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submitted: April 12, 1982.


No. 729 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division at No. CC 7805134A.


Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.

John H. Corbett, Jr., Public Defender, Pittsburgh, for appellee.

Hester, Johnson and Popovich, JJ. Johnson, J., files a dissenting statement.

Author: Popovich

[ 304 Pa. Super. Page 309]

This is an appeal from the order of the Court of Common Pleas of Allegheny County directing the Commonwealth to produce a confidential informant in camera.*fn1 Based on the particular facts of this case, we reverse.

A review of the facts reveal the following: On August 15, 1978, Detectives Mullen and Butler secured a warrant to search the premises of the appellee, John Iannaccio, located at 5129 Roma Way, Pittsburgh, Pa. The probable cause section of the warrant read:

"Affiants received information from a confidential reliable informant that John Iannaccio Jr. aka Jack was dealing and concealing LSD from the above described premises. Informant stated that he was in the premises within the past 24 hours and did observe Jack sell LSD to an unknown white female, who appeared to be around 16 years old. Informant stated that Jack was charging $3.00 apiece for the LSD. Informant stated that he oberved [sic] several small tablets which Jack stated that he was going to sell for $3.00 apiece, but would sell them cheaper if the buyer bought in quantity. Informant has proven to be reliable by giving information which has led to the

[ 304 Pa. Super. Page 310]

    arrest and conviction of James Payne jr., Darryl Robinson and Gregory Beal all for VCSSDCA, [sic] The most recent conviction being that Beal [sic] in June of 1978."

The warrant was executed the day it was issued, and, as a result thereof, drugs were seized on the premises searched. Also, appellee was arrested at the scene. Thereafter, following a preliminary arraignment, appellee was charged by Information with possession of controlled substances,*fn2 possession with intent to deliver controlled substances,*fn3 possession of a small amount of a controlled substance*fn4 and former convict not to carry a firearm.*fn5

On November 13, 1978, appellee's counsel served upon the Office of the District Attorney of Allegheny County a demand for discovery, pursuant to Pa.R.Crim.P. 305 A,*fn6 which sought, inter alia, disclosure of the informant referred to in the application for a search warrant. The Commonwealth refused the request. Appellee then presented the lower court with a motion for relief under Pa.R.Crim.P. 305 E,*fn7 seeking the court to apply the sanction of Rule 305 E,

[ 304 Pa. Super. Page 311]

    and prohibit the District Attorney from introducing at the time of trial, as evidence, the information not disclosed; or, in the alternative, such order as the court deemed just under the circumstances. Such motion was denied. Thereafter, appellee filed an omnibus pretrial motion seeking suppression of all the evidence seized pursuant to the warrant in question. A hearing on said motion was scheduled to be held on the date set for trial. However, before the case was listed for trial, appellee filed a motion for reconsideration under Rule 305 E, seeking the disclosure of the informant's identity "not to aid him in his defense against [the] charges, but rather to afford him an adequate opportunity to challenge the veracity of the sworn statement included by the police in securing the search warrant." By so doing, appellee sought "to establish that the evidence relied upon by the affiant included a material false statement that the affiant knowingly and deliberately or with reckless disregard for the truth acted upon said information[.]" A hearing on the reconsideration motion was held, and, at the completion of same, the court ordered the Commonwealth to produce the informant in camera. However, on oral motion by the Commonwealth, the court set January 4-5, 1979, as the time for a hearing to reconsider its order.

At the proceeding, Det. William Mullen testified that on August 15, 1978, he received a phone call from an informant known to him for some 3 1/2 years -- this individual had supplied the officer with information leading to arrests and/or convictions in about eight cases. The caller requested that the two meet at approximately 9:00 a. m., near a back door to the Public Safety Building. At the scheduled time and place, the informant appeared and told the witness that he had been to the appellee's residence within the last twenty-four hours in the company of a female, that the female knew the appellee and that she was observed buying drugs

[ 304 Pa. Super. Page 312]

    from the accused. Based on this information, the police, without any prior surveillance or observance of suspicious activity on the premises, secured and executed a search warrant of the appellee's home, at approximately 10:45 a. m. During the course of the search, various types of drugs were seized and the appellee was arrested on the scene.

The appellee's case consisted of a defense of "mistaken identity." In support thereof, appellee's father and mother, with whom the appellee had lived with all of his life, testified to his whereabouts during the 24-hour period immediately preceding his arrest. To explicate, the father recounted getting up at 10:30 a. m. on August 14, 1978, and not leaving the premises before 6:30 p. m., when he left to play bingo at a nearby church. The father stated he returned home at 10:45 p. m., but, before going to bed, he stayed up until 2:30 a. m. to watch television in the living room. Also, at this point in the evening, the father noted that his son had yet to return from a week-long trip to Atlantic City, New Jersey. In fact, it was not until 7:00 a. m. on the morning of the 15th of August, when the witness awoke to take some pills, that he went downstairs and noticed a set of luggage resting on the living room floor. The witness proceeded to the appellee's room and found his son sleeping. Thereafter, the witness went back to bed and slept until the police arrived.

The next witness to appear for the defense was appellee's mother. Mrs. Iannaccio testified that during the time that her husband went to play bingo, on the evening of the 14th of August, she remained home alone. She also recalled that when she went to bed at 2:00 a. m., her son had not yet returned from his trip to Atlantic City. Further, albeit the witness could not say for certain when her son returned home, she remembered hearing a vehicle and then a single set of footsteps in her home between 5:00 and 6:00 a. m. The witness went on to remark that she got up about 6:00 or 7:00 a. m. and "noticed a form" in her son's bed. She then walked downstairs to read the newspaper, and, she stated, no one came to the house while she was up, save for the police.

[ 304 Pa. Super. Page 313]

At the conclusion of the hearing, the court reaffirmed its earlier order and, in addition, certified the case for appeal to this Court, which we granted. See note 1, supra.

In determining that the lower court erred regarding its finding of fact as to the Commonwealth's case, we never reach the question which was specifically reserved by the United States Supreme Court in Franks v. Delaware, 438 U.S. 154, 170, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667 (1978), and as of yet not ruled upon in this jurisdiction -- i.e., whether a reviewing court must ever require the disclosure of the identity of an informant once a substantial preliminary showing of falsity has been made. But see United States v. Hurse, 453 F.2d 128, 130-31 (8th Cir. 1971), cert. denied, 414 U.S. 908, 94 S.Ct. 245, 38 L.Ed.2d 146 (1973); United States v. Swanson, 399 F.Supp. 441 (D.Nev.1975); United States v. Danesi, 342 F.Supp. 889 (D.Conn.1972); State v. Luciow, 308 Minn. 6, 240 N.W.2d 833 (1976).

To begin with, although the proceeding below was not captioned a suppression hearing, we will treat it as such, inasmuch as the lower court's conclusion to discredit the affiant's testimony, if upheld even after the production of the informant, would have rendered the warrant invalid and the evidence seized as a result thereof suppressible. (RR. 61A-62A) Having established the procedural posture of the case at bar, we next observe that in Pennsylvania it is well established that criminal defendants have a right to go beyond the "four corners" of the search warrant and challenge deliberate and material misstatements of the government affiant. Commonwealth v. Bradshaw, 290 Pa. Super. 162, 434 A.2d 181 (1981). However, it is the Commonwealth, and not the defendant, that has the initial burden of going forward with evidence and of establishing that the challenged evidence was not obtained in violation of defendant's rights. The rationale for such a holding was set forth by this Court in Commonwealth v. Ryan, 296 Pa. Super. 222, 229-230, 442 A.2d 739, 743 (1982), wherein we stated, concerning the defendant's right to test the veracity of the information contained in a search warrant:

[ 304 Pa. Super. Page 314]

"'The burden is on the Commonwealth to establish the validity of the search warrant and the burden is not carried by merely introducing the search warrant and affidavit with no supporting testimony because then the only way for the defendant to challenge the veracity of the information is to call witnesses himself and this effectively shifts onto him the burden of disproving the veracity of the information, an almost impossible burden. If the procedure followed by the Commonwealth in this case were upheld then policemen could recite in an affidavit as probable cause for the issuance of a search warrant any and all statements which they felt were of help in obtaining the warrant, irrespective of the truth or veracity of those statements, their legality or illegality, or constitutionality or unconstitutionality, realizing that such statements would be insulated from defendant's right to cross-examination since the Commonwealth did not have to call witnesses who would be subject to cross-examination to establish the facts necessary to support the issuance of the search warrant. Therefore, we must hold that the Commonwealth failed to carry its burden of proof at the suppression hearing. To rule otherwise would permit police in every case to exaggerate or to expand on the facts given to the issuing authority merely for the purpose of meeting the probable cause requirement, thus precluding an objective determination of whether probable cause for the warrant existed.'" (Citation omitted) (Emphasis added)

Before examining the facts instantly, we observe that "[u]nder our standard of review of suppression court hearings, the findings of the trier of fact, supported by the record, may not be disturbed. Commonwealth v. Sparrow, 471 Pa. 490, 497, 370 A.2d 712, 715 (1977)." (Emphasis added) Commonwealth v. Martin, 481 Pa. 515, 520, 393 A.2d 23, 25 (1978). Where, as here, a suppression court has made a specific finding of fact (i.e., the affiant's credibility,) and such finding is wholly lacking support in the record, we are not bound by it. See Commonwealth v. Wright, 474 Pa. 92,

[ 304 Pa. Super. Page 315376]

A.2d 988 (1977). Accord Culombe v. Connecticut, 367 U.S. 568, 603, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961) ("Where they[ -- the State courts --]have made explicit findings of fact, those findings conclude us and form the basis of our review -- with one caveat, necessarily, that we are not to be bound by findings wholly lacking in evidence. See Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 [(1960)]."); see also Schmidt v. Hewitt, 573 F.2d 794 (3rd Cir. 1978). In making this determination, we are to consider only the evidence of the prosecution's witnesses and so much evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Culombe v. Connecticut, supra, 367 U.S. at 604, 81 S.Ct. at 1880; Commonwealth v. Hamlin, 302 Pa. Super. 86, 448 A.2d 538.

With the basic principles delineated above in mind, a review of the record is necessary. In the case sub judice, the officer who received the information and conducted the search that produced the incriminating evidence, a veteran of five years with the Pittsburgh Police Department, testified: 1) that he had known the unpaid informant for approximately three, three and a half years; 2) that the informant had supplied information in the past leading to the arrests and/or convictions in some eight cases; and 3) that the informant witnessed the appellee sell LSD to a 16-year old white female at the premises ultimately searched.

Based on the information recited in the warrant reproduced supra, the neutral magistrate had sufficient information from which to conclude that the informant was "credible" and his information "reliable." Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964); Commonwealth v. Kaschik, 235 Pa. Super. 388, 344 A.2d 519 (1975); see also Commonwealth v. Luddy, 281 Pa. Super. 541, 422 A.2d 601 (1980). Moreover, as a general proposition, the legality of a search warrant depends upon the sufficiency of the underlying affidavit on its face and the question is whether the magistrate could determine the existence of

[ 304 Pa. Super. Page 316]

    probable cause upon the matter asserted in such affidavit. United States v. Bolton, 458 F.2d 377 (9th Cir. 1972). In light of the facts here, there is no reason to overturn the magistrate's implicit finding that the officer reasonably believed the informant to be reliable and credible. See United States v. Valenzuela, 596 F.2d 824 (9th Cir. 1979), cert. denied, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071. The officer who testified, in open court, did so fully and in precise detail as to what the informer told him and as to why he had reason to believe the information was truthful. The officer was under oath, was subject to cross-examination and never wavered from his position as to the facts surrounding the securing of the warrant, nor did he alter his view as to the existence of the confidential informant. To substantiate such facts, the Commonwealth offered Det. Mullen's partner (Det. Butler), who was present when the informant relayed his information concerning the appellee, to the defense for cross-examination. The prosecution felt "that his testimony would be corroborative and accumulative of that of Detective Mullen[,]" (RR. 94A), and saw no need to examine such witness. The defense did not accept the prosecution's offer to question the witness, despite the opportunity to do so. This abstention was rather ill-advised since the issue of probable cause to execute the search warrant was predicated, at least in part, upon the credibility of the affiant.*fn8

Here, the defense had the opportunity to offer any evidence that may have been available to challenge the propriety of the warrant, and failed to exercise that right to

[ 304 Pa. Super. Page 317]

    its fullest potential; e.g., cross-examining all possible witnesses who would have shed light on the question of probable cause or attacking the informant as to the legitimacy ("existence") of the prior arrests and/or convictions provided to the police as the basis for his reliability. On this exact point, we note some of the cogent observations made by LaFave, in his treatise on the Fourth Amendment, that bear repeating:

"The McCray[v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967)] case

     specifies no standard to guide the judge's discretion, other than that he be 'satisfied' of the informant's reliability. Presumably this means that, if the officer makes a good witness, his story will be accepted without scrutinizing the underpinnings. Perhaps the vagueness of the standard is not of great consequence if * * * his decision is unreviewable on appeal, like the discretion on sentencing. But does this give the moving party a fair hearing of his challenge to probable cause, especially if he has made a substantial preliminary challenge to the very existence of the informer? Such an issue is not like the determination of sentence, for which purpose the judge is entitled to roam outside the record and play his hunches. It is the kind of issue that traditionally is determined on a record and is reviewable on appeal." (Footnote omitted) (Emphasis added) LaFave, Wayne R., Search and Seizure: A Treatise on the Fourth Amendment, Vol. 1, ยง 3.3 at 575 (1978).

Thus, in considering only the prosecution's evidence, and so much of the defense's evidence which remains uncontradicted, see Culombe v. Connecticut, supra, we find that the lower court abused its discretion in finding as a fact that the Commonwealth failed to prove the existence of probable cause to justify the issuance of the warrant. See Commonwealth v. Hamlin, supra. Stated conversely, we conclude that, premised on the clear and uncontroverted record, the Commonwealth satisfied its burden of proving the propriety of the warrant. Commonwealth v. Ryan, 296 Pa. Super. 222,

[ 304 Pa. Super. Page 318442]

A.2d 739 (1982). Additionally, assuming for the purpose of discussion that appellee made a substantial preliminary showing of intentional falsity or reckless disregard for the truth which was necessary to the finding of probable cause by offering the testimony of his parents, we conclude that appellee failed to establish his allegation of the affiant's reckless disregard for the truth by a preponderance of the evidence.*fn9 See United States v. House, 604 F.2d 1135 (8th Cir. 1979).

It must be conceded that "[r]esolution of questions of credibility is for the trier of fact, [but] where as here, that resolution is [not] based on credible evidence, it will . . . be disturbed on appeal. Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978); Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977)." Commonwealth v. Penn, 497 Pa. 232, 238, 439 A.2d 1154, 1157 (1982).

Based on the aforesaid, we determine that the lower court's factual finding, as it pertains to the affiant's credibility, is unsupported by the record, and, therefore, does not bind this Court. See Culombe v. Connecticut, supra; Commonwealth v. Martin, supra; Commonwealth v. Wright, supra; Commonwealth v. Hamlin, supra. Accordingly, we reverse the order of the lower court.

JOHNSON, Judge, dissenting:

After a thorough review of both the record and the law, I must dissent. The lower court judge ordered the Commonwealth to produce its confidential informant in camera because the judge, after hearing and considering the evidence, determined that the existence of the informant was suspect. It is my belief that on the instant facts, this determination

[ 304 Pa. Super. Page 319]

    was justified. As our scope of review here is merely to decide whether the evidence supports the findings and legitimacy of conclusions drawn from these findings, Commonwealth v. Guinther, 290 Pa. Super. 441, 434 A.2d 834 (1981), I would affirm on the able Opinion of Judge McGregor below.

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