Commonwealth v. Herron

*470 MANDERINO, Justice,

dissenting.

I dissent. An accused must “. . .be provided with an adequate opportunity to present his version of the incident to the trier of fact.” Commonwealth v. Digiacomo, 463 Pa. 449, 452 , 345 A.2d 605, 606 (1975). To protect this right, we have required the prosecution to advise the defendant of the identity and whereabouts of all known eyewitnesses, and to make those witnesses available to the defense if possible. Commonwealth v. Walak, 471 Pa. 457 , 370 A.2d 695 (1977); Commonwealth v. Digiacomo, supra; Commonwealth v. Jones, 452 Pa. 569 , 308 A.2d 598 (1973). The prosecution argues, however, that it has a right to keep the identity of its confidential informants a secret.

As aptly stated by the United States Supreme Court in Roviaro v. United States, 353 U.S. 53, 59 , 77 S.Ct. 623 , 1 L.Ed.2d 639, 644 (1957),

“What is usually referred to as the informer’s privilege is in reality 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 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.” (Citations omitted.)

Id. at 59 , 77 S.Ct. at 627 , 1 L.Ed.2d at 644 .

Faced with an accused’s challenge to the government’s refusal to reveal an unidentified informer’s name and whereabouts in Roviaro , the court concluded,

“Three recent cases in the Courts of Appeals have involved the identical problem raised here — the Government’s right to withhold the identity of an informer who helped to set up the commission of the crime and who was present at its occurrence. Portomene v. United States (CA 5th Fla.) 221 F.2d 582 ; United States v. Conforti (CA 7th Ill.) 200 F.2d 365 ; Sorrentino v. United States (CA 9th *471 Cal.) 163 F.2d 627 . In each case it was stated that the identity of such an informer must be disclosed whenever the informer’s testimony may be relevant and helpful to the accused’s defense.

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.” (Footnote omitted.)

Id. at 61-62, 77 S.Ct. at 628 , 1 L.Ed.2d at 645-646 .

The Roviaro court then analyzed the materiality of the informer’s possible testimony and concluded:

“The fact that petitioner here was faced with the burden of explaining or justifying his alleged possession of the heroin emphasizes his vital need for access to any material witness.” (Emphasis added).

Id. at 63 , 77 S.Ct. at 629 , 1 L.Ed.2d at 646-647 .

As to the relevancy of the informer’s possible testimony, the court concluded:

“The only person, other than petitioner himself, who could controvert, explain or amplify Bryson’s report of this important conversation was John Doe. Contradiction or amplification might have borne upon petitioner’s knowledge of the contents of the package or might have tended to show an entrapment.” (Emphasis added.)

Id. at 64 , 77 S.Ct. at 630 , 1 L.Ed.2d at 647 .

Roviaro adopted a balancing test when faced with the question of determining whether the government’s so-called right to withhold the identity of an informer should prevail over a defendant’s right to prepare a defense. The right to prepare a defense necessarily requires that one be afforded access to those persons who are witnesses, or who otherwise have knowledge relevant to, the alleged crime. Such access *472 is guaranteed by the Sixth Amendment to the.United States Constitution:

“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor. . . . ”

Article I, section 9 of the Constitution of this Commonwealth, guarantees one accused of crime the right

“. . .to meet the witnesses face to face [and] to have compulsory process for obtaining witnesses in his favor.

In Commonwealth v. Carter, 427 Pa. 53 , 233 A.2d 284 (1967), we held that if the disclosure of an informer’s identity is relevant and helpful to the defense of an accused, any privilege that the prosecution might have not to disclose the identity of the informer must give way. In Carter, supra, the defense presented was one of mistaken identity, and the informant was the only eyewitness to the transaction besides the testifying police officer and the accused. We stated in Carter, supra, 427 Pa. at 60 , 233 A.2d at 287 ,

. . The Pennsylvania rule requiring the prosecution to make the names and whereabouts of material eyewitnesses available to the defense . . . requires reversal of the instant conviction.” (Emphasis in original.)

The Carter rule requiring disclosure of the names and whereabouts of material eyewitnesses was based on an . . awareness that the testimonial perspective of police officers is conditioned by the ‘often competitive enterprise of ferreting out crime.’ ” Id. 427 Pa. at 61 , 233 A.2d at 288 . (Citations omitted.) Our concept of fairness requires that testimony crucial to the establishment of criminal guilt not be based on a single source “where testimony from a more disinterested source is available. . . . ” Id. 427 Pa. at 61 , 233 A.2d at 288 . (Emphasis in original.) See also Commonwealth v. Lloyd, 427 Pa. 261 , 234 A.2d 423 (1967).

*473 In Commonwealth v. Washington, 463 Pa. 206, 209-210 , 344 A.2d 496, 497 (1975), we applied the Carter rationale to a case in which the defense of entrapment was asserted, saying,

“Carter is particularly applicable to the instant case where the sole defense raised by appellant was that of entrapment. Asserting the defense of entrapment, appellant was attempting to establish that the informant was an agent of the police who had actually conceived, planned, urged the commission of the crime in the face of refusals by appellant, and then, participated in its occurrence.”

Here, as in Washington , appellant’s trial strategy was predicated on a claim of entrapment. Defense counsel stated this to the court and informed the court as to what evidence he thought might be established through examination of the unnamed informant.

Neither Roviaro , nor Washington , require the defense to present a factual summary showing that the informant’s testimony would establish an entrapment. Factually, Commonwealth v. Washington, supra, is distinguishable from the instant case. Here, unlike Washington , the defendant chose not to testify in his own behalf at trial. This, of course, he had a constitutional right to do. In Washington , the defendant chose, as a matter of trial strategy, to take the witness stand and testify as to his version of the incident. In Washington , the defense was able to supply the court with specific facts as to what it expected to accomplish once the prosecution revealed the identity of the unnamed informer. That higher degree of specificity was possible, however, because the defendant in Washington had already testified as to his version of the circumstances allegedly amounting to entrapment. Washington does not stand for the proposition that an accused must surrender the constitutional right not to testify in order to secure the identity of a prosecution informer, or that he “testify” indirectly through his attorney first. All that is necessary is that the possibility of entrapment exists, and some indication that the informant’s testimony might aid that defense. As stated in Roviaro ,

*474 “The circumstances of this case demonstrate that John Doe’s possible testimony was highly relevant and might have been helpful to the defense. . . . Doe had helped to set up the criminal occurrence and had played a prominent part in it. His testimony might have disclosed an entrapment. He might have thrown doubt upon petitioner’s identity or on the identity of the package. . . ” (Emphasis added.)

Id. at 63-64 , 77 S.Ct. at 629 , 1 L.Ed.2d at 647 .

To require appellant to provide specific facts as to these elements of the defense of entrapment (before giving him information concerning a possible material witness) infringes upon an accused’s constitutional right not to testify, and requiring his attorney to reveal information received from the defendant interferes with the integrity of the attorney/client relationship. To condition the right to discovery of the identity of a material witness upon the relinquishment of a constitutional protection is totally unacceptable to me.

As stated in Roviaro, supra, 353 U.S. at 64 , 77 S.Ct. at 629 , 1 L.Ed.2d at 647 ,

“. . . [ujnless petitioner waived his constitutional right not to take the stand in his own defense [the informant] was [the] one material witness [other than the police officers]. Petitioner’s opportunity to cross-examine [the police officers] was hardly a substitute for the opportunity to examine the man who had been nearest to him and took part in the transaction.”

When the informant is a material witness to the alleged crime, or when the informant could have knowledge of facts bearing on the accused’s guilt or innocence, the relevance of the informant’s possible testimony is for the defense, not the prosecution, to determine. As stated in Roviaro, supra, 353 U.S. at 64 , 77 S.Ct. at 629 , 1 L.Ed.2d at 647 ,

“The desirability of calling John Doe as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.”

*475 Judgment of sentence should therefore be reversed and a new trial granted.