J-S66005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                     Appellant              :
                                            :
              v.                            :
                                            :
 JERON BROWN                                :
                                            :
                     Appellee               :        No. 3979 EDA 2017

                 Appeal from the Order November 15, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0010133-2016


BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                        FILED JANUARY 11, 2019

      Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Philadelphia County Court of Common Pleas, which granted the

motion of Appellee, Jeron Brown, to reveal the confidential location of police

officers. We reverse and remand for further proceedings.

      The relevant facts and procedural history of this case are as follows. On

August 5, 2016, the Commonwealth charged Appellee with possession with

intent to deliver and possession of a controlled substance, after police

observed Appellee make three drug transactions.           On October 25, 2017,

Appellee filed a motion to reveal the confidential location of the police officers.

The court held a hearing on November 15, 2017.

         During [the hearing], Commonwealth witness, Police Officer
         Charles Harron, testified that on August 4, [2016], at
         approximately 8:20 p.m., he and Officer Seigafuse
         conducted a plainclothes surveillance of 1209 West Hilton
J-S66005-18


         Street. According to Officer Harron, he was within one
         hundred (100) feet of [Appellee] and had a mostly frontal
         and unobstructed view of [Appellee] as [Officer Harron]
         observed [Appellee] make three (3) alleged drug
         transactions from the doorway of 1209 West Hilton Street.
         Officer Harron made these observations with the assistance
         of binoculars. During this time, Officer Harron testified that
         he never lost sight of [Appellee] until [he] retreated into the
         home. According to Officer Harron, after he observed the
         alleged transactions, he ordered backup officers to arrest
         [Appellee]. Officers chased [Appellee] through the home
         and [he] was          arrested by       Sergeant [Shabazz]
         approximately two (2) blocks away at a pizza shop.

         According to Officer Harron, he did not have information
         regarding drug sales at 1209 West Hilton Street prior to
         setting up his surveillance. Moreover, this was the first time
         Officer Harron conducted a surveillance from this location.
         Officer Harron testified that he has not used this confidential
         location since this surveillance nor is he aware if other
         officers have used this location[;] however, the location is
         still available for use by narcotics officers. Officer Harron
         testified that surveillance locations are used to obtain better
         vantage points during surveillances and if those confidential
         locations were exposed, it would severely hamper their
         ability to conduct investigations.

Trial Court Opinion, filed February 28, 2018, at 1-2 (internal citations

omitted). After the hearing, the court granted Appellee’s motion to reveal the

location of the police officers.   The Commonwealth filed a timely notice of

appeal, per Pa.R.A.P. 313, and a voluntary statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b) on December 13, 2017.

      The Commonwealth raises the following issue for our review:

         WHETHER THIS COURT SHOULD ACCEPT THE TRIAL
         COURT’S REQUEST TO REVERSE ITS ERRONEOUS ORDER
         GRANTING [APPELLEE’S] MOTION TO REVEAL THE
         LOCATION OF A CONFIDENTIAL SURVEILLANCE LOCATION
         OF A NARCOTICS OFFICER[?]

                                      -2-
J-S66005-18



(Commonwealth’s Brief at 6).

      As a prefatory matter, we must determine whether the appeal is

properly before us.     Appellee has not raised a question regarding our

jurisdiction over the trial court’s interlocutory order, however, we may raise

the issue of jurisdiction sua sponte. Commonwealth v. Blystone, 632 Pa.

260, 269, 119 A.3d 306, 311 (2015). “An appeal may be taken as of right

from a collateral order of [a]…lower court.” Pa.R.A.P. 313(a). “A collateral

order is an order [1] separable from and collateral to the main cause of action

where [2] the right involved is too important to be denied review and [3] the

question presented is such that if review is postponed until final judgment in

the case, the claim will be irreparably lost.” Pa.R.A.P. 313(b).

      “[A]n order is ‘separable’ from the main cause of action if it is capable

of   review   without   consideration    of   the   main   issue   in   the   case.”

Commonwealth v. Minich, 4 A.3d 1063, 1067 (Pa.Super. 2010). An issue

is too important to be denied review if “the interests that would go unprotected

without immediate appeal are significant relative to the efficiency interests

served by the final order rule.” Commonwealth v. Williams, 624 Pa. 405,

423-424, 86 A.3d 771, 782 (2014).         Importance of the issue only to the

particular parties involved will not satisfy the second prong. Id.

      Instantly, this order is separable from the main issue because it does

not require consideration of the crimes charged against Appellee.               See

Minich, supra. The second and third prongs are met because the interests

                                        -3-
J-S66005-18


of the Commonwealth would go unprotected if the confidential surveillance

location were revealed at this stage, and once revealed, the confidentiality of

the surveillance location is irreparably lost. See Pa.R.A.P. 313(b); Williams,

supra. Thus, this appeal is properly before us.

      The Commonwealth argues Appellee did not show a specific necessity

that required disclosure of the precise location of the surveillance post, but

instead vaguely asserted disclosure was required in order to have a full and

fair opportunity to cross-examine Officer Harron. The Commonwealth avers

Appellee’s counsel had the opportunity to cross-examine Detective Harron

about the surveillance location and gained sufficient information about the

accuracy and reliability of his observations. The Commonwealth contends the

continued use of the surveillance location makes its disclosure a risk to the

safety of the police and civilians who use it. The Commonwealth concludes

that these reasons, along with the trial court’s request for this Court to reverse

its order that required disclosure of the surveillance location, require us to

reverse and remand for further proceedings. We agree.

      With respect to evidentiary rulings, a trial court’s decision will not be

disturbed absent an abuse of discretion. Commonwealth v. Einhorn, 911

A.2d 960 (Pa.Super. 2006), appeal denied, 591 Pa. 723, 920 A.2d 831 (2007).

“The trial court abuses its discretion if it misapplies the law or [rules] in a

manner lacking reason.” Id. at 967 (internal quotation marks omitted).

      “[T]he disclosure of a confidential surveillance site is governed by Rule


                                      -4-
J-S66005-18


[573(B)(2)]     of    the    Pennsylvania      Rules   of   Criminal   Procedure.”

Commonwealth v. Rodriquez, 543 Pa. 651, 658, 674 A.2d 225, 229 (1996).

Rule 573(B)(2) provides, in pertinent part:

        Rule 573.           Pretrial Discovery and Inspection

                                     *    *     *

              (B)    Disclosure by the Commonwealth.

                                     *    *     *

              (2)    Discretionary With the Court.

                    (a) In all court cases…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:

                                     *    *     *

                            (iv) any   other     evidence     specifically
                     identified by the defendant, provided the
                     defendant can additionally establish that its
                     disclosure would be in the interests of justice.

Pa.R.Crim.P. 573(B)(2)(a)(iv) (emphasis added).

     “Whenever the Commonwealth asserts that a surveillance location is

confidential, the defendant bears the initial burden of demonstrating that

disclosure is necessary to conduct his defense. The Commonwealth would

then have to come forward and explain the reasons why confidentiality must

be preserved.”       Commonwealth v. Nobles, 941 A.2d 50, 53 (Pa.Super.

2008) (quoting Commonwealth v. Clark, 746 A.2d 1128, 1135 (Pa.Super.

                                         -5-
J-S66005-18


2000), appeal denied, 564 Pa. 702, 764 A.2d 1064 (2000)).

         Additionally, a defendant must make a specific claim of
         necessity for disclosure of the precise location. “As [this
         Court] observed, [a] defendant cannot rely solely on a claim
         that he was denied the opportunity to effectively cross-
         examine the officer.”

Nobles, supra at 53 (quoting Rodriquez, supra at 658, 674 A.2d at 229).

      Instantly, police in a confidential surveillance location observed Appellee

make three drug transactions from his porch, and subsequently arrested him.

Appellee filed a motion to reveal the confidential surveillance location, which

the court granted after a hearing. In its opinion, the trial court has asked us

to reverse its order granting disclosure and reasoned as follows:

         Upon review, it is clear that [Appellee] conducted a
         thorough and effective cross examination of Officer Harron
         and was able to retrieve the approximate location of the
         confidential location as well as the viewpoint Officer Harron
         maintained of [Appellee] during the surveillance. [The
         c]ourt recognizes that [Appellee] has failed to meet his
         burden of explaining how a more detailed disclosure of the
         confidential surveillance location would have been
         necessary to his defense.

(Trial Court Opinion at 3). We agree with the trial court’s rationale.      See

Rodriquez, supra; Nobles, supra.

      In his pre-trial motion and during the hearing, Appellee baldly asserted

that disclosure of the confidential surveillance location was necessary to

conduct a full and fair cross-examination, which is alone insufficient to compel

disclosure. See id. Officer Harron testified that the location is still available

for surveillance use and its disclosure would severely hamper any future


                                      -6-
J-S66005-18


investigations. Id. Moreover, Appellee’s cross-examination of Officer Harron

revealed enough information to question effectively the accuracy of his

observations. Therefore, as the trial court concedes, it erred when it granted

Appellee’s motion to reveal the confidential surveillance location.      See

Einhorn, supra.       Accordingly, we     reverse and remand for further

proceedings.

      Order reversed; case remanded for further proceedings. Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/19




                                    -7-
