Com. v. Redmond

• Citation: 395 Pa.Super. 286,577 A.2d 547
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. William Henry REDMOND (Two Cases).
• Decision Date: 31 July 1990
• Court: Superior Court of Pennsylvania

Page 547

577 A.2d 547

395 Pa.Super. 286

COMMONWEALTH of Pennsylvania, Appellant, v. William Henry REDMOND (Two Cases).

Superior Court of Pennsylvania.

Argued Aug. 22, 1989.

Filed May 21, 1990.

Reargument Denied July 31, 1990.

Sandra L. Elias, Deputy Dist. Atty., Media, for Com., appellant.

Michael J. Malloy, Asst. Public Defender, Media, for appellee.

Before CIRILLO, President Judge, and KELLY and CERCONE, JJ.

CERCONE, Judge:

These appeals are from two orders of the Court of Common Pleas of Delaware County, ordering the Commonwealth to disclose the identity of a confidential informant and precluding a state trooper from testifying as a Commonwealth witness as a result of the trooper's refusal to reveal the informant's identity. We quash the appeal of one of the orders and affirm the other order of the lower court.

The instant case arose out of the unsolved murder of an eight year old girl in Trainer, Pennsylvania, which occurred thirty-nine years ago. On April 25, 1951, the victim, Jane Althoff, was found dead of asphyxiation in the cab of a truck on the grounds of a local carnival. She had been sexually molested. The murder investigation yielded several suspects, including William Henry Redmond, appellee, who at the time of the murder was a carnival worker. A warrant for Redmond's arrest was issued but never served. The last law enforcement activity in the case prior to the events leading to the present action occurred in 1969.

In May, 1986, the investigation of Jane Althoff's murder was reopened. A two-year inquiry by state trooper Malcolm Murphy led to the issuance of a criminal complaint and arrest warrant for appellee. Appellee was arrested in Nebraska by trooper Murphy and was transported by train to Delaware County by Murphy and other police officers. During this trip, appellee allegedly made inculpatory statements in the nature of a confession to Murphy.

Appellee was formally arraigned on charges of murder, ¹ voluntary manslaughter, ² involuntary manslaughter, ³ assault with intent to ravish, ⁴ and kidnapping. ⁵ In March, 1988, he filed a request for a bill of particulars under Pa.R.Crim.P., Rule 304(a), 42 Pa.C.S.A., to which the Commonwealth did not respond. Appellee also filed a request for pretrial discovery under Rule 305. One of appellee's discovery requests was the name of the confidential informant referred to in Trooper Murphy's investigation report. According to that report, the informant had told Murphy, in the course of Murphy's investigation of another murder that the murder of Jane Althoff in Trainer, Pennsylvania remained unsolved and that one of the suspects in the Althoff murder had been the former chief of police of Trainer, Pennsylvania, "Whitey" Triplett. The informant provided Murphy with information concerning Triplett and his involvement in criminal activities, including the protection by police at the time of the gambling and prostitution activities associated with many carnivals. Despite the information given about Triplett, Trooper Murphy's investigation led him to the conclusion that appellee, Redmond, was the perpetrator of the Althoff murder. Appellee asserted at the hearing on his request for discovery that the confidential informant's identity was necessary in order for him to prepare a defense, particularly in light of the age of the case, the consequent lack of physical evidence, and the fact that many of the individuals who would have been appropriate as witnesses are now deceased. Trooper Murphy refused to disclose the informant's identity.

After a hearing on the discovery request and the Commonwealth's failure to provide the requested information, the lower court entered an order on September 30, 1988, directing the Commonwealth to disclose the name and address of the confidential informant. The trooper again refused to reveal the informant's identity, whereupon the lower court issued an order on October 25, 1988 precluding Trooper Murphy from testifying as to any aspect of the instant case. On October 28, 1988, the Commonwealth filed a notice of appeal of the lower court's orders of September 30 and October 25, 1988.

On appeal, appellant, the Commonwealth contends that the lower court's orders were erroneous because (1) appellee failed to establish that the information requested was exculpatory, material, or necessary, and (2) the confidential informant provided the investigating officer with only background information but had no firsthand knowledge of the murder. Appellant further states that the officer was a necessary Commonwealth witness without whom the Commonwealth was prevented from proceeding.

Before considering the Commonwealth's (appellant's) contentions on appeal, the first issue which must be addressed, although it has been raised by neither party, is the appealability of the lower court's orders. See Commonwealth v. Hunter, 294 Pa.Super. 52, 54, 439 A.2d 745, 746 (1982) (issue of the court's jurisdiction to hear appeal of an arguably interlocutory order may be raised sua sponte ). The jurisdiction of this court is limited to appeals from final orders of the courts of common pleas. 42 Pa.C.S.A. § 742.

Generally, a criminal defendant may appeal only from the judgment of sentence. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977); Commonwealth v. Reagan, 330 Pa.Super. 417, 479 A.2d 621 (1984). An appeal before final judgment will be permitted, however, in exceptional circumstances, such as where an appeal is necessary to prevent a great injustice to the defendant, or where an issue of basic human rights or great public importance is involved. Commonwealth v. Bolden, supra, 472 Pa. at 610-11, 373 A.2d at 93-94. Another exception to the final judgment rule occurs in criminal cases and involves orders suppressing evidence which are generally immediately appealable although interlocutory. Commonwealth v. Smith, 518 Pa. 524, 544 A.2d 943 (1988). In such a case, the Commonwealth must certify in good faith that the suppression order terminates or substantially handicaps its prosecution. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). The rationale of permitting the Commonwealth's appeal from a pre-trial order of suppression is that the Commonwealth should possess the right of appellate review where the effect of the pre-trial order is to terminate the prosecution. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. den. 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963).

In the instant case, the appeals of the orders of September 30, 1988 and October 25, 1988 present no exceptional circumstances. Neither appeal is necessary to prevent a great injustice to the defendant or involves an issue of basic human rights or great public importance. Thus, neither appeal can be justified under any of these exceptions to the final judgment rule. However, the Commonwealth has suggested in its brief that this proceeding would properly be characterized as an appeal from a suppression order, thus permitting direct appeal from the orders herein. For the following reasons, we accept the Commonwealth's characterization as to the October 25, 1988 order but not in regard to the order of September, 1988.

In Commonwealth v. Iannaccio, 505 Pa. 414, 480 A.2d 966 (1984), cert. denied 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985), an initial appeal was taken from an order of the lower court directing the Commonwealth to produce a confidential informant for an in camera hearing. The order was entered after a hearing pursuant to the defendant's request for discovery under Pa.R.Crim.P., Rule 305 B, 42 Pa.C.S.A. (requiring disclosure by the Commonwealth of certain specified information to the defense and permitting the court to order disclosure of certain other information). Permission to appeal the order of the lower court was granted to the Commonwealth under Pa.R.A.P., Rule 1311, 42 Pa.C.S.A. ⁶ The Superior Court reversed the lower court's order and on appeal, the Pennsylvania Supreme Court criticized this court's characterization of the order as a suppression matter. The supreme court found that the proceeding was more properly treated as a discovery proceeding pursuant to Rule 305, supra. Commonwealth v. Iannaccio, 505 Pa. at 423-24, 480 A.2d at 971.

The September 30, 1988 disclosure order of the lower court is similar to the order in Iannaccio, supra in that it directs the Commonwealth to produce a confidential informant by revealing his identity. We would therefore characterize the lower court's September 30, 1988 order as a discovery order pursuant to Rule 305, as the supreme court did in Iannaccio. Since a discovery order is interlocutory in nature, the proper procedure for appeal of the September 30, 1988 order would have been a petition for permission to appeal from an interlocutory order under Rule 1311. See Commonwealth v. Iannaccio, supra, 505 Pa. at 426, 480 A.2d at 972. The Commonwealth in the instant case failed to file a timely appeal in this manner of the September 30, 1988 order; therefore, this court is without jurisdiction to hear the appeal. See 42 Pa.C.S.A. § 742 (Superior Court has jurisdiction to hear appeals of final orders of the courts of common pleas); id. § 702(b) (permitting interlocutory appeal by permission); id., Pa.R.A.P., Rule 1311 (requiring petition for permission to appeal an interlocutory order); Commonwealth v. Pfender, 280 Pa.Super. 417, 421 A.2d 791 (1980) (Superior Court without jurisdiction to hear appeal where Commonwealth did not file petition for permission to appeal as required by Rule 1311).

As to the order of October 25, 1988, we find it similar to a suppression order because it prevents the Commonwealth from using all its available evidence against appellee and the effect of the order, which prohibits the Commonwealth's chief witness from testifying, is to terminate the prosecution. See Commonwealth v. Bosurgi, supra, 411 Pa. at 63, 190 A.2d at 308 (Commonwealth's prosecution is...