J-S27004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 JAMAL JACKSON                          :
                                        :
                    Appellant           :    No. 125 EDA 2017

         Appeal from the Judgment of Sentence December 1, 2016
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0000104-2016


BEFORE:    SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY SHOGAN, J.:                            FILED JULY 19, 2018

     Appellant, Jamal Jackson, appeals from the judgment of sentence

entered on December 1, 2016, in the Philadelphia County Court of Common

Pleas. We affirm.

     In its May 1, 2017 opinion, the trial court set forth the facts and

procedural background of this case as follows:

           On October 28, 2015, Philadelphia Narcotics Officer Michael
     Brown and another officer went to the 1200 block of South
     Bucknell Street in Philadelphia where they focused their attention
     on a residence located at 1252 South Bucknell Street. While so
     engaged[,] Officer Brown met with a [confidential informant (“the
     CI”)]. (N.T. 13-14). During the meeting, Officer Brown searched
     the CI and after ascertaining that he/she did not have money or
     contraband in his/her possession, gave the CI $40.00 in
     prerecorded “buy” money. The CI proceeded to 1252 South
     Bucknell Street and knocked on the door, which was answered by
     Appellant. Upon answering the door, Appellant walked out of the
     house and engaged the CI in a short conversation. When it ended
     both the CI and Appellant went inside the residence.
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            The CI emerged approximately three minutes later and
     immediately returned to Officer Brown, who remained in the area
     and saw the CI enter and then exit the residence. The [CI]
     surrendered a bag filled with what testing revealed to be
     marijuana to Officer Brown, who thereafter placed that bag and
     its contents on a property receipt.

            On October 29, 2015, Officer Brown again went to [the]
     1200 block of South Bucknell Street and met with the same CI he
     had used the previous day. Again, the CI was searched with
     negative results, given pre-recorded “buy” money, and directed
     to go to 1252 South Bucknell Street. As occurred the previous day
     Appellant answered the door and after engaging the CI in a short
     conversation, he ushered the CI into the residence. Five minutes
     later the CI emerged, returned to Officer Brown, and handed him
     a bag filled with what testing revealed to be marijuana.

           On October 30, 2015, Officer Brown secured a search
     warrant for 1200 block of South Bucknell Street, which was
     executed at about 3:25 p.m. that day. Upon arrival police
     encountered Appellant standing outside the residence and placed
     him in custody. A search of Appellant resulted in the seizure of
     $512.00 from him. The police then entered the residence and
     ascertained that the building was being used as a boarding house
     and that Appellant rented a first floor front room.1 Police limited
     the search of the residence to that room and it yielded two large
     laundry bags filled with what testing revealed to be marijuana,
     three digital scales, two cell phones, and one box of unused
     sandwich baggies. Also recovered were pieces of mail addressed
     to “Jamal Collier” at that residence and $1,148.00 in U.S
     currency.2

           1 At the time the warrant was executed police
           encountered three people in a second floor middle
           bedroom.

           2 Following his arrest Appellant gave the police the
           name Jamal Collier.

           Appellant testified in his own defense. He denied that he
     sold drugs or participated in the sales to the CI. He further stated
     that he resided in the front bedroom and that the money police
     seized from inside the room was income from his job.3


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            3 The non-hearsay relevant testimony given during the
            hearing on Appellant’s CI motion was admitted by way
            of stipulation in Appellant’s trial.

Trial Court Opinion, 5/1/17, at unnumbered 2-4.

             On December 1, 2016, following the denial of a motion to
      reveal the identity [of the CI] and a waiver trial before this [c]ourt,
      Appellant was found guilty of Manufacture, Delivery, or Possession
      With Intent to Manufacture or Deliver Cocaine (hereinafter
      “PWID”), 35 P.S. § 780-113 (A)(30), Knowing and Intentional
      Possession of a Controlled Substance, 35 P.S. § 780-113 (A)(16),
      and Use or Possession of Drug Paraphernalia, 35 P.S. § 780-113
      (A)(32)[.] That same day, following the recording of the verdict,
      this [c]ourt imposed a sentence of three years’ probation on the
      PWID conviction upon Appellant and entered verdicts without
      further penalty on the remaining two charges.

Trial Court Opinion, 5/1/17, at unnumbered 1-2.

      Following the imposition of sentence on December 1, 2016, Appellant

filed a timely notice of appeal on December 30, 2016. Both Appellant and the

trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant presents the following issue for this Court’s

consideration:

             Did the lower court err in denying [A]ppellant’s Motion to
      Reveal Identity of Confidential Informant because 1) [A]ppellant
      satisfied his burden that his request was material and reasonable
      by presenting evidence raising a defense of mistaken identification
      and fabrication; and 2) the Commonwealth failed to show any
      “reasonably specific type of danger” to the specific informant in
      this matter if the identity were disclosed?

Appellant’s Brief at 3.

      Our standard of review of claims that a trial court erred in its disposition

of a request for disclosure of a CI’s identity is confined to abuse of discretion.


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Commonwealth v. Watson, 69 A.3d 605, 607 (Pa. Super. 2013) (citation

omitted). Pursuant to 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.

Commonwealth v. Marsh, 997 A.2d 318, 321-322 (Pa. 2010) (citing

Pa.R.Crim.P. 573(B)(2)(a)(i)).

             The Commonwealth enjoys a qualified privilege to withhold
     the identity of a confidential source. In order to overcome this
     qualified privilege and obtain disclosure of a confidential
     informant’s identity, a defendant must first establish, pursuant to
     Rule 573(B)(2)(a)(i), that the information sought is material to
     the preparation of the defense and that the request is reasonable.
     Only after the defendant shows that the identity of the confidential
     informant is material to the defense is the trial court required to
     exercise its discretion to determine whether the information
     should be revealed by balancing relevant factors, which are
     initially weighted toward the Commonwealth.

           In striking the proper balance, the court must consider the
     following principles:

            A further limitation on the applicability of the privilege
            arises from the fundamental requirements of fairness.
            Where the disclosure of an informer’s identity, or of
            the contents of his communication, is relevant and
            helpful to the defense of an accused, or is essential to
            a fair determination of a cause, the privilege must give
            way. In these situations, the trial court may require
            disclosure and, if the Government withholds the
            information, dismiss the action.

            No fixed rule with respect to disclosure is justifiable.
            The problem is one that calls for balancing the public
            interest in protecting the flow of information against
            the individual’s right to prepare his defense. Whether
            a proper balance renders nondisclosure erroneous

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            must depend on the particular circumstances of each
            case, taking into consideration the crime charged, the
            possible defenses, the possible significance of the
            informer’s testimony, and other relevant factors.

Marsh, 997 A.2d at 321-322 (some internal citations and internal brackets

omitted). The Supreme Court stated that it “has repeatedly recognized the

importance of the Commonwealth’s qualified privilege to maintain the

confidentiality of an informant in order to preserve the public’s interest in

effective law enforcement.” Id. at 324 (citation and internal quotation marks

omitted). The Supreme Court noted that the safety of the CI is a controlling

factor in determining whether to reveal his identity. Id. Appellant need not

predict exactly what the CI will say, but he must demonstrate a reasonable

possibility the CI could give evidence that would exonerate him; Appellant

must establish more than a mere assertion that disclosure of the CI’s identity

“might be helpful.” Commonwealth v. Belenky, 777 A.2d 483, 488 (Pa.

Super. 2001).

      The trial court found that Appellant arguably met his burden of

establishing that disclosure of the CI’s identity was material to his defense.

Trial Court Opinion, 5/1/17, at unnumbered 5.       However, that does not

complete the relevant analysis because additional factors must be considered

before the identity of a CI is revealed. Marsh, 997 A.2d at 321-322. The trial

court stated:

            Instantly, Appellant arguably met his burden as outlined
      above. Nevertheless, it is submitted that this [c]ourt’s order
      should be affirmed because the Commonwealth established that

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      the CI was still being used in such a capacity at the time the
      hearing herein occurred and that he/she would be in danger if
      his/her identity were revealed. (N.T. 12/1/16, 11).

                                    * * *

      Revelation of an informant’s identity in such circumstances would
      not only jeopardize that particular informant’s safety, but would
      also seriously dissuade any other potential informants from
      cooperating with the police.

             In the instant case, the Commonwealth presented evidence
      that if the CI’s identity were revealed, his/her personal safety
      would be jeopardized[,] and by implication[,] the CI’s further
      usefulness to the police in investigating illegal drug sales would
      be compromised. Given this, and given the fact that Appellant
      failed to refute this testimony it is clear that the relevant
      considerations weighed in favor of not revealing the informant’s
      identity. …

Trial Court Opinion, 5/1/17, at unnumbered 5-6.

      In the case at bar, Appellant correctly points out that although Officer

Brown testified that he once had a CI who was murdered, there was no

evidence that the murder directly impacted the instant case. Appellant’s Brief

at 17 (citing N.T., 12/1/16 at 11). Moreover, there was no direct testimony

that the CI in this case was in actual danger. Id.

      Pursuant to the standard set forth above, the trial court was required to

engage in a balancing test. Marsh, 997 A.2d at 321-322. The trial court

concluded that the danger to the CI was real, albeit implied.      Trial Court

Opinion, 5/1/17, at unnumbered 5-6. The trial court also found that disclosure

of the CI’s identity would compromise future drug investigations, and that

fact, balanced with the factors discussed above, militated against disclosing


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the CI’s identity. Id. at unnumbered 6. Additionally, the trial court opined

that disclosing the CI’s identity under these circumstances would dissuade

other potential informants from cooperating with the police. Id.

      Although the pre-recorded buy money was not recovered from

Appellant, and while the identity of the CI may have been helpful in

constructing a defense for Appellant, we cannot conclude that the trial court

abused its discretion under the facts of this case. Officer Brown testified that

the CI went to a boarding house on South Bucknell Street to buy marijuana.

N.T., 12/1/16, at 6. Officer Brown witnessed the CI speak to Appellant outside

of the home, saw the CI and Appellant enter the house, and testified that the

CI returned with marijuana. Id. at 7. After executing the search warrant in

Appellant’s room, police discovered cash and bags of marijuana hidden under

some clothes as well as three digital scales, two cell phones, and a box of

sandwich baggies. Id. at 9-10.

      After review, we agree with the trial court.           Although Appellant

illustrated that revealing the CI’s identity was material to his defense, the trial

court balanced that finding with other relevant factors including the safety of

the CI and the Commonwealth’s qualified privilege to maintain the

confidentiality of a CI in order to preserve the public’s interest in effective law

enforcement. Marsh, 997 A.2d at 324. This was a determination left to the

sound discretion of the trial court, and we discern no abuse of that discretion.

Accordingly, we affirm Appellant’s judgment of sentence.


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/18




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