Leonard G. Ambrose, III, Erie, for appellant.
Robert H. Chase, Dist. Atty., Bernard L. Siegel, 1st Asst. Dist. Atty., Erie, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Manderino, J., filed a dissenting opinion.
Appellant, Hugh Gerard Herron, was tried before a jury and found guilty of selling approximately one pound of marijuana to an undercover state police officer. Post-verdict motions were denied and Herron was sentenced to imprisonment for two and one-half to five years. The Superior Court affirmed the judgment of sentence. Commonwealth v. Herron, 235 Pa. Super. 740, 346 A.2d 64 (1975). Herron's petition for allowance of appeal was granted and this appeal followed.
Only one issue is presented by the appeal: whether the trial judge committed reversible error in sustaining the prosecution's objection to defense counsel's question to a state police officer requesting the name of the officer's informant.
On direct examination, the state police officer testified that he went to the "Light House Cafe" with an individual (Mr. X) who upon their arrival introduced him to Herron. While at the "Light House Cafe" the officer and Herron engaged in a private conversation (no one else including Mr. X was present), and in the course of that conversation the officer mentioned that he had heard Herron "had a lb. for sale for a hundred and sixty dollars." According to the officer, Herron said, "Yes," and when the officer said he would buy, Herron called to a person named "Frankie," gave him the keys to an automobile, and told him to "get the stuff."
On cross-examination, the officer said he was introduced to Mr. X by another state police officer who was also engaged in undercover narcotics investigation. He was then asked, "Was Mr. X introduced to you for the purpose of trying to secure a buy from Mr. Herron?" The officer
replied "Yes." In answer to further questions, the officer admitted that he met Mr. X on the day involved for the specific purpose of trying to purchase marijuana from Herron, and that both he and Mr. X agreed to use fictitious names to identify themselves. He also testified that it was Mr. X who told him Herron had a pound of marijuana for sale for $160, and that Mr. X was paid $10 for his services on this day.
Defense counsel then asked the officer to identify Mr. X. At sidebar, counsel told the court that the defense was "one of entrapment" and that he wanted to call Mr. X "to test the credibility as to what happened on this occurrence as to this officer's testimony, and furthermore to show there was an inducement by the Commonwealth in this manner, and he was part of it."
The trial judge then asked defense counsel, "What evidence precisely in terms of entrapment could this informant present or do you believe he could present, that would in any way exculpate the defendant?" Counsel responded:
"I believe he might offer evidence that the entire plan and format as to how this entire purchase was to be set up was made between the informant and this Police Officer in advance; that the conversations between Mr. Herron and Mr. X may have been much more by predesign; that Mr. X may have well been told by this Officer that he was to tell Mr. Herron certain things to induce the sale, that is, as to where he worked, who he was, who he knew, that sort of thing."
The judge ruled the officer did not have to disclose the informer's identity under these circumstances. We cannot conclude that, in the circumstances of this case, the trial court erred in refusing to order the police-officer witness to disclose the identity of the informer who aided him in arranging for the marijuana purchase which was the basis of this prosecution. In our view, therefore, a new trial is not warranted.
In Commonwealth v. Carter, 427 Pa. 53, 55-56, 233 A.2d 284, 285 (1967), we assumed that the Commonwealth has a
qualified privilege "to refrain from disclosing the identity of an informer" which "limits the prosecution's duty to make available to the defense the names and whereabouts of all material eyewitnesses." We then went on to quote with approval the following formulation of the disclosure issue by the Supreme Court of the United States in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957):
"'A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer's identity, or of the contents of his communication, 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. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. . . .
"'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 non-disclosure 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.' (Footnotes omitted.) 353 U.S. at 60-62, 77 S.Ct. at 628-29."
427 Pa. at 59, 233 A.2d at 287. After examining the circumstances presented in Carter, we concluded that, since the defendant disputed the identification by the police of him as the seller and since the informer was the only "disinterested" eyewitness to the disputed transaction, disclosure of the informer's identity should have been ordered to aid Carter in preparing his defense.
Subsequently, in Commonwealth v. Washington, 463 Pa. 206, 344 A.2d 496 (1975), we applied the standards established by Carter to circumstances in which the defendant had asserted the identity of an informer was relevant and ...