Com. v. Bing

• Decision Date: 19 May 1998
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Frederick M. BING, Appellant.
• Court: Pennsylvania Supreme Court

Page 56

713 A.2d 56

551 Pa. 659

COMMONWEALTH of Pennsylvania, Appellee, v. Frederick M. BING, Appellant.

Supreme Court of Pennsylvania.

Submitted Dec. 12, 1996.

Decided May 19, 1998.

[551 Pa. 660] Stephen D. Kulla for Frederick M. Bing.

John F. Nelson for Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION OF THE COURT

CASTILLE, Justice.

The issue before this Court is whether appellant should be granted a new trial where the trial court refused to order the Commonwealth to disclose to appellant the identity of a confidential informant involved in one of appellant's drug transactions. We affirm the order of the Superior Court and hold that the trial court did not abuse its discretion by refusing to order the Commonwealth to identify the informant.

The relevant facts are as follows: In conjunction with the Franklin County Drug Task Force, the Pennsylvania State Police conducted undercover investigations into the sale of controlled substances in Franklin County. The police employed confidential informants to identify areas in the county where there was drug activity. As a result of these investigations, appellant was arrested and charged with six counts of delivery of a controlled substance for selling cocaine to three undercover state troopers on six separate occasions. The trial court granted appellant's subsequent motion to sever. In accordance with appellant's request, all charges were to be tried separately except for charges pertaining to two transactions which occurred on the same day. The issue in this matter arises from appellant's non-jury trial on the two counts of drug delivery which occurred on September 23, 1993.

In the first transaction, Pennsylvania State Police Officer Paulette Crosby was working in an undercover capacity at 8:15 p.m. at the intersection of Black Avenue and Liberty Street in Chambersburg Borough. Trooper Crosby was driving an unmarked vehicle with a confidential informant in the passenger seat. After spotting appellant on a bicycle talking to another man and a woman, the trooper drove toward the group and stopped her vehicle. Appellant walked over to the passenger side of the vehicle and asked the informant if Trooper Crosby was "his girl." Trooper Crosby asked appellant if he had "a sixty," meaning sixty dollars worth of crack cocaine. Appellant left briefly, returned to the vehicle several minutes later, and passed three pieces of crack cocaine to the informant in exchange for sixty dollars. The informant handed the cocaine to Trooper Crosby. At trial, Trooper Crosby positively identified appellant as the person who had sold her the drugs. Trooper Crosby also identified appellant as the individual from whom she had purchased drugs on two prior occasions.

The second drug transaction for which appellant was convicted occurred on the same date. Shortly before 10:00 p.m., Pennsylvania State Police Officer Crystal Rodgers, working undercover in an automobile with a different confidential informant in the back seat, approached appellant in a parking lot of a Chambersburg market. Appellant was again on his bicycle, speaking to an unknown individual. Appellant asked Trooper Rodgers what she wanted, and she asked for "a hundred," meaning one hundred dollars worth of crack cocaine. After entering the front passenger seat of the vehicle, appellant took out a piece of crack cocaine and placed it on his thigh. Trooper Rodgers took the cocaine and handed appellant ten $10.00 bills. At trial, Trooper Rodgers positively identified appellant as the person who had sold her cocaine. In addition, Trooper Rodgers testified that she knew appellant from an earlier incident on September 9, 1993, when appellant had also sold her drugs.

Immediately following each sale, the troopers dispatched a description of appellant over police radio to Corporal Richard Swartz of the Chambersburg Borough Police, who was assisting the Franklin County Drug Task Force as part of his normal police duties. The troopers described appellant as a black male, with an Afro-type haircut and beard, wearing a black leather cap and tan pants. Additionally, Trooper Crosby, who knew appellant as "Butch" from her prior drug dealings with him, dispatched to Corporal Swartz that appellant went by that name. In each instance, Corporal Swartz proceeded to the area of the drug transaction and located appellant on his bicycle. At trial, Corporal Swartz unequivocally identified appellant as the person matching the suspect's description in the area of the crime on the night in question.

Appellant filed a motion to compel the disclosure of the identity of the confidential informant involved in the 10:00 p.m. drug sale with Trooper Rodgers, which the trial court denied. ¹ Following a non-jury trial, appellant was convicted of two counts of delivery of a controlled substance. The Superior Court affirmed the judgment of sentence. ² Appellant filed a petition for allowance of appeal in this Court, alleging that the trial court improperly denied his motion for disclosure of the identity of the confidential informant. ³ This Court granted allocatur, and we now affirm.

Appellant claims that he was misidentified and that the informant would corroborate this assertion. Pennsylvania Rule of Criminal Procedure 305(B)(2)(a) provides in pertinent part:

Discretionary With the Court. In all court cases, except as otherwise provided in Rule 263 (Disclosure of Testimony Before Investigating Grand Jury), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant's attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense and that the request is reasonable:

(a) the names and addresses of all eyewitnesses[.]

This Court has adopted the guidelines articulated by the United States Supreme Court in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), to guide trial courts in the exercise of their discretion in cases where, as here, the defendant requests the identity of a confidential informant who is also an eyewitness:

We believe that no fixed rule with respect to disclosure [of the confidential informant's identity] 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 the 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.

Commonwealth v. Carter, 427 Pa. 53, 59, 233 A.2d 284, 287 (1967), (quoting Roviaro, at 60-62, 77 S.Ct. 623).

In Carter, this Court held that the balance tips in favor of disclosure where guilt is found solely on police testimony based on a single observation, where testimony from a more disinterested source, such as the informant, is available. Id. at 61, 233 A.2d at 287. However, where other corroboration of the officer's testimony exists, disclosure of the informant's identity is not necessarily required. Id. at 59, 233 A.2d at 287. This Court also 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.; Commonwealth v. Herron, 475 Pa. 461, 380 A.2d 1228 (1977). Also, the safety of the confidential informant is a controlling factor in determining whether to reveal his identity.

Further, before an informant's identity may be revealed, the defendant must establish pursuant to Pa.R.Crim.P. 305(B) that the information sought is material to the preparation of the defense and that the request is reasonable. Commonwealth v. Roebuck, 545 Pa. 471, 477, 681 A.2d 1279, 1283 (1996). Only after a showing by the defendant that the information sought is material and the request reasonable is the trial court called upon to exercise its discretion to determine whether the information is to be revealed. Id. at 478, 681 A.2d at 1283.

In prior cases in which this Court has required the identity of an eyewitness informant to be revealed, the guilt of the defendant was established solely through the testimony of police officers who had viewed the defendant only a single time, or through the uncorroborated testimony of a single officer. For example, the appellant in Carter was convicted of selling narcotics to an informant in the presence of an undercover officer. At trial, the only Commonwealth witnesses were the purchasing officer and an agent for the Federal Bureau of Narcotics who was sitting in a car parked half a block away at the time of the sale. Not only were the identifications of the appellant by both witnesses based on a single viewing, but the defense consisted solely of appellant's claim of mistaken identity. Under these circumstances, this Court held that the trial court's refusal to order the Commonwealth to disclose the name of the confidential informant constituted reversible error.

In Commonwealth v. Payne, 540 Pa. 54, 656 A.2d 77 (1994), the appellant sold cocaine to an undercover Pennsylvania State Trooper in the presence of an informant. The appellant was not arrested until seven months after the incident. At trial, the officer, who had never encountered the appellant before, was the only prosecution witness. The appellant raised a mistaken identity defense, testifying that he had not met the trooper prior to his arrest and that he had not been in the apartment complex where the incident occurred. Because of the single viewing of appellant by a single...