Appeal from judgment of Court of Quarter Sessions of the Peace of Philadelphia County, Jan. T., 1966, No. 1439, in case of Commonwealth of Pennsylvania v. Melvin Carter.
Leonard Packel, Assistant Defender, with him Herman I. Pollock, Defender, for appellant.
John A. McMenamin, Assistant District Attorney, with him Joseph M. Smith, Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Watkins, J. Dissenting Opinion by Hoffman, J. Jacobs, J., joins in this dissenting opinion.
[ 208 Pa. Super. Page 247]
This appeal is from the judgment of sentence of the Court of Quarter Sessions of the Peace of Philadelphia County. The appellant was found guilty after a jury trial and sentenced to serve five to ten years for the felonious possession and sale of narcotic drugs.
The facts are that on or about October 18, 1965, an undercover agent for the Philadelphia Police force, in the company of an informer and under the surveillance of a federal narcotics agent, went to the corner of 39th and Union Streets in Philadelphia and met the appellant. The undercover agent then purchased three envelopes of narcotics from appellant, who refused to make a direct sale to the agent, but in his presence, sold to the informer, who immediately gave the envelopes to the agent, in appellant's presence.
The informer's identity was not disclosed by the District Attorney's office; his name did not appear as a witness on the indictment and he was not called as a witness at the trial of the case. The appellant did not ask for a Bill of Particulars prior to trial, but did demur at the close of the Commonwealth's case on the ground the Commonwealth had failed to produce or disclose the identity of an eyewitness. The court below overruled the demurrer and held that the Commonwealth need not identify the informer and found that the appellant knew the informer and could have called him had he so desired. The defense was a complete denial; that the appellant was wrongly identified; and that he was not there and never dealt in narcotics.
[ 208 Pa. Super. Page 248]
The two law enforcement officers positively identified appellant at the trial.
The sole question raised on this appeal is whether or not the court below erred in failing to require the Commonwealth to produce or disclose the identity of the informer.
In the Commonwealth of Pennsylvania no rule or policy has been judicially or otherwise determined as to the Commonwealth's right not to disclose the identity of an informer. The duty on the Commonwealth to call witnesses in criminal cases is within the discretion of the District Attorney under the general supervision of the trial judge. Com. v. Garnett, 204 Pa. Superior Ct. 113, 203 A.2d 328 (1964). The need for the assistance of informers in enforcing the law and detecting crimes is the same in Pennsylvania as in the rest of the nation and there exists the same press of public policy not to disclose the identity of informers, under proper safeguards.
The federal rule appears to be as follows, taken from the annotation in U. S. Supreme Court Reports, 1 L. Ed. 2d 1998.
"It is a general rule, subject to certain limitations, but applicable in both criminal and civil cases, that the government is privileged to withhold from disclosure (notwithstanding its relevance) the identity of persons who furnish information relating to violations of law to officers charged with enforcement of that law. The privilege is founded upon public policy, and seeks to further and protect the public interest in effective law enforcement. It recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officers, and by preserving ...