Commonwealth v. Iannaccio

• Decision Date: 03 September 1982
• Citation: 450 A.2d 694,304 Pa.Super. 307
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. John IANNACCIO.
• Court: Pennsylvania Superior Court

450 A.2d 694

304 Pa.Super. 307

COMMONWEALTH of Pennsylvania, Appellant, v. John IANNACCIO.

Superior Court of Pennsylvania.

September 3, 1982

Submitted April 12, 1982.

Robert L. Eberhardt, Deputy Dist. Atty Pittsburgh, for Commonwealth, appellant.

John H. Corbett, Jr., Public Defender, Pittsburgh, for appellee.

Before HESTER, JOHNSON and POPOVICH, JJ.

POPOVICH Judge.

This is an appeal from the order of the Court of Common Pleas of Allegheny County directing the Commonwealth to produce a confidential informant in camera. ^[1] Based on the particular facts of this case, we reverse.

A review of the facts reveal the following: On August 15, 1978 Detectives Mullen and Butler secured a warrant to search the premises of the appellee, John Iannaccio, located at 5129 Roma Way, Pittsburgh, Pa. The probable cause section of the warrant read:

"Affiants received information from a confidential reliable informant that John Iannaccio Jr. aka Jack was dealing and concealing LSD from the above described premises. Informant stated that he was in the premises within the past 24 hours and did observe Jack sell LSD to an unknown white female, who appeared to be around 16 years old. Informant stated that Jack was charging $3.00 apiece for the LSD. Informant stated that he oberved [sic] several small tablets which Jack stated that he was going to sell for $3.00 apiece but would sell them cheaper if the buyer bought in quantity. Informant has proven to be reliable by giving information which has led to the arrest and conviction of James Payne jr., Darryl Robinson and Gregory Beal all for VCSSDCA, [sic] The most recent conviction being that Beal [sic] in June of 1978."

The warrant was executed the day it was issued, and, as a result thereof, drugs were seized on the premises searched. Also, appellee was arrested at the scene. Thereafter, following a preliminary arraignment, appellee was charged by Information with possession of controlled substances, ^[2] possession with intent to deliver controlled substances, ^[3] possession of a small amount of a controlled substance ^[4] and former convict not to carry a firearm. ^[5]

On November 13, 1978, appellee's counsel served upon the Office of the District Attorney of Allegheny County a demand for discovery, pursuant to Pa.R.Crim.P. 305 A, ^[6] which sought, inter alia, disclosure of the informant referred to in the application for a search warrant. The Commonwealth refused the request. Appellee then presented the lower court with a motion for relief under Pa.R.Crim.P. 305 E, ^[7] seeking the court to apply the sanction of Rule 305 E, and prohibit the District Attorney from introducing at the time of trial, as evidence, the information not disclosed; or, in the alternative, such order as the court deemed just under the circumstances. Such motion was denied. Thereafter, appellee filed an omnibus pretrial motion seeking suppression of all the evidence seized pursuant to the warrant in question. A hearing on said motion was scheduled to be held on the date set for trial. However, before the case was listed for trial, appellee filed a motion for reconsideration under Rule 305 E, seeking the disclosure of the informant's identity "not to aid him in his defense against [the] charges, but rather to afford him an adequate opportunity to challenge the veracity of the sworn statement included by the police in securing the search warrant." By so doing, appellee sought "to establish that the evidence relied upon by the affiant included a material false statement that the affiant knowingly and deliberately or with reckless disregard for the truth acted upon said information[.]" A hearing on the reconsideration motion was held, and, at the completion of same, the court ordered the Commonwealth to produce the informant in camera. However, on oral motion by the Commonwealth, the court set January 4-5, 1979, as the time for a hearing to reconsider its order.

At the proceeding, Det. William Mullen testified that on August 15, 1978, he received a phone call from an informant known to him for some 3 1/2 years--this individual had supplied the officer with information leading to arrests and/or convictions in about eight cases. The caller requested that the two meet at approximately 9:00 a. m., near a back door to the Public Safety Building. At the scheduled time and place, the informant appeared and told the witness that he had been to the appellee's residence within the last twenty-four hours in the company of a female, that the female knew the appellee and that she was observed buying drugs from the accused. Based on this information, the police, without any prior surveillance or observance of suspicious activity on the premises, secured and executed a search warrant of the appellee's home, at approximately 10:45 a. m. During the course of the search, various types of drugs were seized and the appellee was arrested on the scene.

The appellee's case consisted of a defense of "mistaken identity." In support thereof, appellee's father and mother, with whom the appellee had lived with all of his life, testified to his whereabouts during the 24-hour period immediately preceding his arrest. To explicate, the father recounted getting up at 10:30 a. m. on August 14, 1978, and not leaving the premises before 6:30 p. m., when he left to play bingo at a nearby church. The father stated he returned home at 10:45 p. m., but, before going to bed, he stayed up until 2:30 a. m. to watch television in the living room. Also, at this point in the evening, the father noted that his son had yet to return from a week-long trip to Atlantic City, New Jersey. In fact, it was not until 7:00 a. m. on the morning of the 15th of August, when the witness awoke to take some pills, that he went downstairs and noticed a set of luggage resting on the living room floor. The witness proceeded to the appellee's room and found his son sleeping. Thereafter, the witness went back to bed and slept until the police arrived.

The next witness to appear for the defense was appellee's mother. Mrs. Iannaccio testified that during the time that her husband went to play bingo, on the evening of the 14th of August, she remained home alone. She also recalled that when she went to bed at 2:00 a. m., her son had not yet returned from his trip to Atlantic City. Further, albeit the witness could not say for certain when her son returned home, she remembered hearing a vehicle and then a single set of footsteps in her home between 5:00 and 6:00 a. m. The witness went on to remark that she got up about 6:00 or 7:00 a. m. and "noticed a form" in her son's bed. She then walked downstairs to read the newspaper, and, she stated, no one came to the house while she was up, save for the police.

At the conclusion of the hearing, the court reaffirmed its earlier order and, in addition, certified the case for appeal to this Court, which we granted. See note 1, supra.

In determining that the lower court erred regarding its finding of fact as to the Commonwealth's case, we never reach the question which was specifically reserved by the United States Supreme Court in Franks v. Delaware, 438 U.S. 154, 170, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978), and as of yet not ruled upon in this jurisdiction--i.e., whether a reviewing court must ever require the disclosure of the identity of an informant once a substantial preliminary showing of falsity has been made. But see United States v. Hurse, 453 F.2d 128, 130-31 (8th Cir. 1971), cert. denied, 414 U.S. 908, 94 S.Ct. 245, 38 L.Ed.2d 146 (1973); United States v. Swanson, 399 F.Supp. 441 (D.Nev.1975); United States v. Danesi, 342 F.Supp. 889 (D.Conn.1972); State v. Luciow, 308 Minn. 6, 240 N.W.2d 833 (1976).

To begin with, although the proceeding below was not captioned a suppression hearing, we will treat it as such, inasmuch as the lower court's conclusion to discredit the affiant's testimony, if upheld even after the production of the informant, would have rendered the warrant invalid and the evidence seized as a result thereof suppressible. (RR. 61A-62A) Having established the procedural posture of the case at bar, we next observe that in Pennsylvania it is well established that criminal defendants have a right to go beyond the "four corners" of the search warrant and challenge deliberate and material misstatements of the government affiant. Commonwealth v. Bradshaw, 290 Pa.Super. 162, 434 A.2d 181 (1981). However, it is the Commonwealth, and not the defendant, that has the initial burden of going forward with evidence and of establishing that the challenged evidence was not obtained in violation of defendant's rights. The rationale for such a holding was set forth by this Court in Commonwealth v. Ryan, 296 Pa.Super. 222, ---, 442 A.2d 739, 743 (1982), wherein we stated, concerning the defendant's right to test the veracity of the information contained in a search warrant:

" 'The burden is on the Commonwealth to establish the validity of the search warrant and the burden is not carried by merely introducing the search warrant and affidavit with no supporting testimony because then the only way for the defendant to challenge the veracity of the information is to call witnesses himself and this effectively shifts onto him the burden of disproving the veracity of the information, an almost impossible burden. If the procedure followed by the Commonwealth in this case were upheld then policemen could recite in an affidavit as probable cause for the issuance of a search warrant any and all statements which they felt were of help in obtaining the warrant, irrespective of the truth or veracity of those statements, their legality or illegality, or constitutionality or unconstitutionality, realizing that such statements would be...