No. 1009 Pittsburgh 1981, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal, at CC8004512A.
Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
Norma Chase, Pittsburgh, for appellee.
Spaeth, President Judge, and Cavanaugh, Wieand, Cirillo, Montemuro, Popovich and Hoffman, JJ. Cirillo, J., filed concurring opinion. Wieand, J., joined concurring opinion. Popovich, J., noted dissent.
[ 337 Pa. Super. Page 336]
This is a Commonwealth appeal from the order of the Court of Common Pleas of Allegheny County granting the suppression motion of appellee, Charles Bonasorte.*fn1 The
[ 337 Pa. Super. Page 337]
Commonwealth asserts two instances of error by the court below: First, it argues that the court erred in ordering the suppression of evidence seized pursuant to a search on the basis of findings which were not supported by the record. Second, it argues that the court erred in ordering the production of a confidential informant in camera when the defendant had not first produced substantial proof of the affiant's deliberate misrepresentation, on the affidavit of probable cause in support of the application for the warrant, sufficient to overcome the Commonwealth's privilege to withhold the identity of the informant.
The facts relevant to the present appeal are as follows: On May 8, 1980, Detectives Barry Fox and Ron Parzich of the Narcotics Division of the Pittsburgh Bureau of Police applied for two warrants to search the premises at 4854 Second Avenue, and at 4856 Second Avenue in the City of Pittsburgh. The premises were a vacant warehouse, and a tavern, respectively.
The affidavit of probable cause, attested to by both Fox and Parzich, with respect to the application for a warrant to search 4854 Second Avenue, set forth the following facts:
The affiants have received information from a past reliable informant who states that within the period of time from 5-5-80 to the present this informant has been present in the Chasmar Tavern located at 4856 Second Ave and did observe several persons come into the bar and purchase several qualudes [sic] from Chuck Bonarsorte [sic] in the Bar, but it was noted by this informant that on one such occasion Chuck had been supplied with monies from an unidentified person, then Chuck went next door to the bldg. located at 4854 Second Ave and returned with a bag that contained at least 100 white tablets that from the markings the informant recognized to bebootleg [sic] qulaudes [sic], he returned the [sic] Chasmar and gave the bag to the person who had given the monies.
[ 337 Pa. Super. Page 338]
This informant [sic] has supplied information in the past that lead [sic] to the arrests and convoctions [sic] of John Marbella of 430 Flowers Ave on 8-24-79 also Lois Bartlebaugh of 425 St Clair St on 5-7-77 both arrests resulted in seizures of drugs.
The affiants have also received information from a seperate [sic] source who states that within the past 48 Hrs a transaction involving a large amount of bootleg ludes from Chuck Bonasorte to an unidentified person occurred [sic] in the bar after Chuck had first gone next door to 4854 2nd. Ave sold an amount and placed the remainder over by the area to [sic] the basement.
The affidavit of probable cause in support of the second application set forth substantially the same facts. Based on these affidavits, warrants were issued for the search of both premises.
The warrants were executed immediately. Fox, Parzich and numerous other detectives participated in the search. In the basement of the vacant warehouse, the detectives discovered and seized a bag containing over four hundred white tablets later determined to be methaqualone.
The appellee was arrested and charged with one count of possession of a controlled substance,*fn2 and one count of possession with intent to deliver a controlled substance.*fn3
On September 18, 1980, the appellee, through counsel, filed a motion to suppress physical evidence -- i.e. the white tablets -- seized during the search, and to suppress a statement made by the appellee in the basement of the warehouse immediately after seizure of the tablets. In that statement, the appellee allegedly admitted the tablets belonged to him.
The suppression hearing commenced on October 6, 1980, before the Honorable James R. McGregor. At the outset of the hearing, an amendment to the suppression motion was allowed raising a challenge to the search warrant based on
[ 337 Pa. Super. Page 339]
informant reliability.*fn4 Counsel for the appellee also stated that it was his intention to move for production of the confidential informant after the development of a factual basis to support the motion.
The Commonwealth went forward with the testimony of Detective Fox. On direct examination, Fox testified primarily about the actual circumstances of the search of the tavern and the warehouse. It is defense counsel's cross-examination of Detective Fox, however, that is more relevant to the present appeal.
The detective was questioned extensively about his relationship with the previously reliable confidential informant, whose information comprised the bulk of the affidavit of probable cause.*fn5 The questioning was directed toward the assertions in the affidavit whereby the affiants established the previous reliability of the informant -- that is, the information given which had led to previous arrests and convictions.
Defense counsel was allowed a great deal of latitude in cross-examination, and through a process of "pyramiding",*fn6
[ 337 Pa. Super. Page 340]
it was shown that the same informant, whose information provided probable cause for the issuance of the search warrants herein, had given information in twenty-seven previous cases in which search warrants had been issued. In addition, Detective Fox revealed nine additional cases, outside the "pyramid", in which this informant's information was used to establish probable cause.
After establishing the number of previous arrests in which this particular informant had provided information which led to convictions, defense counsel demonstrated that the affidavits supporting applications for search warrants in those cases were possessed of a specific pattern of facts. The informant, accompanying an unnamed acquaintance, would go to the premises of a drug dealer and observe a drug transaction take place. The informant never participated in the transaction.
Additional facts were adduced during cross-examination of the detective:
[T]he informant in question had never been arrested, had never been seen using, buying, possessing or dealing in drugs, had never asked for any favors from the police officers on behalf of himself or any other individuals in consideration for the information he volunteered; and further, that said informant had never received any remuneration for his information.
Lower Court Opinion, at 3. Moreover, the drug transactions took place in approximately sixteen different neighborhoods throughout the City of Pittsburgh, and one transaction took place in Las Vegas, Nevada.
Detective Fox concluded his testimony on October 28, 1980.*fn7 Upon resumption of the hearings, Detective Bernard
[ 337 Pa. Super. Page 341]
Ciganek of the Pittsburgh Police was presented as a witness. Detective Ciganek testified that he did not think it was unusual for one informant to give information which led to arrests in many different areas in the city, because drug dealers often move around the city from neighborhood to neighborhood to avoid police pressure; drug users, including informants, tend to move to follow the source. He further testified that he had one informant who in the last ten years had given him information that had led to fifty arrests in all parts of the city. The remainder of Detective Ciganek's testimony related to his experience with informers in general and also his role in executing the search warrant in the present case.
The Commonwealth also presented the testimony of Detective Butler of the Pittsburgh Police, who also testified about his experience with informants and about his role in executing the search warrants in the present case. Testimony concerning the role of informants and personal experience with informants was also given by Investigator Ray Heagy of the Scott Township Police, Sergeant Earl Buford of the Pittsburgh Police, Agent Richard Sye of the Drug Enforcement Agency and Detective Anthony Ransley of the Allegheny County Police.
Finally, on December 22, 1980, the Commonwealth presented the testimony of Detective Ron Parzich, the co-affiant on the search warrant applications in this case. Detective Parzich added little, if any, material testimony by reason of his vague and sometimes reluctant answers. At the conclusion of Detective Parzich's testimony, both the Commonwealth and the defense rested. The suppression judge deferred his decision pending receipt of the transcribed notes of testimony.
On May 18, 1981, the suppression judge, in open court and on the record, ordered the Commonwealth to produce the confidential informant in camera within thirty days. The judge further stated that: "the Court is available to
[ 337 Pa. Super. Page 342]
meet with such person any hour of the day or night, seven days a week, in or out of Allegheny County within the continental United states." (N.T. May 18, 1981, at 2).
Thereafter, the Commonwealth petitioned the court to reconsider its production order on the grounds that compliance would: (1) endanger the life of the confidential informant; (2) diminish the continued usefulness of the confidential informant; and (3) impair police authorities in further dealings with this and other confidential informants.
On June 22, 1981, the date on which the original production order was to lapse, the Court heard testimony on the Commonwealth's petition. Stephen A. Joyce testified about informants who had been killed, and about the need for informants in aiding police work, especially in the investigation of narcotics violations. At the conclusion of the testimony, the court refused to reconsider its production order, but did grant the Commonwealth an additional thirty days to produce the informant. An additional extension was later granted, but the informant was not produced. The Commonwealth offered by way of explanation that the informant refused to appear.*fn8
On September 2, 1981, the court, upon consideration of the testimony introduced by the Commonwealth, and the failure to produce the informant for an in camera interview, granted the appellee's motion to suppress. As was stated by the Court:
The testimony of the Commonwealth's witnesses is so incredulous that it raises as [sic] a genuine issue of fact as to the existence of the informant. Accordingly, this Court requested that the informant be produced in camera or at any time or place of the Commonwealth's choosing, so that the identity of the informant would be protected, and so that ...