# Commonwealth v. Roebuck

> Supreme Court of Pennsylvania · July 31, 1996 · 545 Pa. 471

URL: https://www.frixlaw.com/law-library/cases/9747385

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Nathaniel ROEBUCK, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** July 31, 1996
- **Citations:** 545 Pa. 471; 681 A.2d 1279; 1996 Pa. LEXIS 1507
- **Precedential status:** Published
- **Opinion:** Concurring in part by Castille
- **Judges:** Nix, Flaherty, Zappala, Cappy, Castille, Nigro, Newman
- **Cited by:** 40 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/9747385

## How later opinions describe it (automated extraction)

- concluding that disclosure was necessary despite presence of third party; however, record unclear as to whether the third party witness saw or heard the sale at issue and, in any event, the witness “was under indictment for [his] participation in [the sale].”
- concluding that disclosure was appropriate when the appellant sold narcotics on two occasions to an undercover officer, but the only eyewitness to the initial transaction other than the informant was a police officer

## Opinion text

CASTILLE, Justice,
concurring and dissenting.
I agree with the majority’s affirmance of appellant’s judgment of sentence arising out of the January 23, 1991 charges. However, I disagree with the majority’s conclusion that the confidential informant’s identity must be disclosed regarding the December 21,1990 incident. Therefore, I dissent.
As I stated in my concurring opinion in Commonwealth v. Payne, 540 Pa. 54 , 656 A.2d 77 (1994), the safety of the confidential informant is a controlling factor in determining whether to reveal his or her identity. Before an informant’s identity should be disclosed, however, the defendant must lay *484 an evidentiary basis or foundation that the confidential informant possesses relevant information that will materially aid the defendant in presenting his or her defense and that the information is not obtainable from another source. See Commonwealth v. Herron, 475 Pa. 461 , 380 A.2d 1228 (1977); see also, Commonwealth v. Bradshaw, 238 Pa.Super. 22, 29 , 364 A.2d 702, 706 (1975); Commonwealth v. Pritchett, 225 Pa.Super. 401, 407 , 312 A.2d 434, 438 (1973). Bare or bald assertions that the witness will aid in the defense are not sufficient. Herron, 475 Pa. 461, 466 , 380 A.2d 1228, 1230 (1977) (“more is necessary than a mere assertion by the defendant that such disclosure might be helpful in establishing a particular defense”). Although the defendant cannot be expected to predict exactly what the witness would say, he or she must demonstrate that there is a reasonable likelihood that the witness will exonerate the defendant and that the evidence is not obtainable from another source. See Commonwealth v. Knox, 273 Pa.Super. 563, 568 , 417 A.2d 1192, 1194 (1980); see also, Pritchett, 225 Pa.Super. 401, 408 , 312 A.2d 434, 438 (1973).
In the instant case, appellant failed at the pre-trial hearing and fails in his brief to this Court to demonstrate that the confidential informant would offer material evidence that would exonerate him from the crimes charged. Appellant provides absolutely nothing to support his assertion that the informant would provide testimony in support of appellant’s misidentification defense.
Nonetheless, the majority speculates that the “possible significance” of the informant’s unknown testimony cannot be underestimated because, other than Detective Kacsuta, the confidential informant was the only eyewitness to the transactions. The majority, however, ignores the record which demonstrates that appellant and Detective Kacsuta were not the only witnesses to the crimes. In fact, Keith Lee witnessed and participated in the first transaction and thereby would have been in a position to confirm or dispel appellant’s participation. Indeed, appellant himself concedes that Lee was *485 present at the first transaction. (Brief for Appellant, p. 5, n. 2).
However, appellant asserts in his brief that Lee could not be called as a witness because of “potential Fifth Amendment considerations.” 1 Notwithstanding this allegation, appellant offers only speculation at this point that Lee would have been unavailable due to Fifth Amendment considerations. Appellant did not call this witness to testify so that Lee could even assert his Fifth Amendment rights, assuming he had such rights to assert, or request that the trial court determine that the witness was entitled to invoke the privilege so as to demonstrate the merits of his claim. See Commonwealth v. Carrera, 424 Pa. 551, 553-54 , 227 A.2d 627, 629 (1967) (a witness who invokes his right against self-incrimination is unavailable only where the trial court determines that the witness’ silence is justified); Commonwealth v. Hawthorne, 428 Pa. 260, 263 , 236 A.2d 519, 521 (1968) (it is always for the court to determine if a witness’ silence is justified). Under these circumstances, I would not require the safety and confidentiality of the informant to be compromised where appellant has failed to take the necessary steps to procure the other witness to the alleged transaction. 2
The majority also overlooks the fact that Detective Kacsuta observed appellant for a significant amount of time and at a close distance during the first transaction. Within one hour of that transaction, the detective entered appellant’s name into the BCI computer and obtained a description and photograph of appellant which the detective concluded matched the person from whom she had just purchased heroin. Indeed, when *486 questioned about the second transaction, the detective testified that she immediately recognized appellant as being the same person from whom she purchased heroin the month before and the same person in the BCI photograph.
The majority opinion appears to adopt as an axiom that at trial where the only eyewitness to the entire transaction other than the confidential informant was a police officer then that fact alone militates in favor of disclosure of the informant’s identity. This unfortunate conclusion places yet another insurmountable obstacle in the path of effective law enforcement to combat the scourge of drugs in Pennsylvania’s beleaguered communities. By this decision, the majority effectively eliminates the use of confidential informants to make drug buys by a police officer acting in tandem with a confidential informant. The majority may blithely ignore the violence and mayhem surrounding the drug trafficking in our communities, but those who wish to aid the police in their enforcement efforts will now do so only at their own peril. Few confidential informants will place themselves at risk of deadly retaliation as a result of this decision.
Unfortunately, this case represents a long, nearly unbroken string of decisions from this Court that effectively shield criminal defendants from responsibility for their crimes on the theory that there exists a greater right to privacy for criminal suspects in Pennsylvania than in other jurisdictions through this Court’s strained interpretation of Article I, § 8 of the Pennsylvania Constitution. See e.g., Commonwealth v. Matos, 543 Pa. 449 , 672 A.2d 769 (1996) (where police officers approach and pursue persons who inexplicably flee on their own initiative upon the arrival of police in their area and then discard evidence or contraband, such conduct will result in suppression of the discarded items even though police did not arrest them, they did not halt to police authority, and police did not in any manner intrude upon their path of departure from the area); Commonwealth v. White, 543 Pa. 45 , 669 A.2d 896 (1995) (where police could obtain a warrant prior to searching a vehicle, evidence seized in the absence of a search warrant must be suppressed notwithstanding that officers *487 observed a marijuana cigarette in the vehicle and notwithstanding that police had probable cause to believe drugs and/or drug paraphernalia were contained therein); Commonwealth v. Banks, 540 Pa. 458 , 658 A.2d 752 (1995) (evidence must be suppressed even though veteran police officer observes what he believes to be a drug transaction in a high crime area and sees suspect flee after transaction); Commonwealth v. Brion, 539 Pa. 256 , 652 A.2d 287 (1994) (Pennsylvania citizens have a heightened expectation of privacy in their homes; therefore, Article I, Section 8 of the Pennsylvania Constitution permits one-party consensual taping of oral communications occurring within one’s home only if there has been a prior determination of probable cause by a neutral, judicial authority); Commonwealth v. Payne, 540 Pa. 54 , 656 A.2d 77 (1994) (police must disclose identity of confidential informant, notwithstanding that defendant fails to demonstrate that the informant possesses relevant information that will materially aid defendant’s defense). And now the instant case.
Therefore, I dissent from the majority opinion insofar as it compels disclosure of the confidential informant, given that appellant could have called another eyewitness and failed to do so.
. This position is curious at best especially in light of the fact that appellant made this same claim with respect to Albert Austin yet he proceeded to call Austin as a defense witness to testify at trial in connection with the second transaction.
. The incredulous nature of appellant’s defense is evident from the evidence he presented regarding the second transaction. With respect to the second transaction, appellant called Austin to testify that he was not the person selling drugs, appellant himself testified that he was not the seller, and the testimony of Ivy Edwards was offered to establish that his police photograph was misnamed. Notwithstanding all of this evidence, the jury found Detective Kacsuta’s testimony more credible.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9747385. Public record. Not legal advice.