J-A33017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

ROBERT MARSHALL UPHOLD, JR.

                            Appellee                  No. 542 WDA 2016


                 Appeal from the Order Entered March 31, 2016
                In the Court of Common Pleas of Greene County
              Criminal Division at No(s): CP-30-CR-0000224-2015


BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.:                            FILED MARCH 13, 2017

        Appellant, the Commonwealth of Pennsylvania, appeals the order of

the Court of Common Pleas of Greene County, entered on March 31, 2016,

dismissing the Commonwealth’s case for refusal to disclose the name and

whereabouts of its confidential informant (“CI”) to counsel for the Appellee-

Defendant, Robert Marshall Uphold, Jr.         The Commonwealth had charged

Uphold with with Possession with Intent to Deliver a Controlled Substance,

Delivery of a Controlled Substance, and Possession of a Controlled

Substance.1 We affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30), (16).
J-A33017-16



      In its opinion, entered June 10, 2016, the trial court fully and correctly

sets forth the relevant facts and procedural history of this case.     Trial Ct.

Op., 6/10/16, at 2-5. We summarize them here for the convenience of the

reader.

      The criminal information states that the alleged offense was committed

on June 1, 2010. The affidavit of probable cause was not filed until May 26,

2015, almost five years later. According to that affidavit, an undercover

officer and the CI met with the Appellee. During that meeting, the officer

gave Appellee $200 to purchase drugs and told Appellee that he would

return in a half hour to pick up the drugs. Later, the officer returned without

the CI and received ten wrapped bags of heroin from the Appellee. Appellee

denies participating in the alleged transaction, and the CI was alleged to be

the only non-law enforcement witness.

      On August 17, 2015, defense counsel made his first request for the

disclosure of the identity of the CI, along with other discovery requests. On

August 24, 2015, the Commonwealth complied with the other discovery

requests, but did not disclose any information about the CI. On March 28,

2016, defense counsel again requested the disclosure of the CI.           Upon

receipt of this second request, the trial court scheduled an in camera

conference on March 30, 2016.

      Following that conference, on March 31, 2016, the trial court ordered

the Commonwealth immediately to reveal the identity and whereabouts of

the CI to defense counsel and advised the Commonwealth that failure to

                                     -2-
J-A33017-16



disclose the name would result in a dismissal of the charges.             Order,

3/31/16, timestamped 9:05 A.M., at 1-3. The Commonwealth, in a motion

for reconsideration filed later that morning, refused to disclose the name of

the CI. Mot. for Recons., 3/31/16, at ¶ 7. That afternoon, the trial court

ordered   the   charges    against   Appellee   dismissed.    Order,   3/31/16,

timestamped 2:50 P.M., at 1. The Commonwealth’s timely appeal followed

on April 13, 2016.

      The Commonwealth raises the following questions on appeal:

      Did the trial court err by requiring the Commonwealth to divulge
      the name and whe[re]abouts of its confidential informant to
      counsel for [Appellee]?

      Did the trial court err by dismissing the case against [Appellee]
      as a remedy for the Commonwealth’s alleged discovery
      violation?

Commonwealth’s Brief at 4.

      “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. Jordan, 125 A.3d 55, 62 (Pa.

Super. 2015) (en banc), appeal denied, 134 A.3d 55 (Pa. 2016).

      The first requirement in support of a petition to compel
      disclosure of a confidential informant is that the defendant
      demonstrate that production of the informant is material to his
      defense. . . .

      The second requirement for disclosing the identity of a
      confidential informant is that the request must be reasonable.
      ...



                                      -3-
J-A33017-16


      Finally, appellant’s request for disclosure of the informant must
      be in the interests of justice. In reviewing this requirement, this
      court will apply the balancing test of Roviaro v. United States,
      353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957):

            We believe that 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 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. . . .

      This court will not question a trial court’s finding of fact where it
      is supported by the record.

Commonwealth v. Ross, 623 A.2d 827, 829-31 (Pa. Super. 1993)

(citations and internal quotation marks omitted), appeal denied, 644 A.2d

162 (Pa. 1994); accord Pa.R.Crim.P. 573(B)(2)(a)(i). In the instant action,

the trial court addressed each of these requirements, supporting its analysis

with citations to the record. See Trial Ct. Op., 6/10/16, 10-13. We agree

with the trial court’s analysis and conclusions.           Therefore, for the

Commonwealth’s first issue, we affirm on the basis of the trial court opinion.

      The Commonwealth argues that the CI’s information is not material

because Appellee “is charged with delivering heroin as opposed to receiving

$200” and the CI was present only for the payment of the money and not for

the receipt of the heroin.        Commonwealth Brief’s at 12.           But the

Commonwealth alleges that the unlawful transaction occurred in two stages

— delivery of the money for the heroin, and receipt of the heroin — and that

                                      -4-
J-A33017-16


the CI was present for the first stage.      As the only non-law enforcement

witness allegedly present, the CI is the one outside person who can testify to

whether Appellee was indeed the participant at the meeting where the first

part of the transaction occurred, something that Appellee denies.              We

therefore agree with the trial court that the CI is material to Appellee’s

defense.

      The Commonwealth’s second issue is that the trial court “erred in

dismissing   the   case   against   the   [Appellee]   as   a   remedy   for   the

Commonwealth’s alleged discovery violation.” Commonwealth’s Brief at 16.

However, Roviaro v. U.S., 353 U.S. 53, 60-61 (1957), held that the failure

of the government to disclose an informant’s identity after being ordered by

a court to do so warrants dismissal of the prosecution. The Supreme Court

of Pennsylvania has adopted this holding. See Commonwealth v. Marsh,

997 A.2d 318, 322 (Pa. 2010) (where the trial court requires disclosure of an

informer’s identity and the government withholds the information, the trial

court may dismiss the action); Commonwealth v. Carter, 233 A.2d 284,

287 (Pa. 1967) (same).       The standard of review is abuse of discretion.

Jordan, 125 A.3d at 62, 65. For the reasons stated in the opinion by the

trial court, we conclude that the trial court did not abuse its discretion by

dismissing the charges against Appellee, as such dismissal was both within

its power and an appropriate remedy.




                                      -5-
J-A33017-16


      The Commonwealth argues: “Had the [trial c]ourt determined that the

Commonwealth’s non-disclosure of the confidential informant’s identity

represented a discovery violation, it should have selected a remedy other

than dismissal of the prosecution.”      Commonwealth’s Brief at 16.       Our

review of the record discloses, however, that the Commonwealth never

requested such an alternative remedy before the trial court.       Hence, any

request for an alternate sanction was waived and cannot be raised for the

first time on this appeal. Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal”).

      The parties are instructed to attach a copy of the trial court's June 10,

2016, Opinion to all future filings.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2017




                                       -6-
                                                                                             Circulated 03/03/2017 02:20 PM




      IN THE COURT OF COMMON                      PLEAS OF GREENE COUNTY,                     PENNSYLVANIA
                                                 CRIMINAL DIVISION


      COMMONWEALTH             OF PENNSYLVANIA,                  )
                                                                 )
                        PLAINTIFF,                               )
                                                                 )
                        v.                                       )               224 CR 2015
                                                                 )
      ROBERT MARSHALL UPHOLD,                                    )
                                                                 )
                        DEFENDANT.                               )

~
S                             STATEMENT PUR§UANT                     TO Pa, R.A.P.           192~
~
~           Matter          comes before           the     Court       on    the Commonwealth's                    appeal
~
I-
ll

i1    from     this        Cou.r t' s dismissal                of charges        after.      the Commonwe a.l th
~
6A    r'e f u s e d   to     disclose            the.     identity          of   Confidential           Informant
~
~     (hereinafter             "CI").
."'
IB

                                            1925 STATEMEN~ :CSSUES
                 Pursuant           to     the          Commonwealth's,            1925       Statement,              the

      concise         issues     for appeal              are as follows:

               Did     the     Court       err.,        when    it    required         the    Commonweal th to

      divulge         the    name        and whereabouts               of its     CI    to Counsel         for the

      Defendant?                                                                                           ~
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                Did the             Court     err,        when it dismissed                 the case        against         the

       Defendant              as a remedy for the Commonwealth's                                 alleged         discovery

       violation?

                Did       the        Court         err,     when     it         entertained         the Defendant's

       request           to     compel         discovery            with out         filing        the      appropriate

       motion        as required              by Pa.Rule            0£ Criminal             Procedure        573?

                Did      the         Court         err,     when     it         entertained        the      Defendant's

~      request        to       compel         disclosure           on March           30,       2016,      two    (2)      days
:i;,
.!
~      prior        to        the     start         of    the     s chedu Led         trial,         212     days       after
iJ
u.

.
l1
\I
       f o rrna I     arraignment                   and      219         days       after        the       Commonwealth
~
~      provided          the Defendant with initial Discovery?
a
i:,
~                                                    STA'l'EMENLOF FACTS
F.
8
~;r,        The Criminal                  Information            indicates          that the alleged               offense
,-

       date    was June              1,    2010.         Three     (3)     years later charges                   were

       filed        and l~ter dismissed.                     The Complaint                was    then      refiled       on

       May 26, 2015                 approximately            five         (5)     days prior        to the

       expiration             of the        statute         of limitations.                 A jury was selected

       on March          2,     2016,       with the         trjal         date     set for April 1,               2016.

               The tlffidavit of probable                            cause,         filed May 26,            2015,

       essentially              reveals        the following                    salient     facts:
       The undercover           Officer     indicated      that he overheard a

phone conversation            between the CI and the Defendant.                       The

alleged     CI and the undercover               Officer    went to the Defendant's

location.     It is then alleged by the undercover                        Officer       that

the CI was present and he observed                     a money     transaction          between

the undercover Officer and                 the Defendant.         The affidavit             goes

on to say that the undercover                   Officer    returned,         without the

CI,   approximately           thirty (30)       minutes    later     where he obtained

ten (JO)     wrapped      baggies      of suspected        heroin.

       Defendant        filed various pretrial             motions     that were

disposed     of in the Commonwealth's                 favor.

       Defense    counsel made his first request                     for the disclosure

of the CI,     among other requests,                 dated August      17,     2015     (time

stamped     August      19,   2015).      Defense     Counsel     filed      a Motion        to

Extend Time to File Pretrial                   Motion on September 30,             2015.

This Court's      Order        (dated October 2,          2015)    granted      said

Motion,     allowing      leave     to file Omnibus         Pretrial Motions                set

for November      10,     2015.

       Defense    Counsel         then filed      a Motion with       this Court,

among other motions,              requesting        the disclosure        of the CI on

March 28,     2016.      In this     Motion,      Defense      Counsel       offers     this
       Court      ti    timeline          of the prosecution                      starting         June 1,      2010        and

       continuing              through          March     2,     2016.          Defense      Counsel     states,

       "[t]hree          years         passed      before            the    original            complaint     was

       filed.          It has         been nearly              two    years       since      the    original

       complaint          was dismissed.                  More th~n              365 days expired             since         the

       dismissal          o.r:    the     first        prosecution."                   (Def e ns e Motion       to

       Dismiss:          Speedy 'I'ri.=.il         s     Rul.e 600          s    Motion for         Discovery, pg.

;.c;
       2,    March       28,      2016)         Defense         Counsel          further        discusses       the
~
>

5
Q,..
       discovery          rules         and the mandatory                       disclosure         of discoverable


..
~
',!
       information,               and     states         that        the "Defendant               believes     that         the
I~

i      Commonwealth's                  failure to disclose                       information         critical          to
~
~
~      the    defense            at trial affects                    his    ability ... to obtain              a fair
i:
s:;;   trial."          Id. at 2-4.
~
                 Upon the             receipt      of     Defense           Motion        for     Discovery      and Rule

       600,      Speedy          Trial,         this     Court        Ordered          a hearing/conference                  to

       be held         on March           30,     2016     in        the Judge's           Chambers      at noon.

                 This     Court's            Order,       dated March              31,     2016,     Ordered         the

       Commonweal         th to immediate]                 y reveal              the     Lderrt i ty and

       whereabouts               of    the    CI to       Defense           Counsel        and advised         that

       failure         to disclos~               would     result           in a dismissal            of the

       ch~rges.          Thus,         the Commonwealth                    was    on continuous          notice        of
      the request         since       August            of    2015.             See attached Order, dated

      March    311   2016.

              The Commonwealth,                   in a Motion                    for Reconsidertition                   (filed

      March    31,   2106)         I:"efused        to disclose                   CI.     See     attached Motion

      for Reconsideration.

                                                 STANDARD               OF      REVIEW

              The "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."
!
iJ
••
~ Cnrn.. v. W,=isl,jngton,
;.
                                            2013        PA Super 51,                    63 A.3d        797,      801    (2013),
',!
~In
i:i   citing Com.         v.    Withrow,            932 A.2d                  138,      140     (Pa.Super..2007).
a
u
,
:,
                                                  STATEMEN'l' OF LAW
              "The   first         requirement                in support                 of   a petition           to compel

      disclosure         of a confidential                         informant             is that        the      defendant

      demonstrate         that production                     of the             informant           is material          to

      his    defense."         Com.    y,        Ros~,        IJ2tJ      l?a.     Super.        570,      574,     623 A.2d

      827,    829    (1993).

              "The second           requirement                    for disclosing                 the     identity        of      a

      confidential         informant              is that               the      request        must be

      reasonable."         ~QID,      v.        Boss,        424        Pa.      Super.       570,      575,      623 A.2d

      827,    829    (1993).
                "r.'i na lly,    [ third     requirement]               appellant's              request         for

       disclosure          of the informant                 must be in the interests                       of

       justice.       In reviewing           thi~          requirement,          this     court will              apply

       the balancing            test of Roviaro               v.      United States,              353 U.S.         53,

       77 S.Ct.       623,      J L.E:d.2d      639         (1957):

                'We believe that 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 ~gainst the individual's   right to prepare his
:I
                defense. Whether  a proper balance renders nondisclosure
~               erroneous must depend on the particular circumstances of
~               each c~se, taking into consideration the crime charged,
~
~
IL              the possible defenses,  the possible significance of the
...0
                informer's  testimony and other relevant factors.'"
µ,
~
6 Co.m~ v. RoiJ~, 424 Pa. Super. 570,                                 575-76,      623     A.2d       827,        830
~ (1993),   citing Com. v. Redmond at                                 300-301, 577 A.2d at 553
!.I
., (quoting Roviaro v , United States,                                 353 U.S. 53, 60-62, 77
D
:,


E S.Ct. 623, 627-28,   1 L.Ed.2d  639,                                645-46      (1957)).          See also
~ Com. v. Carter   at 59, 233 A.2d at                                 287.
~

                It is proper           for the Court to require                     disclosure                  of a CI

       "      as long as production              of the informant                  would be:             ( 1)

       material       to the defense;               ( 2)     reasonable;          and     ( 3)     Ln the

       interests       of justice."           Cnm.         v. Bedmond,           395 Pa. Super.                  286,

       300,     577   A.2d      547,   553-54         (1990),         citing      Com.     v. Bon~sorte,

       337     Pa.Super.        332,   355,    tJ86 A.2d           1361,        1372-73          (1984).         "In

       analy~.i.ng     the latter          requirement,               the Bonasorte              court      h8ld

       that the balancing              test of Roviaro                 v.   United        States,          353 U.S.
53,     77      s.ct.      623,    1 L.Ed.2d              639(1957),          should        be ~pplied."

Id.,        citing        Bon21sorte,         suprc1 c.1t 1372-73.                  "The e$sence of this

test        'is    that      a court       confronted             with       a request            for disclosure

of     an      informant's         identity           must     balance             the defendant's                  need

against           the public           interest.'"            Id.,      citing Bonasorte,                      supra

at     1373.

            "Specifically,              Roviaro           requires:          [w] here       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                [government's                privilege          to withhold            identity              of

confidential               informants]must                 give      way.     In these        situations

the     trial        court       may    require           disclosure          and,     if    the        Government

withholds            the     information,             dismiss          the act:Lon."Redmond,supra.

            Further,         as to pretrial                discovery,              "[u]nder        Pennsylvania

Rule of Criminal                  Procedure           573,     a trictl            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     r e a s orrab Le ne s s ... "    r;,nm..,    v,    w,,tsnn,         2013     PA Super           99,        69    A. 3d

605,        607    (2013).
                 "The         Commonwealth                      enjoys             a qualifjed              prjvilege                  to

       wlthhold              the        identity               of a confidential                          source."            Cow.           v.

       w~~Rnn,              2013        PA Super               99,      69 A.3d             605,      607-08           (2013),               citing

       Com.      v.         Bing, f551                Pa.      659,      713        A.2d 56           (1998)];               Com.        v.

       Roebuck,              5115       !?a.         471,      681    A.2d          1279,          1283     n.     6        (1996).           "In

       order      to overcome                         this      qualified              privilege                and     obtain

       disclosure                  of     a confidential                     informant's                   identity,               a

       defendant              must first                    0stablish,               pursuant              to Rule
~
~
~
",/.
       573 (B)        (2)    (a)    (i),             that      the      information                 sought        i.s rna t e r i a I to
~i..
~      the preparation                          of      the     defense             and that              the    request               is
~
~
u      reasonable."                     Watson,             supra,             .
                                                                               .
                                                                          citing             Roebuck,            supra at 1283.
3
~
~ "Only           after             the         defendant             shows that                   the     identity             of      the
e
~      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."                          Watson,          supra,             citing          Bing,        supr.a        at       58;        Com.

       v.   Herron,                475         Pa.      ~61,      380     A.2d         1228         (1977).

                 However,                " ... we reiterate                         here the bedrock                        principle

       that      there             ls no             single      determinative                      factor        in deciding

       whether              disclosure                  of an informant's                          identity            is     required,"
                                     -

       com.            y.    M~r~b_,      606 Pa.         254,    262,      997 A.2d            318,     322     (2010).

                       Furthermore,              "ltJhe     confrontation                clause         of the Sixth

       Amendment                   to the LJnited States                 Constitution,                 applicable          to

       the states through                         the Fourteenth             Amendment,                provides      that

        '[i]n              nll crimjnal           prosecutions,             the accused                shall enjoy          the

       right ... to be confronted                          with the witness                against         hlm.'"

       Com.            v.    Dyarm~n,         2011      PA Super 2115,            33 A.3d          104, 106         (2011),

       ~1 ;f,   f; ' si,    6 21    Pa . 8 8 ,    7 3 l\ . 3 d 5 6 5     ( 2 O 13 ) .
~
~
~
                      Also,         "Article       I,     Section        9 of the Pennsylvania
.
ffi
II,
u      Constitution,                     it similarly            provides:          'In    all criminal
~n:
tii
s p r o s e cu t i oris the                   accused hath             a right ... to be confronted                        with
3!<I
~ the witnesses                          aqa i ns t him ... '"         Com, v,          Yohe,      621 Pa.        527,      5411,
:r
8
~ 79 A.3d                    520,      531    (2013).
~
                                                                 OPINION

                      As to whether               the Commonwealth               is required              to reveal             the

       CI,          this Court havjng                   heard argument             by Mr.         Cicconl,         Esq.,

       representing                   the Commonwealth                 and Mr.          Cancelmi,         Esq.,

       representing                   the Defendant              ln determining                 whether        the name          of

       a CI should                   be revealed           to the Court starts                    with     the

       Constitutional                     Right of the Defendant                        to face        his accuser,

       granted               in both         the United          States and Pennsylvania
      Constitutions           balanced     against      the need of the Commonwealth

      to seek information              from    confidential         sources       that      allow   the

      free    flow     of information.

              "One     of    the   factors     to weigh      is    the    need    for    the

      Defendant        to prepare        a proper    defense.        Delay       in   the

      prosecution           of any case       creates     the     distinct       possibility        that

      prejudice        can    occur    to either     side,        however,       since      the

.
,;:
      Commonwealth           is always     in charge       of controlling             the timing      of
~
g
7
      the prosecution the Court believes that in weighing the

~ factors            the Defendant's          Constitutional Right               to face his
~u:
5;J   accuser under these circumstances                      outweighs       the bald assertion
0
1'i
~ that the revealing of Cl may place                             the C! in some danger and
~
m
= the Commonwealth's                  assertion that three               of the team of
~
      arresting        officers do not recall who the CI is and also the

      Defendant's           indication     through Defense counsel that his

      defense may be one of entrapmcnt.u                         (Court    Order, dated March

      31,    2016,     and att~ched        hereto)      This      Court considered that the

      er allegedly used in this case,                     was u~ed five years ago.

              During the Pre-trial Hec1ring,                     the Commonwealth Attorney

      shared with           the Court that three           (3)     of the Officers             can not

      remember who the CI was in this case.                         This Court notes              that
      the significant              time delay,            the natural         failing        memories       of

      the Officers,             the    closeness          of the CI to this            transaction,              and

      the Defendant's              denial      of involvement,               were also        considered.

      Moreover,          the CI and the            arresting         officer are        intrinsic           to

      the transaction              and therefore            obviously         material        to the

      defense.

                During        discussions         relating        to the identity             of the CI in

      this      case,        Defense    Counsel      stated,         "fw)ell      I'm told          there's       no
.,.
:S
,(



i
~
      answer      to one of my questions.                    Because one of the teams                    says A
fl.
,,                       f                                                                     .
~ was the in.ormant,                    and three         of the teams          say    no,     it
',!

~
ci    de f in tt.e l y wasn't A,            but    we don't         know who it was ... '' Id. at
a
0
~     11:5-8.      Thereafter,           Commonwealth             stated,      "I'm    not,     I don't
E
I~    think      anybody        knows who the         informant          was    now,    or they're            not

      telling      me.        But the    name      that     I got told,         the name        that was

      told to me by someone                  who wasn't           even part      of the team,            now

      everyone         says isn't        the      guy."     Id.     at 11:11-15.

                Furthermore,           Defense      counsel         stated,     " ... this is         the

      only      man,     this man       is in the vehicle              at the time that Mr.

      Mitchell         supposedly        says that Uphold              is giving        him drugs ... This

      is the only witness                for five         ye~rs."      Id.     at 12:7-13.
              It is also acknowledged                         that,     on the       eve of trial the

      Commonwealth         br.ought            to this        Court's     attention          that there          was

      actually       an evidence            envelope           that was not previously

      disclosed.         Id. at 18:21-23.                 Therefore,           it    is recognized             that

      the    issue      of prejudice             is highly            relevant       to this case.

      Specifically,             with     regar.d to the               Defense       being hampered             by not

      having proper             discovery.

~
              The Commonwealth                 stated(regard:i.ng              the Officers           involved
:;
~~    with    this      case),      "[w]e        can't        tell you precisely                 who the person
~
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~ was ... You        know,       it's     been a long time                ago and we do a lot if
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~.J   these ... " Id.      at     21:24-25,            22:2-3.         'I'h e Commonwealth           thereafter
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~     said    they thought              they     knew who the CI was,                  that they         had his
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8~ cell phone number,                    and he could call the CI.                         Id.    at 25:3-4.
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      The District         Attorney            later      acknowledged              that    the

      Commonwealth         knew of and refused                        to disclose          the CI.

             The Court           considered            that      the    lead     Detective         of thls       case

      maintained         that     he did not know who the CI was,                                nor did other

      members      of    the     team.      Furthermore,               this    Court recognized                that

      the objections             to the matters                of discovery           and remedies

      available         are clearly            within         the discretion           of the Court,             and

      were properly             considered.
               Moreover,       regarding       the first      requirement,             that    the

      defendant        demonstrate      that     production         of    the    informant       is

      rnaterjal       to his     defense,     based    on the aforementjoned,                   this

      Court     found    that     the Defendant        met this burden.

               With    regard to the second            requirement,             that    the request

      must have        been reasonable,          based      on the aforementioned,                   this

      Court     found that        the Defendant        met    this burden.

~              Regarding       the third       requirement,         that the request             for
~;,
~ disclosure            must have been          in the interests            of justice,          after
.,.
~
O     reviewlng        this    requirement       and applying            the balancing          test        of
~
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      Roviaro,        based on the aforementioned,                  this    Court       found that
~:,
,     the   balance      was     in favor of the           Defendant,       and the disclosure
8
'"=   of the CI was in the interest                   of    justice.
.
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               As stated       previously,       there      is no fixed          rule and when

      balancing        the public interest in protecting the flow of

      i n Lorma t i.on ag21ins t the individual              's right        to p:r.epa re hi.s

      defense,        the particular         circumstances          of each individual                case

      must be taken           into consideration.            This    Court asserts             that the

      ruling      to disclose       the identity           of the CI was within                the sound

      discretion        of the Court         after    careful       review       0£    the    case

      particuldr        ftlcts    dnd circumstances.
             Furthermore,            the     Commonwealth           raised        the     issue     t ha t   the

     Commonwealth           should         not    have     been     required        to disclose           based

     on the Defendant's              untimely         request.

             The Court         notes        that    Rule     573     of    the     Rules       of Procedure

     grant great           latitude        in allowing         the Court to extend pretrial

     and    discovery        deadlines           and the     Rule     contemplates             a continuing

     duty      to disc1ose          and therefore           the Commonwealth's                  argument       is

~    without       merit.
~
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~            Also,     this Court           recognizes        that        the Commonwealth            enjoys
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~ a qualified              privilege        to withhold           the identity           of a CI,      and
~
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~    that    the     Defendant       must overcome            this privilege.                 This Court
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~ found        the Defendant's              request       for disclosure            of the        CJ was
~
i    material        to his    defense           and that this request                  was reasonable.
~
     Furthermore,           this Court then              exercised         its    discretion        and

     balanced        the    facts    and circumstances               of the case;              ultimately

     finding       the request         for disclosure              outweighed           the

     Commonwealth's           refusaJ..

             Purthermorc,           in weighing           the factors            as outlined        above,

     and considering           all relevant              factors,     this        Court found         that

     the Defendant's           Constitutional              RJghts     to confrontation

     outweJghed        the Commonwealth's                 interest        in e s t ab l i.ah i.nq    free
        communication      with   its CI   (this particular     Cl being used some

        five   years ago).    As the Commonwealth was on notice and refused

        to comply,      the appropriate rem~dy      in   exercising sound

        discretion      was a dismissal    of the charges.

                                           CQNCLUSX.ON

               The Court did not err in requiring          the disclosure of the

        confidential      jnformant,   ultimately    resultin     in a dismissal

        of the charges.
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                                                                                   l
      IN 'l'HE COURT OF COMMON PLEAS OF GREENE COUNTY,                  PENNSYLVANIA


       COMMONWEALTH        OF PENNSYLVANIA      )
                                                )
                    v,                          )      No 224 CR 2015
                                                )
                                                )
      ROBERT MARSHALL UPHOLD,                   )
                                                )
                    DEFENDANT                   )
                                                                                                               .1: :~·· ..n
                                                                                                                ••. i;_:)-
                                                                                                                • ,,J_       i ...-
                                         ORDER                                                                  ·.....: •,-.' .
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            AND NOW this 31st day of March, 2016, there being a
                                                                                 .                (. !'!       .....~ v')

       continuing     request    for discovery       in the above captioned                            case

       the matters       having been chiefly        resolved    with    the exception

       of whether        the Commonwealth    is required       to reveal        the

       Confidential        Informant   the Court having heard           argument by

      M:c. Cicconi,        Esq., repreoenting       the Conunonwoalth and Mr.

      Cancelmi,     Eoq., representing        the Defendant       in determining

      whether    the name of a Confidential            Informant ~hould bo

      rovoaled    the Cou~t $tarts with the constitutional                      right of

      the Defendant         to face his accuser       granted    in both        the United

      States and Pennsylvania          constitutions      balanced         against                    the

      need of the Commonwoa1th          to ceok      information       from

      confidential        sources   that allow      the free flow of information



                                                                       jl' •.
                                                                                     ',   i   l       •    I




or,
                                        ·-
and allow the prosecution of other crimes. The Court must

strike a balance in the interest of justice in deciding

those factors. The Court is aware that this case is based on

allegations that happened in 2010 that charges were filed

against and later dismissed and charges were then refilled a

day short of the five year statute of limitations. One of

the   factor~ the weighs is the need for the Defendant to

prepare of proper defense. Delay in the prosecution of any

case creates the distinct possibility that prejudice can

occur to eithe~ side, howeve~, since the Commonwealth is

always in charge of controlling the timing of the

prosecution the Court believes that in weighing the facto~s

the De£endant'~ con~titutional right to face his accuser

under these circumstances outweighs the bald assertion that

the revealing of confidential information may place the

Confidential Informant in oome danger and the Commonwealth's

aosertion that three of the team 0£ arresting officers do

not recall who the Confidential Informant is and also the

Defendant's indication through Defense counsel that his

defense may be one of entrapment. In balance the Court,

considering all factors necessa~y, ORDERS the Commonwealth

to immediately rovoal to Barry Cancelmi, Esq., attorney for

the Defendant the name and whereabouts of the Confidential
                      -,                              ........




       Informant    to allow the Defendant      to prepare       a proper    defense

       in his trial. Case law indicates that failure               to reveal the

       confidential        info:r:mant may result in the dismissal      of

       charges.

       SO ORDERED   AND DECREED



       ATTEST:


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     IN THE COURT OF CUMMON PLE/\S OF CiREENE COUNTY, PENNSYLVANIA



COMMONWE/\LTI-1       or    PENNSYLV ANlA             )
                                                      )
                      vs.                             ) NO. 224 CRIM. SESS., 2015
                                                      )
ROI)ERT UPHOLD,                                       )
                                Defendant.            )
                                                                                                 I"• ,I
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                                                                                                                     I•' J",i

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                                 MOTTON FOR RECONSIDERATION                                                          : .:·~·-1,
                                                                                                                                        ' ,--
                                                                                                 Io,

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                                                                                                                           ·,;-,; Cl
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       AND NOW comes the Commonwealth, by and through the District Attorney of Grc~1}c

County, and respectfully sets forth the following in support of the within Motion:               ·-·1

               I. Th1.: Dclcndunt filed a motion on March 28 2016, to inter alia, compel the

                  Commonwealth to disclose the identity of its Confidential Informant, four ( 4)

                  days prior to the scheduled trial in this matter.

               2. The Court entered an Order on March 31, 2016 ordering the Commonwealth

                  to disclose the identity of the Confidential tnforrnant (copy attached).

               3. Commonwealth provided Formal Discovery on August 24, 2015, in response

                  to Defendant' s Formal Discovery Request on August 17, 2015, and Defendant

                  was Formally Arraigned on August 31, 2015 (sec attachments).

               4. Any Omnibus pretrial motion with regard to the Defendant's discovery

                  motion should have been filed within 30 days of Formal Arraignment in

                  accordance with Pa. Ruic of Criminal Procedure 579, unless opportunity did

                  not exist or the defendant or defense attorney or attorney for the




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                   Commonwealth was not aware of the grounds for the motion or the time to

                   file has been extended by the Court.

               5. It docs not appear that any or these exceptions to Rule 579 arc present in the

                   current matter.

               6. Furthermore, in its motion to Compel Disclosure, the Defendant has not

                  shown that there is a reasonable possibility that the Confidential informant

                  could bring forth evidence exonerating the Defendant, as required by

                  established case law (Commonwealth v. Watson, 69 A.3d 605, 2013 PA Super

                  99, 2013, Commonwealth v. Roebuck, 545 Pa. 471~ 681 A.2d 1279, 1996), in

                  that, it is nut alleged that the Confidential Informant was present when the

                  exchange of drugs allegedly took pince.

               7. The Commonwealth believes this Honorable Court erred by directing

                  disclosure of the Confidential Informant and the Commonwealth, accordingly,

                  will not disclose said in formation to Defense Counsel.

               8. The Commonwealth stands ready for trial of th.is case on April 1, 2016.



       WHEREFORE, The Cornrnonwculth         respectfully    requests this Honorable Court Lo

reconsider its March 31, 2016 order.



                                                     Respectfully submitted:




D,tl<!: March 31, 2016
                                                            ~ /',../?" ,,d
                                                                         ~
                                                     By      7Af:::::__....,.--~~
                                                        Attorney fo1t.,~ommonwcalth
