this person is.15 STATEMENT OF LAW In a 1957 decision said to be "based not on constitutional grounds, but upon its inherent supervisory power over the federal courts,"~6 the United States Supreme Court identified "the Government's privilege to withhold from disclosure the identity of N.T. 6. N.T. 20. Commonwealth v. Bona$orte, 337 Pa. Super. 332, 352, 486 A.2d 1361, 1372 (1984); see Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967). 4 NO. 94-2239 CRIMINAL TERM persons who furnish information of violations of law to officers charged with enforcement of that law .... The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officials and, by preserving their anonymity, encourages them to perform that obligation." Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 627, 1 L. Ed. 2d 639, 644 (1957). "This privilege can be overcome by showing that disclosure is 'essential to a fair determination of a cause.'"~7 Pennsylvania recognizes the privilege, as well as its qualified nature.~8 In this regard, the issue is one of discovery under the Pennsylvania Rules of Criminal Procedure,~9 the burden is ~7 United States v. Gaines, 726 F. Supp. 1457, 1465 (E.D. Pa. 1989) (citation omitted), afl'd, 902 F.2d 1562 (3d Cir.), cert. denied, 498 U.S. 844, 111 S. Ct. 128, 112 L. Ed. 2d 96 (1990). ~ Commonwealth v. Bonasorte, 337 Pa. Super. 332, 486 A.2d 1361 (1984). ~9 See id. Pennsylvania Rule of Criminal Procedure 305B(2) provides, inter alia, as follows: In all court cases ..., if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant's attorney to inspect and copy or photograph ..., upon a showing that they are material to the preparation of the defense, and that the request is reasonable[,] ... the names and address of eyewitnesses .... " 5 NO. 94-2239 CRIMINAL TERM upon the Defendant to support defeasance of the privilege,2° and a proper resolution of the matter rests within the sound discretion of the trial court.2~ "There is no fixed rule with respect to disclosure of an informant. 'The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. [The proper balance] must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony and other relevant factors.'''22 The fact that an informant is a prisoner and thus vulnerable to physical retaliation for his or action is, of course, one such relevant factor.23 It has been said that "[t]he mere allegation that the informant's testimony miqht be helpful [to the defense] will not 2o Commonwealth v. Williams, 236 Pa. Super. 184, 346 A.2d 308, allocatur refused, 236 Pa. Super. xxvi (1975). 2~ Commonwealth v. Bonasorte, 337 Pa. Super. 332, 486 A.2d 1361 (1984). 22 Commonwealth v. Knox, 273 Pa. Super. 563, 568, 417 A.2d 1192, 1194 (1980), quoting Commonwealth v. Carter, 427 Pa. 53, 59, 233 A.2d 284, 287 (1967). 2~ See Commonwealth v. Payne, 435 Pa. 650, 656 A.2d 77 (1994) (Castille, J., concurring). 6 NO. 94-2239 CRIMINAL TERM suffice [to support a disclosure request]."24 On the other hand, it has also been said that a defendant "plainly cannot be expected to show that such information will actually be helpful to his defense .... ..2s These propositions have been reconciled by the rule that "the record should at least suggest a reasonable possibility that the information might be helpful [to the defense], so that it would be unfair to withhold it.''~6 Traditionally, the acquisition of "evidence relevant to a defense such as mistaken identity, entrapment or consent" is the objective of motions of the present type for disclosure of an informant's identity.~7 In this regard, there is a certain responsibility upon the defendant "to indicate in some detail his possible defenses," so that a determination as to relevancy can be made;~8 but "we do not require a defendant to say precisely what his 24 Commonwealth v. Williams, 236 Pa. Super. 184, 191, 345 A.2d 267, 270, allocatur refused, 236 Pa. Super. xxvi (1975); see Commonwealth v. Delligatti, 371 Pa. Super. 315, 538 A.2d 34, allocatur refused, 552 A.2d 250 (1988). 2s Commonwealth v. Herron, 475 Pa. 461, 467, 380 A.2d 1228, 1230 (1977). ~ Id. ~ Commonwealth v. Bonasorte, 337 Pa. Super. 332, 353, 486 A.2d 1361, 1373 (1984). 28 Commonwealth v. Pritchett, 225 Pa. Super. 401, 410, 312 A.2d 434, 439 (1973); see Commonwealth v. Herron, 475 Pa. 461, 380 A.2d 1228 (1977). 7 NO. 94-2239 CRIMINAL TERM defense is .... ,,29 The fact that a confidential informant is an eyewitness to the alleged offense does not automatically compel disclosure.3° Nor does the fact that he or she is not an eyewitness mandate a ruling against compulsory disclosure.3~ However, it is obvious that "one of the factors tending to show that the government is not entitled to withhold from an accused information as to the identity of an informer is the fact that the informer is able to testify directly about the very transaction constituting the crime.''3~ APPLICATION OF LAW TO FACTS In the present case, several factors led to the Court's resolution of Defendant's motion to compel disclosure of the identity of the confidential informant in favor of the Commonwealth. First, the evidence at the pretrial hearing was not persuasive that disclosure of the informant's identity would materially aid in the accused's defense; the informant was not an eyewitness to the offense for which Defendant was prosecuted, and was in fact merely a preliminary basis for the focus of attention 29 Commonwealth v. Pritchett, 225 Pa. Super. 401, 411, 312 A.2d 434, 439 (1973). ~0 See, e.g., Commonwealth v. Tolassi, 258 Pa. Super. 194, 392 A.2d 750 (1978), aff'd 489 Pa. 41, 413 A.2d 1003 (1980). ~ See, e.g., Commonwealth v. Pritchett, 225 Pa. Super. 401, 312 A.2d 434 (1973). ~2 Annot., 76 A.L.R.2d 262, 286 (1961) (federal rule). 8 NO. 94-2239 CRIMINAL TERM upon him. Second, the risk of injury or death to an inmate of a county prison who informs upon another inmate of the same institution and is thereafter exposed is both obvious and substantial. Third, the adverse effect upon prison security which the exposure of inmates who provide information to officials would have, throug'h discouragement of the practice by such inmates, is also obvious and substantial. Under the particular circumstances of the present case, the Court believes that a balancing of the public interest in protecting the flow of information against the individual's right to prepare his defense compelled a result in favor of the Commonwealth. Hon. George E. Hoffer Michael Schwoyer, Esq. Assistant District Attorney Arla M. Waller, Esq. Assistant Public Defender :rc 9