Com. v. Brown, D. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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