Opinion
J-A33017-16 No. 542 WDA 2016
03-13-2017
COMMONWEALTH OF PENNSYLVANIA Appellant v. ROBERT MARSHALL UPHOLD, JR. Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered March 31, 2016
In the Court of Common Pleas of Greene County
Criminal Division at No(s): CP-30-CR-0000224-2015 BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J. MEMORANDUM BY SOLANO, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, the Commonwealth of Pennsylvania, appeals the order of the Court of Common Pleas of Greene County, entered on March 31, 2016, dismissing the Commonwealth's case for refusal to disclose the name and whereabouts of its confidential informant ("CI") to counsel for the Appellee-Defendant, Robert Marshall Uphold, Jr. The Commonwealth had charged Uphold with with Possession with Intent to Deliver a Controlled Substance, Delivery of a Controlled Substance, and Possession of a Controlled Substance. We affirm.
35 P.S. § 780-113(a)(30), (16). --------
In its opinion, entered June 10, 2016, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Trial Ct. Op., 6/10/16, at 2-5. We summarize them here for the convenience of the reader.
The criminal information states that the alleged offense was committed on June 1, 2010. The affidavit of probable cause was not filed until May 26, 2015, almost five years later. According to that affidavit, an undercover officer and the CI met with the Appellee. During that meeting, the officer gave Appellee $200 to purchase drugs and told Appellee that he would return in a half hour to pick up the drugs. Later, the officer returned without the CI and received ten wrapped bags of heroin from the Appellee. Appellee denies participating in the alleged transaction, and the CI was alleged to be the only non-law enforcement witness.
On August 17, 2015, defense counsel made his first request for the disclosure of the identity of the CI, along with other discovery requests. On August 24, 2015, the Commonwealth complied with the other discovery requests, but did not disclose any information about the CI. On March 28, 2016, defense counsel again requested the disclosure of the CI. Upon receipt of this second request, the trial court scheduled an in camera conference on March 30, 2016.
Following that conference, on March 31, 2016, the trial court ordered the Commonwealth immediately to reveal the identity and whereabouts of the CI to defense counsel and advised the Commonwealth that failure to disclose the name would result in a dismissal of the charges. Order, 3/31/16, timestamped 9:05 A.M., at 1-3. The Commonwealth, in a motion for reconsideration filed later that morning, refused to disclose the name of the CI. Mot. for Recons., 3/31/16, at ¶ 7. That afternoon, the trial court ordered the charges against Appellee dismissed. Order, 3/31/16, timestamped 2:50 P.M., at 1. The Commonwealth's timely appeal followed on April 13, 2016.
The Commonwealth raises the following questions on appeal:
Did the trial court err by requiring the Commonwealth to divulge the name and whe[re]abouts of its confidential informant to counsel for [Appellee]?Commonwealth's Brief at 4.
Did the trial court err by dismissing the case against [Appellee] as a remedy for the Commonwealth's alleged discovery violation?
"Our standard of review of claims that a trial court erred in its disposition of a request for disclosure of an informant's identity is confined to abuse of discretion." Commonwealth v. Jordan , 125 A.3d 55, 62 (Pa. Super. 2015) (en banc), appeal denied , 134 A.3d 55 (Pa. 2016).
The first requirement in support of a petition to compel disclosure of a confidential informant is that the defendant demonstrate that production of the informant is material to his defense. . . .
The second requirement for disclosing the identity of a confidential informant is that the request must be reasonable. . . .
Finally, appellant's request for disclosure of the informant must be in the interests of justice. In reviewing this requirement, this court will apply the balancing test of Roviaro v. United States , 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957):
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. . . .
Commonwealth v. Ross , 623 A.2d 827, 829-31 (Pa. Super. 1993) (citations and internal quotation marks omitted), appeal denied , 644 A.2d 162 (Pa. 1994); accord Pa.R.Crim.P. 573(B)(2)(a)(i). In the instant action, the trial court addressed each of these requirements, supporting its analysis with citations to the record. See Trial Ct. Op., 6/10/16, 10-13. We agree with the trial court's analysis and conclusions. Therefore, for the Commonwealth's first issue, we affirm on the basis of the trial court opinion.
This court will not question a trial court's finding of fact where it is supported by the record.
The Commonwealth argues that the CI's information is not material because Appellee "is charged with delivering heroin as opposed to receiving $200" and the CI was present only for the payment of the money and not for the receipt of the heroin. Commonwealth Brief's at 12. But the Commonwealth alleges that the unlawful transaction occurred in two stages — delivery of the money for the heroin, and receipt of the heroin — and that the CI was present for the first stage. As the only non-law enforcement witness allegedly present, the CI is the one outside person who can testify to whether Appellee was indeed the participant at the meeting where the first part of the transaction occurred, something that Appellee denies. We therefore agree with the trial court that the CI is material to Appellee's defense.
The Commonwealth's second issue is that the trial court "erred in dismissing the case against the [Appellee] as a remedy for the Commonwealth's alleged discovery violation." Commonwealth's Brief at 16. However, Roviaro v. U.S., 353 U.S. 53, 60-61 (1957), held that the failure of the government to disclose an informant's identity after being ordered by a court to do so warrants dismissal of the prosecution. The Supreme Court of Pennsylvania has adopted this holding. See Commonwealth v. Marsh , 997 A.2d 318, 322 (Pa. 2010) (where the trial court requires disclosure of an informer's identity and the government withholds the information, the trial court may dismiss the action); Commonwealth v. Carter , 233 A.2d 284, 287 (Pa. 1967) (same). The standard of review is abuse of discretion. Jordan , 125 A.3d at 62, 65. For the reasons stated in the opinion by the trial court, we conclude that the trial court did not abuse its discretion by dismissing the charges against Appellee, as such dismissal was both within its power and an appropriate remedy.
The Commonwealth argues: "Had the [trial c]ourt determined that the Commonwealth's non-disclosure of the confidential informant's identity represented a discovery violation, it should have selected a remedy other than dismissal of the prosecution." Commonwealth's Brief at 16. Our review of the record discloses, however, that the Commonwealth never requested such an alternative remedy before the trial court. Hence, any request for an alternate sanction was waived and cannot be raised for the first time on this appeal. Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal").
The parties are instructed to attach a copy of the trial court's June 10, 2016, Opinion to all future filings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/13/2017
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