The opinion of the court was delivered by: BODY
This case involves a petition for writ of habeas corpus wherein relator alleges that he was denied due process of law, first by the failure of the Commonwealth of Pennsylvania to identify or produce at trial a police informant who supplied information for a search warrant, and second, by the refusal of the state trial court to suppress evidence obtained by means of an allegedly illegal search warrant. The facts are as follows.
A taproom located at 2501 North Sixth Street in Philadelphia was burglarized on August 29, 1965. On the basis of information furnished by a neighborhood resident, the police obtained a search warrant for relator's residence a few hours after the burglary. A search of the premises revealed property subsequently identified as that stolen from the taproom. Relator was then arrested and later convicted of the crime in the Court of Quarter Sessions of Philadelphia County. He was sentenced to from four (4) to ten (10) years imprisonment.
On direct appeal relator urged the same two contentions which are presently before this Court. The Superior Court affirmed the trial court judgment in Commonwealth v. Crawley, 209 Pa.Super. 70, 223 A.2d 885 (1966), and the Supreme Court granted allocatur. It also affirmed in Commonwealth v. Crawley, 432 Pa. 627, 247 A.2d 226 (1968).
Relator's first argument is that he was denied due process of law by the trial court's refusal to order the prosecution to divulge the identity and location of a police informant. The informant was the sole known eyewitness to the crime, and it is contended that her testimony was essential to a fair determination of relator's guilt or innocence.
In Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), the Supreme Court had the following to say concerning the Government's privilege to withhold from disclosure the identity of persons who furnish information about criminal conduct to law-enforcement officers.
The court in that case went on to say:
'A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer's identity * * * is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.' (353 U.S. at 60-61, 77 S. Ct. at 628 (footnotes omitted))
'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.' (353 U.S. at 62, 77 S. Ct. at 628-629)
Considering the privilege, its limitations, and the public policies supporting each, this Court is of the opinion that disclosure of the informant's identity was not required in order to ensure a fair determination of the cause. Burglary is not the kind of crime which ordinarily involves a 'transaction', and none is alleged to have occurred here. This fact distinguishes the present case from Roviaro v. United States, supra, and renders it more like McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967), and Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964), which involved convictions on the basis of unlawful possession. Testimony of participants in or eyewitnesses to a 'transaction' is normally required to prove its occurrence, since after its consummation such is noncontinuing by definition. On the other hand, possession, once gained, often continues for a period of time and makes possible its proof by the testimony of someone who witnessed it sometime after it came into being. So here, where the crime charged may be proven by the inferences arising from the possession of recently stolen property ( Commonwealth v. Newman, 276 Pa. 534, 120 A. 474 (1923); Commonwealth v. Salkey, 185 Pa.Super. 148, 137 A.2d 924 (1958); Commonwealth v. Williams, 179 Pa.Super. 496, 118 A.2d 228 (1955)), the testimony of an eyewitness to the acquisition of possession is not crucial to a fair determination of the defendant's guilt so long as other persons who witnessed the uninterrupted possession at a later time are available. Since both the arresting officer and the owner of the stolen goods saw the goods in defendant's possession, the absence of the eyewitness informant's testimony and the failure to disclose her identity were not prejudicial under the above rule.
In further support of this conclusion it can be observed that the failure to produce the informant at trial and to disclose her identity in no way prejudiced any of the defenses defendant attempted to make out. Moreover, there was no issue of entrapment or identity concerning which the informant's testimony might have had special significance. For these reasons defendant's first argument is considered unsound.
We now pass to relator's second point, which is that the state courts erred in refusing to suppress evidence obtained by means of an allegedly illegal search warrant.
Relator's claim of illegality stems from the fact that the affiant never spoke to or had any dealings with the police informant, but instead received his ...