The opinion
J-S27004-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMAL JACKSON :
:
Appellant : No. 125 EDA 2017
Appeal from the Judgment of Sentence December 1, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000104-2016
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY SHOGAN, J.: FILED JULY 19, 2018
Appellant, Jamal Jackson, appeals from the judgment of sentence
entered on December 1, 2016, in the Philadelphia County Court of Common
Pleas. We affirm.
In its May 1, 2017 opinion, the trial court set forth the facts and
procedural background of this case as follows:
On October 28, 2015, Philadelphia Narcotics Officer Michael
Brown and another officer went to the 1200 block of South
Bucknell Street in Philadelphia where they focused their attention
on a residence located at 1252 South Bucknell Street. While so
engaged[,] Officer Brown met with a [confidential informant (“the
CI”)]. (N.T. 13-14). During the meeting, Officer Brown searched
the CI and after ascertaining that he/she did not have money or
contraband in his/her possession, gave the CI $40.00 in
prerecorded “buy” money. The CI proceeded to 1252 South
Bucknell Street and knocked on the door, which was answered by
Appellant. Upon answering the door, Appellant walked out of the
house and engaged the CI in a short conversation. When it ended
both the CI and Appellant went inside the residence.
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The CI emerged approximately three minutes later and
immediately returned to Officer Brown, who remained in the area
and saw the CI enter and then exit the residence. The [CI]
surrendered a bag filled with what testing revealed to be
marijuana to Officer Brown, who thereafter placed that bag and
its contents on a property receipt.
On October 29, 2015, Officer Brown again went to [the]
1200 block of South Bucknell Street and met with the same CI he
had used the previous day. Again, the CI was searched with
negative results, given pre-recorded “buy” money, and directed
to go to 1252 South Bucknell Street. As occurred the previous day
Appellant answered the door and after engaging the CI in a short
conversation, he ushered the CI into the residence. Five minutes
later the CI emerged, returned to Officer Brown, and handed him
a bag filled with what testing revealed to be marijuana.
On October 30, 2015, Officer Brown secured a search
warrant for 1200 block of South Bucknell Street, which was
executed at about 3:25 p.m. that day. Upon arrival police
encountered Appellant standing outside the residence and placed
him in custody. A search of Appellant resulted in the seizure of
$512.00 from him. The police then entered the residence and
ascertained that the building was being used as a boarding house
and that Appellant rented a first floor front room.1 Police limited
the search of the residence to that room and it yielded two large
laundry bags filled with what testing revealed to be marijuana,
three digital scales, two cell phones, and one box of unused
sandwich baggies. Also recovered were pieces of mail addressed
to “Jamal Collier” at that residence and $1,148.00 in U.S
currency.2
1 At the time the warrant was executed police
encountered three people in a second floor middle
bedroom.
2 Following his arrest Appellant gave the police the
name Jamal Collier.
Appellant testified in his own defense. He denied that he
sold drugs or participated in the sales to the CI. He further stated
that he resided in the front bedroom and that the money police
seized from inside the room was income from his job.3
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3 The non-hearsay relevant testimony given during the
hearing on Appellant’s CI motion was admitted by way
of stipulation in Appellant’s trial.
Trial Court Opinion, 5/1/17, at unnumbered 2-4.
On December 1, 2016, following the denial of a motion to
reveal the identity [of the CI] and a waiver trial before this [c]ourt,
Appellant was found guilty of Manufacture, Delivery, or Possession
With Intent to Manufacture or Deliver Cocaine (hereinafter
“PWID”), 35 P.S. § 780-113 (A)(30), Knowing and Intentional
Possession of a Controlled Substance, 35 P.S. § 780-113 (A)(16),
and Use or Possession of Drug Paraphernalia, 35 P.S. § 780-113
(A)(32)[.] That same day, following the recording of the verdict,
this [c]ourt imposed a sentence of three years’ probation on the
PWID conviction upon Appellant and entered verdicts without
further penalty on the remaining two charges.
Trial Court Opinion, 5/1/17, at unnumbered 1-2.
Following the imposition of sentence on December 1, 2016, Appellant
filed a timely notice of appeal on December 30, 2016. Both Appellant and the
trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant presents the following issue for this Court’s
consideration:
Did the lower court err in denying [A]ppellant’s Motion to
Reveal Identity of Confidential Informant because 1) [A]ppellant
satisfied his burden that his request was material and reasonable
by presenting evidence raising a defense of mistaken identification
and fabrication; and 2) the Commonwealth failed to show any
“reasonably specific type of danger” to the specific informant in
this matter if the identity were disclosed?
Appellant’s Brief at 3.
Our standard of review of claims that a trial court erred in its disposition
of a request for disclosure of a CI’s identity is confined to abuse of discretion.
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Commonwealth v. Watson, 69 A.3d 605, 607 (Pa. Super. 2013) (citation
omitted). Pursuant to Pennsylvania Rule of Criminal Procedure 573, a trial
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 reasonableness.
Commonwealth v. Marsh, 997 A.2d 318, 321-322 (Pa. 2010) (citing
Pa.R.Crim.P. 573(B)(2)(a)(i)).
The Commonwealth enjoys a qualified privilege to withhold
the identity of a confidential source. In order to overcome this
qualified privilege and obtain disclosure of a confidential
informant’s identity, a defendant must first establish, pursuant to
Rule 573(B)(2)(a)(i), that the information sought is material to
the preparation of the defense and that the request is reasonable.
Only after the defendant shows that the identity of the 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.
In striking the proper balance, the court must consider the
following principles:
A further limitation on the applicability of the privilege
arises from the fundamental requirements of fairness.
Where 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 must give
way. In these situations, the trial court may require
disclosure and, if the Government withholds the
information, dismiss the action.
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
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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.
Marsh, 997 A.2d at 321-322 (some internal citations and internal brackets
omitted). The Supreme Court stated that it “has repeatedly recognized the
importance of the Commonwealth’s qualified privilege to maintain the
confidentiality of an informant in order to preserve the public’s interest in
effective law enforcement.” Id. at 324 (citation and internal quotation marks
omitted). The Supreme Court noted that the safety of the CI is a controlling
factor in determining whether to reveal his identity. Id. Appellant need not
predict exactly what the CI will say, but he must demonstrate a reasonable
possibility the CI could give evidence that would exonerate him; Appellant
must establish more than a mere assertion that disclosure of the CI’s identity
“might be helpful.” Commonwealth v. Belenky, 777 A.2d 483, 488 (Pa.
Super. 2001).
The trial court found that Appellant arguably met his burden of
establishing that disclosure of the CI’s identity was material to his defense.
Trial Court Opinion, 5/1/17, at unnumbered 5. However, that does not
complete the relevant analysis because additional factors must be considered
before the identity of a CI is revealed. Marsh, 997 A.2d at 321-322. The trial
court stated:
Instantly, Appellant arguably met his burden as outlined
above. Nevertheless, it is submitted that this [c]ourt’s order
should be affirmed because the Commonwealth established that
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the CI was still being used in such a capacity at the time the
hearing herein occurred and that he/she would be in danger if
his/her identity were revealed. (N.T. 12/1/16, 11).
* * *
Revelation of an informant’s identity in such circumstances would
not only jeopardize that particular informant’s safety, but would
also seriously dissuade any other potential informants from
cooperating with the police.
In the instant case, the Commonwealth presented evidence
that if the CI’s identity were revealed, his/her personal safety
would be jeopardized[,] and by implication[,] the CI’s further
usefulness to the police in investigating illegal drug sales would
be compromised. Given this, and given the fact that Appellant
failed to refute this testimony it is clear that the relevant
considerations weighed in favor of not revealing the informant’s
identity. …
Trial Court Opinion, 5/1/17, at unnumbered 5-6.
In the case at bar, Appellant correctly points out that although Officer
Brown testified that he once had a CI who was murdered, there was no
evidence that the murder directly impacted the instant case. Appellant’s Brief
at 17 (citing N.T., 12/1/16 at 11). Moreover, there was no direct testimony
that the CI in this case was in actual danger. Id.
Pursuant to the standard set forth above, the trial court was required to
engage in a balancing test. Marsh, 997 A.2d at 321-322. The trial court
concluded that the danger to the CI was real, albeit implied. Trial Court
Opinion, 5/1/17, at unnumbered 5-6. The trial court also found that disclosure
of the CI’s identity would compromise future drug investigations, and that
fact, balanced with the factors discussed above, militated against disclosing
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the CI’s identity. Id. at unnumbered 6. Additionally, the trial court opined
that disclosing the CI’s identity under these circumstances would dissuade
other potential informants from cooperating with the police. Id.
Although the pre-recorded buy money was not recovered from
Appellant, and while the identity of the CI may have been helpful in
constructing a defense for Appellant, we cannot conclude that the trial court
abused its discretion under the facts of this case. Officer Brown testified that
the CI went to a boarding house on South Bucknell Street to buy marijuana.
N.T., 12/1/16, at 6. Officer Brown witnessed the CI speak to Appellant outside
of the home, saw the CI and Appellant enter the house, and testified that the
CI returned with marijuana. Id. at 7. After executing the search warrant in
Appellant’s room, police discovered cash and bags of marijuana hidden under
some clothes as well as three digital scales, two cell phones, and a box of
sandwich baggies. Id. at 9-10.
After review, we agree with the trial court. Although Appellant
illustrated that revealing the CI’s identity was material to his defense, the trial
court balanced that finding with other relevant factors including the safety of
the CI and the Commonwealth’s qualified privilege to maintain the
confidentiality of a CI in order to preserve the public’s interest in effective law
enforcement. Marsh, 997 A.2d at 324. This was a determination left to the
sound discretion of the trial court, and we discern no abuse of that discretion.
Accordingly, we affirm Appellant’s judgment of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/18
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