Opinion
J-S62001-13 No. 2832 EDA 2011
03-28-2014
COMMONWEALTH OF PENNSYLVANIA Appellant v. KYLE JORDAN Appellee
Appeal from the Order Entered on September 1, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0014464-2010
BEFORE: BOWES, J., LAZARUS, J., and WECHT, J. OPINION BY WECHT, J.:
The Commonwealth appeals from the trial court's September 1, 2011 order. That order precluded the Commonwealth from presenting evidence obtained through the execution of a search warrant. The order was entered as a sanction for the Commonwealth's refusal to reveal to the defense the identity of a confidential informant, notwithstanding the fact that the Commonwealth was ordered to do so by a prior court order. We affirm.
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 on 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 CI-1 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 Jordan, enter a row house at 2737 Judson Way with Jordan, and exit that location shortly thereafter. Officer Francis then followed CI-1 away from the view of the 2700 block, and CI-1 handed Officer Matthew Beattie two packets of crack cocaine in Officer Francis's presence. Officers Francis and Beattie then entered a vehicle. Officer Francis drove to the 2700 block of Judson Way, and Officer Francis "pointed out" Kyle Jordan, the appellee in this case, as the drug seller in the transaction so that Officer Beattie would be familiar with him. N.T. Motion, 7/19/11, at 29.
At 2:10 p.m. on September 8, 2010, Officer Beattie, who also had worked with CI-1 in successful drug interdictions, met with that CI. After utilizing the controlled-buy procedure, Officer Beattie observed the CI meet with Jordan, who was standing on the 2700 block of Judson Way. They briefly spoke, and Jordan entered 2737 Judson Way for about one minute while CI-1 waited outside. Jordan then returned to CI-1, who handed Jordan money. In return, Jordan gave CI-1 "small items." Id. at 28. The CI gave those items to police. The items later were determined to be packets of crack cocaine.
On September 10, 2010, Police Officers 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. Id. at 59. After following the controlled-buy mandates, Officer Mitchell gave CI-2 twenty dollars in buy money. Officer Mitchell then observed as CI-2 engaged Jordan and an individual named James Lofton in a brief conversation in front of 2737 Judson Way. All three men entered the row house. 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 he had handed Lofton the buy money and that Lofton had sold him the crack inside 2737 Judson Way.
On September 10, 2010, police obtained a search warrant for 2737 Judson Way. When the warrant was executed, Jordan and Lofton were present. Although the record fails to indicate the nature of the objects, incriminatory "items were recovered" from both Jordan and Lofton. Id. at 76. Additionally, Jordan and Lofton engaged in certain actions in the presence of the officers evidencing a conspiracy between them to distribute narcotics.
After being charged with various drug-related offenses and conspiracy, Jordan 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 regarding the investigation 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. He 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 similarly stated that CI-2 frequented the area where the drug purchases occurred and had "family in that area." Id. at 43. Officer Mitchell opined that, if the identity of CI-2 was disclosed, "[s]ome form of bodily injury may happen to this CI or the Cl's family." Id. at 43-44.
After hearing this evidence, the trial court denied the request to reveal CI-1's information, but granted the motion to reveal the identity of CI-2. Id. at 75. The court then observed that Officer Mitchell also 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 the CI, identified as CI-2, drugs on September 10th, 2010." Id. The court ruled that "[b]ased 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.
As soon as the court issued the ruling requiring it to reveal CI-2's identity, the Commonwealth withdrew the delivery charge premised upon the controlled buy conducted on September 10, 2010. Id. at 76. Additionally, the Commonwealth agreed to stipulate at the scheduled trial that Lofton sold the drugs to CI-2 during the September 10, 2010 controlled buy. Id. at 79. However, it elected to "keep the conspiracy charge" due to the fact that the search warrant was executed on September 10, 2010. The Commonwealth explained that "items recovered in the house and on the persons in the house" during the search as well as the "behavior of the defendant" while the warrant was being executed were "relevant to the conspiracy charge." Id. at 77.
The court warned the Commonwealth that, if it did not reveal CI-2's name, then the Commonwealth could not present any police witnesses as to the events that transpired when they executed the warrant, and that the Commonwealth could not proceed with any charges relating to September 10, 2010. After the Commonwealth failed to comply with the July 19, 2011 directive, the trial court issued an order on September 1, 2011. As a sanction for the Commonwealth's violation of the July 19, 2011 order to reveal CI-2's identity, the trial court precluded the Commonwealth from presenting any evidence adduced during the execution of the search warrant and proceeding with charges relating to September 10, 2010.
The Commonwealth filed the present appeal under Pa.R.A.P. 311(d) from the September 1, 2011 order, and certified in the notice of appeal that it was substantially handicapped in its prosecution. The trial court did not direct the Commonwealth to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Nonetheless, the Commonwealth filed a Rule 1925(b) statement on September 30, 2011. On January 17, 2013, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).
The Commonwealth presents the following issue for our review:
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?Brief for the Commonwealth at 4.
At the outset, it is essential to emphasize that the propriety of the trial court's order requiring the prosecutor to disclose the identity of the confidential informant is unchallenged before our Court. The Commonwealth appealed only the sanction order, certifying that the order substantially handicapped its prosecution of Jordan. The Commonwealth did not attempt to appeal (or make a certification) with regard to the order requiring disclosure of the informant's identity.
Our Supreme Court has recognized the "importance of the Commonwealth's qualified privilege to maintain the confidentiality of an informant in order to preserve the public's interest in effective law enforcement." Commonwealth v. Bing, 713 A.2d 56, 58 (Pa. 1988). Serving as a confidential informant is a dangerous occupation. As the prosecutor in this case emphasized, the release of the identity of an informant could result in fatal consequences. We are not called upon to review whether the trial court erred in issuing such an order. We do not opine in any way on the validity of that order. Rather, our only task is to determine the appropriateness of the trial court's order sanctioning the prosecutor for openly refusing to honor the court's unappealed disclosure order.
"We review a trial court's finding of contempt for an abuse of discretion." In re York County District Attorney's Office, 15 A.3d 70, 73 (Pa. Super. 2010). Demonstrating that a trial court abused its discretion is a hefty burden: "An abuse of discretion is more than just an error in judgment, and the trial court will not be found to have abused its discretion unless the record discloses the judgment exercised was manifestly unreasonable or the result of partiality, prejudice, bias or ill-will." Commonwealth v. Sharp, 792 A.2d 1266, 1268 (Pa. Super. 2002) (citing Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001)). Additionally, in a criminal case, a trial court enjoys "broad discretion in formulating remedies for a failure to comply with discovery requirements." Commonwealth v. Galloway, 771 A.2d 65, 68 (Pa. Super. 2001) (quoting Commonwealth v. Thiel, 470 A.2d 145, 150 (Pa. Super. 1983)).
Pennsylvania Rule of Criminal Procedure 573(E) outlines the actions that a trial court may take upon a violation of a discovery order:
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.Pa.R.Crim.P. 573(E) (emphasis added). Here, in light of the prosecutor's open refusal to obey the trial court's order and to disclose the identity of the informant, the court prohibited the prosecutor from introducing evidence related to the informant, as well as evidence pertaining to the subsequent execution of a search warrant. Unquestionably, the court's order had the practical effect of dismissing all of the charges relating to Jordan's conduct on September 10, 2010. We must determine whether such a remedy was an abuse of the trial court's discretion. Following careful review, we hold that the sanction, while severe, was warranted due to the prosecutor's flagrant violation of the trial court's discovery order. As such, the court's sanction was not an abuse of discretion.
"Although not expressly included in the list of remedies, a trial court does have the discretion to dismiss the charges, but only for the most extreme and egregious violations." Commonwealth v. Hemmingway, 13 A.3d 491, 502 (Pa. Super. 2011) (citing Commonwealth v. Burke, 781 A.2d 1136, 1144 (Pa. 2001)). In Hemmingway, the Pennsylvania Supreme Court noted in a parenthetical the following quote from Commonwealth v. Shaffer, 712 A.2d 749 (Pa. 1998):
[T]he sanction of dismissal of charges should be utilized in only the most blatant cases. Given the public policy goal of protecting the public from criminal conduct, a trial court should consider dismissal of charges where the actions of the Commonwealth are egregious and where demonstrable prejudice will be suffered by the defendant if the charges are not dismissed.Hemmingway, 13 A.3d at 502 (quoting Shaffer, 712 A.2d at 752) (emphasis added). Here, the prosecutor openly refused to follow the trial court's order. The prosecutor's actions could not have been more blatant.
On July 19, 2011, the trial court held a hearing on Jordan's motion to produce the identities of the two confidential informants utilized during the investigation of Jordan's illicit activities. After receiving testimony, the trial court ruled that the first confidential informant's identity would not be released. However, the court made the following factual findings and conclusions of law with regard to the second informant:
There is a second CI that is at issue in this matter. The confidential informant we will identify as CI-2.Notes of Testimony ("N.T."), 7/19/2011, at 74-75. The prosecutor withdrew the delivery charge pertaining to the sale that occurred inside the home on that date, but decided to continue to pursue a charge of conspiracy, which was predicated upon Jordan's relationship with Lofton, who was the person who actually sold the crack to the informant. N.T., 7/19/2011, at 76-77. The prosecutor further agreed to stipulate at trial to the informant's statement that Lofton was the person who sold the crack.
The witness to this matter was Police Officer Mitchell. This incident took place on the third day, September 10, 2010. Officer Mitchell testified that he watched CI-2 go to the location of 2737 Judson Street where [he/she] had a meeting with the defendant and another man identified as James Lofton. And he saw all three of them go inside the dwelling of 2737 Judson. Upon entering the house, the CI exited shortly thereafter and turned over two chunks of crack cocaine. The CI had been used twenty to twenty-five times and virtually all uses had led to arrests and convictions. The officer testified this CI does have family in the area and also would be at risk for physical harm if [his/her] name were revealed.
The officer on cross-examination testified that he prepared the PARS Report along with the other officers with information provided by the other officers. He did testify that upon information received from the CI, identified as CI-2, that Lofton was the individual who sold the CI, identified as CI-2, drugs on September 10, 2010.
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/she] is the only individual who can provide that information and it would not be hearsay in a motion. So the
Court grants the defendant's CI motion as to the confidential informant that was used on the date of September 10, 2010.
However, with regard to the trial court's explicit order to reveal the identity of the informant, the prosecutor stated on the record to the trial court that "[w]e will not be providing that name and I will not be going forward on that particular sale to Mr. Lofton by that CI." N.T. , 7/19/2011, at 81. When defense counsel reminded the trial court that the order required the prosecutor to disclose the informant's name, the prosecutor interjected: "I'm not giving him the name of that second CI." N.T., 7/19/2011, at 82. Throughout the hearing, the prosecutor maintained the position that, because the police officers could testify as to what was recovered and observed during the execution of the search warrant, the prosecutor did not need to disclose the identity of the informant, and that she could prove the conspiracy charge with the officers' testimony alone. Apparently, the prosecutor believed that, if she could prove her case with other evidence, she could then ignore the trial court's explicit order. N.T., 7/19/2011, at 84.
A second hearing was held on September 1, 2011. Once again, judicial mandate notwithstanding, the prosecutor persisted unrelentingly in the position that she could unilaterally deem the disclosure order optional or non-binding. The prosecutor simply declared: "I can still proceed on all the dates. And, I will only be presenting evidence of what the officers themselves observed." N.T., 9/1/2011, at 6. The trial court reminded the prosecutor that the court had granted the motion, and admonished her as being "incorrect." In the face of the court's warning, the prosecutor nonetheless insisted that "we can still go forward." N.T., 9/1/2011, at 6-7.
The prosecutor attempted to circumvent the disclosure order by arguing that, because she would not be introducing any evidence pertaining to the informant, both parties had the same evidence in their files for trial purposes and, therefore, Jordan would not be put at a disadvantage. However, it already had been revealed that the informant had some exculpatory information. Defense counsel sought to interview the witness to determine whether the informant had observed other evidence within the home that would exculpate Jordan, particularly with regard to the conspiracy charge. To this claim, the prosecutor defiantly stated: "The CI will never be produced." N.T., 9/1/2011, at 8. In the face of this open and intentional disregard of the order, the trial court found the prosecutor to be in contempt, and ordered that she be prohibited from introducing any evidence related to the events that occurred on September 10, 2010. Id. at 11.
Like all others, a prosecutor is bound to adhere to orders issued by a court of competent jurisdiction. Chaos would result if any lawyer or litigant could, willy-nilly, disregard or flout valid court orders at his or her own whim. This is not an instance of substantial compliance, accident, mistake, or misinterpretation of an order. The fact of the matter is that the prosecutor here flatly disobeyed the trial court's directive, and did so knowingly and willfully in open court. When a court issues an adverse order, a litigant has multiple options. The litigant can: (1) follow the order; (2) ascertain the appealability of the order, and pursue an appeal if available; or (3) sever the portion of the case affected by the order and proceed, if possible, with the remainder of the cause of action or charges. Simply saying "no" to the adverse order, and openly refusing to obey it, is not one of the permissible actions that a litigant may take. We are a government of laws, not of men or women.
Indeed, our Supreme Court has codified the "Special Responsibilities of a Prosecutor." Pennsylvania Rule of Professional Conduct 3.8. See id., comment ("A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.").
See Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 457 (1897) ("The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees.").
Jordan also suffered demonstrable prejudice as a result of this nondisclosure. Jordan was denied access to the only available witness who could exonerate him on one charge, and quite possibly on others. Hence, per Hemmingway and Shaffer, we conclude that the prosecutor's actions were blatant, egregious, and prejudicial. In such a situation, it cannot be said that the trial court's sanction was manifestly unreasonable. See Sharp, supra.
In reaching our holding today, we have had occasion to review our prior decision in In re York County District Attorney's Office, which bears a facial similarity to the present case. There, the trial court had granted a defense motion to disclose the identity of a confidential informant. 15 A.3d at 71. The prosecutor unsuccessfully sought reconsideration of the order, but did not appeal the order. Instead, the prosecutor refused to comply with the order. The trial court found the prosecutor to be in contempt, but initially did not impose a fine. The parties reached a plea agreement. However, the trial court refused to accept the plea, and ordered the parties to trial. Instead of complying with the order, the Commonwealth chose to nolle prosse the charges with prejudice. Id.
The trial court then held a sanctions hearing on the prosecutor's contempt. At the conclusion of the hearing, the trial court fined the contemptuous prosecutor $5,000. Id. On appeal, we reversed the fine. Id. at 73. In doing so, we noted that, when a prosecutor violates a discovery order, "[t]he remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgressions." Id. (citing Commonwealth v. King, 932 A.2d 948, 952 (Pa. Super. 2007)). Applying this principle, we held that, once the prosecutor nolle prossed the charges, he no longer was able to benefit from his transgressions, and that the contempt should have been dissolved at that point. Id.
The facts of York clearly are distinguishable from those here, and, for that reason, York is not controlling. In York, rather than obey the order, the prosecutor decided to nolle prosse the charges in their entirety. The prosecutor realized that he had two choices: either comply with the order, or decline to prosecute the defendant entirely. The prosecutor chose the latter. Instantly, by contrast, the prosecutor nolle prossed only the delivery charge, and attempted to persevere in the prosecution on the remaining conspiracy charge. In York, there was no basis to impose a sanction, because the prosecutor already had been sanctioned by being forced to dismiss the charges against the defendant. Instantly, by contrast, the prosecutor attempted simultaneously to disobey the order while proceeding with the bulk of the prosecution. The circumstances of the instant case differ significantly from those in York.
Moreover, in York, the prosecutor's decision to nolle prosse all of the charges against the defendant denied the prosecutor any benefit from his transgression. The same cannot be said in the matter sub judice. On September 10, 2010, the police utilized an informant (the second in this case) to purchase narcotics from a home in which Jordan was present. That informant went into the home, and returned minutes later with crack cocaine. Later that day, the police obtained and executed a search warrant on that residence. There is sufficient cause for concern that these two events were connected to enable us to conclude that, had the prosecutor been permitted to introduce the police officer testimony regarding the execution of the warrant, the prosecutor not only would have escaped sanction for her blatant disregard of a valid court order, but in fact would have benefitted from this intentional contempt. For the same reason, the prosecutor's stipulation to the informant's exculpatory statement that Lofton sold him the crack cocaine would not erase the stain of the contempt in its entirety, nor afford Jordan the opportunity to seek additional impeaching testimony.
For instance, the police officers obtained and executed the search warrant on the same days as the informant's controlled buy from Lofton.
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The prosecutor here did not appeal the trial court's disclosure order on its merits. Rather, the prosecutor attempted unilaterally to disregard that order. When that tactic was unsuccessful, the prosecutor openly refused to comply with the order. This case deviates meaningfully from York. Here, the actions of the informant and the actions of the police officers were sufficiently intertwined to necessitate suppression of all testimony related to the events occurring on September 10, 2010. No other remedy could ensure that the prosecutor did not benefit from her blatant transgressions, nor would any other remedy serve the interests of justice and vindicate the authority of the court. The trial court was well within its discretion in imposing this sanction.
Order afirfmed.
Bowes, J. files a Dissenting Opinion. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary