Com. v. Santiago

• Decision Date: 26 October 1993
• Citation: 631 A.2d 1323,429 Pa.Super. 135
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Israel SANTIAGO.
• Court: Pennsylvania Superior Court

Page 1323

631 A.2d 1323

429 Pa.Super. 135

COMMONWEALTH of Pennsylvania, Appellant, v. Israel SANTIAGO.

Superior Court of Pennsylvania.

Argued May 11, 1993.

Filed Aug. 27, 1993.

Reargument Denied Oct. 26, 1993.

Joan Weiner, Asst. Dist. Atty., Philadelphia, for the Com., appellant.

Helen A. Marino, Philadelphia, for appellee.

Before BECK, POPOVICH and HESTER, JJ.

HESTER, Judge:

The Commonwealth appeals from the October 21, 1992 order entered by the Philadelphia County Court of Common Pleas dismissing all charges against appellee following argument on post-verdict motions which were filed after appellee was found guilty at a nonjury trial. ¹ At issue is whether the Commonwealth is required to reveal a surveillance address where such disclosure could jeopardize the safety of innocent persons at the location, and where sufficient details concerning the location had been disclosed so that defendant was able to adequately cross-examine the police witnesses about their ability to observe the criminal activity. We hold that such disclosure was unnecessary under the circumstances. We reverse, reinstate the verdict, and remand for sentencing.

On September 26, 1989, narcotics officers Michael Eibel and Thomas Martinka conducted an undercover surveillance of the 1800 block of Wallace Street in Philadelphia. That area of the city was notorious for its high drug trafficking. With the use of binoculars, the officers monitored the street activity from a confidential location in a building on the east side of 19th Street. The officers observed appellee standing on the south side of Wallace Street. They watched as appellee and a group of approximately twenty people moved west from the middle of Wallace Street toward the corner on 19th Street. At appellee's direction, the group separated from him and formed a single line. The first three individuals in the line each walked up to appellee, handed him money, and in return, received a small, plastic packet. The officers noticed that appellee retrieved the plastic packets from a brown paper bag which he held in his hand.

The officers notified their field team but remained in their surveillance location and continued to monitor appellee. Officer Eibel saw appellee complete one more transaction, cross over to the north side of Wallace Street, and place the brown paper bag on the ground, behind a refrigerator which was situated on a vacant lot. Appellee then walked east on Wallace Street toward 18th Street. Officer Eibel guided the field team to appellee who was arrested before he reached 18th Street. The field team searched appellee and found forty dollars in cash. In addition, the team found the brown paper bag which was exactly where Officer Eibel observed appellee place it. The bag contained seventy-three clear plastic packets of cocaine sealed with red tape which weighed 27.2 grams and had a street value of $2,720.00. ²

In his defense, appellee maintained that he was the victim of misidentification. He denied that he was the individual whom the surveillance officers had watched selling cocaine. Instead, he claimed that he was in the area to purchase special water for his wife's asthma machine. He explained that the money taken from him was payment for a landscaping job.

At trial, the defense attempted to ascertain the exact address of the surveillance location through cross-examination of the surveillance team. Appellee maintained that the information was essential to his ability to defend himself. The Commonwealth argued that divulging the exact address of the location would compromise the safety of individuals residing at that address. Furthermore, it argued that disclosure would jeopardize future surveillance from the location.

The Commonwealth invited the court to voir dire Officer Eibel in order to record the legitimate reasons for maintaining confidentiality. During questioning, the officer explained that the location had been used in the past for similar operations, and while he no longer worked the area and could not say with certainty that it was currently being used in an ongoing basis, disclosure of the site could result in future reprisals against the residents. He feared that disclosure of the precise location would compromise the safety of the individuals at the address.

Numerous details regarding the location were provided to the defense. Officer Eibel testified that he conducted the surveillance from a building; that he was approximately twenty-five feet above the sidewalk; at times he was looking through one pane of glass, and at other times, he was looking through no glass; that the surveillance was located on the 600 block of north 19th Street, approximately one hundred feet from the southeast corner of 19th and Wallace Streets. The Commonwealth successfully advanced its position concerning the confidentiality of the precise address, however. The court allowed the defense to pinpoint the general location, but did not allow it to pursue questioning aimed at obtaining the street number. It concluded that the stipulations placed upon the questioning did not represent a serious impairment in appellee's ability to question the officers regarding the location of obstacles which may have interfered with the officer's observations of the illegal activity. Based on the testimony and evidence offered at trial, the court found appellee guilty of possession of a controlled substance with intent to deliver.

Post-verdict motions were filed and subsequently argued before the trial court. At the July 6, 1992 hearing, appellee argued that his constitutional right to confront and cross-examine Officer Eibel was violated because the trial court curtailed his questioning regarding the exact address of the surveillance site. He maintained that his ability to defend himself was hampered by the limitations imposed by the trial court. Because no case law directly on point had been presented by either party, appellee requested a continuance. The court set another hearing date for August 28, 1992.

At the hearing, the court acknowledged its confusion with regard to the similarities and differences of the confidentiality interests of informants as opposed to locations. The court reasoned that if, in fact, the two were analogous, it would be compelled to grant the post-verdict motion. The court queried whether in one sense the situations were similar in that all of the testimony regarding the observation of appellee originated from the undisclosed location. The court reasoned, therefore, this was not unlike a situation wherein all of the evidence in a case is derived from information obtained from a confidential informant, and no other disinterested party, i.e., a law enforcement officer, was available to testify against the defendant. The court concluded that current case law would require the disclosure of a confidential informant in such a circumstance, and stated that it likely would grant appellee's post-verdict motion.

The Commonwealth argued that the situations were dissimilar in that in the case of the informant, the testimony of the individual was necessary to substantiate the facts of the case. In the instant case, however, there was no need to identify the precise locale in order to corroborate the officer's testimony. The officer is the eyewitness, not the location. Nonetheless, the court failed to reach a resolution. Instead, it requested additional information from both parties. The court requested the parties to prepare a letter explaining their position on whether further testimony should be taken regarding the appropriateness of keeping the location confidential. The court, which was concerned and somewhat unsettled with the fact that neither party raised the issue in a pre-trial motion, was confused about the status of the law in in Pennsylvania on the privilege of the confidential location. It queried that perhaps there should be some test or requirement that the Commonwealth show the court, in camera, a photograph of the area so that the court could make a preliminary determination whether there are or are not obstructions. See Reproduced Record ("R.R"), at 230a-235a. The Commonwealth responded that the case had been tried and that the production of further information post-trial was improper because post-verdict motions are to be decided on the basis of law, not fact.

At the hearing held on October 14, 1992, the Commonwealth refused to provide the defense with any additional information regarding the surveillance location. The Commonwealth did recite the trial testimony, which the court credited. It argued that even if there were law on point as of the hearing date, the post-verdict research would be inapplicable to the instant case, and therefore, unnecessary. However, the court chose to continue the case, once again to consider the applicable case law and consider whether it had committed error by limiting the scope of the officer's testimony.

On October 21, 1992, the court fashioned a test which it retroactively applied to the trial facts. It concluded that while it is likely that there is a privilege to keep a location confidential, nonetheless, it would be limited by an accused's right to a fair defense. Factors to be considered would include the accused's right to question observations made and the possible significance of the information. The court concluded that since all of the observations which led to the arrest of the accused were made from the confidential location, that information should have been divulged. The court then granted appellee a new trial based on the perceived ...