Com. v. Uphold, R. ( 2017 )

J-A33017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ROBERT MARSHALL UPHOLD, JR.
Appellee No. 542 WDA 2016
Appeal from the Order Entered March 31, 2016
In the Court of Common Pleas of Greene County
Criminal Division at No(s): CP-30-CR-0000224-2015
BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY SOLANO, J.: FILED MARCH 13, 2017
Appellant, the Commonwealth of Pennsylvania, appeals the order of
the Court of Common Pleas of Greene County, entered on March 31, 2016,
dismissing the Commonwealth’s case for refusal to disclose the name and
whereabouts of its confidential informant (“CI”) to counsel for the Appellee-
Defendant, Robert Marshall Uphold, Jr. The Commonwealth had charged
Uphold with with Possession with Intent to Deliver a Controlled Substance,
Delivery of a Controlled Substance, and Possession of a Controlled
Substance.1 We affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30), (16).
J-A33017-16
In its opinion, entered June 10, 2016, the trial court fully and correctly
sets forth the relevant facts and procedural history of this case. Trial Ct.
Op., 6/10/16, at 2-5. We summarize them here for the convenience of the
reader.
The criminal information states that the alleged offense was committed
on June 1, 2010. The affidavit of probable cause was not filed until May 26,
2015, almost five years later. According to that affidavit, an undercover
officer and the CI met with the Appellee. During that meeting, the officer
gave Appellee $200 to purchase drugs and told Appellee that he would
return in a half hour to pick up the drugs. Later, the officer returned without
the CI and received ten wrapped bags of heroin from the Appellee. Appellee
denies participating in the alleged transaction, and the CI was alleged to be
the only non-law enforcement witness.
On August 17, 2015, defense counsel made his first request for the
disclosure of the identity of the CI, along with other discovery requests. On
August 24, 2015, the Commonwealth complied with the other discovery
requests, but did not disclose any information about the CI. On March 28,
2016, defense counsel again requested the disclosure of the CI. Upon
receipt of this second request, the trial court scheduled an in camera
conference on March 30, 2016.
Following that conference, on March 31, 2016, the trial court ordered
the Commonwealth immediately to reveal the identity and whereabouts of
the CI to defense counsel and advised the Commonwealth that failure to
-2-
J-A33017-16
disclose the name would result in a dismissal of the charges. Order,
3/31/16, timestamped 9:05 A.M., at 1-3. The Commonwealth, in a motion
for reconsideration filed later that morning, refused to disclose the name of
the CI. Mot. for Recons., 3/31/16, at ¶ 7. That afternoon, the trial court
ordered the charges against Appellee dismissed. Order, 3/31/16,
timestamped 2:50 P.M., at 1. The Commonwealth’s timely appeal followed
on April 13, 2016.
The Commonwealth raises the following questions on appeal:
Did the trial court err by requiring the Commonwealth to divulge
the name and whe[re]abouts of its confidential informant to
counsel for [Appellee]?
Did the trial court err by dismissing the case against [Appellee]
as a remedy for the Commonwealth’s alleged discovery
violation?
Commonwealth’s Brief at 4.
“Our standard of review of claims that a trial court erred in its
disposition of a request for disclosure of an informant’s identity is confined to
abuse of discretion.” Commonwealth v. Jordan, 125 A.3d 55, 62 (Pa.
Super. 2015) (en banc), appeal denied, 134 A.3d 55 (Pa. 2016).
The first requirement in support of a petition to compel
disclosure of a confidential informant is that the defendant
demonstrate that production of the informant is material to his
defense. . . .
The second requirement for disclosing the identity of a
confidential informant is that the request must be reasonable.
...
-3-
J-A33017-16
Finally, appellant’s request for disclosure of the informant must
be in the interests of justice. In reviewing this requirement, this
court will apply the balancing test of Roviaro v. United States,
353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957):
We believe that no fixed rule with respect to
disclosure is justifiable. The problem is one that
calls for balancing the public interest in protecting
the flow of information against the individual’s right
to prepare his defense. Whether a proper balance
renders nondisclosure erroneous must depend on the
particular circumstances of each case, taking into
consideration the crime charged, the possible
defenses, the possible significance of the informer’s
testimony and other relevant factors. . . .
This court will not question a trial court’s finding of fact where it
is supported by the record.
Commonwealth v. Ross, 623 A.2d 827, 829-31 (Pa. Super. 1993)
(citations and internal quotation marks omitted), appeal denied, 644 A.2d
162 (Pa. 1994); accord Pa.R.Crim.P. 573(B)(2)(a)(i). In the instant action,
the trial court addressed each of these requirements, supporting its analysis
with citations to the record. See Trial Ct. Op., 6/10/16, 10-13. We agree
with the trial court’s analysis and conclusions. Therefore, for the
Commonwealth’s first issue, we affirm on the basis of the trial court opinion.
The Commonwealth argues that the CI’s information is not material
because Appellee “is charged with delivering heroin as opposed to receiving
$200” and the CI was present only for the payment of the money and not for
the receipt of the heroin. Commonwealth Brief’s at 12. But the
Commonwealth alleges that the unlawful transaction occurred in two stages
— delivery of the money for the heroin, and receipt of the heroin — and that
-4-
J-A33017-16
the CI was present for the first stage. As the only non-law enforcement
witness allegedly present, the CI is the one outside person who can testify to
whether Appellee was indeed the participant at the meeting where the first
part of the transaction occurred, something that Appellee denies. We
therefore agree with the trial court that the CI is material to Appellee’s
defense.
The Commonwealth’s second issue is that the trial court “erred in
dismissing the case against the [Appellee] as a remedy for the
Commonwealth’s alleged discovery violation.” Commonwealth’s Brief at 16.
However, Roviaro v. U.S., 353 U.S. 53, 60-61 (1957), held that the failure
of the government to disclose an informant’s identity after being ordered by
a court to do so warrants dismissal of the prosecution. The Supreme Court
of Pennsylvania has adopted this holding. See Commonwealth v. Marsh,
997 A.2d 318, 322 (Pa. 2010) (where the trial court requires disclosure of an
informer’s identity and the government withholds the information, the trial
court may dismiss the action); Commonwealth v. Carter, 233 A.2d 284,
287 (Pa. 1967) (same). The standard of review is abuse of discretion.
Jordan, 125 A.3d at 62, 65. For the reasons stated in the opinion by the
trial court, we conclude that the trial court did not abuse its discretion by
dismissing the charges against Appellee, as such dismissal was both within
its power and an appropriate remedy.
-5-
J-A33017-16
The Commonwealth argues: “Had the [trial c]ourt determined that the
Commonwealth’s non-disclosure of the confidential informant’s identity
represented a discovery violation, it should have selected a remedy other
than dismissal of the prosecution.” Commonwealth’s Brief at 16. Our
review of the record discloses, however, that the Commonwealth never
requested such an alternative remedy before the trial court. Hence, any
request for an alternate sanction was waived and cannot be raised for the
first time on this appeal. Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal”).
The parties are instructed to attach a copy of the trial court's June 10,
2016, Opinion to all future filings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2017
-6-
Circulated 03/03/2017 02:20 PM
IN THE COURT OF COMMON PLEAS OF GREENE COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA, )
)
PLAINTIFF, )
)
v. ) 224 CR 2015
)
ROBERT MARSHALL UPHOLD, )
)
DEFENDANT. )
~
S STATEMENT PUR§UANT TO Pa, R.A.P. 192~
~
~ Matter comes before the Court on the Commonwealth's appeal
~
I-
ll
i1 from this Cou.r t' s dismissal of charges after. the Commonwe a.l th
~
6A r'e f u s e d to disclose the. identity of Confidential Informant
~
~ (hereinafter "CI").
."'
IB
1925 STATEMEN~ :CSSUES
Pursuant to the Commonwealth's, 1925 Statement, the
concise issues for appeal are as follows:
Did the Court err., when it required the Commonweal th to
divulge the name and whereabouts of its CI to Counsel for the
Defendant? ~
=
c:r.,
G) C")
~,-
c.._ C!:::m
·.1 ::0
·......
== -·~ -r,
.. '\
- ·.:i-
a _:,' II r-
.I m
"l:I :::;:;:C-,c::,
..:O
-IC
..... ~:::::o
-I
:-E!
..- en
Did the Court err, when it dismissed the case against the
Defendant as a remedy for the Commonwealth's alleged discovery
violation?
Did the Court err, when it entertained the Defendant's
request to compel discovery with out filing the appropriate
motion as required by Pa.Rule 0£ Criminal Procedure 573?
Did the Court err, when it entertained the Defendant's
~ request to compel disclosure on March 30, 2016, two (2) days
:i;,
.!
~ prior to the start of the s chedu Led trial, 212 days after
iJ
u.
.
l1
\I
f o rrna I arraignment and 219 days after the Commonwealth
~
~ provided the Defendant with initial Discovery?
a
i:,
~ STA'l'EMENLOF FACTS
F.
8
~;r, The Criminal Information indicates that the alleged offense
,-
date was June 1, 2010. Three (3) years later charges were
filed and l~ter dismissed. The Complaint was then refiled on
May 26, 2015 approximately five (5) days prior to the
expiration of the statute of limitations. A jury was selected
on March 2, 2016, with the trjal date set for April 1, 2016.
The tlffidavit of probable cause, filed May 26, 2015,
essentially reveals the following salient facts:
The undercover Officer indicated that he overheard a
phone conversation between the CI and the Defendant. The
alleged CI and the undercover Officer went to the Defendant's
location. It is then alleged by the undercover Officer that
the CI was present and he observed a money transaction between
the undercover Officer and the Defendant. The affidavit goes
on to say that the undercover Officer returned, without the
CI, approximately thirty (30) minutes later where he obtained
ten (JO) wrapped baggies of suspected heroin.
Defendant filed various pretrial motions that were
disposed of in the Commonwealth's favor.
Defense counsel made his first request for the disclosure
of the CI, among other requests, dated August 17, 2015 (time
stamped August 19, 2015). Defense Counsel filed a Motion to
Extend Time to File Pretrial Motion on September 30, 2015.
This Court's Order (dated October 2, 2015) granted said
Motion, allowing leave to file Omnibus Pretrial Motions set
for November 10, 2015.
Defense Counsel then filed a Motion with this Court,
among other motions, requesting the disclosure of the CI on
March 28, 2016. In this Motion, Defense Counsel offers this
Court ti timeline of the prosecution starting June 1, 2010 and
continuing through March 2, 2016. Defense Counsel states,
"[t]hree years passed before the original complaint was
filed. It has been nearly two years since the original
complaint was dismissed. More th~n 365 days expired since the
dismissal o.r: the first prosecution." (Def e ns e Motion to
Dismiss: Speedy 'I'ri.=.il s Rul.e 600 s Motion for Discovery, pg.
;.c;
2, March 28, 2016) Defense Counsel further discusses the
~
>
5
Q,..
discovery rules and the mandatory disclosure of discoverable
..
~
',!
information, and states that the "Defendant believes that the
I~
i Commonwealth's failure to disclose information critical to
~
~
~ the defense at trial affects his ability ... to obtain a fair
i:
s:;; trial." Id. at 2-4.
~
Upon the receipt of Defense Motion for Discovery and Rule
600, Speedy Trial, this Court Ordered a hearing/conference to
be held on March 30, 2016 in the Judge's Chambers at noon.
This Court's Order, dated March 31, 2016, Ordered the
Commonweal th to immediate] y reveal the Lderrt i ty and
whereabouts of the CI to Defense Counsel and advised that
failure to disclos~ would result in a dismissal of the
ch~rges. Thus, the Commonwealth was on continuous notice of
the request since August of 2015. See attached Order, dated
March 311 2016.
The Commonwealth, in a Motion for Reconsidertition (filed
March 31, 2106) I:"efused to disclose CI. See attached Motion
for Reconsideration.
STANDARD OF REVIEW
The "standard of review of claims that a trial court
~
erred in its disposition of a request for disclosure of an
~
;,
, informant's identity is confined to abuse of discretion."
!
iJ
••
~ Cnrn.. v. W,=isl,jngton,
;.
2013 Pa. Super. 51, 63 A.3d 797, 801 (2013),
',!
~In
i:i citing Com. v. Withrow, 932 A.2d 138, 140 (Pa.Super..2007).
a
u
,
:,
STATEMEN'l' OF LAW
"The first requirement in support of a petition to compel
disclosure of a confidential informant is that the defendant
demonstrate that production of the informant is material to
his defense." Com. y, Ros~, IJ2tJ l?a. Super. 570, 574, 623 A.2d
827, 829 (1993).
"The second requirement for disclosing the identity of a
confidential informant is that the request must be
reasonable." ~QID, v. Boss, 424 Pa. Super. 570, 575, 623 A.2d
827, 829 (1993).
"r.'i na lly, [ third requirement] appellant's request for
disclosure of the informant must be in the interests of
justice. In reviewing thi~ requirement, this court will apply
the balancing test of Roviaro v. United States, 353 U.S. 53,
77 S. Ct. 623, J L.E:d.2d 639 (1957):
'We believe that no fixed rule with respect to disclosure
is justifiable. The problem is one that calls for
balancing the public interest in protecting the flow of
information ~gainst the individual's right to prepare his
:I
defense. Whether a proper balance renders nondisclosure
~ erroneous must depend on the particular circumstances of
~ each c~se, taking into consideration the crime charged,
~
~
IL the possible defenses, the possible significance of the
...0
informer's testimony and other relevant factors.'"
µ,
~
6 Co.m~ v. RoiJ~, 424 Pa. Super. 570, 575-76, 623 A.2d 827, 830
~ (1993), citing Com. v. Redmond at 300-301, 577 A.2d at 553
!.I
., (quoting Roviaro v , United States, 353 U.S. 53, 60-62, 77
D
:,
E S.Ct. 623, 627-28, 1 L. Ed. 2d 639, 645-46 (1957)). See also
~ Com. v. Carter at 59, 233 A.2d at 287.
~
It is proper for the Court to require disclosure of a CI
" as long as production of the informant would be: ( 1)
material to the defense; ( 2) reasonable; and ( 3) Ln the
interests of justice." Cnm. v. Bedmond, 395 Pa. Super. 286,
300, 577 A.2d 547, 553-54 (1990), citing Com. v. Bon~sorte,
337 Pa.Super. 332, 355, tJ86 A.2d 1361, 1372-73 (1984). "In
analy~.i.ng the latter requirement, the Bonasorte court h8ld
that the balancing test of Roviaro v. United States, 353 U.S.
53, 77 s.ct. 623, 1 L. Ed. 2d 639(1957), should be ~pplied."
Id., citing Bon21sorte, suprc1 c.1t 1372-73. "The e$sence of this
test 'is that a court confronted with a request for disclosure
of an informant's identity must balance the defendant's need
against the public interest.'" Id., citing Bonasorte, supra
at 1373.
"Specifically, Roviaro requires: [w] here the disclosure
of an informer's identity, or of the contents of his
communication is relevant and helpful to the defense of an
accused, or is essential to a fair determination of a cause,
the privilege [government's privilege to withhold identity of
confidential informants]must give way. In these situations
the trial court may require disclosure and, if the Government
withholds the information, dismiss the act:Lon."Redmond,supra.
Further, as to pretrial discovery, "[u]nder Pennsylvania
Rule of Criminal Procedure 573, a trictl court has the
discretion to require the Commonwealth to reveal the names and
addresses of all eyewitnesses, including confidential
informants, where a defendant makes a showing of material need
and r e a s orrab Le ne s s ... " r;,nm.., v, w,,tsnn, 2013 Pa. Super. 99, 69 A.3d
605, 607 (2013).
"The Commonwealth enjoys a qualifjed prjvilege to
wlthhold the identity of a confidential source." Cow. v.
w``Rnn, 2013 Pa. Super. 99, 69 A.3d 605, 607-08 (2013), citing
Com. v. Bing, f551 Pa. 659, 713 A.2d 56 (1998)]; Com. v.
Roebuck, 5115 !?a. 471, 681 A.2d 1279, 1283 n. 6 (1996). "In
order to overcome this qualified privilege and obtain
disclosure of a confidential informant's identity, a
defendant must first 0stablish, pursuant to Rule
~
~
~
",/.
573 (B) (2) (a) (i), that the information sought i.s rna t e r i a I to
~i..
~ the preparation of the defense and that the request is
~
~
u reasonable." Watson, supra, .
.
citing Roebuck, supra at 1283.
3
~
~ "Only after the defendant shows that the identity of the
e
~ confidential informant is material to the defense is the trial
~
court required to exercise its discretion to determine
whether the information should be revealed by balancing
relevant factors, which are initially weighted toward the
Commonwealth." Watson, supra, citing Bing, supr.a at 58; Com.
v. Herron, 475 Pa. ~61, 380 A.2d 1228 (1977).
However, " ... we reiterate here the bedrock principle
that there ls no single determinative factor in deciding
whether disclosure of an informant's identity is required,"
-
com. y. M~r~b_, 606 Pa. 254, 262, 997 A.2d 318, 322 (2010).
Furthermore, "ltJhe confrontation clause of the Sixth
Amendment to the LJnited States Constitution, applicable to
the states through the Fourteenth Amendment, provides that
'[i]n nll crimjnal prosecutions, the accused shall enjoy the
right ... to be confronted with the witness against hlm.'"
Com. v. Dyarm~n, 2011 Pa. Super. 2115, 33 A.3d 104, 106 (2011),
~1 ;f, f; ' si, 6 21 Pa . 8 8 , 7 3 l\ . 3 d 5 6 5 ( 2 O 13 ) .
~
~
~
Also, "Article I, Section 9 of the Pennsylvania
.
ffi
II,
u Constitution, it similarly provides: 'In all criminal
~n:
tii
s p r o s e cu t i oris the accused hath a right ... to be confronted with
3!621 Pa. 527, 5411,
:r
8
~ 79 A.3d 520, 531 (2013).
~
OPINION
As to whether the Commonwealth is required to reveal the
CI, this Court havjng heard argument by Mr. Cicconl, Esq.,
representing the Commonwealth and Mr. Cancelmi, Esq.,
representing the Defendant ln determining whether the name of
a CI should be revealed to the Court starts with the
Constitutional Right of the Defendant to face his accuser,
granted in both the United States and Pennsylvania
Constitutions balanced against the need of the Commonwealth
to seek information from confidential sources that allow the
free flow of information.
"One of the factors to weigh is the need for the
Defendant to prepare a proper defense. Delay in the
prosecution of any case creates the distinct possibility that
prejudice can occur to either side, however, since the
.
,;:
Commonwealth is always in charge of controlling the timing of
~
g
7
the prosecution the Court believes that in weighing the
~ factors the Defendant's Constitutional Right to face his
~u:
5;J accuser under these circumstances outweighs the bald assertion
0
1'i
~ that the revealing of Cl may place the C! in some danger and
~
m
= the Commonwealth's assertion that three of the team of
~
arresting officers do not recall who the CI is and also the
Defendant's indication through Defense counsel that his
defense may be one of entrapmcnt.u (Court Order, dated March
31, 2016, and att~ched hereto) This Court considered that the
er allegedly used in this case, was u~ed five years ago.
During the Pre-trial Hec1ring, the Commonwealth Attorney
shared with the Court that three (3) of the Officers can not
remember who the CI was in this case. This Court notes that
the significant time delay, the natural failing memories of
the Officers, the closeness of the CI to this transaction, and
the Defendant's denial of involvement, were also considered.
Moreover, the CI and the arresting officer are intrinsic to
the transaction and therefore obviously material to the
defense.
During discussions relating to the identity of the CI in
this case, Defense Counsel stated, "fw)ell I'm told there's no
.,.
:S
,(
i
~
answer to one of my questions. Because one of the teams says A
fl.
,, f .
~ was the in.ormant, and three of the teams say no, it
',!
~
ci de f in tt.e l y wasn't A, but we don't know who it was ... '' Id. at
a
0
~ 11:5-8. Thereafter, Commonwealth stated, "I'm not, I don't
E
I~ think anybody knows who the informant was now, or they're not
telling me. But the name that I got told, the name that was
told to me by someone who wasn't even part of the team, now
everyone says isn't the guy." Id. at 11:11-15.
Furthermore, Defense counsel stated, " ... this is the
only man, this man is in the vehicle at the time that Mr.
Mitchell supposedly says that Uphold is giving him drugs ... This
is the only witness for five ye~rs." Id. at 12:7-13.
 It is also acknowledged that, on the eve of trial the
Commonwealth br.ought to this Court's attention that there was
actually an evidence envelope that was not previously
disclosed. Id. at 18:21-23. Therefore, it is recognized that
the issue of prejudice is highly relevant to this case.
Specifically, with regar.d to the Defense being hampered by not
having proper discovery.
~
The Commonwealth stated(regard:i.ng the Officers involved
:;
`` with this case), "[w]e can't tell you precisely who the person
~
II,
~ was ... You know, it's been a long time ago and we do a lot if
~
~.J these ... " Id. at 21:24-25, 22:2-3. 'I'h e Commonwealth thereafter
~·
:!
ii
~ said they thought they knew who the CI was, that they had his
:i:
t;
8~ cell phone number, and he could call the CI. Id. at 25:3-4.
~
The District Attorney later acknowledged that the
Commonwealth knew of and refused to disclose the CI.
The Court considered that the lead Detective of thls case
maintained that he did not know who the CI was, nor did other
members of the team. Furthermore, this Court recognized that
the objections to the matters of discovery and remedies
available are clearly within the discretion of the Court, and
were properly considered.
Moreover, regarding the first requirement, that the
defendant demonstrate that production of the informant is
rnaterjal to his defense, based on the aforementjoned, this
Court found that the Defendant met this burden.
With regard to the second requirement, that the request
must have been reasonable, based on the aforementioned, this
Court found that the Defendant met this burden.
~ Regarding the third requirement, that the request for
~;,
~ disclosure must have been in the interests of justice, after
.,.
~
O reviewlng this requirement and applying the balancing test of
~
!I;
~
Cl
Roviaro, based on the aforementioned, this Court found that
~:,
, the balance was in favor of the Defendant, and the disclosure
8
'"= of the CI was in the interest of justice.
.
:i!
As stated previously, there is no fixed rule and when
balancing the public interest in protecting the flow of
i n Lorma t i.on ag21ins t the individual 's right to p:r.epa re hi.s
defense, the particular circumstances of each individual case
must be taken into consideration. This Court asserts that the
ruling to disclose the identity of the CI was within the sound
discretion of the Court after careful review 0£ the case
particuldr ftlcts dnd circumstances.
Furthermore, the Commonwealth raised the issue t ha t the
Commonwealth should not have been required to disclose based
on the Defendant's untimely request.
The Court notes that Rule 573 of the Rules of Procedure
grant great latitude in allowing the Court to extend pretrial
and discovery deadlines and the Rule contemplates a continuing
duty to disc1ose and therefore the Commonwealth's argument is
~ without merit.
~
.,
>
~ Also, this Court recognizes that the Commonwealth enjoys
[J
u
~ a qualified privilege to withhold the identity of a CI, and
~
~
~ that the Defendant must overcome this privilege. This Court
~
i)
0
~ found the Defendant's request for disclosure of the CJ was
~
i material to his defense and that this request was reasonable.
~
Furthermore, this Court then exercised its discretion and
balanced the facts and circumstances of the case; ultimately
finding the request for disclosure outweighed the
Commonwealth's refusaJ..
Purthermorc, in weighing the factors as outlined above,
and considering all relevant factors, this Court found that
the Defendant's Constitutional RJghts to confrontation
outweJghed the Commonwealth's interest in e s t ab l i.ah i.nq free
communication with its CI (this particular Cl being used some
five years ago). As the Commonwealth was on notice and refused
to comply, the appropriate rem~dy in exercising sound
discretion was a dismissal of the charges.
CQNCLUSX.ON
The Court did not err in requiring the disclosure of the
confidential jnformant, ultimately resultin in a dismissal
of the charges.
~
),
~
rJ
~0 ATTEST:
liu:
~
~
,
!]
l
IN 'l'HE COURT OF COMMON PLEAS OF GREENE COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA )
)
v, ) No 224 CR 2015
)
)
ROBERT MARSHALL UPHOLD, )
)
DEFENDANT )
.1: :~·· ..n
••. i;_:)-
• ,,J_ i ...-
ORDER ·.....: •,-.' .
. .. <~o
._,,.::::
;·o
' ., ..... -o
-z= :..
r»
AND NOW this 31st day of March, 2016, there being a
. (. !'! .....~ v')
continuing request for discovery in the above captioned case
the matters having been chiefly resolved with the exception
of whether the Commonwealth is required to reveal the
Confidential Informant the Court having heard argument by
M:c. Cicconi, Esq., repreoenting the Conunonwoalth and Mr.
Cancelmi, Eoq., representing the Defendant in determining
whether the name of a Confidential Informant ~hould bo
rovoaled the Cou~t $tarts with the constitutional right of
the Defendant to face his accuser granted in both the United
States and Pennsylvania constitutions balanced against the
need of the Commonwoa1th to ceok information from
confidential sources that allow the free flow of information
jl' •.
', i l • I
or,
·-
and allow the prosecution of other crimes. The Court must
strike a balance in the interest of justice in deciding
those factors. The Court is aware that this case is based on
allegations that happened in 2010 that charges were filed
against and later dismissed and charges were then refilled a
day short of the five year statute of limitations. One of
the factor~ the weighs is the need for the Defendant to
prepare of proper defense. Delay in the prosecution of any
case creates the distinct possibility that prejudice can
occur to eithe~ side, howeve~, since the Commonwealth is
always in charge of controlling the timing of the
prosecution the Court believes that in weighing the facto~s
the De£endant'~ con~titutional right to face his accuser
under these circumstances outweighs the bald assertion that
the revealing of confidential information may place the
Confidential Informant in oome danger and the Commonwealth's
aosertion that three of the team 0£ arresting officers do
not recall who the Confidential Informant is and also the
Defendant's indication through Defense counsel that his
defense may be one of entrapment. In balance the Court,
considering all factors necessa~y, ORDERS the Commonwealth
to immediately rovoal to Barry Cancelmi, Esq., attorney for
the Defendant the name and whereabouts of the Confidential
-, ........
Informant to allow the Defendant to prepare a proper defense
in his trial. Case law indicates that failure to reveal the
confidential info:r:mant may result in the dismissal of
charges.
SO ORDERED AND DECREED
ATTEST:
.
~> J
·"~
~
i;1
!I,
u,
.
u
~!
~A
_,
~
\I
!l
:J
,_1'
f~
(~
r-
~ . ,...........
IN THE COURT OF CUMMON PLE/\S OF CiREENE COUNTY, PENNSYLVANIA
COMMONWE/\LTI-1 or PENNSYLV ANlA )
)
vs. ) NO. 224 CRIM. SESS., 2015
)
ROI)ERT UPHOLD, )
Defendant. )
I"• ,I
,- I .:,-,
• J ('°)
,. ,!"''-
I•' J",i
......: ... J
MOTTON FOR RECONSIDERATION : .:·~·-1,
' ,--
Io,
.- I
"
I•
- ....
r,•1
·,;-,; Cl
.. __ c,
AND NOW comes the Commonwealth, by and through the District Attorney of Grc~1}c
County, and respectfully sets forth the following in support of the within Motion: ·-·1
I. Th1.: Dclcndunt filed a motion on March 28 2016, to inter alia, compel the
Commonwealth to disclose the identity of its Confidential Informant, four ( 4)
days prior to the scheduled trial in this matter.
2. The Court entered an Order on March 31, 2016 ordering the Commonwealth
to disclose the identity of the Confidential tnforrnant (copy attached).
3. Commonwealth provided Formal Discovery on August 24, 2015, in response
to Defendant' s Formal Discovery Request on August 17, 2015, and Defendant
was Formally Arraigned on August 31, 2015 (sec attachments).
4. Any Omnibus pretrial motion with regard to the Defendant's discovery
motion should have been filed within 30 days of Formal Arraignment in
accordance with Pa. Ruic of Criminal Procedure 579, unless opportunity did
not exist or the defendant or defense attorney or attorney for the
I~,··
; I
l I/
1' I
-
I
••
ti
; ' I,),.·~ I
,-.
Commonwealth was not aware of the grounds for the motion or the time to
file has been extended by the Court.
5. It docs not appear that any or these exceptions to Rule 579 arc present in the
current matter.
6. Furthermore, in its motion to Compel Disclosure, the Defendant has not
shown that there is a reasonable possibility that the Confidential informant
could bring forth evidence exonerating the Defendant, as required by
established case law (Commonwealth v. Watson, 69 A.3d 605, 2013 Pa. Super.
99, 2013, Commonwealth v. Roebuck, 545 Pa. 471~ 681 A.2d 1279, 1996), in
that, it is nut alleged that the Confidential Informant was present when the
exchange of drugs allegedly took pince.
7. The Commonwealth believes this Honorable Court erred by directing
disclosure of the Confidential Informant and the Commonwealth, accordingly,
will not disclose said in formation to Defense Counsel.
8. The Commonwealth stands ready for trial of th.is case on April 1, 2016.
WHEREFORE, The Cornrnonwculth respectfully requests this Honorable Court Lo
reconsider its March 31, 2016 order.
Respectfully submitted:
D,tl