Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.
Ross Weiss, First Assistant District Attorney, Elkins Park, and William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Price and Van der Voort, JJ., dissent and would not require the disclosure of the identity of the informant under the circumstances here presented. They concur, however, in the ineffective assistance of counsel remand.
[ 254 Pa. Super. Page 498]
The instant appeal follows appellant's conviction by a jury and his judgment of sentence to one to five years imprisonment for violating the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq. (1977). Specifically, the jury found appellant guilty of selling methamphetamine to an undercover agent of the State Police. On appeal appellant contends that the lower court erred in failing to require the Commonwealth to provide the name and whereabouts of an informant who was an eyewitness to the transactions which provide the basis for appellant's
[ 254 Pa. Super. Page 499]
conviction, and that post-trial counsel was ineffective in failing to raise a Pa.R.Crim.P., Rule 1100 objection.
First, we agree with appellant's contention that the trial court erred in refusing to compel the Commonwealth to disclose the name and whereabouts of its informant. At appellant's preliminary hearing, undercover police officer Walter T. Zdunowski testified that appellant sold him two "half T's" of methamphetamine at a price of fifty dollars. The officer further testified that the sale had been arranged by a confidential informant who witnessed and actively participated in the entire transaction. The only other witness to this transaction was Eugene Derenick, also an undercover officer. Upon learning of the existence of the informant-witness at the preliminary hearing, counsel immediately requested that his identity be disclosed, but this request was denied. Appellant also requested disclosure on two other occasions prior to trial.*fn1 These requests were also denied. Appellant's defense at trial was mistaken identity, in support of which appellant alleged that there was another James Lee who was also familiar in the area in which the crime occurred. To corroborate this defense appellant produced alibi witnesses who testified that appellant was not at the scene at the time of the alleged drug purchase.
In Commonwealth v. Carter, 427 Pa. 53, 59, 233 A.2d 284, 287 (1967) our Supreme Court relied upon Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) and noted that:
"'(N)o 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
[ 254 Pa. Super. Page 500]
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.'"
Applying the Carter test to the case at bar we find that a balancing of factors weighs in favor of the disclosure of the informants identity. The facts of Carter are similar to the case at bar. In Carter an informant introduced an undercover agent to the defendant and witnessed the illegal drug sale along with another police officer ...