Appeal from the Judgment of Sentence May 2, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006318-2010
The opinion of the court was delivered by: Stevens, P.J.
BEFORE: STEVENS, P.J., BOWES, J., and FITZGERALD, J.*fn1
This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County, which, sitting as finder of fact in a non-jury trial, found Appellant guilty of possession with intent to deliver a controlled substance*fn2 and knowingly or intentionally possessing a controlled substance.*fn3 Appellant claims that the trial court erroneously ruled against compelling identity disclosure of the confidential informant who purchased narcotics from him. We affirm.
The case sub judice arises from events occurring on January 19, 2010, in which Officer Hattie McKellar of the Narcotics Field Unit surveillance team employed a confidential informant ("CI") to purchase drugs with prerecorded buy money at the residential address of 3236 W. Fontain Street. N.T. 5/2/11 at 6-7. From her undercover position 20 to 30 feet away inside a parked car, Officer McKellar witnessed Appellant standing outside the residence as the CI approached him. N.T at 14-15. The CI spoke with Appellant briefly before handing him the buy money. Appellant took the money inside the residence and returned, about thirty seconds later, to hand small objects to the CI. The CI returned directly to Officer McKellar and produced four blue-capped, clear vials of crack cocaine. N.T. at 6-7.
Officer McKellar's observations formed the basis for a search warrant for 3236 W. Fontain Street, which police executed on January 21, 2010, two days after the observed transaction. As they approached the boarding house at that address, officers saw Appellant walk out and surreptitiously discard underneath a parked car objects that, when recovered and tested by police, proved to be nine clear vials of crack cocaine with gray tops. Four more gray-capped vials were recovered from inside the residence. N.T. at 34-35.
Arrested and charged with offenses stemming from both his transaction with the CI and the crack cocaine recovered during execution of the warrant, Appellant filed a motion to compel disclosure of the CI's identity. On November 30, 2010, the court denied his motion. Appellant proceeded to bench trial on May 2, 2011, where the court found him guilty of PWID on the sale of crack cocaine to the CI, guilty of possession of the crack cocaine thrown under the car, and not guilty on a charge of conspiracy relating to drugs found inside the residence. N.T. at 60. Waiving a presentence investigation report, Appellant stood for sentencing immediately after trial and received an aggregate sentence of three years' probation.
In this timely appeal, Appellant raises the following issue:
DID NOT THE LOWER COURT ERR IN FAILING TO ORDER DISCLOSURE OF THE IDENTITY OF THE CONFIDENTIAL INFORMANT, WHERE APPELLANT ASSERTED A DEFENSE OF MISTAKEN IDENTITY AT TRIAL, WHERE THE INFORMANT WAS THE ONLY EYEWITNESS OTHER THAN A SINGLE POLICE OFFICER, AND WHERE THE COMMONWEALTH FAILED TO DEMONSTRATE ANY EXCEPTIONAL OR COMPELLING REASON FOR NONDISCLOSURE THAT OUTWEIGHED APPELLANT'S RIGHT TO PREPARE A DEFENSE?
"Our standard of review of claims that a trial court erred in its disposition of a request for disclosure of an informant's identity is confined to abuse of discretion." Commonwealth v. Washington, 2013 WL 936216, 2-3 (Pa.Super. March 12, 2013).
Under Pennsylvania Rule of Criminal Procedure 573, a trial court has the discretion to require the Commonwealth to reveal the names and addresses of all eyewitnesses, including confidential informants, where a defendant makes a showing of material need and reasonableness:
(a) In all court cases, except as otherwise provided in Rule 230 (Disclosure of Testimony Before Investigating Grand Jury), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant's attorney to inspect and copy or photograph any of the following requested items, upon a showing that ...