J-E01001-15


                             2015 PA Super 202

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellant

                   v.

KYLE JORDAN,

                        Appellee                     No. 2832 EDA 2011

             Appeal from the Order Entered September 1, 2011
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0014464-2010

BEFORE: BOWES, DONOHUE, SHOGAN, LAZARUS, MUNDY, OLSON, WECHT,
        STABILE, JENKINS, JJ.

OPINION BY BOWES, J.:                          FILED SEPTEMBER 22, 2015

     The Commonwealth appeals from the September 1, 2011 order

precluding it from presenting evidence adduced as the result of the

execution of a search warrant. The order was entered as a sanction due to

the Commonwealth’s failure to reveal the identity of a confidential informant

used during a controlled-buy.       We conclude that the trial court erred in

ordering the Commonwealth to reveal the identity of the confidential

informant once the Commonwealth entered a stipulation that the defense

could introduce into evidence what the confidential informant reported to

police and agreed not to rely upon the controlled-buy in support of its

pending charge of delivery of a controlled substance. We also conclude that

the sanction awarded herein was improper. We therefore reverse.
J-E01001-15



        The pertinent facts are as follows.          On September 7, 2010,

Philadelphia Police Officer Gary Francis utilized confidential informant

number 01241 (“CI-1”) to conduct a narcotics investigation at the 2700

block of North Judson Way, Philadelphia. Officer Francis had used CI-1 in

drug trafficking investigations on more than ten prior occasions, and in each

instance, the collaboration led to the seizure of narcotics as well as arrests.

Officer Francis met with CI-1 and, after performing the controlled-buy

protocol, followed him1 to the 2700 block of Judson Way sometime between

3:00 p.m. and 5:00 p.m. Officer Francis observed CI-1 speak briefly with

Appellee, enter a row house at 2737 Judson Way with Appellee, and exit that

location shortly thereafter. Officer Francis then followed CI-1 away from the

view of the 2700 block, and CI-1 handed Philadelphia Police Officer Matthew

Beattie two packets of crack cocaine in Officer Francis’s presence.        After

Officers Francis and Beattie entered a vehicle, Officer Francis drove to the

2700 block of Judson Way, where Appellee was still standing. Appellee was

identified as being involved in the September 7, 2010 controlled-buy so that

Officer Beattie would be familiar with him. N.T. Motion, 7/19/11, at 31.

        At 2:10 p.m. on September 8, 2010, Officer Beattie, who had also

worked with CI-1 in successful drug interdictions, met with that CI.       After

____________________________________________
1
   Police specifically declined to identify any CI as either male or female. We
utilize the male pronoun throughout the adjudication to refer to a CI solely
for purposes of simplifying the narrative.


                                               -2-
J-E01001-15



utilizing the controlled-buy procedure, Officer Beattie observed CI-1 meet

with Appellee, who again was standing on the 2700 block of Judson Way.

Appellee and CI-1 briefly spoke, and Appellee entered 2737 Judson Way for

about one minute while CI-1 waited outside. Appellee then returned to the

CI-1, CI-1 handed Appellee money, and, in return, Appellee gave CI-1 “small

items.” Id. at 28. The CI-1 gave the items, which were packets of crack

cocaine, to police.

      On September 10, 2010, Police Officer Bradford Mitchell met with

confidential   informant    number    01079    (“CI-2”).     CI-2   had    aided

Officer Mitchell in twenty to twenty-five prior drug investigations, all of which

had led to the recovery of narcotics and arrests, and he was still being used

as a CI.       Id. at 59.    After following the controlled-buy mandates,

Officer Mitchell gave CI-2 twenty dollars in buy money and followed him to

the 2700 block of Judson Way.         Officer Mitchell observed CI-2 engage

Appellee as well as a man named James Lofton in a brief conversation, and

he saw all three people enter 2737 Judson Way. Within two minutes, CI-2

exited the building and gave Officer Mitchell two pieces of crack cocaine. At

that time, CI-2 informed Officer Mitchell that, inside 2737 Judson Way, CI-2

handed Lofton the buy money, Lofton obtained the crack cocaine from

underneath a couch, and Lofton handed CI-2 the drug.

      Later that same day, on September 10, 2010, police obtained a search

warrant for 2737 Judson Way.       When the warrant was executed, Appellee

                                      -3-
J-E01001-15



and Lofton were present.     Incriminatory items were recovered from both

Appellee and Lofton.   Additionally, Appellee and Lofton engaged in certain

actions in the presence of the officers, and those activities evidenced a

conspiracy between them to distribute narcotics.

      Appellee was charged with 1) one count of delivery of a controlled

substance based upon actions that occurred between September 7, 2010,

and September 10, 2010; 2) one count of conspiracy based upon actions

that occurred between September 7, 2010, and September 10, 2010; and 3)

one count of possession of a controlled substance by an unregistered person

based upon actions that occurred between September 7, 2010, and

September 10, 2010.       Appellee thereafter filed a motion to reveal the

identities of the two CIs used in connection with the investigation.

      A hearing was held on the motion on July 19, 2011, where the above-

delineated specifics were adduced. Additionally, Officer Francis testified that

CI-1 lived in the community, had knowledge of the drug trade therein, and

was still “in use” in drug investigations.   N.T. Motion, 7/19/11, at 13-14.

Officer Francis reported that, if the identity of CI-1 was revealed, there

might be retaliation, “physical harm being brought to that person or [his]

family who are also of this particular community,” and the harm could

include “[p]hysical, verbal, mental, property damage[.]” Id. at 12-13, 15.

Officer Mitchell testified that CI-2 frequented the area where the drug

purchases occurred and had “family in that area.” Id. at 43. Officer Mitchell

                                     -4-
J-E01001-15



observed that, if the identity of CI-2 was disclosed, “[s]ome form of bodily

injury may happen to this CI or the CI’s family.” Id. at 43-44.

      After hearing this evidence, the trial court denied the request to reveal

CI-1’s name, but granted the motion to reveal the identity of CI-2.         The

court observed that Officer Mitchell indicated that, after the September 10,

2010 controlled-buy conducted inside the row house, CI-2 told Officer

Mitchell that Lofton was the individual who sold him the crack cocaine. The

court ruled, “Based upon the testimony of Officer Mitchell in this CI motion,

this Court feels that it is necessary for the identity of CI-2 to be revealed as

he is the only individual who can provide that information and it would not

be hearsay testimony. . . .” Id. at 75.

      As soon as the court issued the ruling requiring the revelation of CI-2’s

identity, the Commonwealth amended the delivery charge so that it was no

longer premised upon the controlled-buy conducted on September 10, 2010.

Id. at 76.    Additionally, the Commonwealth agreed to stipulate at the

scheduled trial that CI-2 told Officer Mitchell that, inside 2737 Judson Way

on September 10, 2010, CI-2 gave the buy money to Lofton, Lofton reached

inside the couch for the crack cocaine, and Lofton handed the crack cocaine

to CI-2. Id. at 79.

      The trial court then asked the Commonwealth how it could proceed on

the conspiracy charge given that Appellee was the only person who was

involved in the September 7th and September 8th controlled-buys.            The

                                     -5-
J-E01001-15



Commonwealth delineated that it could predicate proof of a conspiracy on

what was viewed and recovered during the execution of the search warrant.

     The district attorney explained, “I would still keep the conspiracy

charge based on what was found on [Lofton] that would be testified to.” Id.

at 77. She continued that the officers who executed the search warrant “will

testify as to who was in the house and all the items recovered in the house

and on the persons in the house which would be relevant to the conspiracy

charge.” Id. The prosecutor informed the trial court that both Appellee and

Lofton were in the house when the warrant was executed on September

10th. Additionally, “Items were recovered from Mr. Lofton that are also

relevant to the case in chief as the whole. So the items found in the house

as well as the items found on Mr. Lofton and the behavior of [Appellee and

Lofton], which will come out at trial, are all relevant” to the conspiracy

charge. Id. The district attorney concluded that she could go forward as to

the conspiracy charge “based on what was seen in the house during the

search warrant day, what was recovered, [and] what the officers observed

the defendants doing.” Id. at 79.

     The trial court refused to revise its earlier determination that the

identity of CI-2 had to be revealed, and, after the Commonwealth failed to

comply with that directive, the trial court issued an order on September 1,

2011. It ruled that, as a sanction for the Commonwealth’s violation of the

July 19, 2011 order to reveal CI-2’s identity, the Commonwealth was

                                    -6-
J-E01001-15



precluded from presenting any evidence obtained on September 10, 2010,

which included Officer Mitchell’s observations on September 10, 2010, as

well as items seized and observations made during the execution of the

search warrant.

     The Commonwealth filed the present appeal pursuant to Pa.R.A.P.

311(d), which is set forth infra, since the September 1, 2011 order

precluded the Commonwealth from introducing evidence at trial. A panel of

this Court affirmed the trial court’s decision. En banc review was granted,

and the matter is now ready for disposition. On appeal, the Commonwealth

contends:

         Did the lower court err in suppressing evidence as a sanction
     for the Commonwealth's refusal to disclose the identity of a
     confidential informant where the informant was not a
     prosecution trial witness, and would have been put in danger by
     disclosure; defendant failed to make a threshold showing that
     the identity of the informant was material, reasonable, and
     necessary for the preparation of a planned defense; and the
     refusal had no reasonable connection with the court's sanction of
     eliminating all Commonwealth evidence pertaining to the third
     day of surveillance?

Commonwealth’s brief at 2.

     The Commonwealth first maintains that the trial court’s decision

requiring disclosure of the identity of CI-2 was improper. As a preliminary

procedural matter, we address whether we can review the propriety of the

order requiring disclosure since the Commonwealth did not appeal that order




                                   -7-
J-E01001-15



and instead appealed from the order suppressing evidence based on its

violation of that order.

        We first discuss the impact of our Supreme Court’s pronouncement in

Commonwealth v. Shearer, 882 A.2d 462 (Pa. 2005). In Shearer, the

Commonwealth appealed a trial court order that required the minor victim of

a sexual assault to submit to a psychiatric examination.                 The order was

entered to aid the trial court in determining the minor’s competency to

testify.    We quashed the appeal as interlocutory, and our Supreme Court

reversed.

        The Commonwealth argued to the Supreme Court that there were two

bases      for   finding   appellate    jurisdiction.    Pertinent     herein   was   the

Commonwealth’s         invocation      of   Pa.R.A.P.   311,   which     outlines   when

interlocutory orders are appealable as of right, and, in particular, subsection

(d), which provides: “In a criminal case, under the circumstances provided

by law, the Commonwealth may take an appeal as of right from an order

that does not end the entire case where the Commonwealth certifies in the

notice of appeal that the order will terminate or substantially handicap the

prosecution.” Pa.R.A.P. 311(d).

        Our Supreme Court ruled that the order mandating the victim to

undergo testing was not appealable under Pa.R.A.P. 311(d).                  It observed

that, in the context of trial court orders resolving questions regarding the

admissibility of evidence, Pa.R.A.P. 311(d) is applicable only when the order

                                            -8-
J-E01001-15



in question suppresses, precludes, or excludes some evidence that the

Commonwealth seeks to introduce at trial.          See Commonwealth v.

Cosnek, 836 A.2d 871, 877 (Pa. 2003) (holding that Pa.R.A.P. 311(d) did

not accord the Commonwealth the right to appeal a pretrial ruling that

denied its request that the defense be prevented from presenting certain

evidence because, in the context of a suppression ruling, Pa.R.A.P. 311(d)

applies only when “a pretrial ruling results in the suppression, preclusion or

exclusion of Commonwealth evidence”).

      The Commonwealth maintained in Shearer that the order requiring a

psychological examination had the effect of hindering its ability to present

evidence and meeting its burden of proof since the order might deter the

victim from testifying.   Our Supreme Court rejected the position that the

Commonwealth is allowed to appeal any pretrial order that could potentially

affect its ability to meet its burden of proof. It reaffirmed that an order, to

be immediately appealable, had to actually suppress, preclude, or exclude

the introduction of Commonwealth proof.        Our Supreme Court exercised

jurisdiction in the Shearer case under the collateral order doctrine.

      As applied herein, Shearer mandates characterization of the pretrial

order requiring disclosure of CI-2’s identity as interlocutory and not

appealable as of right. Accord Commonwealth v. Jackson, 598 A.2d 568

(Pa.Super. 1991) (limiting the Commonwealth’s appeal to permissive




                                     -9-
J-E01001-15



interlocutory review pursuant to Pa.R.A.P. 1311 of an order requiring it to

reveal identity of a confidential informant).

       On the other hand, under Shearer, the trial court’s sanction order,

which precluded the Commonwealth from introducing evidence seized with

the    warrant,     is   appealable   under     Pa.R.A.P.     311(d).      Since   the

Commonwealth properly appealed from the order entering sanctions, it now

can challenge the prior interlocutory order mandating that it disclose the

identity of CI-2. Jackson, supra; Commonwealth v. Redmond, 577 A.2d

547 (Pa.Super. 1990). Jackson and Redmond are on point.

       In Jackson, the trial court ordered the Commonwealth to reveal the

identity of a confidential informant whose information was used to support

the issuance of a warrant. After the Commonwealth violated that order, the

trial court sanctioned the Commonwealth by discharging the defendant. The

sanction order was appealed by the Commonwealth.                        The defendant

maintained that the propriety of the discovery order could not be reviewed

on appeal since the Commonwealth had not appealed it. We disagreed.

       We noted that the order mandating disclosure was interlocutory and

held   that   the    Commonwealth      was    not   obliged    to   seek   permissive

interlocutory review of its propriety. We further ruled that we could review

the merits of the prior interlocutory order requiring disclosure of the

unnamed informant once an appeal was properly filed from an order that

was appealable, i.e., the sanction order dismissing the charges filed against

                                       - 10 -
J-E01001-15



the defendant.             We reasoned that, in order to determine whether the

sanction order was correct, “the merits of” the previous order mandating

disclosure of the CI’s identity “inescapably requires our review.” Id. at 572.

        We noted that, under the rule of criminal procedure applicable to

discovery, a trial court is authorized to enter a remedial order only after a

party has failed to comply with the rule. Id. Pa.R.Crim.P. 573(E) (formerly

Pa.R.Crim.P. 305(E)).2 We opined:

        The facts of the case indicate that the Commonwealth did not
        comply with the lower court's order of September 30, 1988,
        [granting discovery to the defendant of the name of the
        anonymous source]; therefore, we must examine the
        Commonwealth's non-compliance with the disclosure order to
        determine if that non-compliance was equivalent to a non-
        compliance with Rule 305 [now Rule 573], thus permitting the
        lower court to act pursuant to the remedy provision of Rule 305
        E. This inquiry will logically require us to examine the merits of
        the September 30, 1988 order. However, in doing so, we are
        not resurrecting the quashed appeal of that order; we are simply
        considering whether the October 25, 1988 order [sanctioning the
        Commonwealth and dismissing the case] was proper considering
        the prior disclosure order.

Jackson, supra at 573.

        The Jackson panel continued that the Commonwealth’s decision not

to pursue a permissive interlocutory appeal from the order requiring

disclosure of the CI’s identity did not waive its challenge to that order. We

concluded         that,      “To     find      waiver   would   create   a   self-contradictory

____________________________________________
2
    The Rule is set forth in its entirety in the text infra.



                                                   - 11 -
J-E01001-15



mandatory, permissive interlocutory appeal.”         Id. (emphasis in original;

citation and quotation marks omitted).

      In Redmond, supra, the Commonwealth filed appeals from an order

requiring a police witness to identify a confidential informant and a

subsequent order precluding the police witness from testifying due to the

witness’s failure to provide the informant’s name. After noting that it was

not appealable under Pa.R.A.P. 311(d), we quashed the appeal from the

discovery order. We observed that the Commonwealth had not followed the

procedures for obtaining permissive interlocutory review of the order.

However, in connection with deciding whether the sanction imposed for the

violation of the discovery order was appropriate, we reviewed the merits of

that order and upheld it.

      Thus, herein, we will first examine whether the trial court properly

determined that, after the Commonwealth stipulated as to what CI-2 said to

police after purchasing the crack cocaine and amended the delivery charge

so   as   to   eliminate    the   September    10,   2010   controlled-buy,   the

Commonwealth still had to reveal the identity of CI-2. As noted, CI-2 told

Officer Mitchell that Lofton sold him the crack cocaine during the September

10, 2010 controlled-buy.      The trial court concluded that, based upon the

information given to Officer Mitchell by CI-2, the identity of CI-2 was

material “exculpatory evidence to the Defendant’s planned defense to

present evidence that he did not distribute drugs on the third night of

                                      - 12 -
J-E01001-15



surveillance,” i.e., September 10, 2010. Trial Court Opinion, 1/17/13, at 5-

6.   The court decided that the evidence was discoverable under Brady v.

Maryland, 373 U.S. 83 (1963), as well as Pa.R.Crim.P. 573.

      We first address whether CI-2’s identity had to be revealed under

Brady.   In that decision, the United States Supreme Court held that “the

suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the

prosecution.” Brady, 373 U.S. at 87. After issuing the Brady decision, the

United States Supreme Court subsequently concluded that the prosecution

had the duty to reveal any evidence that exonerates the accused, even in

the absence of a request for such information by the defendant.        United

States v. Agurs, 427 U.S. 97 (1976).          The Court then extended this

disclosure duty to encompass exculpatory impeachment evidence in addition

to directly favorable evidence.   United States v. Bagley, 473 U.S. 667

(1985). Brady and its progeny impose “an affirmative and continuing duty

upon the government to disclose exculpatory information,” but confers no

general discovery right upon the defendant. Commonwealth v. Williams,

86 A.3d 771, 788 (Pa. 2014).

      It is evident herein that the trial court incorrectly determined that the

identity of CI-2 exonerated Appellee.     There is a distinction between the

“identity” of CI-2 and the “statements” that CI-2 made during the

                                    - 13 -
J-E01001-15



investigation.   In this case, the identity of CI-2 was not exculpatory to

Appellee. Rather, the statements made by that individual that Lofton sold

him the cocaine was exculpatory to the extent that the delivery charge

against Appellee was based upon the September 10th controlled-buy.          To

state the concept differently, it does not matter who said that Lofton sold the

cocaine; the allegedly exculpatory evidence was that Lofton performed that

action.

      In order to protect its CI, the Commonwealth agreed to allow Appellee

to present at trial CI-2’s statements to police after the controlled-buy

consisting of the fact that CI-2 gave Lofton the controlled-buy money and

Lofton handed CI-2 the crack cocaine after recovering that drug from a

couch. Once the stipulation was entered, Appellee had the unfettered ability

to present CI-2’s exculpatory remark through the means of the stipulation.

The Commonwealth also agreed that the delivery charge would not be

premised upon the September 10, 2010 controlled-buy.         Hence, once the

stipulation and information’s amendment occurred, Brady did not require

disclosure of the confidential informant’s identity.

      The trial court also concluded CI-2’s identity was discoverable

pursuant to Pa.R.Crim.P. 573. “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. Watson, 69

A.3d 605, 607 (Pa.Super. 2013) (quoting Commonwealth v. Washington,

                                     - 14 -
J-E01001-15



63 A.3d 797, 801 (Pa.Super. 2013)). The applicable Pennsylvania Supreme

Court precedent outlining the test employed to determine whether the

Commonwealth must reveal the identity of a confidential informant is

contained in Commonwealth v. Bing, 713 A.2d 56 (Pa. 1998).3 The Court

therein set forth:

           This Court has adopted the guidelines articulated by the
        United States Supreme Court in Roviaro v. United States, 353
        U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), to guide trial
        courts in the exercise of their discretion in cases where, as here,
        the defendant requests the identity of a confidential informant
        who is also an eyewitness:

                     We believe that no fixed rule with respect to
                 disclosure of the confidential informant'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, 427 Pa. 53, 59, 233 A.2d 284, 287
        (1967), (quoting Roviaro, at 60-62, 77 S.Ct. 623).

            In Carter, this Court held that the balance tips in favor of
        disclosure where guilt is found solely on police testimony based
        on a single observation, where testimony from a more
        disinterested source, such as the informant, is available. Id. at
        61, 233 A.2d at 287. However, where other corroboration of the
        officer's testimony exists, disclosure of the informant's identity is
____________________________________________
3
  Our High Court recently spoke to this issue in Commonwealth v. Marsh,
997 A.2d 318 (Pa. 2010), but Marsh is a plurality decision with respect to
the balancing factors to be applied in this context.


                                               - 15 -
J-E01001-15



        not necessarily required. Id. at 59, 233 A.2d at 287. This Court
        also recognized the importance of the Commonwealth's qualified
        privilege to maintain the confidentiality of an informant in order
        to preserve the public's interest in effective law enforcement.
        Id.; Commonwealth v. Herron, 475 Pa. 461, 380 A.2d 1228
        (1977). Also, the safety of the confidential informant is a
        controlling factor in determining whether to reveal his identity.

            Further, before an informant's identity may be revealed, the
        defendant must establish pursuant to Pa.R.Crim.P. 305(B) [now
        Rule 573(B)] that the information sought is material to the
        preparation of the defense and that the request is reasonable.
        Commonwealth v. Roebuck, 545 Pa. 471, 477, 681 A.2d
        1279, 1283 (1996). Only after a showing by the defendant that
        the information sought is material and the request reasonable is
        the trial court called upon to exercise its discretion to determine
        whether the information is to be revealed. Id. at 478, 681 A.2d
        at 1283.

Id. at 58.

        As articulated in Bing, even before the discretion of the trial court to

order disclosure can be exercised, the defendant must establish that the CI’s

identity is material to the preparation of a defense and that the request is

reasonable. This precept was reaffirmed in Commonwealth v. Marsh, 997

A.2d 318 (Pa. 2010).                  Therein, six justices agreed that the trial court’s

discretionary authority to mandate disclosure of a CI is not triggered until

after a defendant establishes materiality and reasonableness.                 See id. at

325.4



____________________________________________
4
  Marsh is precedential in this respect under Justice Saylor’s concurrence,
wherein he, joined by Chief Justice Castille and Justice Todd, agreed “with
the lead Justices that a defendant is required to establish materiality and
(Footnote Continued Next Page)

                                                - 16 -
J-E01001-15



        The     rule       referenced            by   our   Supreme   Court   in   Bing,   former

Pa.R.Crim.P. 305, related to discovery. As noted, that discovery provision is

now found at Pa.R.Crim.P. 573.                        The pertinent portion of Rule 573 states

that in all court cases, with exceptions inapplicable herein,

        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) (emphasis added).

        If materiality and reasonableness are proven, then the courts must

balance the public interest in the police’s ability to obtain information against

the defendant’s right to prepare his defense. In this connection, we consider

the crime, the potential defense, and the significance of the CI’s testimony.

The scales tip in favor of disclosure if the Commonwealth will be relying on

police testimony based on a single observation. If other proof corroborates

a police officer’s testimony, disclosure is not mandated. Furthermore, the

safety of the confidential informant can be a controlling factor in determining

whether to reveal a source’s identity.




                       _______________________
(Footnote Continued)
reasonableness before a trial court may exercise its discretionary prerogative
to require disclosure of the identity of a confidential informant.”


                                                      - 17 -
J-E01001-15



        Our conclusion that the identity of CI-2 was not exculpatory applies

with equal force to the determination that it was not material. As noted, the

Commonwealth agreed to stipulate that CI-2 told police that Lofton sold him

the drugs inside the row house on September 10, 2010, and to amend the

delivery charge to eliminate the September 10, 2010 controlled-buy.

Thereafter, the identity of CI-2 was not material to a defense to any pending

charge.5 Additionally, this case was not one where Appellee’s identity was

____________________________________________
5
   The Dissent suggests that we should affirm the disclosure order because
the identity of the CI-2 was material to Appellee’s defense in connection with
the conspiracy charge. It states, “CI-2 is the only person who could testify
as to what actually occurred inside the residence on that date, and whether
[Appellee] engaged in any behavior therein that would implicate him as a
conspirator with Logan.” Dissenting Memorandum at 9. It suggests that the
“CI-2’s identity is material because [Appellee] still faces a conspiracy charge
that might implicate the events that occurred inside the residence and that it
was reasonable to [Appellee] to request disclosure.” Id.

       The Dissent’s position ignores the context of the events involved in
this police investigation as well as the extent of the stipulation entered
herein.    Appellee was implicated in two other controlled-buys.        On
September 7, 2010, Officer Francis saw Appellee speak with CI-1, enter
2737 Judson Way with CI-1, and the CI-1 exit that residence with crack. On
September 8, 2010, Officer Beattie saw CI-1 speak with Appellee, Appellee
briefly enter and then exit 2737 Judson Way, and hand CI-1 crack cocaine in
exchange for money. On September 10, 2010, Officer Mitchell saw CI-2
speak with both Lofton and Appellee outside 2737 Judson Way and
observed all three individuals enter the house together. The CI-2 was
inside the house for a “minute or two.” N.T. Motion, 7/19/11, at 42. The
Commonwealth agreed to stipulate as to everything that CI-2 told police
about what happened inside 2737 Judson Way: CI-2 handed Lofton the buy
money, Lofton found the crack cocaine in a couch, and Lofton handed CI-2
the crack cocaine. This information certainly covers events spanning a
minute or two, and provides all the exoneration needed by Appellee as to
the conspiracy charge premised upon the controlled buy occurring inside
(Footnote Continued Next Page)

                                               - 18 -
J-E01001-15



established through a single police observation. Rather, both Officer Francis

and Officer Beattie saw Appellee on September 7, 2010.                          Officer Francis

observed Appellee initiate the controlled-buy with CI-1, who later drove with

Officer Beattie past Appellee so that the officer could view Appellee’s face.

Officer Beattie watched as Appellee conducted the controlled-buy with CI-1

on September 8, 2010.                    Then, Officer Mitchell observed CI-2 speak with

Appellee and Lofton before all three people entered 2737 Judson Way on

September 10, 2010. This case was not one where, even if the balancing

test was applicable, the scales tipped in favor of disclosure. Accordingly, the

trial   court     abused           its    discretion   in   continuing   to   insist   that   the

Commonwealth reveal the identity of CI-2 after the Commonwealth entered

the stipulation and amended the delivery charge. Since the disclosure order




                       _______________________
(Footnote Continued)
2737 Judson Way on September 10, 2010. Additionally, there was evidence
seized and behavior observed during the execution of the search warrant
implicating Appellee and Lofton in a conspiracy to sell drugs.

      A defendant has the burden of establishing that the identity of a
confidential informant is material. He is not permitted to engage in a fishing
expedition to ascertain if it “is possible” that a confidential informant has
information to assist in a defense. Dissenting Memorandum at 9. Given the
facts outlined above, we simply find it untenable that CI-2 could possibly
provide any additional information that would assist Appellee in his defense
of the conspiracy charge.



                                                  - 19 -
J-E01001-15



was improper, the Commonwealth did not violate Rule 573 and could not be

sanctioned for the same.6

        We additionally conclude that the sanction awarded was overbroad.

We are aware that we review a trial court’s order awarding sanctions under

an abuse of discretion standard.                In re York County Dist. Attorney's

Office, 15 A.3d 70, 73 (Pa.Super. 2010).                The trial court’s authority to

sanction a party for a discovery violation is derived from Pa.R.Crim.P.

573(E), which states:

        If at any time during the course of the proceedings it is brought
        to the attention of the court that a party has failed to comply
        with this rule[, which governs discovery matters,] the court may
        order such party to permit discovery or inspection, may grant a
        continuance, or may prohibit such party from introducing
        evidence not disclosed, other than testimony of the defendant,
____________________________________________
6
   The Dissent’s vitriolic characterization of this Court’s decision and its
criticism of the prosecutor’s actions herein are unwarranted. We have
neither eradicated our law nor announced breathtaking new precedent.
Dissenting Opinion at 3, 4, 6. Additionally, the prosecutor was not a “defiant
lawyer” who engaged in a “flagrant” violation of the trial court’s order and
“willy-nilly” flouted a valid court order at “her own whim.” Dissenting
Opinion at 1, 11, 15. The Commonwealth made a good faith response to
the discovery order. When the trial court ordered it to reveal CI-2’s identity,
the Commonwealth was unable to appeal because the order was
interlocutory. It freely agreed to forego any fruits of its transgression. It
withdrew the September 10, 2010 controlled-buy as support for the delivery
charge and stipulated to everything that the confidential informant said
about the events inside 2737 Judson Way on September 10, 2010. Finally,
the Commonwealth reported that it would proceed with the conspiracy
charge limited to events surrounding execution of the search warrant. After
these actions by the prosecutor, there was no cause for the trial court to
continue to insist that the Commonwealth reveal the identity of the CI,
whom the Commonwealth validly wanted to protect from reprisal.



                                               - 20 -
J-E01001-15



     or it may enter such other order as it deems just under the
     circumstances.

     While the trial court is accorded discretion to sanction a party who

violates an order, there are limits upon the sanctions that a trial court can

impose.   In re York, supra, is instructive herein.       In that case, the

defendant was charged with possession with intent to deliver, possession of

an offensive weapon, and driving while his operating privileges were

suspended or revoked.     He filed an omnibus pretrial motion requesting

suppression of evidence and that the Commonwealth be ordered to disclose

the identity of a CI.   The trial court denied the motion to suppress but

ordered the Commonwealth to disclose the CI’s identity.

     After the Commonwealth’s request for reconsideration of the order was

denied, it stated that it would not comply with the order.    The defendant

moved for dismissal, which the trial court denied. The trial court found the

Commonwealth in contempt.         The defendant and the Commonwealth

thereafter negotiated a guilty plea, which the trial court refused to accept.

The Commonwealth then nolle prossed the charges. The trial court imposed

a contempt sanction of $5,000, which the Commonwealth appealed.

     This Court noted that there are limits on “the types of sanctions which

may be imposed as a result of a prosecutor's violation of discovery rules.

We have stated that the remedy in the criminal proceeding is limited to

denying the prosecution the fruits of its transgressions.”        Id. at 73



                                   - 21 -
J-E01001-15



(quotation marks and citation omitted). The York panel continued that the

“the nolle prosse of the charges precluded the Commonwealth from

proceeding    with   the   ‘fruits    of   its   transgression.’   Thus,   once   the

Commonwealth moved to nolle prosse the case rather than disclose the

identity of the CI, the issue of contempt should have ended.” Id. Our ruling

was consistent with “the Pennsylvania Supreme Court's recognition of the

importance of the Commonwealth's qualified privilege to maintain the

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

effective law enforcement.”          Id. (citation and quotation marks omitted).

This Court concluded that “the Commonwealth ought to have the option of

keeping its commitment of non-disclosure to a confidential informant by

nolle prossing charges without further sanction by the trial court.” Id.

      In the present case, the Commonwealth was told to disclose CI-2’s

identity. Seeking to prevent harm to CI-2 while avoiding the benefits from

its decision to withhold CI-2’s name, the Commonwealth amended the

delivery charge to omit the September 10, 2010 controlled-buy, and it

agreed that Appellee could present evidence that Lofton sold CI-2 the drugs

on September 10, 2010.

      The dissent attempts to distinguish York by noting that all charges

were nolle prossed therein, while, in this case, the “the prosecutor

attempted simultaneously to disobey the order while proceeding with the

bulk of the prosecution.” Dissenting Opinion at 17. The cases are aligned in

                                           - 22 -
J-E01001-15



that the Commonwealth agreed not to benefit from the fruits of its

transgression in both cases.

      What distinguishes the case at bar from York is that, herein, the

Commonwealth had the benefit of significant other evidence, and it did not

need to nolle prose all of its charges against Appellee based upon its failure

to reveal CI-2’s identity. The Dissent has chosen to ignore the following. On

September 7, 2010, Appellee was observed by Officer Francis participating in

a controlled-buy, and on September 8, 2010, Appellee sold drugs to CI-1

while Officer Beattie watched.     These events supported the charges of

delivery of a controlled substance and possession of a controlled substance

by an unregistered person.       During these transactions, Appellee was

standing near to and then entered 2737 Judson Way. The search warrant

executed at 2737 Judson Way yielded drugs, Lofton and Appellee were both

present, and events occurring during the execution of the warrant supported

that they were conspirators.

      Contrary to the Dissent’s position, the September 10, 2010 controlled-

buy and the validity of the search warrant executed on September 10, 2010,

are not intertwined.    The search warrant was premised upon all three

controlled-buys. There was probable cause for a search of 2737 Judson Way

based solely upon the first two controlled-buys involving CI-1. The Dissent’s

attempt to link the search warrant solely to the September 10, 2010

controlled-buy, Dissenting Opinion at 18, is untenable in light of the actual

                                    - 23 -
J-E01001-15



facts. Thus, the evidence suppressed by the trial court was unrelated to any

transgression of the Commonwealth involving its refusal to reveal the

identity of CI-2,         and the   reasoning    of In re York   applies.     Cf.

Commonwealth v. Redmond, 577 A.2d 547 (Pa.Super. 1990) (trial court

correctly precluded evidence as a sanction where Commonwealth refused to

reveal identity of confidential informant who had provided police with

detailed information that another individual committed the decades-old

murder for which the defendant had been charged). The trial court abused

its discretion in suppressing all evidence obtained by the Commonwealth on

September 10, 2010.

       Order reversed. Case remanded. Jurisdiction relinquished.

       Judges Donohue, Shogan, Olson, Stabile, and Jenkins join this opinion.

       Judge Mundy concurs in the result.

       Judge Wecht files a dissenting opinion in which Judge Lazarus joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/22/2015




                                        - 24 -
