HomeMy WebLinkAbout92-458 CriminalCOMMONWEALTH IN THE COURT OF COMMCN PLEAS OF
CUMBERLAND COUNTY, P NNSYLVANIA
458 CRIMINAL 1992
V. CHARGE: UNLAWFUL DE IVERY,
MANUFACTURE OR
POSSESSION WITH INTENT
TO DELIVER SCH. I, C.S.
(LSD)
PHILLIP N. MILLER AFFIANT: DET. HARRY K. CLAY, JR.
OTN: E073418-2
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MO ION
BEFORE OLER, J.
ORDER OF COURT
AND NOW, this 14 day of September, 1992, upo consideration
of Defendant's Omnibus Pretrial Motion and followin a hearing, for
the reasons stated in the accompanying Opinion, i is ordered and
directed as follows:
1. The Defendant's Motion To Dismiss io DENIED.
2. The Defendant's Motion To Compe Identity of
Confidential Informant is GRANTED, subject to the following terms
and conditions: Disclosure shall be to Defendant's counsel only;
said counsel shall not disclose the identity to others, including
Defendant, pending further order of court; the Co onwealth shall
cooperate in counsel's effort to interview the s O informant to
ascertain whether his information would be of benefit to the
defense contemplated by Defendant; `and further
dependent upon the filing of a supplemental n
arising out of the results of disclosure.
BY THE COURT,
J. Wesley Ole Jr.,
lief shall be
.ion by counsel
I J.
Jeffrey Baxter, Esq.
Assistant District Attorney
Timothy Clawges, Esq.
Assistant Public Defender
:rc
458 Criminal 1992
the Hampden Township Police Department and currentlir assigned full
time to the Drug Task Force.'
3. The Defendant is charged with a delivery of LSD, based
upon an alleged sale to the affiant on September 3 , 1991, at the
apartment of the Defendant and his mother in]New Cumberland,
Cumberland County, Pennsylvania.6
4. The persons who the Commonwealth contends were present at
the sale were the Defendant (seller), the affiantl(buyer), and a
confidential informant.'
5. Prior to the alleged sale,
the confidential informant had
told the affiant that the informant's supplier of acid was Phil
Miller, and that Mr. Miller lived with his mother i �!t the aforesaid
apartment in New Cumberland.'
6. The affiant and informant then made arrang ments to go see
Mr. Miller;9 the affiant had not previously seei Mr. Miller or
' N.T. 12.
6 N.T. 5-6, 15, 21, 25, 28-29; see also Information,
Commonwealth v. Miller, 458 Criminal 1992 (filed July 2, 1992).
' N.T. 27. A detective was said to be in a car outside, but
not in a position to see the transaction. Id.
8 N.T. 25-26.
9 N.T. 26.
7
458 Criminal 1992
visited his apartment."
7. When they carried out the arrangements on September 30,
1991, it was the affiant's expectation that he would meet Mr.
Miller. 11
B. Subsequent to the alleged sale on September 30, 1991, the
informant confirmed that they had dealt with Phil Miller.lz
9. The Commonwealth does not intend to call the informant as
a witness at trial.13
10. The criminal complaint against the Defen ant as a result
of the alleged sale on September 30, 1991, was filed on February
14, 1992.14
11. The Defendant's arrest on the charge occurred pursuant to
an arrest warrant in the same month, February, 19D2.1'
12. Upon execution of the arrest warrant, D'fendant was made
aware of the allegation of the offense by him n September 30,
to N.T. 25-27. A member or members of
however, had been to the address. N.T. 25.
11 N.T. 25.
12 N.T. 28-29.
13 N.T. 22-23.
14 N.T. 6.
15 N.T. 8.
M
the Task Force,
458 Criminal 1992
1991.16
13. Thus, a period of not less than four and one-half months
occurred between the date of the alleged incident in question and
the date the criminal complaint was filed, or De lendant received
notice of the complaint.17
14. The delay on the part of the Commonwealth between the
date of the alleged incident on September 30, 1991, and the date of
the filing of the complaint on February 14, 1992, was occasioned by
continuing use of the confidential informant for a period after the
September 30 date and continuing undercover
affiant."
15. The aforesaid delay by the Commonwealtr
purpose of securing a tactical advantage over
prejudicing his defense.
16. According to the Defendant's testimon
herein, at the time of his arrest he was unable
had been on September 30, 1991, or whom he might
17. According to the Defendant's testimony,
16 N.T. B.
17 N.T. 6-7. The parties have also sti
Defendant was formally arraigned on July 7, 1992
is N.t. 14-17.
19 N.T. 8-9.
4
ons of the
was not for the
Defendant or
r at the hearing
b recall where he
have been with.19
he still can not
lated that the
N.T. 6.
458 Criminal 1992
recall where he was at any time on September 30, 1)91."
18. To the extent that the inference to be drawn from
Defendant's testimony is that the lapse of several months between
the alleged incident and the institution of criminal proceedings
caused him to forget whether or not he committed the offense
charged, the Court is unable to find the inferencE credible.zl
19. There was no evidence presented at the hearing from which
it could be concluded that the Defendant has a history of, or
propensity for, physical violence or intimidation
DISCUSSION
efendant'
Statement of law. It has been broadly stated that "there is
no right to a speedy arrest Commonwealth v. Cagle, 398 Pa.
Super. 147, 152, 580 A.2d 884, 886 (1990). In this regard, "[t]he
primary safeguard against undue delay between crime and arrest is
the applicable statute of limitations id. at 154, 580 A.2d
at 887.
However, "[t]he United States Supreme Court has held that a
significant delay between an alleged criminal Incident and the
notification to an accused that he is required t o answer for the
20 N.T. 8.
21 The Defendant did not, at the hearing, affirmatively deny
committing the offense, nor did he deny resiling at the New
Cumberland apartment at the time it allegedly occurred.
5
458 Criminal 1992
incident may constitute a denial of due process of law even if the
statute of limitations is not breached." 2 Wasserb y, Pennsylvania
Criminal Practice §23.21, at 46 (1992), citing U ited States v.
Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971).
"Since notification to an accused is usually first made at the time
of an arrest, the delay normally concerns the peri d from incident
to arrest. n 22
In Pennsylvania, "[a]n accused person who claims a due process
violation from pre -arrest delay must show both that the delay
caused him substantial prejudice and that the prose ution's reasons
for the delay were improper. ,23 With respect to p ejudice, it has
been said that "[a] delay of eighteen months is not in itself
evidence of prejudice." Commonwealth v. Cagle, 398 Pa. Super. 147,
153, 580 A.2d 884, 887 (1990); see also Commonwealth v. Murphy, 305
Pa. Super. 246, 451 A.2d 514 (1982) (thirty-two month delay);
Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 17 (1978) (six and
three-quarter year delay). With respect to reasons for the delay,
it has been said that "[t]he Commonwealth's prosecution may be
precluded only where the delay ... deliberately was intended for
22 2 Wasserbly, Pennsylvania Criminal Practice §23.21, at 46
(1992).
23 Commonwealth v. Cagle, 398 Pa. Super. 147, 152, 580 A.2d
884, 886 (1990), quoting Commonwealth v. Murphy, 305 Pa. Super.
246, 252, 451 A.2d 514, 517 (1982).
6
458 Criminal 1992
[the] purpose" of "gaining tactical advanta a over [the
defendant]." Commonwealth v. Cagle, 398 Pa. Super. 147, 154, 580
A.2d 884, 887 (1990). The delay, in other words, MILst have been "a
deliberate attempt to prejudice [a defendant's] defense." id. at
154, 580 A.2d at 887.
Application of law to facts. In the present case, the primary
safeguard against undue delay between the crime, as alleged, and
the arrest is the five-year statute of limitatio s applicable to
the offense ;14 the several -month delay herein i volved is well
within this statutory period. In addition, the elatively short
period of delay at issue does not of itself consti ute evidence of
prejudice. Nor has the Court been able to conclude that
substantial prejudice has been shown to have occurred to the
Defendant from the delay .25 Finally, it has be n found by the
Court that the delay was not intended for the pu pose of gaining
tactical advantage over the Defendant or to prejudice his defense.
Under these circumstances, the Defendant's motion for dismissal of
24 The offense charged is a"felony, car ying a possible
sentence of five years imprisonment and fifteen thousand dollar
fine. Act of April 14, 1972, P.L. 233, §13(f)(2), 35 P.S. §780-
113(f)(2) (1992 Supp.). The Act of July 9, 1976, P.L. 586, §2, as
amended, 42 Pa. C.S. §5552(b)(2) (1992 Supp.), provides the
applicable statute of limitations.
25 "[W]e do not believe that a loss of memory due to passage
of time is sufficient, in itself, to bar a criminal prosecution
Commonwealth v. De Rose, 225 Pa. Super. 8, 13, 307 A. 2d 425,
426, allocatur refused, 225 Pa. Super. xlii (1973).
7
458 Criminal 1992
the information by reason of an abridgement of
speedy arrest must be denied.
is right to a
Statement of law. In a 1957 decision said to kle "based not on
constitutional grounds, but upon its inherent supervisory power
over the federal courts," 26 the United States Supreme Court
identified "the Government's privilege to withhold from disclosure
the identity of 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 p otection 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 lirivilege can be
overcome by showing that disclosure is essential to a fair
determination of a cause. '"27
Pennsylvania recognizes the privilege, well as its
26 Commonwealth v. Bonasorte, 337 Pa. Supe3
A.2d 1361, 1372 (1984); see Commonwealth v. Carter
A.2d 284 (1967) .
27 United States v. Gaines, 726 F. Supp. 1457
1989) (citation omitted), aff'd, 902 F.2d 1562
denied, U.S. , 111 S. Ct. 128, 112 L. Ed.
332, 352, 486
427 Pa. 53, 233
', 1465 (E.D. Pa.
(3d Cir.), cert
2d 96 (1990).
458 Criminal 1992
qualified nature.28 In this regard, the issue is
under the Pennsylvania Rules of Criminal Procedu
is upon the Defendant to support defeasance of the
a proper resolution of the matter rests within the
ie of discovery
, 29 the burden
ivilege, 30 and
discretion
of the trial court .31 Trial courts are encouraged)"to be creative
in drafting" orders relating to motions for disclosure of
informants, 32 and devices such as in camera proceedings are to be
considered ; 31 however, in camera proceedings shox I Lld not exclude
defense counsel.34
28 Commonwealth v. Bonasorte, 337 Pa. Super 332, 486 A.2d
1361 (1984).
29 See id. Pennsylvania Rule of Criminal Pocedure 305B(2)
provides, inter alia, as follows:
In all court cases ..., if the def ndant
files a motion for pretrial discover3, the
court may order the Commonwealth to all)w the
defendant's attorney to inspect or c py or
photograph ..., upon a showing that they are
material to the preparation of the de ense,
and that the request is reasonable[,] the
names and address of eyewitnesses ...."
11 Commonwealth v. Williams, 236 Pa. Super. 14, 345 A.2d 267,
allocatur refused, 236 Pa. Super. xxvi (1975).
31 Commonwealth v. Bonasorte, 337 Pa. Supe . 332, 486 A.2d
1361 (1984).
32 Id. at 356, 486 A.2d at 1374.
33. Commonwealth v. Bonasorte, 337 Pa. Supej.. 332, 486 A.2d
1361 (1984).
34 Commonwealth v. Miller, 513 Pa. 118, 518 .2d 1187 (1986).
9
458 Criminal 1992
"There is no fixed rule with respect to c
informant. 'The problem is one that calls for ball
interest in protecting the flow of informatj
individual's right to prepare his defense. [The
must depend on the particular circumstances of e
into consideration the crime charged, the possib
possible significance of the informer's tes
relevant factors. "' 35
It has been said that "[t]he mere allegi
informant's testimony might be helpful [to the de
suffice [to support a disclosure request]."36 On
it has also been said that a defendant "plainly cai
to show that such information will actually be
defense ....i37 These propositions have been re
rule that "the record should at least sugges
possibility that the information might be helpful [
;closure of an
:ing the public
i against the
roper balance]
h case, taking
defenses, the
)ny and other
tion that the
nse] will not
e other hand,
)t be expected
:lpful to his
zciled by the
a reasonable
the defense],
35 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).
36 Commonwealth v. Williams, 236 Pa. Super. 181, 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).
37 Commonwealth v. Herron, 475 Pa. 461, 467, 380 A.2d 1228,
1230 (1977).
10
458 Criminal 1992
so that it would be unfair to withhold it. ,38 "H
pful," in this
context, applies to the investigative as well as the trial phase of
an accused's case, and compulsory disclosure is promised upon the
proposition that "[t]he desirability of calling [the informant] as
a witness, or at least interviewing him in prepara ion for trial,
[is] a matter for the accused rather than the
decide. 39
Traditionally, the acquisition of "evidence
defense such as mistaken identity, entrapment or c
Government to
relevant to a
sent" is the
objective of motions of the present type for di closure of an
informant's identity.40 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 r,
made; 41 but "we do not require a defendant to say
his defense is .... „42
38 id.
39 Roviaro v. United States, 353 U.S. 53, 64,
1 L. Ed. 2d 639, 647 (1957).
40 Commonwealth v. Bonasorte, 337 Pa. Super.
A.2d 1361, 1373 (1984).
41 Commonwealth v. Pritchett, 225 Pa. Super.
A.2d 434, 439 (1973); see Commonwealth v. Herron, 4
A.2d 1228 (1977).
42 Commonwealth v. Pritchett, 225 Pa. Super.
A.2d 434, 439 (1973).
11
levancy can be
?recisely what
77 S. Ct. ,
332, 353, 486
401, 410, 312
5 Pa. 461, 380
401, 411, 312
458 Criminal 1992
The fact that a confidential informant is an a witness to the
alleged offense does not automatically compel disclosure .4' Nor
does the fact that he or she is not an eyewitness mandate a ruling
against compulsory disclosure.44 However, it is obvious that "one
of the factors tending to show that the government Ls 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";45 the
significance of eyewitness status is dependent to a degree upon the
number of other available eyewitnesses."
In Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967),
the Pennsylvania Supreme Court reversed a defenda is conviction
for possession and sale of drugs by reason of thE trial court's
refusal to grant defendant's motion for diclosure of a
confidential informant's identity. The Court did so again in
43 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).
44 See, e.g., Commonwealth v. Pritchett, 225 a. Super. 401,
312 A.2d 434 (1973).
45 Annot., 76 A.L.R.2d 262, 286 (1961) (federal rule).
46 Compare Commonwealth v. Lloyd, 427 Pa. 261, 234 A.2d 423
(1967) (disclosure required where informant was only disinterested,
non -police eyewitness) with Commonwealth v. Tolassi 258 Pa. Super.
194, 392 A.2d 750 (1978) (disclosure not required w ere identities
of 61 witnesses other than informer were provided by Commonwealth) ,
aff'd, 489 Pa. 41, 413 A.2d 1003 (1980).
12
458 Criminal 1992
Commonwealth v. Lloyd, 427 Pa. 261, 234 A.2d 42
salient facts of the cases were said by the Court
(1967). The
be as follows:
Both cases involve undercover agents
introduced to alleged narcotic seller , an
undisclosed informer as the only Dther
eyewitness to the transaction, one contact
between the agent and defendant, and the
defense of mistaken identity.
Id. at 263, 234 A.2d at 424. In each case, the
upon its decision as follows:
Elemental to our concept of fairness, as
well as that embodied in the fe eral
constitution, is the awareness that the
testimonial perspective of police officers is
conditioned by the often compet'tive
enterprise of ferreting out crime.... This
awareness makes us reluctant to permil. the
establishment of facts crucial to cri final
guilt solely by police testimony based on a
single observation where testimony from a more
disinterested source is available. rhus,
while disclosure might not be necessary in a
case where police evidence as to crucial facts
was corroborated by neutral witnesses, wa are
unwilling to do so in a case like the instant
one.
elaborated
Commonwealth v. Carter, 427 Pa. 53, 61-62, 233�A.2d 284, 288
(1967); Commonwealth v. Lloyd, 427 Pa. 261, 263-64�, 234 A.2d 423,
424 (1967).
Application of law to facts. In the present c4se, a number of
circumstances militate in favor of compulsory di4closure of the
confidential informant's identity. First, the
alleged sale of drugs to an undercover agent who
13
involves an
introduced to
458 Criminal 1992
the seller by the informant. Second, the transact
constituting
the offense was the only contact between agent and eller. Third,
the informant was an eyewitness to the offense. Furth, with the
exception of the agent and the seller, the informant was the only
observer of the offense, and in his absence the establishment of
facts crucial to criminal guilt would be effected 6olely by means
of police testimony. Fifth, the Defendant has n conceded his
presence at the scene.
One factor, however, tends to support the 'Commonwealth's
position against .compulsory disclosure: the Defenda 't, in asserting
an inability to recall where he was or whom he may have been with
on the date of the alleged offense, has been vague at best in
proffering a defense, such as mistaken identity or a trapment, upon
which a finding of potential helpfulness of the i formant can be
predicated; the Defendant has not, in fact, statedexpressly that
he has a defense. Where a defendant has "failed to include in his
offer a sufficient factual foundation to enable the trial judge to
conclude that knowing the informer's identity mighL be helpful in
establishing [the] defense," a refusal to order disclosure will be
upheld."
Bearing in mind that there is no fixed rule with respect to
47 Commonwealth v. Herron, 475 Pa. 461, 468,
1231 (1977).
14
380 A.2d 1228,
458 Criminal 1992
disclosure of an informant, that the problem is one that calls for
a balancing of the public interest against the individual's right
to prepare a defense, and that Pennsylvania's trial courts have
been instructed to exercise a degree of creativity in drafting
orders relating to informant disclosure motions, the Court believes
that in the present case an order of disclosure upon certain terms
and conditions is warranted. These terms and conditions are that
the disclosure be to Defendant's counsel only, that said counsel
not disclose the identity to others, including Defendant, pending
further order of court,48 that the Commonwealth cooperate in
counsel's effort to interview the said informant, to ascertain
whether his information would be of benefit to the defense
contemplated by Defendant, and that further relieE be dependent
upon the filing of a supplemental motion by counsel arising out of
the results of disclosure.
For the foregoing reasons, the following Ord r of Court is
entered:
ORDER OF COURT
AND NOW, this(C 9 day of September, 1992, upor consideration
of Defendant's Omnibus Pretrial Motion and following a hearing, for
the reasons stated in the accompanying Opinion, it is ordered and
ae Defendant and defense counsel are ame
condition at this stage. See Letter of Timothy L.
dated September 9, 1992, to Court (filed September
15
table to this
Clawges, Esq.,
9, 1992).
458 Criminal 1992
directed as follows:
1. The Defendant's Motion To Dismiss is DENIED.
2. The Defendant's Motion To Compe Identity of
Confidential Informant is GRANTED, subject to the lollowing terms
and conditions: Disclosure shall be to Defendant's counsel only;
said counsel shall not disclose the identity to of ers, including
Defendant, pending further order of court; the Co onwealth shall
cooperate in counsel's effort to interview the sai informant to
ascertain whether his information would be of benefit to the
defense contemplated by Defendant; and further relief shall be
dependent upon the filing of a supplemental motion by counsel
arising out of the results of disclosure.
BY THE COURT,
Jeffrey Baxter, Esq.
Assistant District Attorney
Timothy Clawges, Esq.
Assistant Public Defender
:rc
J. Wesley Oler, Jr., Ii.
16