Com. v. Uphold, R.

J-A33017-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

ROBERT MARSHALL UPHOLD, JR.

Appellee No. 542 WDA 2016

Appeal from the Order Entered March 31, 2016

In the Court of Common Pleas of Greene County

Criminal Division at No(s): CP-30-CR-0000224-2015

BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.: FILED MARCH 13, 2017

Appellant, the Commonwealth of Pennsylvania, appeals the order of

the Court of Common Pleas of Greene County, entered on March 31, 2016,

dismissing the Commonwealth’s case for refusal to disclose the name and

whereabouts of its confidential informant (“CI”) to counsel for the Appellee-

Defendant, Robert Marshall Uphold, Jr. The Commonwealth had charged

Uphold with with Possession with Intent to Deliver a Controlled Substance,

Delivery of a Controlled Substance, and Possession of a Controlled

Substance.1 We affirm.

____________________________________________

*

Retired Senior Judge assigned to the Superior Court.

1

35 P.S. § 780-113(a)(30), (16).

J-A33017-16

In its opinion, entered June 10, 2016, the trial court fully and correctly

sets forth the relevant facts and procedural history of this case. Trial Ct.

Op., 6/10/16, at 2-5. We summarize them here for the convenience of the

reader.

The criminal information states that the alleged offense was committed

on June 1, 2010. The affidavit of probable cause was not filed until May 26,

2015, almost five years later. According to that affidavit, an undercover

officer and the CI met with the Appellee. During that meeting, the officer

gave Appellee $200 to purchase drugs and told Appellee that he would

return in a half hour to pick up the drugs. Later, the officer returned without

the CI and received ten wrapped bags of heroin from the Appellee. Appellee

denies participating in the alleged transaction, and the CI was alleged to be

the only non-law enforcement witness.

On August 17, 2015, defense counsel made his first request for the

disclosure of the identity of the CI, along with other discovery requests. On

August 24, 2015, the Commonwealth complied with the other discovery

requests, but did not disclose any information about the CI. On March 28,

2016, defense counsel again requested the disclosure of the CI. Upon

receipt of this second request, the trial court scheduled an in camera

conference on March 30, 2016.

Following that conference, on March 31, 2016, the trial court ordered

the Commonwealth immediately to reveal the identity and whereabouts of

the CI to defense counsel and advised the Commonwealth that failure to

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J-A33017-16

disclose the name would result in a dismissal of the charges. Order,

3/31/16, timestamped 9:05 A.M., at 1-3. The Commonwealth, in a motion

for reconsideration filed later that morning, refused to disclose the name of

the CI. Mot. for Recons., 3/31/16, at ¶ 7. That afternoon, the trial court

ordered the charges against Appellee dismissed. Order, 3/31/16,

timestamped 2:50 P.M., at 1. The Commonwealth’s timely appeal followed

on April 13, 2016.

The Commonwealth raises the following questions on appeal:

Did the trial court err by requiring the Commonwealth to divulge

the name and whe[re]abouts of its confidential informant to

counsel for [Appellee]?

Did the trial court err by dismissing the case against [Appellee]

as a remedy for the Commonwealth’s alleged discovery

violation?

Commonwealth’s Brief at 4.

“Our standard of review of claims that a trial court erred in its

disposition of a request for disclosure of an informant’s identity is confined to

abuse of discretion.” Commonwealth v. Jordan, 125 A.3d 55, 62 (Pa.

Super. 2015) (en banc), appeal denied, 134 A.3d 55 (Pa. 2016).

The first requirement in support of a petition to compel

disclosure of a confidential informant is that the defendant

demonstrate that production of the informant is material to his

defense. . . .

The second requirement for disclosing the identity of a

confidential informant is that the request must be reasonable.

...

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J-A33017-16

Finally, appellant’s request for disclosure of the informant must

be in the interests of justice. In reviewing this requirement, this

court will apply the balancing test of Roviaro v. United States,

353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957):

We believe that no fixed rule with respect to

disclosure is justifiable. 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. Whether a proper balance

renders nondisclosure erroneous 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. . . .

This court will not question a trial court’s finding of fact where it

is supported by the record.

Commonwealth v. Ross, 623 A.2d 827, 829-31 (Pa. Super. 1993)

(citations and internal quotation marks omitted), appeal denied, 644 A.2d

162 (Pa. 1994); accord Pa.R.Crim.P. 573(B)(2)(a)(i). In the instant action,

the trial court addressed each of these requirements, supporting its analysis

with citations to the record. See Trial Ct. Op., 6/10/16, 10-13. We agree

with the trial court’s analysis and conclusions. Therefore, for the

Commonwealth’s first issue, we affirm on the basis of the trial court opinion.

The Commonwealth argues that the CI’s information is not material

because Appellee “is charged with delivering heroin as opposed to receiving

$200” and the CI was present only for the payment of the money and not for

the receipt of the heroin. Commonwealth Brief’s at 12. But the

Commonwealth alleges that the unlawful transaction occurred in two stages

— delivery of the money for the heroin, and receipt of the heroin — and that

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J-A33017-16

the CI was present for the first stage. As the only non-law enforcement

witness allegedly present, the CI is the one outside person who can testify to

whether Appellee was indeed the participant at the meeting where the first

part of the transaction occurred, something that Appellee denies. We

therefore agree with the trial court that the CI is material to Appellee’s

defense.

The Commonwealth’s second issue is that the trial court “erred in

dismissing the case against the [Appellee] as a remedy for the

Commonwealth’s alleged discovery violation.” Commonwealth’s Brief at 16.

However, Roviaro v. U.S., 353 U.S. 53, 60-61 (1957), held that the failure

of the government to disclose an informant’s identity after being ordered by

a court to do so warrants dismissal of the prosecution. The Supreme Court

of Pennsylvania has adopted this holding. See Commonwealth v. Marsh,

997 A.2d 318, 322 (Pa. 2010) (where the trial court requires disclosure of an

informer’s identity and the government withholds the information, the trial

court may dismiss the action); Commonwealth v. Carter, 233 A.2d 284,

287 (Pa. 1967) (same). The standard of review is abuse of discretion.

Jordan, 125 A.3d at 62, 65. For the reasons stated in the opinion by the

trial court, we conclude that the trial court did not abuse its discretion by

dismissing the charges against Appellee, as such dismissal was both within

its power and an appropriate remedy.

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J-A33017-16

The Commonwealth argues: “Had the [trial c]ourt determined that the

Commonwealth’s non-disclosure of the confidential informant’s identity

represented a discovery violation, it should have selected a remedy other

than dismissal of the prosecution.” Commonwealth’s Brief at 16. Our

review of the record discloses, however, that the Commonwealth never

requested such an alternative remedy before the trial court. Hence, any

request for an alternate sanction was waived and cannot be raised for the

first time on this appeal. Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal”).

The parties are instructed to attach a copy of the trial court's June 10,

2016, Opinion to all future filings.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/13/2017

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Circulated 03/03/2017 02:20 PM

IN THE COURT OF COMMON PLEAS OF GREENE COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA, )

)

PLAINTIFF, )

)

v. ) 224 CR 2015

)

ROBERT MARSHALL UPHOLD, )

)

DEFENDANT. )

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S STATEMENT PUR§UANT TO Pa, R.A.P. 192~

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~ Matter comes before the Court on the Commonwealth's appeal

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i1 from this Cou.r t' s dismissal of charges after. the Commonwe a.l th

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6A r'e f u s e d to disclose the. identity of Confidential Informant

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~ (hereinafter "CI").

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1925 STATEMEN~ :CSSUES

Pursuant to the Commonwealth's, 1925 Statement, the

concise issues for appeal are as follows:

Did the Court err., when it required the Commonweal th to

divulge the name and whereabouts of its CI to Counsel for the

Defendant? ~

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Did the Court err, when it dismissed the case against the

Defendant as a remedy for the Commonwealth's alleged discovery

violation?

Did the Court err, when it entertained the Defendant's

request to compel discovery with out filing the appropriate

motion as required by Pa.Rule 0£ Criminal Procedure 573?

Did the Court err, when it entertained the Defendant's

~ request to compel disclosure on March 30, 2016, two (2) days

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~ prior to the start of the s chedu Led trial, 212 days after

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f o rrna I arraignment and 219 days after the Commonwealth

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~ STA'l'EMENLOF FACTS

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~;r, The Criminal Information indicates that the alleged offense

,-

date was June 1, 2010. Three (3) years later charges were

filed and l~ter dismissed. The Complaint was then refiled on

May 26, 2015 approximately five (5) days prior to the

expiration of the statute of limitations. A jury was selected

on March 2, 2016, with the trjal date set for April 1, 2016.

The tlffidavit of probable cause, filed May 26, 2015,

essentially reveals the following salient facts:

The undercover Officer indicated that he overheard a

phone conversation between the CI and the Defendant. The

alleged CI and the undercover Officer went to the Defendant's

location. It is then alleged by the undercover Officer that

the CI was present and he observed a money transaction between

the undercover Officer and the Defendant. The affidavit goes

on to say that the undercover Officer returned, without the

CI, approximately thirty (30) minutes later where he obtained

ten (JO) wrapped baggies of suspected heroin.

Defendant filed various pretrial motions that were

disposed of in the Commonwealth's favor.

Defense counsel made his first request for the disclosure

of the CI, among other requests, dated August 17, 2015 (time

stamped August 19, 2015). Defense Counsel filed a Motion to

Extend Time to File Pretrial Motion on September 30, 2015.

This Court's Order (dated October 2, 2015) granted said

Motion, allowing leave to file Omnibus Pretrial Motions set

for November 10, 2015.

Defense Counsel then filed a Motion with this Court,

among other motions, requesting the disclosure of the CI on

March 28, 2016. In this Motion, Defense Counsel offers this

Court ti timeline of the prosecution starting June 1, 2010 and

continuing through March 2, 2016. Defense Counsel states,

"[t]hree years passed before the original complaint was

filed. It has been nearly two years since the original

complaint was dismissed. More th~n 365 days expired since the

dismissal o.r: the first prosecution." (Def e ns e Motion to

Dismiss: Speedy 'I'ri.=.il s Rul.e 600 s Motion for Discovery, pg.

;.c;

2, March 28, 2016) Defense Counsel further discusses the

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discovery rules and the mandatory disclosure of discoverable

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information, and states that the "Defendant believes that the

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i Commonwealth's failure to disclose information critical to

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~ the defense at trial affects his ability ... to obtain a fair

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s:;; trial." Id. at 2-4.

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Upon the receipt of Defense Motion for Discovery and Rule

600, Speedy Trial, this Court Ordered a hearing/conference to

be held on March 30, 2016 in the Judge's Chambers at noon.

This Court's Order, dated March 31, 2016, Ordered the

Commonweal th to immediate] y reveal the Lderrt i ty and

whereabouts of the CI to Defense Counsel and advised that

failure to disclos~ would result in a dismissal of the

ch~rges. Thus, the Commonwealth was on continuous notice of

the request since August of 2015. See attached Order, dated

March 311 2016.

The Commonwealth, in a Motion for Reconsidertition (filed

March 31, 2106) I:"efused to disclose CI. See attached Motion

for Reconsideration.

STANDARD OF REVIEW

The "standard of review of claims that a trial court

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erred in its disposition of a request for disclosure of an

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, informant's identity is confined to abuse of discretion."

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~ Cnrn.. v. W,=isl,jngton,

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2013 PA Super 51, 63 A.3d 797, 801 (2013),

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i:i citing Com. v. Withrow, 932 A.2d 138, 140 (Pa.Super..2007).

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STATEMEN'l' OF LAW

"The first requirement in support of a petition to compel

disclosure of a confidential informant is that the defendant

demonstrate that production of the informant is material to

his defense." Com. y, Ros~, IJ2tJ l?a. Super. 570, 574, 623 A.2d

827, 829 (1993).

"The second requirement for disclosing the identity of a

confidential informant is that the request must be

reasonable." ~QID, v. Boss, 424 Pa. Super. 570, 575, 623 A.2d

827, 829 (1993).

"r.'i na lly, [ third requirement] appellant's request for

disclosure of the informant must be in the interests of

justice. In reviewing thi~ requirement, this court will apply

the balancing test of Roviaro v. United States, 353 U.S. 53,

77 S.Ct. 623, J L.E:d.2d 639 (1957):

'We believe that no fixed rule with respect to disclosure

is justifiable. The problem is one that calls for

balancing the public interest in protecting the flow of

information ~gainst the individual's right to prepare his

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defense. Whether a proper balance renders nondisclosure

~ erroneous must depend on the particular circumstances of

~ each c~se, taking into consideration the crime charged,

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IL the possible defenses, the possible significance of the

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informer's testimony and other relevant factors.'"

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6 Co.m~ v. RoiJ~, 424 Pa. Super. 570, 575-76, 623 A.2d 827, 830

~ (1993), citing Com. v. Redmond at 300-301, 577 A.2d at 553

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., (quoting Roviaro v , United States, 353 U.S. 53, 60-62, 77

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E S.Ct. 623, 627-28, 1 L.Ed.2d 639, 645-46 (1957)). See also

~ Com. v. Carter at 59, 233 A.2d at 287.

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It is proper for the Court to require disclosure of a CI

" as long as production of the informant would be: ( 1)

material to the defense; ( 2) reasonable; and ( 3) Ln the

interests of justice." Cnm. v. Bedmond, 395 Pa. Super. 286,

300, 577 A.2d 547, 553-54 (1990), citing Com. v. Bon~sorte,

337 Pa.Super. 332, 355, tJ86 A.2d 1361, 1372-73 (1984). "In

analy~.i.ng the latter requirement, the Bonasorte court h8ld

that the balancing test of Roviaro v. United States, 353 U.S.

53, 77 s.ct. 623, 1 L.Ed.2d 639(1957), should be ~pplied."

Id., citing Bon21sorte, suprc1 c.1t 1372-73. "The e$sence of this

test 'is that a court confronted with a request for disclosure

of an informant's identity must balance the defendant's need

against the public interest.'" Id., citing Bonasorte, supra

at 1373.

"Specifically, Roviaro requires: [w] here the disclosure

of an informer's identity, or of the contents of his

communication is relevant and helpful to the defense of an

accused, or is essential to a fair determination of a cause,

the privilege [government's privilege to withhold identity of

confidential informants]must give way. In these situations

the trial court may require disclosure and, if the Government

withholds the information, dismiss the act:Lon."Redmond,supra.

Further, as to pretrial discovery, "[u]nder Pennsylvania

Rule of Criminal Procedure 573, a trictl court has the

discretion to require the Commonwealth to reveal the names and

addresses of all eyewitnesses, including confidential

informants, where a defendant makes a showing of material need

and r e a s orrab Le ne s s ... " r;,nm.., v, w,,tsnn, 2013 PA Super 99, 69 A. 3d

605, 607 (2013).

"The Commonwealth enjoys a qualifjed prjvilege to

wlthhold the identity of a confidential source." Cow. v.

w~~Rnn, 2013 PA Super 99, 69 A.3d 605, 607-08 (2013), citing

Com. v. Bing, f551 Pa. 659, 713 A.2d 56 (1998)]; Com. v.

Roebuck, 5115 !?a. 471, 681 A.2d 1279, 1283 n. 6 (1996). "In

order to overcome this qualified privilege and obtain

disclosure of a confidential informant's identity, a

defendant must first 0stablish, pursuant to Rule

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573 (B) (2) (a) (i), that the information sought i.s rna t e r i a I to

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~ the preparation of the defense and that the request is

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u reasonable." Watson, supra, .

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citing Roebuck, supra at 1283.

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~ "Only after the defendant shows that the identity of the

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~ confidential informant is material to the defense is the trial

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court required to exercise its discretion to determine

whether the information should be revealed by balancing

relevant factors, which are initially weighted toward the

Commonwealth." Watson, supra, citing Bing, supr.a at 58; Com.

v. Herron, 475 Pa. ~61, 380 A.2d 1228 (1977).

However, " ... we reiterate here the bedrock principle

that there ls no single determinative factor in deciding

whether disclosure of an informant's identity is required,"

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com. y. M~r~b_, 606 Pa. 254, 262, 997 A.2d 318, 322 (2010).

Furthermore, "ltJhe confrontation clause of the Sixth

Amendment to the LJnited States Constitution, applicable to

the states through the Fourteenth Amendment, provides that

'[i]n nll crimjnal prosecutions, the accused shall enjoy the

right ... to be confronted with the witness against hlm.'"

Com. v. Dyarm~n, 2011 PA Super 2115, 33 A.3d 104, 106 (2011),

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Also, "Article I, Section 9 of the Pennsylvania

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s p r o s e cu t i oris the accused hath a right ... to be confronted with

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~ the witnesses aqa i ns t him ... '" Com, v, Yohe, 621 Pa. 527, 5411,

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~ 79 A.3d 520, 531 (2013).

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OPINION

As to whether the Commonwealth is required to reveal the

CI, this Court havjng heard argument by Mr. Cicconl, Esq.,

representing the Commonwealth and Mr. Cancelmi, Esq.,

representing the Defendant ln determining whether the name of

a CI should be revealed to the Court starts with the

Constitutional Right of the Defendant to face his accuser,

granted in both the United States and Pennsylvania

Constitutions balanced against the need of the Commonwealth

to seek information from confidential sources that allow the

free flow of information.

"One of the factors to weigh is the need for the

Defendant to prepare a proper defense. Delay in the

prosecution of any case creates the distinct possibility that

prejudice can occur to either side, however, since the

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Commonwealth is always in charge of controlling the timing of

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the prosecution the Court believes that in weighing the

~ factors the Defendant's Constitutional Right to face his

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5;J accuser under these circumstances outweighs the bald assertion

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~ that the revealing of Cl may place the C! in some danger and

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= the Commonwealth's assertion that three of the team of

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arresting officers do not recall who the CI is and also the

Defendant's indication through Defense counsel that his

defense may be one of entrapmcnt.u (Court Order, dated March

31, 2016, and att~ched hereto) This Court considered that the

er allegedly used in this case, was u~ed five years ago.

During the Pre-trial Hec1ring, the Commonwealth Attorney

shared with the Court that three (3) of the Officers can not

remember who the CI was in this case. This Court notes that

the significant time delay, the natural failing memories of

the Officers, the closeness of the CI to this transaction, and

the Defendant's denial of involvement, were also considered.

Moreover, the CI and the arresting officer are intrinsic to

the transaction and therefore obviously material to the

defense.

During discussions relating to the identity of the CI in

this case, Defense Counsel stated, "fw)ell I'm told there's no

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answer to one of my questions. Because one of the teams says A

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~ was the in.ormant, and three of the teams say no, it

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ci de f in tt.e l y wasn't A, but we don't know who it was ... '' Id. at

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~ 11:5-8. Thereafter, Commonwealth stated, "I'm not, I don't

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I~ think anybody knows who the informant was now, or they're not

telling me. But the name that I got told, the name that was

told to me by someone who wasn't even part of the team, now

everyone says isn't the guy." Id. at 11:11-15.

Furthermore, Defense counsel stated, " ... this is the

only man, this man is in the vehicle at the time that Mr.

Mitchell supposedly says that Uphold is giving him drugs ... This

is the only witness for five ye~rs." Id. at 12:7-13.

It is also acknowledged that, on the eve of trial the

Commonwealth br.ought to this Court's attention that there was

actually an evidence envelope that was not previously

disclosed. Id. at 18:21-23. Therefore, it is recognized that

the issue of prejudice is highly relevant to this case.

Specifically, with regar.d to the Defense being hampered by not

having proper discovery.

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The Commonwealth stated(regard:i.ng the Officers involved

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~~ with this case), "[w]e can't tell you precisely who the person

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~ was ... You know, it's been a long time ago and we do a lot if

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~.J these ... " Id. at 21:24-25, 22:2-3. 'I'h e Commonwealth thereafter

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~ said they thought they knew who the CI was, that they had his

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8~ cell phone number, and he could call the CI. Id. at 25:3-4.

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The District Attorney later acknowledged that the

Commonwealth knew of and refused to disclose the CI.

The Court considered that the lead Detective of thls case

maintained that he did not know who the CI was, nor did other

members of the team. Furthermore, this Court recognized that

the objections to the matters of discovery and remedies

available are clearly within the discretion of the Court, and

were properly considered.

Moreover, regarding the first requirement, that the

defendant demonstrate that production of the informant is

rnaterjal to his defense, based on the aforementjoned, this

Court found that the Defendant met this burden.

With regard to the second requirement, that the request

must have been reasonable, based on the aforementioned, this

Court found that the Defendant met this burden.

~ Regarding the third requirement, that the request for

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~ disclosure must have been in the interests of justice, after

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O reviewlng this requirement and applying the balancing test of

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Roviaro, based on the aforementioned, this Court found that

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, the balance was in favor of the Defendant, and the disclosure

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'"= of the CI was in the interest of justice.

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As stated previously, there is no fixed rule and when

balancing the public interest in protecting the flow of

i n Lorma t i.on ag21ins t the individual 's right to p:r.epa re hi.s

defense, the particular circumstances of each individual case

must be taken into consideration. This Court asserts that the

ruling to disclose the identity of the CI was within the sound

discretion of the Court after careful review 0£ the case

particuldr ftlcts dnd circumstances.

Furthermore, the Commonwealth raised the issue t ha t the

Commonwealth should not have been required to disclose based

on the Defendant's untimely request.

The Court notes that Rule 573 of the Rules of Procedure

grant great latitude in allowing the Court to extend pretrial

and discovery deadlines and the Rule contemplates a continuing

duty to disc1ose and therefore the Commonwealth's argument is

~ without merit.

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~ Also, this Court recognizes that the Commonwealth enjoys

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~ a qualified privilege to withhold the identity of a CI, and

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~ that the Defendant must overcome this privilege. This Court

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~ found the Defendant's request for disclosure of the CJ was

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i material to his defense and that this request was reasonable.

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Furthermore, this Court then exercised its discretion and

balanced the facts and circumstances of the case; ultimately

finding the request for disclosure outweighed the

Commonwealth's refusaJ..

Purthermorc, in weighing the factors as outlined above,

and considering all relevant factors, this Court found that

the Defendant's Constitutional RJghts to confrontation

outweJghed the Commonwealth's interest in e s t ab l i.ah i.nq free

communication with its CI (this particular Cl being used some

five years ago). As the Commonwealth was on notice and refused

to comply, the appropriate rem~dy in exercising sound

discretion was a dismissal of the charges.

CQNCLUSX.ON

The Court did not err in requiring the disclosure of the

confidential jnformant, ultimately resultin in a dismissal

of the charges.

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~0 ATTEST:

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IN 'l'HE COURT OF COMMON PLEAS OF GREENE COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA )

)

v, ) No 224 CR 2015

)

)

ROBERT MARSHALL UPHOLD, )

)

DEFENDANT )

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AND NOW this 31st day of March, 2016, there being a

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continuing request for discovery in the above captioned case

the matters having been chiefly resolved with the exception

of whether the Commonwealth is required to reveal the

Confidential Informant the Court having heard argument by

M:c. Cicconi, Esq., repreoenting the Conunonwoalth and Mr.

Cancelmi, Eoq., representing the Defendant in determining

whether the name of a Confidential Informant ~hould bo

rovoaled the Cou~t $tarts with the constitutional right of

the Defendant to face his accuser granted in both the United

States and Pennsylvania constitutions balanced against the

need of the Commonwoa1th to ceok information from

confidential sources that allow the free flow of information

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and allow the prosecution of other crimes. The Court must

strike a balance in the interest of justice in deciding

those factors. The Court is aware that this case is based on

allegations that happened in 2010 that charges were filed

against and later dismissed and charges were then refilled a

day short of the five year statute of limitations. One of

the factor~ the weighs is the need for the Defendant to

prepare of proper defense. Delay in the prosecution of any

case creates the distinct possibility that prejudice can

occur to eithe~ side, howeve~, since the Commonwealth is

always in charge of controlling the timing of the

prosecution the Court believes that in weighing the facto~s

the De£endant'~ con~titutional right to face his accuser

under these circumstances outweighs the bald assertion that

the revealing of confidential information may place the

Confidential Informant in oome danger and the Commonwealth's

aosertion that three of the team 0£ arresting officers do

not recall who the Confidential Informant is and also the

Defendant's indication through Defense counsel that his

defense may be one of entrapment. In balance the Court,

considering all factors necessa~y, ORDERS the Commonwealth

to immediately rovoal to Barry Cancelmi, Esq., attorney for

the Defendant the name and whereabouts of the Confidential

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Informant to allow the Defendant to prepare a proper defense

in his trial. Case law indicates that failure to reveal the

confidential info:r:mant may result in the dismissal of

charges.

SO ORDERED AND DECREED

ATTEST:

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IN THE COURT OF CUMMON PLE/\S OF CiREENE COUNTY, PENNSYLVANIA

COMMONWE/\LTI-1 or PENNSYLV ANlA )

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vs. ) NO. 224 CRIM. SESS., 2015

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ROI)ERT UPHOLD, )

Defendant. )

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MOTTON FOR RECONSIDERATION : .:·~·-1,

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AND NOW comes the Commonwealth, by and through the District Attorney of Grc~1}c

County, and respectfully sets forth the following in support of the within Motion: ·-·1

I. Th1.: Dclcndunt filed a motion on March 28 2016, to inter alia, compel the

Commonwealth to disclose the identity of its Confidential Informant, four ( 4)

days prior to the scheduled trial in this matter.

2. The Court entered an Order on March 31, 2016 ordering the Commonwealth

to disclose the identity of the Confidential tnforrnant (copy attached).

3. Commonwealth provided Formal Discovery on August 24, 2015, in response

to Defendant' s Formal Discovery Request on August 17, 2015, and Defendant

was Formally Arraigned on August 31, 2015 (sec attachments).

4. Any Omnibus pretrial motion with regard to the Defendant's discovery

motion should have been filed within 30 days of Formal Arraignment in

accordance with Pa. Ruic of Criminal Procedure 579, unless opportunity did

not exist or the defendant or defense attorney or attorney for the

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Commonwealth was not aware of the grounds for the motion or the time to

file has been extended by the Court.

5. It docs not appear that any or these exceptions to Rule 579 arc present in the

current matter.

6. Furthermore, in its motion to Compel Disclosure, the Defendant has not

shown that there is a reasonable possibility that the Confidential informant

could bring forth evidence exonerating the Defendant, as required by

established case law (Commonwealth v. Watson, 69 A.3d 605, 2013 PA Super

99, 2013, Commonwealth v. Roebuck, 545 Pa. 471~ 681 A.2d 1279, 1996), in

that, it is nut alleged that the Confidential Informant was present when the

exchange of drugs allegedly took pince.

7. The Commonwealth believes this Honorable Court erred by directing

disclosure of the Confidential Informant and the Commonwealth, accordingly,

will not disclose said in formation to Defense Counsel.

8. The Commonwealth stands ready for trial of th.is case on April 1, 2016.

WHEREFORE, The Cornrnonwculth respectfully requests this Honorable Court Lo

reconsider its March 31, 2016 order.

Respectfully submitted:

D,tl<!: March 31, 2016

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Attorney fo1t.,~ommonwcalth