Commonwealth v. Jordan
| Decision Date | 22 September 2015 |
| Citation | 125 A.3d 55,2015 PA Super 202 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant v. Kyle JORDAN, Appellee. |
| Court | Pennsylvania Superior Court |
Jonathan M. Levy, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Gary S. Server, Philadelphia, for appellee.
The Commonwealth appeals from the September 1, 2011 order precluding it from presenting evidence adduced as the result of the execution of a search warrant. The order was entered as a sanction due to the Commonwealth's failure to reveal the identity of a confidential informant used during a controlled-buy. We conclude that the trial court erred in ordering the Commonwealth to reveal the identity of the confidential informant once the Commonwealth entered a stipulation that the defense could introduce into evidence what the confidential informant reported to police and agreed not to rely upon the controlled-buy in support of its pending charge of delivery of a controlled substance. We also conclude that the sanction awarded herein was improper. We therefore reverse.
The pertinent facts are as follows. On September 7, 2010, Philadelphia Police Officer Gary Francis utilized confidential informant number 01241 (“CI–1”) to conduct a narcotics investigation at the 2700 block of North Judson Way, Philadelphia. Officer Francis had used CI–1 in drug trafficking investigations on more than ten prior occasions, and in each instance, the collaboration led to the seizure of narcotics as well as arrests. Officer Francis met with CI–1 and, after performing the controlled-buy protocol, followed him1 to the 2700 block of Judson Way sometime between 3:00 p.m. and 5:00 p.m. Officer Francis observed CI–1 speak briefly with Appellee, enter a row house at 2737 Judson Way with Appellee, and exit that location shortly thereafter. Officer Francis then followed CI–1 away from the view of the 2700 block, and CI–1 handed Philadelphia Police Officer Matthew Beattie two packets of crack cocaine in Officer Francis's presence. After Officers Francis and Beattie entered a vehicle, Officer Francis drove to the 2700 block of Judson Way, where Appellee was still standing. Appellee was identified as being involved in the September 7, 2010 controlled-buy so that Officer Beattie would be familiar with him. N.T. Motion, 7/19/11, at 31.
At 2:10 p.m. on September 8, 2010, Officer Beattie, who had also worked with CI–1 in successful drug interdictions, met with that CI. After utilizing the controlled-buy procedure, Officer Beattie observed CI–1 meet with Appellee, who again was standing on the 2700 block of Judson Way. Appellee and CI–1 briefly spoke, and Appellee entered 2737 Judson Way for about one minute while CI–1 waited outside. Appellee then returned to the CI–1, CI–1 handed Appellee money, and, in return, Appellee gave CI–1 “small items.” Id. at 28. The CI–1 gave the items, which were packets of crack cocaine, to police.
On September 10, 2010, Police Officer Bradford Mitchell met with confidential informant number 01079 (“CI–2”). CI–2 had aided Officer Mitchell in twenty to twenty-five prior drug investigations, all of which had led to the recovery of narcotics and arrests, and he was still being used as a CI. Id. at 59. After following the controlled-buy mandates, Officer Mitchell gave CI–2 twenty dollars in buy money and followed him to the 2700 block of Judson Way. Officer Mitchell observed CI–2 engage Appellee as well as a man named James Lofton in a brief conversation, and he saw all three people enter 2737 Judson Way. Within two minutes, CI–2 exited the building and gave Officer Mitchell two pieces of crack cocaine. At that time, CI–2 informed Officer Mitchell that, inside 2737 Judson Way, CI–2 handed Lofton the buy money, Lofton obtained the crack cocaine from underneath a couch, and Lofton handed CI–2 the drug.
Later that same day, on September 10, 2010, police obtained a search warrant for 2737 Judson Way. When the warrant was executed, Appellee and Lofton were present. Incriminatory items were recovered from both Appellee and Lofton. Additionally, Appellee and Lofton engaged in certain actions in the presence of the officers, and those activities evidenced a conspiracy between them to distribute narcotics.
Appellee was charged with 1) one count of delivery of a controlled substance based upon actions that occurred between September 7, 2010, and September 10, 2010; 2) one count of conspiracy based upon actions that occurred between September 7, 2010, and September 10, 2010; and 3) one count of possession of a controlled substance by an unregistered person based upon actions that occurred between September 7, 2010, and September 10, 2010. Appellee thereafter filed a motion to reveal the identities of the two CIs used in connection with the investigation.
A hearing was held on the motion on July 19, 2011, where the above-delineated specifics were adduced. Additionally, Officer Francis testified that CI–1 lived in the community, had knowledge of the drug trade therein, and was still “in use” in drug investigations. N.T. Motion, 7/19/11, at 13–14. Officer Francis reported that, if the identity of CI–1 was revealed, there might be retaliation, “physical harm being brought to that person or [his] family who are also of this particular community,” and the harm could include “[p]hysical, verbal, mental, property damage[.]” Id. at 12–13, 15. Officer Mitchell testified that CI–2 frequented the area where the drug purchases occurred and had “family in that area.” Id. at 43. Officer Mitchell observed that, if the identity of CI–2 was disclosed, “[s]ome form of bodily injury may happen to this CI or the CI's family.” Id. at 43–44.
After hearing this evidence, the trial court denied the request to reveal CI–1's name, but granted the motion to reveal the identity of CI–2. The court observed that Officer Mitchell indicated that, after the September 10, 2010 controlled-buy conducted inside the row house, CI–2 told Officer Mitchell that Lofton was the individual who sold him the crack cocaine. The court ruled, “Based upon the testimony of Officer Mitchell in this CI motion, this Court feels that it is necessary for the identity of CI–2 to be revealed as he is the only individual who can provide that information and it would not be hearsay testimony....” Id. at 75.
As soon as the court issued the ruling requiring the revelation of CI–2's identity, the Commonwealth amended the delivery charge so that it was no longer premised upon the controlled-buy conducted on September 10, 2010. Id. at 76. Additionally, the Commonwealth agreed to stipulate at the scheduled trial that CI–2 told Officer Mitchell that, inside 2737 Judson Way on September 10, 2010, CI–2 gave the buy money to Lofton, Lofton reached inside the couch for the crack cocaine, and Lofton handed the crack cocaine to CI–2. Id. at 79.
The trial court then asked the Commonwealth how it could proceed on the conspiracy charge given that Appellee was the only person who was involved in the September 7th and September 8th controlled-buys. The Commonwealth delineated that it could predicate proof of a conspiracy on what was viewed and recovered during the execution of the search warrant.
The district attorney explained, “I would still keep the conspiracy charge based on what was found on [Lofton] that would be testified to.” Id. at 77. She continued that the officers who executed the search warrant “will testify as to who was in the house and all the items recovered in the house and on the persons in the house which would be relevant to the conspiracy charge.” Id. The prosecutor informed the trial court that both Appellee and Lofton were in the house when the warrant was executed on September 10th. Additionally, to the conspiracy charge. Id. The district attorney concluded that she could go forward as to the conspiracy charge “based on what was seen in the house during the search warrant day, what was recovered, [and] what the officers observed the defendants doing.” Id. at 79.
The trial court refused to revise its earlier determination that the identity of CI–2 had to be revealed, and, after the Commonwealth failed to comply with that directive, the trial court issued an order on September 1, 2011. It ruled that, as a sanction for the Commonwealth's violation of the July 19, 2011 order to reveal CI–2's identity, the Commonwealth was precluded from presenting any evidence obtained on September 10, 2010, which included Officer Mitchell's observations on September 10, 2010, as well as items seized and observations made during the execution of the search warrant.
The Commonwealth filed the present appeal pursuant to Pa.R.A.P. 311(d), which is set forth infra, since the September 1, 2011 order precluded the Commonwealth from introducing evidence at trial. A panel of this Court affirmed the trial court's decision. En banc review was granted, and the matter is now ready for disposition. On appeal, the Commonwealth contends:
Did the lower court err in suppressing evidence as a sanction for the Commonwealth's refusal to disclose the identity of a confidential informant where the informant was not a prosecution trial witness, and would have been put in danger by disclosure; defendant failed to make a threshold showing that the identity of the informant was material, reasonable, and necessary for the preparation of a planned defense; and the refusal had no reasonable connection with the court's sanction of eliminating all Commonwealth evidence pertaining to the third day of surveillance?
Commonwealth's brief at 2.
The Commonwealth first maintains that the trial court's decision requiring disclosure of the identity of CI–2 was improper. As a...
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