Com. v. Carter

• Decision Date: 26 September 1967
• Citation: 427 Pa. 53,233 A.2d 284
• Parties: COMMONWEALTH of Pennsylvania v. Melvin CARTER, Appellant.
• Court: Pennsylvania Supreme Court

Page 284

233 A.2d 284

427 Pa. 53

COMMONWEALTH of Pennsylvania v. Melvin CARTER, Appellant.

Supreme Court of Pennsylvania.

Sept. 26, 1967.

Leonard Packel, Defender Associate, Philadelphia, for appellant

John A. McMenamin, Asst. Dist. Atty., for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

Pennsylvania decisions have long recognized that in criminal trials the prosecution is not absolutely bound to call to the stand all available and material eyewitnesses. Commonwealth ex rel. Sprangle v. Maroney, 423 Pa. 589, 225 A.2d 236 (1967); Commonwealth v. Horn, 395 Pa. 585, 150 A.2d 872 (1959); Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540 (1951); Commonwealth v. Deitrick, 221 Pa. 7, 70 A. 275 (1908). ¹ On the other hand, a number of decisions clearly indicate that when the Commonwealth does not call to the stand such an eyewitness, it must apprise the defense of the witness's name and whereabouts at trial, unless the defense is able or should have been able to procure the witness unaided. Commonwealth v. Giacobbe, 341 Pa. 187, 19 A.2d 71 (1941); Commonwealth v. Karamarkovic, 218 Pa. 405, 67 A. 650 (1907); Commonwealth v. Danz, 211 Pa. 507, 522, 60 A. 1070, 1075 (1905). ² Unquestionably, this latter precept is derived from deeply rooted concepts of the proper role of the prosecution in criminal litigation and of the principles of fair trial. See Commonwealth v. Palermo, supra; Commonwealth v. Cramer, 168 Pa.Super. 1, 76 A.2d 661 (1950). The instant appeal presents to our Court for the first time the question of whether and to what extent a governmental privilege to refrain from disclosing the identity of an informer limits the prosecution's duty to make available to the defense the name and whereabouts of all material eyewitnesses. ³ The issue arises in the following factual setting.

Appellant, Melvin Carter, was indicted for felonious possession and sale of narcotic drugs in January, 1966. At a jury trial in February, 1966 the prosecution's principal witness was Norton Wilder, a Philadelphia policeman. Wilder testified that, while acting as undercover agent on October 18, 1965, he was introduced to Carter by an informer and that appellant sold to the informer in Wilder's presence and for Wilder $36.00 worth of heroin. LaForrest Russell, an agent for the Federal Bureau of Narcotics, testified that while sitting in a car parked a half block away, he observed Wilder, appellant and the informer in conversation at the time and place of the alleged sale. Russell stated that although he was unable to see the narcotics transaction, he did recognize Carter. Between October 18, 1965 and appellant's arrest on December 15, 1965 neither Wilder nor Russell had further contact with appellant as far as the record shows. Thus the identification of appellant by both witnesses was based solely on a single meeting.

During the cross-examination of Officer Wilder, appellant's attorney asked him to disclose the name of the informant. An objection to this question by the prosecutor was sustained by the trial judge. Following the close of the Commonwealth's case, the defense moved to have the case dismissed because of the failure of the Commonwealth to provide the defense with the informant's name. This motion was denied.

The defense consisted solely of appellant's claim of mistaken identity, i.e., that Carter had not sold narcotics during the time in question and had never met Officer Wilder prior to his arrest. The trial court called the attention of the jurors to the 'unexplained absence of a material witness' and charged them that they might 'infer that if he were called and did take the witness stand that he would not testify in such a manner as to help the Commonwealth's case.' The jury, however, returned a verdict of guilty and appellant was sentenced to five to ten years imprisonment. After the filing and denial of post trial motions, the conviction was appealed to the Superior Court. That court, with Judges Jacobs and Hoffman dissenting, affirmed the conviction, Commonwealth v. Carter, 208 Pa.Super. 245, 222 A.2d 475 (1966), and a petition for allowance of appeal to us was filed and granted. We reverse.

In his brief on appeal, appellant relies chiefly on the rule, stated above, requiring the prosecution to provide the defense with the names and whereabouts of all material eyewitnesses and on Rovario v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). ⁴ In Roviaro the Supreme Court of the United States reversed a conviction for illegal transportation of narcotics because of the government's refusal to disclose at trial the identity of an informer who was a material eyewitness to the alleged illegal act. As in the instant case, the informer in Roviaro was the only material witness to the alleged narcotics transaction besides the police and the accused himself. On the other hand, there were several circumstances in Roviaro that differ from those present here. To begin with the government admitted in Roviaro that the informer, when confronted with the accused at the police station following the accused's arrest, denied having met the accused before. Secondly, none of the four policemen who testified against Roviaro was in a position both to see and hear the entire narcotics transaction as was Officer Wilder. Thirdly, the accused did not testify in Roviaro, so that it is not certain whether the testimony he would have sought from the informer would have tended to establish mistaken identity, entrapment or some other defense. Finally, in Roviaro there is a suggestion that the police officers had been acquainted with the accused previous to the alleged narcotics transaction so that their identification did not depend on a single observation of the accused.

It is readily apparent that the first two of the above circumstances in Roviaro make the testimony of the informer there more material to the defense in that case than in the instant one and that the latter two make the testimony less so. Thus a close analytical comparison of the facts of each case seems unlikely to yield a clear suggestion as to how the instant case should be decide were Roviaro controlling law. Far more significant to our consideration, we believe, are the following statements by the Supreme Court of the United States of the principle under which Roviaro was decided:

'A further limitaton 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 requrie disclosure and, if the Government withholds the information, dismiss the action. * * *

'We believe that no fixed rule with respect to disclosure is justifiable. The problem is on 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.'

(Footnotes omitted.) 353 U.S. at 60--62, 77 S.Ct. at 628--629. ⁵

Those aspects of the Roviaro test which concern the value of the informer's testimony to the accused point clearly toward reversal of the appellant's conviction. Thus, it may hardly be gainsaid that disclosure of the informer's identity would be 'relevant and helpful to the defense.' Similarly, in light of the limited opportunity which Officer Wilder and Agent Russell had to observe the narcotics seller in the transaction alleged and in light of the questionable reliability of such identification evidence based on a single observation, cf. United States v. Wade, 388 U.S. 218, 228--233, 87 S.Ct. 1926, 1933--1935, 18 L.Ed.2d 1149 (1967); Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), we believe that a 'consideration' of 'the possible defenses' and of 'the possible significance of the informer's testimony' weigh the balance heavily in favor of reversal. For much the same reasoning, we have little doubt that the Pennsylvania rule requiring the prosecution to make the names and whereabouts of Material eyewitnesses available to the defense, at least when considered in isolation, requires reversal of the instant conviction.

In an able and exceptionally literate brief, the Commonwealth seeks to distinguish Roviaro and to show that law enforcement experience, especially that since the decision Roviaro in 1957, justifies an extremely restrictive reading of the case and of our established Pennsylvania rule. We shall consider each of these arguments in some detail.

In our view the only significant distinction between Roviaro and the instant case upon which the Commonwealth relies is the fact that in the instant case the informer was not the only eyewitness to the entire transaction whereas in Roviaro he was. The Commonwealth argues that the significance of this distinction is substantiated by three lower federal court decision interpreting Roviaro: United States v. Coke, 339 F.2d 183 (2d Cir. 1964); United States v. Simonetti, 326 F.2d 614 (2d Cir. 1964) (per curiam); and Washington v. United States, 275 F.2d 687 (5th Cir. 1960). In our view, however, the decision of none of these cases turns directly on the 'sole eyewitness' distinction. Thus in Coke the informer merely introduced the government agent to the defendant who was identified by witnesses other than the police, and the Informer did not observe the entire transaction; ⁶ in Simonetti the court failed to describe the circumstances which led it to hold the informant's testimony...