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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :       IN THE SUPERIOR COURT OF
                                            :             PENNSYLVANIA
                     v.                     :
                                            :
FRANK KRIDER, JR.,                          :           No. 108 MDA 2017
                                            :
                          Appellant         :


            Appeal from the Judgment of Sentence, August 2, 2016,
                 in the Court of Common Pleas of York County
               Criminal Division at No. CP-67-CR-0006700-2015


BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED DECEMBER 05, 2017

        Frank Krider, Jr. appeals the judgment of sentence in which the Court

of Common Pleas of York County sentenced him to serve a term of two and

one-half to five years imprisonment after a jury convicted him of two counts

of possession with intent to deliver (heroin).1          After careful review, we

affirm.

        Prior   to   September        22,   2015,     Officer   Adam   Bruckhart

(“Officer Bruckhart”) of the West Manchester Township Police Department

and a special detective with the York County Drug Task Force cultivated a

relationship with a confidential informant (“CI”) and used him more than

eight times. The CI had provided Officer Bruckhart with information that led




1   35 P.S. § 780-113(a)(30).
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to arrests every time.     (Notes of testimony, 3/28/16 at 4-5.)            Prior to

September 22, 2015, the CI informed Officer Bruckhart that a drug dealer

known as “Amir” lived in the area of 652 Front Street and that the CI

regularly purchased heroin from this person. (Id. at 5-6.) The CI provided

Officer Bruckhart with a telephone number to contact the person that the CI

knew as Amir.      On September 22, 2015, Officer Bruckhart told the CI to

telephone “Amir” to arrange a meeting to purchase heroin. The CI made the

telephone call in the presence of Officer Michael Miller (“Officer Miller”) of the

Southern Regional Police Department who was also assigned to the York

County Drug Task Force. After the call was made, Officer Bruckhart directed

Officer Miller to search the CI for contraband.            Officer Bruckhart also

provided Officer Miller with funds to give to the CI.             Officer Bruckhart

directed Officer Miller to escort the CI to the area of Parkway Boulevard and

Bare Avenue.     Officer Bruckhart stationed himself outside the suspected

drug dealer’s residence.    Officer Bruckhart observed appellant walk out of

the Front Street residence. (Id. at 6-7.) Officer Miller observed the CI and

appellant   make    physical   contact    with   their   hands.      (Id.   at   28.)

Trooper Justin Dembowski (“Trooper Dembowski”) of the Pennsylvania State

Police and the York County Drug Task Force also observed a hand-to-hand

transaction between the CI and appellant. (Id. at 33.) The CI turned over a

bundle of heroin to Officer Miller after meeting with appellant. (Id. at 11,

23.) Officer Miller searched the CI upon their returning to the office. (Id.



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at 30.)   Officer Bruckhart field tested the suspected heroin with a positive

result. (Id. at 11.)

      On September 30, 2015, Officer Bruckhart set up a second buy-walk

transaction.     The same CI called the same telephone number and, at

Officer Bruckhart’s direction, arranged to purchase a bundle of heroin.

Officer Bruckhart heard the voice on the other end of the phone line agree to

the transaction. Officer Bruckhart searched the CI for contraband and did

not find anything.     He then provided Detective Fenstermacher with funds

and told Detective Fenstermacher to give these official funds to the CI and to

follow the CI to the area. Officer Bruckhart searched the CI’s car. (Id. at

9-10.)    Officer Bruckhart observed appellant leave his residence and walk

toward where the CI was parked. He did not observe directly but learned

through radio traffic that appellant went directly to the CI’s vehicle and

entered the front passenger seat.         (Id. at 10.)      Trooper Dembowski

observed the CI meet with appellant.        (Id. at 36.)   The CI turned over a

bundle of heroin which he claimed to have obtained from appellant. It was

field tested with a positive result. (Id. at 11-12.)

      Based on these two transactions, Officer Bruckhart applied for and

obtained a search warrant for 652 Front Street. Appellant was present when

the search was conducted. Appellant had a cellphone in his hand and $26 in

cash in his pocket.     Various paperwork at the residence was addressed to

appellant.     A cellphone bill for the telephone number that the CI called to



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arrange the buys was found in the residence. The police officers also found

a large number of pink and blue glassine bags which are often used to

package heroin. The police also found a digital scale and a bag of rice which

are typically used to package heroin. (Id. at 13-14.)

      On November 10, 2015, the York County District Attorney charged

appellant with two counts of possession with intent to deliver (heroin) as a

result of the two buys with the CI.

      On February 9, 2016, appellant filed a pretrial motion to have the

identity of the CI disclosed because the police reports did not identify the

items that were exchanged between the CI and appellant.         As a result,

appellant believed that the CI was a material witness to the case and that

his or her identification was relevant to the defense.2

      Officer Bruckhart later testified at the omnibus pretrial hearing on

March 28, 2016, that the CI’s safety could be compromised if his identify

were revealed. (Id. at 45.)

      Following the hearing, the trial court denied the motion and reasoned:

                  With respect to the need to keep the
            confidential informant confidential, there was no
            testimony that there is an ongoing investigation at
            this time which would be compromised. However,
            there is the issue of safety of the confidential
            informant.    There is a reason that there is a
            presumption on confidentiality, and we don’t believe
            that the defense has overcome that. We are not


2Appellant also moved to suppress evidence obtained pursuant to a search
warrant. The denial of that motion is not before this court.


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              going to order the disclosure of the confidential
              informant.

Order, 3/28/16 at 2.

        Following a trial on May 23-25, 2016, the jury convicted appellant of

both charges. On August 2, 2016, the trial court sentenced appellant to an

aggregate term of two and one-half to five years’ imprisonment.           On

August 12, 2016, appellant moved for post-trial relief which the trial court

denied on December 12, 2016.3

        On January 13, 2017, appellant filed a notice of appeal.          On

January 23, 2017, the trial court ordered that appellant file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On February 8, 2017, the trial court granted appellant an extension to file

the concise statement.        Appellant filed his Rule 1925(b) statement on

February 16, 2017. The trial court issued its Rule 1925(a) opinion on May 4,

2017.

        Appellant raises the following issue for this court’s review:

              Whether the trial court erred in denying [appellant’s]
              request for disclosure of the identity of the [CI] who
              was the linchpin of the Commonwealth’s case where
              there is a reasonable possibility that the [CI] could
              have exonerated [appellant] because none of the
              witnesses saw what, if anything, was exchanged
              between [appellant] and the [CI] and disclosure
              would have posed no particularized danger.




3The order that denied post-trial relief was not served on appellant until
December 14, 2016.


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Appellant’s brief at 4.

      When reviewing the denial of a motion to disclose the identity of a CI,

our standard of review is “to determine whether the trial court abused its

discretion in denying appellant’s request for discovery.” Commonwealth v.

Belenky, 777 A.2d 483, 487 (Pa.Super. 2001), citing Commonwealth v.

Roebuck, 681 A.2d 1279, 1282 (Pa. 1996).

      The ability to compel disclosure of the identity of a confidential

informant flows from the right to discovery contained in the Rules of

Criminal Procedure.       Pa.R.Crim.P. 573 (B)(2)(a)(i).     A defendant has a

qualified right to discovery of the names of eyewitnesses. However, when

the eyewitness is a confidential informant, police departments have a well-

placed reluctance to disclose the identity of such eyewitnesses and, in fact, a

recognized privilege to refuse disclosure of the identity of informants.

Commonwealth v. Bing, 713 A.2d 56, 58 (Pa. 1998). The privilege is not

absolute, however, and must give way under appropriate circumstances.

      When moving for disclosure, the defendant must first show “that the

information sought is material and the request is reasonable.”         Interest

of D.B., 820 A.2d 820, 822 (Pa.Super. 2003).               The defendant must

“demonstrate a reasonable probability the informant could give evidence

that would exonerate him. More than a mere assertion that disclosure of the

informant’s identity might be helpful is necessary.”       Belenky, 777 A.2d at

488 (internal citations omitted). If the defendant satisfies this burden, then



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the trial court must apply a balancing test, with “the balance initially

weigh[ing] in favor of maintaining confidentiality of the informant’s identity

in order to preserve the public’s interest in effective law enforcement.”

Commonwealth v. McCulligan, 905 A.2d 983, 989 (Pa.Super. 2006).

      “[T]he defendant must lay an evidentiary basis or foundation that the

confidential informant possesses relevant information that will materially aid

the defendant in presenting his or her defense and that the information is

not obtainable from another source.” Commonwealth v. Hritz, 663 A.2d

775, 780 (Pa.Super. 1995). See Commonwealth v. Eicher, 605 A.2d 337,

348 (Pa.Super. 1992), appeal denied, 617 A.2d 1272 (Pa. 1992) (appellant

seeking disclosure of informant must have “concrete evidence” corroborating

defense theory “other than his own self-serving allegations”; absent “more

specific evidence,” the trial court is not required to compel disclosure and

allow the defense to conduct a fishing expedition).    Only if the defendant

makes this threshold showing must the trial court weigh the competing

interests to determine whether the informant’s identity should be revealed.

Commonwealth v. Marsh, 997 A.2d 318, 322 (Pa. 2010) (plurality); Bing,

713 A.2d at 58; Belenky, 777 A.2d at 488.

      Initially, appellant argues that he made the threshold showing needed

to trigger the balancing test. Appellant avers that his counsel argued before

the trial court that because no one other than the CI had firsthand

knowledge of what specifically was exchanged, the CI’s testimony was



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necessary for appellant’s defense because only the CI could testify as to

what he received from appellant. Further, appellant argues that there was

no testimony at the hearing to suggest that the CI was reliable because

there was nothing to establish his reliability other than that he had supplied

information that led to felony arrests.   Appellant asserts that the CI could

give exonerating evidence as to what, if anything, was exchanged.

      In addition, appellant argues that the Commonwealth failed to

establish that there was any disclosure that would create any danger for the

CI as Officer Bruckhart testified that there was always a risk of intimidation

but did not point to anything specific.   Further, Officer Bruckhart testified

that the disclosure would not jeopardize any ongoing investigations.

Appellant asserts that the CI’s identity was material to his defense and the

request to disclose the identity was reasonable.

      The Commonwealth, on the other hand, argues that appellant failed to

establish that disclosure of the CI’s identity was material to the preparation

of appellant’s defense. The Commonwealth makes this assertion based on

appellant’s failure to do more than aver in its disclosure motion that the CI

was a material witness to the case and that his or her identification was

relevant to the defense. The Commonwealth asserts that appellant did not

aver what his defense at trial would be and did not allege what evidence he

expected the CI to provide that would exonerate him.




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      However,   at   the   hearing,    appellant’s    counsel   questioned     the

Commonwealth’s witnesses and elicited testimony that none of the witnesses

saw what was actually exchanged between appellant and the CI; the CI was

allowed to travel to and from the second buy-walk with his or her own car;

the searches of the CI were inadequate in that personal searches were over

the clothes frisks; no drugs were found when the police officers executed the

search warrant; revealing the CI’s identity would not compromise any

ongoing investigation; and there were no specific threats or intimidation in

this case. (Notes of testimony, 3/28/16 at 15, 17-18, 20, 26, 28, 39, 42,

and 45-46.)

      From appellant’s motion, argument presented by his counsel at the

hearing,   and    testimony    presented      by      the   police   officers   on

cross-examination, it appears that appellant believed that the CI would be

the only witness who could identify what, if anything, was exchanged

between the CI and appellant.          The CI’s identity and testimony were

material to appellant’s defense as the CI could possibly provide exonerating

evidence in support of appellant.      As to the reasonableness prong of the

threshold test, appellant believed there was no investigation that would be

compromised and no particularized threat to the CI.

      The trial court determined that the CI was material to appellant’s case

and that the reasonableness of the request was self-evident where the CI’s

reliability could not be quantified because the police officers were unsure if



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any convictions had resulted from the CI’s work. (Trial court opinion, 5/4/17

at 10.) This court finds that the trial court did not abuse its discretion when

it found that the request for disclosure of the CI’s identity met the threshold.

Theoretically, the CI could provide evidence that would be helpful to

appellant without proof that the disclosure would be unreasonable.

      Appellant next contends that the trial court abused its discretion when

it did not order disclosure of the CI’s identity. Appellant argues that his right

to   prepare     and   present   a   defense   significantly   outweighed    the

Commonwealth’s interest in preserving the confidentiality of the informant.

Specifically, appellant asserts that the CI’s testimony was critical to his

defense and stood a reasonable chance of exonerating him. Appellant relies

on Commonwealth v. Roebuck, 681 A.2d 1279 (Pa. 1996), for the

proposition that when the only eyewitness to the transaction other than a

police officer is a confidential informant, a court is more likely to favor

disclosure.    Although appellant concedes that more than one police officer

witnessed the transactions as opposed to the single witness in Roebuck,

appellant argues that the perspective of a non-police witness adds a quality

necessary to extinguish doubt about.

      Further, appellant asserts that the quality of the testimony of the

police witnesses was lacking in that these witnesses, though witnesses to

the hand-to-hand transactions, could not be certain as to whether there

were actual drug transactions, so that the jury would need to believe the CI



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could be trusted in order to convict appellant. Had the police conducted a

strip search or a body cavity inspection prior to the buys, it would have

reduced the opportunity for the CI to conceal drugs and then report them as

having been obtained from appellant. Additionally, the fact that the police

did not recover any drugs in the search of appellant’s residence, the CI’s

credibility remained critical.    On the other side of the equation, the

Commonwealth failed to establish that there was a clear need to maintain

the confidentiality of the informant.

      When a trial court has the task of determining whether the identity of

the informant is to be revealed, the trial court must balance the public

interest in the police’s ability to obtain information against the defendant’s

right to prepare his defense. Commonwealth v. Jordan, 125 A.3d 55, 63

(Pa.Super. 2015). The decision of whether to require the disclosure of the

informant’s identity depends on the circumstances of the case, including the

crime charged, the possible defenses, the possible significance of the CI’s

testimony, and other relevant factors necessary for a fair balancing of the

competing interests. Marsh, 997 A.2d at 322.

      Here, the trial court explained its decision to deny the request to

reveal the identity of the CI:

            In the current case, in terms of balancing the free
            flow of information with the right to prepare a
            defense, we have already touched upon the notion
            that our research revealed no cases in which
            disclosure was based upon the inability of officers to
            state with certainty what was exchanged between


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          the CI and [appellant]; but, rather, the available
          case law seems to deal with mistaken identity and
          entrapment defenses.         To whatever extent
          [a]ppellant’s argument is novel, if it should succeed,
          it eviscerates controlled buys with confidential
          informants.      Acknowledging the caveat that
          defendants have a privilege to avoid testifying, if the
          CI must be revealed in order for a defendant to
          prepare a defense—that only the CI can state with
          any surety what was exchanged—then the CI’s
          identity must always be disclosed. This will greatly
          hamper the free-flow of information from informants
          to police.

                  In this case, we also believe there would be
          little significance to the CI’s testimony because there
          were two arranged buys in which the CI met with
          [a]ppellant and procured an illicit substance. The
          officers testified that the CI was searched before
          each instance. Each time [a]ppellant arrived at the
          arranged buy-walk location.          The CI then was
          observed to meet with [a]ppellant. Neither the CI
          nor [a]ppellant were seen to meet with anyone else
          or pick anything up. Yet, after making physical
          contact with [a]ppellant, in each instance, the CI was
          able to hand over drugs to the officers. Additionally,
          [a]ppellant was able to argue at trial that none of the
          witnesses who testified could say what was
          exchanged and [a]ppellant received the standard
          jury instruction on missing witnesses. There would
          be little significance to the CI’s testimony in light of
          all this. And so, for all of the foregoing reasons we
          believe the scales were tipped against disclosure;
          however, our analysis does not end here for we have
          not added to our scales all of the weight that is to be
          measured.

                We are cognizant that, “[t]he Commonwealth
          enjoys a qualified privilege to withhold the identity of
          a confidential source.”      We have discussed the
          reasons for disclosure. “On the other side of the
          equation, a court should weigh, inter alia, the
          public’s interest in maintaining the flow of
          information to the police and the safety of the


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            confidential informant.”       In Marsh, the Court
            lamented the inadequate weight given to testimony
            that the CI and other investigations were imperiled
            by disclosure. There was no testimony that any
            ongoing investigations would have been imperiled by
            disclosure or that the CI in our case is in any
            specific      danger      of      reprisal;   however,
            Detective Bruckhart did state that there is a
            generalized risk of retaliation or intimidation for
            informants. The defense will no doubt rejoin that the
            danger testified to by Bruckhart needed to be
            specific in order for it to be factored into our
            calculus; however, it is axiomatic that specific
            threats cannot have been made where the defendant
            is unaware of the identity of the CI. The public’s
            interest in maintaining the free flow of information to
            police is not implicated in this case, but the safety of
            the CI is. Ergo, our belief that the scales tip against
            disclosure stands.     We therefore humbly request
            affirmance as to this matter complained of.

Trial court opinion, 5/4/17 at 12-14 (emphasis in original; citations omitted).

      Appellant argues that the trial court’s reasoning was “both overblown

and insufficient reason to uphold confidentiality.” (Appellant’s brief at 36.)

Appellant argues that, where as here, there are huge gaps in the proof

bearing directly on the CI’s credibility, there is the requisite reasonable

possibility and disclosure is essential.       He further argues that the

weaknesses in the testimony of the police officers makes it essential that he

be permitted to learn the identity of the CI, whom he believes would help his

defense.

      On the other hand, appellant was charged with two separate heroin

delivery charges that arose from the two separate police-supervised

“buy-walk” operations.   The CI was searched for drugs, money, and other


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contraband before and after the CI’s meetings with appellant.        The record

reflects that immediately after these meetings, the CI had heroin in his

possession. Although no drugs were found at appellant’s residence when it

was searched, items commonly used in drug trafficking were discovered.

Also, although there was no specifically identified risk to the safety of the CI,

if his identity were revealed, the trial court identified the CI’s safety as a

factor to consider. Given the circumstances presented here, the trial court

did not abuse its discretion when it denied the motion to disclose the CI’s

identity.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/5/2017




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