Com. v. Rodriquez

• Decision Date: 03 April 1996
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Daniel RODRIQUEZ, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Francisco FELICIANO, Appellant.
• Court: Pennsylvania Supreme Court

Page 225

674 A.2d 225

543 Pa. 651

COMMONWEALTH of Pennsylvania, Appellee, v. Daniel RODRIQUEZ, Appellant.

COMMONWEALTH of Pennsylvania, Appellee, v. Francisco FELICIANO, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 24, 1995.

Decided April 3, 1996.

J. Michael Farrell, Philadelphia, for Dominic Rodriquez.

Catherine Marshall, Joan Weiner, Philadelphia, for Commonwealth.

Peter J. Lesh, New York City, for Francisco Feliciano.

Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION

NIX, Chief Justice.

In these consolidated appeals, we must determine whether a surveillance site privilege exists such that the Commonwealth may withhold disclosure of the exact location used by police officers to observe criminal activity. In each case, both the trial court and Superior Court held that the Commonwealth could assert such a privilege. We granted allocatur and now affirm.

Commonwealth v. Rodriquez

On July 3, 1991, at approximately 8:00 p.m., Officer George Fetters of the Philadelphia Police Department was positioned in a surveillance location near the intersection of North Lawrence and West Oxford Streets in Philadelphia. At a point approximately one hundred feet north and twenty feet above the intersection, Officer Fetters observed two white males in a white Pontiac pull over to the east side of North Lawrence Street and come to a stop. The passenger of the vehicle got out and proceeded in a northbound direction as Rodriquez's co-defendant, Felix Ramos, approached him. The two men engaged in conversation. The passenger then handed Ramos an undetermined amount of United States currency, which prompted Ramos to turn to Rodriquez and state, "One." (R.R. at 29a). At this point, Rodriquez walked west on Oxford Street until he was outside the officer's field of vision. Approximately five seconds later, Officer Fetters saw Rodriquez walking back towards the unidentified passenger. The officer observed Rodriquez carrying a clear plastic bag containing a white powder which Rodriquez handed to the passenger. The passenger got back into the white Pontiac and left the scene.

During the course of his surveillance, Officer Fetters was in constant contact with four other back-up officers via hand-held police radio. Upon seeing what he believed to be a drug transaction, Officer Fetters gave the other officers a description of the white Pontiac, the passenger, and the direction that he was headed. The back-up officers were able to locate the vehicle and subsequently arrested the passenger. The officers also uncovered a clear plastic bag containing white powder which later was determined to be cocaine. The passenger was returned to the scene of the incident. Rodriquez and Ramos were also taken into custody after they were positively identified by Officer Fetters as the two men involved in the drug transaction.

Rodriquez was ultimately convicted in a non-jury trial of Knowing Possession of a Controlled Substance ¹ and Possession with Intent to Distribute a Controlled Substance. ² The Superior Court affirmed the judgment of sentence. ³ Commonwealth v. Rodriquez, No. 945 Philadelphia 1993, 439 Pa.Super. 672, 653 A.2d 1303 (Aug. 9, 1994).

Commonwealth v. Feliciano

On July 29, 1991, at approximately 7:00 p.m., Officer Patrick Brosnan of the Philadelphia Police Department was conducting surveillance from an undisclosed location near the intersection of Lawrence and Oxford Streets in Philadelphia. Officer Brosnan observed Feliciano's co-defendant, Felix Ramos, engaged in a conversation with the driver of a silver Ford LTD that had stopped at the southeast corner of the intersection. Ramos accepted an undetermined amount of United States currency from the driver and walked over to where Feliciano was standing. Feliciano then crossed the street to a vacant lot outside of Officer Brosnan's view. Shortly thereafter, Feliciano returned and approached the passenger side of the Ford LTD. He then tossed a bag through the passenger side window which landed on the dashboard of the car. The driver removed the bag and drove away. Feliciano was arrested as he attempted to walk away from the corner.

Following a non-jury trial on May 29, 1992, Feliciano was convicted of Knowing or Intentionally Possessing a Controlled Substance, ⁴ Possession with Intent to Manufacture or Deliver a Controlled Substance, ⁵ and Criminal Conspiracy. ⁶ On appeal, the Superior Court affirmed. Commonwealth v. Feliciano, No. 3763 Philadelphia 1992, 434 Pa.Super. 686, 641 A.2d 1221 (Dec. 28, 1993).

Discussion

In each of the preceding cases, the defendant filed a pretrial motion which sought to compel disclosure of the exact surveillance location used by the police officers who observed the suspected criminal activity. It was asserted that without such information, the right to cross-examination would be impaired to such an extent that it would constitute a violation of the right to confrontation as provided by the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution.

In each instance, the trial court denied the request for the specific location but permitted disclosure of the approximate location where the surveillance took place. In Rodriquez, it was disclosed that the officer's observation point was approximately one hundred feet north of the intersection of Oxford and Lawrence Streets and twenty feet above ground level. (R.R. at 27a-28a). Likewise, in Feliciano, the defense established through the cross-examination of Officer Brosnan that the surveillance location was one-and-one-half blocks north of the same intersection, above street level. (N.T. 5/29/92, 9-10, 12, 14-15). The Commonwealth declined to provide more specific information concerning the surveillance locations because those locations were still being used by police for undercover surveillance and such disclosure could endanger certain individuals.

Both cases were affirmed by the Superior Court on the basis of its holdings in Commonwealth v. Jennings, 428 Pa.Super. 297, 630 A.2d 1257 (1993), and Commonwealth v. Santiago, 429 Pa.Super. 135, 631 A.2d 1323 (1993), appeal denied, 538 Pa. 623, 646 A.2d 1177 (1994). In Jennings, the Superior Court held that the discovery of an officer's surveillance location falls within the discretionary disclosure requirements of Rule 305 B(2) of the Pennsylvania Rules of Criminal Procedure and that such information is subject to a qualified privilege. In so holding, the court relied in large part on the decision of the United States Supreme Court in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The Court in Roviaro examined the circumstances under which the government's need to protect the identity of an undercover informant conflicts with the defendant's need to fairly and effectively defend against criminal charges. In striking a balance between these two competing interests, the Supreme Court articulated the following guidelines:

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.

Id. at 62, 77 S.Ct. at 628, 1 L.Ed.2d at 646. This Court has previously accepted the foregoing balancing test in the related context of a confidential informant. See Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967). We now hold that the same balancing test is equally applicable in cases where the Commonwealth asserts that disclosure of an exact surveillance location would jeopardize an ongoing investigation or place individuals in peril.

Like the Superior Court in Jennings, we find persuasive the reasoning of the District of Columbia Court of Appeals which observed that "law enforcement interests in surveillance positions are analogous to those concerning informants. If an observation location becomes known to the public at large, its value to law enforcement probably will be lost. The revelation, moreover, may jeopardize the lives of police officers and of cooperative occupants of the building." Anderson v United States, 607 A.2d 490, 495 (D.C.1992) (quoting Hicks v. United States, 431 A.2d 18, 21 (D.C.1981)). Arguably, the reasons for maintaining the confidentiality of a surveillance site may be more compelling than the reasons for protecting the identity of a confidential informant. As the Court of Appeals of California noted:

While we find the analogy to the informer privilege apt, we think it reasonable to afford even more protection to information of a surveillance location and thereby to people who permit their homes to be used as surveillance locations. An informer whose identity is revealed, rightly or wrongly, probably has a fairly good chance of hiding because of the anonymity of our predominantly urban environment. But a person whose address is revealed has no place to hide.

People v. Montgomery, 205 Cal.App.3d 1011, 1019, 252 Cal.Rptr. 779, 784 (1988). Although members of the public are not always called upon to assist the police by offering their homes or businesses for undercover surveillance, in those instances where they do, a trial judge should be mindful of the potential harm that could come to an individual whose address is revealed when the competing interests of disclosure are considered.

We additionally agree with the Superior Court's holding in Jennings that the disclosure of a confidential surveillance site is governed by Rule 305 B(2) of the Pennsylvania Rules of Criminal Procedure. Rule 305 B(2) provides, in pertinent part:

(2) Discretionary With the Court. In all court cases ... if the...