J-A23027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                           Appellant

                      v.

DAVID WAYNE BROWN,

                           Appellee                 No. 278 WDA 2019


                Appeal from the Order Entered January 17, 2019
                In the Court of Common Pleas of Greene County
              Criminal Division at No(s): CP-30-CR-0000145-2018

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED DECEMBER 16, 2019

      The Commonwealth appeals from the trial court’s January 17, 2019

order dismissing the charges against Appellee, David Wayne Brown, due to

the Commonwealth’s failure to disclose the identity of the confidential

informant (CI) in this case, as directed by the court in an order entered on

December 26, 2018. After careful review, we affirm.

      The Commonwealth summarizes the procedural history and facts of this

case, as follows:

            On January 9, 2018, Detective Michael Hampe of the Greene
      County District Attorney’s Office and the Greene County Drug Task
      Force (DTF) filed a complaint charging ... [A]ppellee with
      committing the following offenses on October 27, 2016[,] at the
      parking lot of … [a] Giant Eagle in Jefferson Township: Possession
      With Intent to Deliver (“PWID”) (Cocaine)[,]1[] Delivery
      (Cocaine)[,]2[] Criminal Use of Communication Facility[,]3[] and
      Possession (Cocaine).4
         1   35 Pa. C.S.A. § 780-113 (a)(30).
J-A23027-19


        2   35 Pa. C.S.A. § 780-113 (a)(30).
        3   18 Pa. C.S.A. § 7512 (a).
        4   35 Pa. C.S.A. § 780-113 (a)(16).
         The Commonwealth filed informations on June 20, 2018. …
     [A]ppellee waived formal arraignment on August 27, 2018. On
     October 9, 2018, ... [A]ppellee filed the following pleadings:
     “Motion for Additional Discovery”[;] “Omnibus Pretrial Motion”;
     “Notice of Alibi Nunc Pro Tunc”; and an “Omnibus Pretrial Motion”,
     which included a “Motion to Reveal Identity of Confidential
     Informant.” According to the alibi notice, ... [A]ppellee was on a
     flight home from Orlando, Florida[,] at the time of the illicit
     transaction or at dinner with his girlfriend after landing…[.]
     [A]ppellee’s pre-trial motion alleges misidentification such that
     disclosure of the CI would “exonerate [Appellee].”

        At a hearing on November 13, 2018[,] Detective Hampe related
     that he served on the Greene County Drug Task Force (GCDTF).
     He had worked as a police officer since 2003 for the Charleroi,
     Brownsville, Redstone Township, and California (Pennsylvania)
     Police Departments as well as the Fayette County Drug Task
     Force. Prior to the incident which resulted in the present
     prosecution, the CI who assisted had provided reliable information
     corroborated by other sources. Information provided by this CI
     led to other arrests.

        The CI provided the telephone number utilized in this
     transaction: []724[-]531-5993. Detective Hampe testified that
     appellee’s son, David Brown, III, utilized the same phone number
     in another Greene County case. … Detective Hampe did not know
     of any account assigned to ... [A]ppellee for that telephone
     number.

        Three other officers were near the site of the “buy” but were
     not in a position to see the driver of the suspect’s car. Detective
     Hampe testified that, as he sat in the driver’s side of his vehicle
     at the Giant Eagle parking lot, a Volkswagen bearing plate
     KCM3062 and operated by but not registered to ... [A]ppellee
     pulled up driver’s side to driver’s side in the adjacent parking stall.
     Detective Hampe testified as to the proximity of the two vehicles:
     “Due to how close he was to me - - - pulled up in the vehicle - - I
     was concerned at the time he would maybe recognize me.” On
     cross-examination, he added: “[O]nce I identified myself, I …
     really wasn’t looking … directly at him…. I had a [hat] on, too,
     and I tried to, you know, keep my head tilted and stuff so he


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J-A23027-19


       couldn’t get a good look.” When the court suggested that “you
       weren’t necessarily staring at the man,[”] Detective Hampe
       responded: “I got a good look at him when he pulled in.”
       Detective Hampe recognized ... [A]ppellee not only from his JNET
       photograph and “David Brown” Facebook account, but also from
       seeing him walk the streets in Brownsville Borough between 2005
       and 2007[,] as well as around Redstone Township and California
       (Borough). When asked on cross-examination whether he had
       seen ... [A]ppellee since 2007, he responded: “Yes, it’s been
       awhile.”    Detective Hampe’s passenger, the CI, exited the
       detective’s car and entered the Volkswagen for a transaction
       lasting three to four minutes before returning to the vehicle with
       crack cocaine. ... [A]ppellee never emerged from the Volkswagen.
       With respect to the motion to identify the CI, Detective [Hampe]
       expressed concerns “for the safety of the [CI]. [Disclosure c]ould
       potentially jeopardize any other cases that was [sic] worked….”
       The CI was not utilized subsequent to this incident.

Commonwealth’s Brief at 5-8 (citations to the reproduced record omitted).

       Following the November 13, 2018 hearing, the court issued an order on

November 16, 2018, setting forth the following findings of fact:

             Detective Michael Hampe is the arresting officer, that he has
       been a police officer for approximately fifteen years. That on
       October 27, 2016, Detective Hampe was involved with a female
       confidential informant and that Detective Hampe testified that a
       telephone number, 724-531-5993, was used to facilitate
       communications with [Appellee]. The [c]ourt is not factually
       determining that the communication was made to the instant
       [Appellee].[1]

              The [c]ourt also determines that Detective Hampe does not
       know the true owner of the account associated with that telephone
       number, and the [c]ourt now determines that several other police
       officers were at the Giant Eagle, located in Dry Tavern,
____________________________________________


1 Detective Hampe testified that he did not know “the owner of that number”
or “the provider for that number, whether it was Verizon, Sprint, or whether
it was a Tracfone[.]” N.T. Hearing, 11/13/18, at 22. He also admitted that,
while he knew the CI had spoken “by voice” with someone at that telephone
number, the detective was not present for that conversation, and he did not
attempt to identify the person to whom the CI had spoken. Id. at 23.

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J-A23027-19


       Pennsylvania, on October 27, 2016. Those included Detective
       David Lloyd, Officer Shawn Wood, and Detective Donald Cross.
       The [c]ourt now determines that the named police officers, with
       the exception of Detective Hampe, were not in a position to
       identify [Appellee].

             The [c]ourt will also determine as factual that Detective
       Hampe had interactions with [Appellee] approximately eleven
       years prior to the alleged transaction on October 27, 2016.

              The [c]ourt now determines that the person that was the
       “seller” in the alleged drug transaction was driving a Volkswagen
       owned by someone other than … [Appellee] in the instant case.[2]

             The [c]ourt believes that Detective Hampe was concerned
       about [Appellee’s] recognizing him as a result of their prior
       interactions. Therefore, the [c]ourt does believe that Detective
       Hampe engaged in no conversation with [Appellee] and Detective
       Hampe made efforts to conceal his identity.

             The [c]ourt determines as factual that the [CI] is no longer
       used as a [CI], this came from the testimony of Detective Hampe.
       This apparently was the last activity in which the [CI] was
       engaged. The [c]ourt recognizes that the delay in the filing of
       charges was supported in part by a desire to protect this identity
       of the [CI].

             The Commonwealth has set forth vague concerns for the
       safety of the [CI] and has provided no factual detail which would
       support the concern for safety. The Commonwealth has indicated
       that revealing the identity of the [CI] could potentially jeopardize
       other cases. Again, the [c]ourt has determined that the [CI] has
       been engaged in no activity since October 27, 2016; however, the
       [c]ourt has insufficient facts before it to determine whether there
       are other pending investigations [that] may be compromised.

             Finally, the [c]ourt recognizes that Detective Hampe
       indicate[d] that the [CI] entered the vehicle in which the drug
       transaction is alleged to have occurred and spent three to four
       minutes in that car. The [c]ourt further recognizes that with the
____________________________________________


2 Detective Hampe testified that the vehicle was registered to “Jeffrey David
Morrell” of “Vestaburg, [Pennsylvania].” N.T. Hearing at 21. The detective
did not make any efforts to contact Morrell to discern “why his vehicle was
engaged in a drug transaction[.]” Id. at 22.

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J-A23027-19


      exception of Detective Hampe, the [CI] is, the only person in a
      position to potentially exonerate [Appellee].

Order, 11/16/18, at 2-5 (unnumbered).

      After accepting briefs on this issue by the parties, the court filed a

second order, and accompanying opinion, on December 26, 2018, ordering

the Commonwealth to disclose the identity of the CI. In support of this order,

the court explained:

            In determining whether the identity of a [CI] should be
      revealed[,] the [c]ourt must decide an appropriate balance under
      the law weighing the interests of both the Commonwealth and the
      [d]efendant.

             In its [o]rder of November 16, 2018, the [c]ourt indicated
      that [it] had determined as fact[] that the [CI] was no longer used
      by law enforcement, [and] that the Commonwealth cited only
      vague concerns about the safety of the [CI] in the event that that
      person’s identity was revealed.

            The [c]ourt is aware that the revelation of the identity of a
      [CI] may cause safety concerns for the [CI]. However, the
      [c]ourt, on balance, recognizes the constitutional right of
      [Appellee] to cross[-]examine and confront witnesses.

             The Commonwealth offered no testimony that [Appellee]
      had any propensity to violence. The Commonwealth offered no
      testimony that the [CI] would be in danger of physical harm, and
      on balance, the only person who could reveal the identity, or shed
      light on the identity of the “seller[,]” is the [CI].

Order, 12/26/18, at 8-9.

      On January 10, 2019, the Commonwealth filed a response to the court’s

order indicating that it would not disclose the CI’s identity. Consequently, on

January 17, 2019, the court issued an order dismissing the charges against

Appellant.




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J-A23027-19



      The Commonwealth filed a timely notice of appeal from that order, and

it also timely complied with the trial court’s order to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. On March 7, 2019, the

court filed a Rule 1925(a) opinion. Herein, the Commonwealth states one

issue for our review:

      Did the [trial] court err by misconstruing the facts and misapplying
      the law in determining that the circumstances presented required
      dismissal of the prosecution as the sanction for the
      Commonwealth’s refusal to reveal the identity of a [CI] who
      facilitated a clandestine drug transaction in the presence of an
      undercover police officer?

Commonwealth’s Brief at 4 (unnecessary capitalization omitted).

      We begin by recognizing that the Pennsylvania Supreme Court

      has adopted the guidelines articulated by the United States
      Supreme Court in Roviaro v. United States, 353 U.S. 53 …
      (1957), to guide trial courts in the exercise of their discretion in
      cases where, as here, the defendant requests the identity of a [CI]
      who is also an eyewitness:

         We believe that no fixed rule with respect to disclosure of
         the [CI’s] identity 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 the
         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.

      Commonwealth v. Carter, … 233 A.2d 284, 287 ([Pa.] 1967),
      (quoting Roviaro, [353 U.S.] at 60-62…).

Commonwealth v. Bing, 713 A.2d 56, 58 (Pa. 1998) (original brackets

omitted).


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J-A23027-19



     Additionally, the Court has explained that,

     [u]nder 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 [a CI], where
     a defendant makes a showing of material need and
     reasonableness:

        (a) In all court cases, except as otherwise provided in Rule
        230 (Disclosure of Testimony Before Investigating Grand
        Jury), if the defendant files a motion for pretrial discovery,
        the court may order the Commonwealth to allow the
        defendant’s attorney to inspect and copy or photograph any
        of the following requested items, upon a showing that they
        are material to the preparation of the defense, and that the
        request is reasonable:

           (i) the names and addresses of eyewitnesses....

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

            The Commonwealth enjoys a qualified privilege to withhold
     the identity of a confidential source. … Bing, supra at 58;
     Commonwealth v. Roebuck, 681 A.2d 1279, 1283 n. 6 ([Pa.]
     1996). In order to overcome this qualified privilege and obtain
     disclosure of a [CI’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. Roebuck, supra at 1283. Only after the defendant
     shows that the identity of the [CI] 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. Bing,
     supra at 58; Commonwealth v. Herron, … 380 A.2d 1228
     ([Pa.] 1977).

           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

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         court may require disclosure and, if the Government
         withholds the information, dismiss the action.

Commonwealth v. Marsh, 997 A.2d 318, 321-22 (Pa. 2010).

      In applying this law to the present case, we initially observe that the

Commonwealth does not meaningfully develop an argument that Appellee

failed to meet his threshold burden of establishing materiality under Rule 573.

In any event, had such a claim been presented, we would reject it. The CI’s

identity is clearly material to Appellee’s defense of mistaken identity, as the

CI is the only person, aside from Detective Hampe, who can identify Appellee.

Furthermore, Detective Hampe’s testimony indicates potential weaknesses in

his identification.   For instance, the detective testified that his view of the

seller was brief and limited, due to the detective’s efforts to conceal his own

face from the seller’s view. We also note that the detective testified that the

sale occurred at night, which could have further hindered his observations of

the seller.   N.T. Hearing at 24.    Additionally, the significant lapse in time

between the drug sale in October of 2016, and the filing of the criminal

information in June of 2018, might have diminished Detective Hampe’s

recollection of the seller. Finally, there is no other corroborating evidence to

support the detective’s identification of Appellee, such as evidence linking

Appellee to the vehicle, or a direct tie between Appellee and the telephone

number called by the CI. For these reasons, we conclude that the evidence

presented at the hearing demonstrated that the CI’s identity is material to

Appellee’s defense, and his request for the CI’s identity is reasonable.



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      We also conclude that the trial court did not abuse its discretion by

finding that the relevant factors in this case weigh in favor of disclosing the

CI’s identity. In Bing, our Supreme Court explained:

             In prior cases in which this Court has required the identity
      of an eyewitness informant to be revealed, the guilt of the
      defendant was established solely through the testimony of police
      officers who had viewed the defendant only a single time, or
      through the uncorroborated testimony of a single officer. For
      example, the appellant in Carter was convicted of selling narcotics
      to an informant in the presence of an undercover officer. At trial,
      the only Commonwealth witnesses were the purchasing officer
      and an agent for the Federal Bureau of Narcotics who was sitting
      in a car parked half a block away at the time of the sale. Not only
      were the identifications of the appellant by both witnesses based
      on a single viewing, but the defense consisted solely of [the]
      appellant’s claim of mistaken identity. Under these circumstances,
      this Court held that the trial court’s refusal to order the
      Commonwealth to disclose the name of the confidential informant
      constituted reversible error.

             In Commonwealth v. Payne, 540 Pa. 54, 656 A.2d 77
      (1994), the appellant sold cocaine to an undercover Pennsylvania
      State Trooper in the presence of an informant. The appellant was
      not arrested until seven months after the incident. At trial, the
      officer, who had never encountered the appellant before, was the
      only prosecution witness. The appellant raised a mistaken identity
      defense, testifying that he had not met the trooper prior to his
      arrest and that he had not been in the apartment complex where
      the incident occurred. Because of the single viewing of [the]
      appellant by a single officer, and the lapse of time between the
      sale and the arrest which allowed for the possible impairment of
      the officer’s memory, this Court held that the identity of the
      informant should have been revealed.

             In ... Roebuck, … the appellant sold narcotics to an
      undercover officer on two occasions in the presence of an
      informant. In concluding that disclosure of the informant’s identity
      was required with respect to the initial transaction, this Court
      reasoned that, as in Payne and Carter, the only eyewitness to
      that transaction other than the confidential informant was a police
      officer. The Court further noted that “there was no evidence

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J-A23027-19


        whatsoever presented that disclosure would jeopardize the safety
        of the confidential informant....” [Roebuck,] 681 A.2d at 1284.

Bing, 713 A.2d at 58-59 (footnote omitted).

        In Bing, the Court upheld the trial court’s denial of Bing’s request for

the CI’s identity. The Court reasoned that “the risk of misidentification that

was present in Payne, Carter, and Roebuck [was] not present” where Bing’s

identification was premised on seven separate observations by three

different police officers, one of whom had “observed [Bing] for a significant

amount of time and at a close distance.” Id. at 59. More importantly, the

Court    stressed   that   “the   Commonwealth      presented   evidence   that

demonstrated that the [CI’s] safety would be jeopardized by disclosure of his

identity[,]” including testimony by an officer that the CI “had been harassed

as recently as one month before the hearing, and had received a threat

stemming from his suspected cooperation with police.”              Id. at 60.

Furthermore, the CI “was assaulted after it became known in the community

that [the officer working undercover with the CI] had been seen with members

of the Drug Task Force.” Id. The Bing Court held that “[i]t is this showing

of a reasonably specific type of danger which justifies keeping an informant’s

identity confidential.” Id.

        It is amply clear that the present case is distinguishable from Bing and

analogous to Payne, Carter, and Roebuck.          As in the latter three cases,

Detective Hampe’s identification of Appellee is premised on a single drug sale,

the detective is the Commonwealth’s sole eyewitness who can identify



                                      - 10 -
J-A23027-19



Appellee (aside from the CI), there is no other evidence to corroborate his

identification, and Appellee’s defense is that of mistaken identity.

      Moreover, the risk of misidentification of Appellee is more significant

than in Carter, Payne, and Roebuck. Unlike in those cases, the drug sale

did not occur in Detective Hampe’s presence, but in a separate vehicle, and

Detective Hampe’s view of the seller was limited by his efforts to conceal his

own face from the seller.     Additionally, the delay between the sale and

Appellee’s arrest was greater than that in Payne, making it more likely that

Detective Hampe’s memory of the sale could be impaired.

      We also find it significant that the phone number called by the CI in this

case was used by Appellee’s son, David Wayne Brown, III, in an unrelated

drug case in Greene County.      Moreover, the trial court states in its Rule

1925(a) opinion that it “required the Commonwealth to reveal the identity of

the [CI] as [Appellee’s] son … was charged with similar drug transactions in

both Greene and Washington County at or around the same time-frame.” Trial

Court Opinion, 3/7/19, at 1-2 (unnumbered).           Appellee’s son’s alleged

involvement in drug sales around the same time as the present sale, and his

use of the phone number called by the CI in this case, bolsters the possibility

that Appellee was misidentified in this case.

      Lastly, unlike in Bing, the Commonwealth did not present evidence that

the CI would face a specific type of danger if her identity is revealed.

Moreover, because the police are no longer using her as an informant, the

disclosure of her identity would presumably have little impact on the public’s

                                     - 11 -
J-A23027-19



future interest in effective law enforcement, and the Commonwealth

presented insufficient information to show that “pending investigations … may

be compromised.” Order, 11/16/18, at 4.

      Balancing these relevant considerations, we conclude that the trial court

did not abuse its discretion by ordering the Commonwealth to disclose the

identity of the CI.   Because the Commonwealth refused to adhere to that

order, the court properly dismissed the charges against Appellee.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2019




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