Appeal from the Order Entered on September 1, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0014464-2010
BEFORE: BOWES, J., LAZARUS, J., and WECHT, J.
The Commonwealth appeals from the trial court's September 1, 2011 order. That order precluded the Commonwealth from presenting evidence obtained through the execution of a search warrant. The order was entered as a sanction for the Commonwealth's refusal to reveal to the defense the identity of a confidential informant, notwithstanding the fact that the Commonwealth was ordered to do so by a prior court order. We affirm.
The pertinent facts are as follows. On September 7, 2010, Philadelphia Police Officer Gary Francis utilized confidential informant number 01241 ("CI-1") to conduct a narcotics investigation on the 2700 block of North Judson Way, Philadelphia. Officer Francis had used CI-1 in drug trafficking investigations on more than ten prior occasions, and in each instance, the collaboration led to the seizure of narcotics as well as arrests.
Officer Francis met with CI-1, and, after performing the controlled-buy protocol, followed CI-1 to the 2700 block of Judson Way sometime between 3:00 p.m. and 5:00 p.m. Officer Francis observed CI-1 speak briefly with Jordan, enter a row house at 2737 Judson Way with Jordan, and exit that location shortly thereafter. Officer Francis then followed CI-1 away from the view of the 2700 block, and CI-1 handed Officer Matthew Beattie two packets of crack cocaine in Officer Francis's presence. Officers Francis and Beattie then entered a vehicle. Officer Francis drove to the 2700 block of Judson Way, and Officer Francis "pointed out" Kyle Jordan, the appellee in this case, as the drug seller in the transaction so that Officer Beattie would be familiar with him. N.T. Motion, 7/19/11, at 29.
At 2:10 p.m. on September 8, 2010, Officer Beattie, who also had worked with CI-1 in successful drug interdictions, met with that CI. After utilizing the controlled-buy procedure, Officer Beattie observed the CI meet with Jordan, who was standing on the 2700 block of Judson Way. They briefly spoke, and Jordan entered 2737 Judson Way for about one minute while CI-1 waited outside. Jordan then returned to CI-1, who handed Jordan money. In return, Jordan gave CI-1 "small items." Id. at 28. The CI gave those items to police. The items later were determined to be packets of crack cocaine.
On September 10, 2010, Police Officers Bradford Mitchell met with confidential informant number 01079 ("CI-2"). CI-2 had aided Officer Mitchell in twenty to twenty-five prior drug investigations, all of which had led to the recovery of narcotics and arrests. Id. at 59. After following the controlled-buy mandates, Officer Mitchell gave CI-2 twenty dollars in buy money. Officer Mitchell then observed as CI-2 engaged Jordan and an individual named James Lofton in a brief conversation in front of 2737 Judson Way. All three men entered the row house. Within two minutes, CI-2 exited the building and gave Officer Mitchell two pieces of crack cocaine. At that time, CI-2 informed Officer Mitchell that he had handed Lofton the buy money and that Lofton had sold him the crack inside 2737 Judson Way.
On September 10, 2010, police obtained a search warrant for 2737 Judson Way. When the warrant was executed, Jordan and Lofton were present. Although the record fails to indicate the nature of the objects, incriminatory "items were recovered" from both Jordan and Lofton. Id. at 76. Additionally, Jordan and Lofton engaged in certain actions in the presence of the officers evidencing a conspiracy between them to distribute narcotics.
After being charged with various drug-related offenses and conspiracy, Jordan filed a motion to reveal the identities of the two CIs used in connection with the investigation. A hearing was held on the motion on July 19, 2011, where the above-delineated specifics regarding the investigation were adduced. Additionally, Officer Francis testified that CI-1 lived in the community, had knowledge of the drug trade therein, and was still "in use" in drug investigations. N.T. Motion, 7/19/11, at 13, 14. He reported that, if the identity of CI-1 was revealed, there might be retaliation, "physical harm being brought to that person or [his] family who are also of this particular community, " and the harm could include "[p]hysical, verbal, mental, property damage . . . ." Id. at 12-13, 15. Officer Mitchell similarly stated that CI-2 frequented the area where the drug purchases occurred and had "family in that area." Id. at 43. Officer Mitchell opined that, if the identity of CI-2 was disclosed, "[s]ome form of bodily injury may happen to this CI or the CI's family." Id. at 43-44.
After hearing this evidence, the trial court denied the request to reveal CI-1's information, but granted the motion to reveal the identity of CI-2. Id. at 75. The court then observed that Officer Mitchell also indicated that, after the September 10, 2010 controlled buy conducted inside the row house, CI-2 told Officer Mitchell that "Lofton was the individual who sold the CI, identified as CI-2, drugs on September 10th, 2010." Id. The court ruled that "[b]ased upon the testimony of Officer Mitchell in this CI motion, this Court feels that it is necessary for the identity of CI-2 to be revealed as he is the only individual who can provide that information and it would not be hearsay testimony. . . ." Id.
As soon as the court issued the ruling requiring it to reveal CI-2's identity, the Commonwealth withdrew the delivery charge premised upon the controlled buy conducted on September 10, 2010. Id. at 76. Additionally, the Commonwealth agreed to stipulate at the scheduled trial that Lofton sold the drugs to CI-2 during the September 10, 2010 controlled buy. Id. at 79. However, it elected to "keep the conspiracy charge" due to the fact that the search warrant was executed on September 10, 2010. The Commonwealth explained that "items recovered in the house and on the persons in the house" during the search as well as the "behavior of the defendant" while the warrant was being executed were "relevant to the conspiracy charge." Id. at 77.
The court warned the Commonwealth that, if it did not reveal CI-2's name, then the Commonwealth could not present any police witnesses as to the events that transpired when they executed the warrant, and that the Commonwealth could not proceed with any charges relating to September 10, 2010. After the Commonwealth failed to comply with the July 19, 2011 directive, the trial court issued an order on September 1, 2011. As a sanction for the Commonwealth's violation of the July 19, 2011 order to reveal CI-2's identity, the trial court precluded the Commonwealth from presenting any evidence adduced during the execution of the search warrant and proceeding with charges relating to September 10, 2010.
The Commonwealth filed the present appeal under Pa.R.A.P. 311(d) from the September 1, 2011 order, and certified in the notice of appeal that it was substantially handicapped in its prosecution. The trial court did not direct the Commonwealth to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Nonetheless, the Commonwealth filed a Rule 1925(b) statement on September 30, 2011. On January 17, 2013, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).
The Commonwealth presents the following issue for our review:
Did the lower court err in suppressing evidence as a sanction for the Commonwealth's refusal to disclose the identity of a confidential informant where the informant was not a prosecution trial witness, and would have been put in danger by disclosure; defendant failed to make a threshold showing that the identity of the informant was material, reasonable, and necessary for the preparation of a planned defense; and the refusal had no reasonable ...