# Com. v. Uphold, R. > Superior Court of Pennsylvania · March 13, 2017 URL: https://www.frixlaw.com/law-library/cases/4152107 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** March 13, 2017 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4152107 ## Opinion text J-A33017-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. ROBERT MARSHALL UPHOLD, JR.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 -2- 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. ... -3- 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 -4- 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. -5- 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 -6- 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. ) ~ S STATEMENT PUR§UANT TO Pa, R.A.P. 192~ ~ ~ Matter comes before the Court on the Commonwealth's appeal ~ I- ll i1 from this Cou.r t' s dismissal of charges after. the Commonwe a.l th ~ 6A r'e f u s e d to disclose the. identity of Confidential Informant ~ ~ (hereinafter "CI"). ."' IB 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? ~ = c:r., G) C") ~,- c.._ C!:::m ·.1 ::0 ·...... == -·~ -r, .. '\ - ·.:i- a _:,' II r- .I m ""l:I :::;:;:C-,c::, ..:O -IC ..... ~:::::o -I :-E! ..- en 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 :i;, .! ~ prior to the start of the s chedu Led trial, 212 days after iJ u. . l1 \I f o rrna I arraignment and 219 days after the Commonwealth ~ ~ provided the Defendant with initial Discovery? a i:, ~ STA'l'EMENLOF FACTS F. 8 ~;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 ~ > 5 Q,.. discovery rules and the mandatory disclosure of discoverable .. ~ ',! information, and states that the "Defendant believes that the I~ i Commonwealth's failure to disclose information critical to ~ ~ ~ the defense at trial affects his ability ... to obtain a fair i: s:;; trial." Id. at 2-4. ~ 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 ~ erred in its disposition of a request for disclosure of an ~ ;, , informant's identity is confined to abuse of discretion." ! iJ •• ~ Cnrn.. v. W,=isl,jngton, ;. 2013 PA Super 51, 63 A.3d 797, 801 (2013), ',! ~In i:i citing Com. v. Withrow, 932 A.2d 138, 140 (Pa.Super..2007). a u , :, 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 :I defense. Whether a proper balance renders nondisclosure ~ erroneous must depend on the particular circumstances of ~ each c~se, taking into consideration the crime charged, ~ ~ IL the possible defenses, the possible significance of the ...0 informer's testimony and other relevant factors.'" µ, ~ 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 !.I ., (quoting Roviaro v , United States, 353 U.S. 53, 60-62, 77 D :, 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. ~ 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 ~ ~ ~ ",/. 573 (B) (2) (a) (i), that the information sought i.s rna t e r i a I to ~i.. ~ the preparation of the defense and that the request is ~ ~ u reasonable." Watson, supra, . . citing Roebuck, supra at 1283. 3 ~ ~ "Only after the defendant shows that the identity of the e ~ confidential informant is material to the defense is the trial ~ 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," - 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), ~1 ;f, f; ' si, 6 21 Pa . 8 8 , 7 3 l\ . 3 d 5 6 5 ( 2 O 13 ) . ~ ~ ~ Also, "Article I, Section 9 of the Pennsylvania . ffi II, u Constitution, it similarly provides: 'In all criminal ~n: tii s p r o s e cu t i oris the accused hath a right ... to be confronted with 3! ~ Also, this Court recognizes that the Commonwealth enjoys [J u ~ a qualified privilege to withhold the identity of a CI, and ~ ~ ~ that the Defendant must overcome this privilege. This Court ~ i) 0 ~ found the Defendant's request for disclosure of the CJ was ~ i material to his defense and that this request was reasonable. ~ 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. ~ ), ~ rJ ~0 ATTEST: liu: ~ ~ , !] l IN 'l'HE COURT OF COMMON PLEAS OF GREENE COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA ) ) v, ) No 224 CR 2015 ) ) ROBERT MARSHALL UPHOLD, ) ) DEFENDANT ) .1: :~·· ..n ••. i;_:)- • ,,J_ i ...- ORDER ·.....: •,-.' . . .. J ·"~ ~ i;1 !I, u, . u ~! ~A _, ~ \I !l :J ,_1' f~ (~ r- ~ . ,........... IN THE COURT OF CUMMON PLE/\S OF CiREENE COUNTY, PENNSYLVANIA COMMONWE/\LTI-1 or PENNSYLV ANlA ) ) vs. ) NO. 224 CRIM. SESS., 2015 ) ROI)ERT UPHOLD, ) Defendant. ) I"• ,I ,- I .:,-, • J ('°) ,. ,!"''- I•' J",i ......: ... J MOTTON FOR RECONSIDERATION : .:·~·-1, ' ,-- Io, .- I " I• - .... r,•1 ·,;-,; Cl .. __ c, 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 I~,·· ; I l I/ 1' I - I •• ti ; ' I,),.·~ I ,-. 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