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decided: June 21, 1984.


No. 69 W.D. Appeal Docket 1983, Appeal from the Order of the Superior Court dated September 3, 1982, entered at No. 729 Pittsburgh, 1980, reversing the Order of the Court of Common Pleas of Allegheny County dated May 13, 1980, entered at No. CC7805134A, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Papadakos, J., did not participate in the consideration or decision of this case. Zappala, J., filed an Opinion in Support of Affirmance in which McDermott and Hutchinson, JJ., joined. Nix, C.j., filed an Opinion in Support of Reversal. Larsen, J., filed an Opinion in Support of Reversal in which Flaherty, J., joined.

Author: Per Curiam

[ 505 Pa. Page 419]


The Court being evenly divided, the Order of the Superior Court is affirmed.


ZAPPALA, Justice.

At issue in this appeal is the propriety of an order of the Court of Common Pleas of Allegheny County directing the Commonwealth to produce a confidential informant in camera. The Superior Court permitted the Commonwealth to appeal the interlocutory order pursuant to 42 Pa.C.S. § 702(b) and Pa.R.A.P. 1311(b), and reversed, 304 Pa. Super. 307, 450 A.2d 694 (1982).

The Appellant, John Iannaccio, was arrested and charged with several possessory offenses involving controlled substances, 35 P.S. § 780-113(a)(16), (30), and (31), and firearms, 18 Pa.C.S. § 6105, following a search of his residence in Pittsburgh. The search was conducted pursuant to a warrant obtained by two detectives of the Pittsburgh police force on the morning of August 15, 1978. In their warrant application the detectives set forth the following as supporting their probable cause belief:

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

[ 505 Pa. Page 420]

    unknown white female, who appeared to be around 16 yrs[.] 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 quanity [sic].

Informant has proven to be reliable by giving information which has led to the arrest and conviction of James Payne[,] jr. [sic], Darryl Robinson and Gregory Beal all for VCSSDCA, [sic] The most recent conviction being that Beal [sic] in June of 1978.

On November 13, 1978, the Appellant's counsel made an informal request for discovery pursuant to Pa.R.Crim.P. 305 A. Among the information and materials sought was the identity of the informant (referred to in the warrant application). Upon the Commonwealth's refusal of this portion of the request, the Appellant filed a motion for relief under Pa.R.Crim.P. 305 A, asking the court to "prohibit the District Attorney from introducing at time of trial, as evidence, those items and information not disclosed . . . or, in the alternative, such order as the [court] deems just under the circumstances." This motion was denied. After filing an omnibus pretrial motion to suppress the evidence seized pursuant to the warrant, the Appellant presented a motion for reconsideration of his discovery request, asking the court to order disclosure of the informant's identity "to afford [the Appellant] an adequate opportunity to challenge the veracity of the sworn statement included by the police in securing the search warrant." In addition, the motion set forth the following averments: that the "underlying circumstances" contained in the warrant application were false; that the affiants knew or should have known that this information was false; and that the affiants nevertheless deliberately included this false information in their application, or included it with reckless disregard for the

[ 505 Pa. Page 421]

    truth. The Appellant further stated that he was prepared to demonstrate the truth of these averments to the court.*fn1

A hearing was scheduled on this motion for December 15, 1978, and on December 18 the court ordered the Commonwealth to produce the informant in camera.*fn2 The Commonwealth orally requested that the court reconsider

[ 505 Pa. Page 422]

    its order, and an additional evidentiary hearing was held on January 4 and 5 of 1979.

At this hearing, one of the detective/affiants testified that on August 15, 1978 he received a phone call from an informant he had known for some 3 1/2 years, who had previously given the detective information leading to eight arrests and/or convictions. The informant met the detective at the Pittsburgh Public Safety Building around 9:00 that morning and supplied the information which was set forth in the warrant application.

Defense counsel presented the Appellant's parents as witnesses at the hearing. Because the affidavit in support of the warrant was sworn to at around 10:00 in the morning of August 15 and recited that the "[i]nformant stated that he was in the premises within the past 24 hours . . .," the testimony of the Appellant's parents focused on the 24 hour period between 10:00 a.m. August 14 and 10:00 a.m. August 15. Counsel sought to establish that no one else had been in the house during that period, and thus, inferentially, that the informant either lied or did not in fact exist.

The Appellant's father testified that the Appellant had been gone for the previous week. He further testified that he (father) was at home between 10:00 a.m. and 6:30 p.m., and back home, awake, between 10:45 p.m. and 2:00 a.m. (August 15). He also testified that he went to bed around 2:30 a.m. then slept until 7:00 a.m. when he awoke to take some pills, passed the Appellant's room and saw his son sleeping, then returned to bed.

The Appellant's mother's testimony indicated that she was at home and awake the entire period between 10:00 a.m. August 14 and 2:00 a.m. August 15, that she then went to bed until around 6:00 or 7:00 a.m., during which time she at some point heard what she thought were her son's footsteps, and that she awoke around 6:00 or 7:00 a.m. Both mother and father testified that there was no one else in the house during this period.

[ 505 Pa. Page 423]

At the conclusion of the hearing, the court affirmed its previous order requiring production of the informant in camera. In its Opinion, the court noted that the ultimate question was whether the "police officer-affiant knowingly falsified any material statement in the affidavit," but framed the issue in this case as whether the defendant could "seek disclosure of the identity of the alleged informant in order to challenge the veracity of the statement made by the police officer-affiant." Slip Op. at 2. The court further said that until it could establish the existence of the informant, it would be "without sufficient facts upon which to make a determination . . ." of the ultimate issue. Id. at 3. Finding "that the testimony of the Commonwealth's witness lacked credibility," the court concluded that "disclosure of the informant's identity herein is essential to a fair determination of the cause." Id. at 4, 5.

The Superior Court panel, one judge dissenting, treated the proceeding below as a suppression hearing because "the lower court's conclusion to discredit the affiant's testimony, if upheld even after production of the informant, would have rendered the warrant invalid and the evidence seized as a result thereof suppressible." 304 Pa. Super. at 313, 450 A.2d at 657.*fn3 Holding 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," the Superior Court reversed.

Proper analysis of the issue here first requires that the confusion regarding the procedural posture of the case be dispelled. Although several statements by the lower court in the course of the hearing and in its Opinion, along with the argument of counsel and cases cited in support

[ 505 Pa. Page 424]

    thereof, might explain the Superior Court's treatment of the proceeding as a suppression hearing, it is more properly characterized as a discovery proceeding, pursuant to Pa.R.Crim.P. 305, in support of a motion to suppress.

Rule 305 B(2) makes discoverable, at the discretion of the court, "upon a showing that they are material to the preparation of the defense and that the request is reasonable,"

     a) the names and addresses of eyewitnesses;


     d) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.

The Appellant was charged with possession of a controlled substance and unlawful possession of a firearm. It is the arresting officers who are the "eyewitnesses" to these crimes of possession. Notwithstanding the fact that he "tipped off" the police that the Appellant was selling drugs, the informant is not an eyewitness to the crimes charged. It is clear that the Commonwealth had no intention, nor did it have any need, to call the informant as an eyewitness at the trial of these charges. Accordingly, subsection(a) of Rule 305B(2) cannot be cited in support of the court's discretionary decision to compel discovery.

The only other section of Rule 305B(2) arguably applicable here, the catch-all "any other evidence specifically identified by the defendant" contained in subsection(d), requires a showing that in addition to being material to the preparation of the defense and reasonable, the request be in the interests of justice. It is important to note that the Rule speaks in terms of a showing by the defendant. These conditions cannot be assumed, and they must be supported by evidence on the record. It is in this context that the evidence presented at the hearing must be examined to determine whether the defendant met his burden (or more precisely whether the court abused its discretion in determining that he had).

[ 505 Pa. Page 425]

It is axiomatic that in reviewing findings of fact, an appellate court must give great deference to the fact finder whose province it is to pass upon the credibility of witnesses, whom he has seen and heard, and determine the weight if any to be given their testimony. This deference does not, however, extend so far as to allow a lower court to base its decision on speculation derived from the testimony which it finds credible. The court's determination must be based on facts in the record.

The Appellant's offer of proof in his motion for reconsideration for relief under Rule 305 E was that he could establish that the "underlying circumstances" stated in the application were false and that the police officers presented this false information to the magistrate knowingly and deliberately or in reckless disregard of the truth. A thorough review of the record leaves no doubt that because of serious gaps in the evidence actually produced the Appellant failed to substantiate this offer of proof. Taking all of the testimony of the defendant's witnesses as true, that testimony does not so directly and completely contradict the informant's "tip" as recited by the policemen in the affidavit as to require the conclusion that the "underlying circumstances" of the affidavit were false. It is readily apparent that during the period from 2:00 to 6:00 or 7:00 a.m., neither witness had the capacity to be aware of whether anyone else was present in the house. Indeed, the Appellant's mother testified that at one point she heard one set of footsteps which she assumed were her son's. Given that she was asleep for at least some period of time, it cannot be concluded that there were no other footsteps that night, that she would have heard other footsteps if there were any, or even that the footsteps she heard were actually those of her son. It is thus by no means established, from the entirety of the Appellant's proferred evidence, that the "underlying circumstances" of the warrant were false.

Even assuming that this evidence did tend to show the falsity of the informant's tip, the Appellant produced absolutely no evidence, ...

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