Com. v. Shaw, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JANET MARIE SHAW : No. 59 WDA 2021
Appeal from the Order Entered December 10, 2020
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0000334-2020
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: December 7, 2021
The Commonwealth of Pennsylvania appeals from the Order granting
Janet Marie Shaw’s (“Shaw”) Omnibus Pretrial Motion.1 In the Order, the trial
court directed the Commonwealth to provide to Shaw the name and address
of a confidential informant (the “CI”), in addition to the CI’s criminal history
and other material to be used for impeachment purposes. We affirm.
During the evening of August 28, 2019, Pennsylvania State Trooper
Matthew Gavrish (“Trooper Gavrish”), who was undercover, met with the CI
to arrange a controlled buy of crack cocaine from an individual purported to
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1 The Commonwealth also has certified that the Order would cause the case
to be dismissed and/or would substantially handicap the Commonwealth’s
prosecution of the case if this Court postponed its review of the trial court’s
Order. See Certification, 1/5/21; see also Pa.R.A.P. 311(d) (stating that the
Commonwealth may appeal an order that does not end the entire case when
the Commonwealth certifies in the notice of appeal that the order will
“terminate or substantially handicap the prosecution.”).
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be Shaw. Trooper Gavrish was not previously familiar with Shaw. Trooper
Gavrish and the CI drove to a parking lot in Uniontown, Fayette County, where
Trooper Gavrish pulled his vehicle alongside a Chrysler 200 that was parked
in the lot. The CI got out of Trooper Gavrish’s vehicle, approached the
Chrysler, and purchased crack cocaine from the driver of the Chrysler.2
Thereafter, the CI returned to Trooper Gavrish’s vehicle, and Trooper Gavrish
drove out of the parking lot.
Approximately an hour later, a different State Trooper stopped Shaw’s
vehicle for a violation of the Motor Vehicle Code, at which time she was
arrested.3 Police charged Shaw with two counts of possession with intent to
deliver, and one count each of possession of a controlled substance and
possession of drug paraphernalia.4
Shaw filed an Omnibus Pretrial Motion, wherein she requested that the
Commonwealth divulge the identity of the CI, as the CI’s identity and
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2 Trooper Gavrish testified that he provided the CI with documented official
funds to facilitate the transaction, and properly cleared the crack cocaine after
the CI returned to the vehicle. N.T., 10/27/20, at 9, 17.
3 The certified record does not contain any information detailing the
subsequent traffic stop of Shaw’s vehicle, or the circumstances underlying her
arrest. Trooper Gavrish was the sole witness to testify at the hearing, and he
indicated that he did not arrange for the subsequent traffic stop to take place,
nor was he aware of the details surrounding Shaw’s arrest or the search of
her vehicle. N.T., 10/27/20, at 17-19.
4 35 P.S. § 780-113(a)(30), (16), (32).
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testimony would exonerate Shaw. In particular, Shaw indicated that when
her vehicle was stopped and subsequently searched, police were unable to
locate the funds that the CI had used to purchase the drugs. The trial court
held a hearing on October 27, 2020, regarding Shaw’s Omnibus Pretrial
Motion, during which it heard testimony from Trooper Gavrish. Following the
hearing, the trial court issued an Opinion and Order granting Shaw’s Motion,
and directing the Commonwealth to disclose to Shaw the name and address
of the CI.
The Commonwealth filed a timely Notice of Appeal, and court-ordered
Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
The Commonwealth raises the following questions for our review:
I. Whether the trial court erred in granting [Shaw]’s pre-trial
Motion to compel the Commonwealth to reveal the identity of [the
CI,] where [Shaw] presented no evidence, either testimony or
physical, to establish a need material to her defense[?]
II. Whether the trial court abused its discretion by failing to
properly balance the relevant factors between the public interest
in protecting the flow of information against the individual’s right
to prepare his defense[?]
Brief for Appellant at vi (unnecessary capitalization omitted).
We will address the Commonwealth’s issues together, as it does so in
its brief. The Commonwealth argues that the trial court erred in granting
Shaw’s Motion to compel the disclosure of the CI’s identity. Id. at 13-21. The
Commonwealth asserts that the CI was not the only witness to confirm Shaw’s
identity, pointing to Trooper Gavrish’s identification of Shaw based on his
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review of Shaw’s photograph and the vehicle being registered to Shaw. Id.
at 14, 15-17. The Commonwealth also claims that Shaw failed to present
evidence that Shaw’s identity was actually mistaken, and as a result, Shaw
failed to offer a reasonable possibility that the CI’s testimony would exonerate
her. Id. at 15, 18-19. Further, the Commonwealth claims that the CI’s safety
would be endangered, and that other investigations would be imperiled, if the
CI’s identity was disclosed to Shaw. Id. at 20-21.
“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) (citation omitted).
Under Pa.R.Crim.P. 573, a trial court has the discretion to require the
Commonwealth to reveal the names and addresses of eyewitnesses, including
confidential informants, when a defendant makes a showing of material need
and reasonableness:
(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:
(i) the names and addresses of eyewitnesses….
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Pa.R.Crim.P. 573(B)(2)(a)(i). Our Supreme Court “has repeatedly 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.” Marsh, 997 A.2d 318, 324 (Pa. 2010) (citation
omitted); see also id. (stating that safety of the confidential informant is a
controlling factor in determining whether to reveal his or her identity). To
overcome the Commonwealth’s qualified privilege, the defendant “must
demonstrate at least a reasonable possibility the informant’s testimony would
exonerate him.” Commonwealth v. Withrow, 932 A.2d 138, 141 (Pa.
Super. 2007). “Only after the defendant shows that the identity of the
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 weighed toward the
Commonwealth.” Commonwealth v. Koonce, 190 A.3d 1204, 1209 (Pa.
Super. 2018) (citation omitted).
In its Pa.R.A.P. 1925(a) Opinion, the trial court stated the following:
Under cross-examination, [Trooper Gavrish] testified that he did
not leave his vehicle. He observed an individual who was sitting
inside a parked car from the inside of another parked car, at night.
[Trooper Gavrish] also testified under cross-examination that the
[CI] was, indeed, the only person who physically approached and
made contact with the driver of the vehicle. [Trooper Gavrish]
further testified under cross-examination that although other
officers may have witnessed the controlled buy, they were even
further away than he was. [Shaw] thus established an evidentiary
basis that the [CI] possessed relevant information that would
materially aid her in presenting her defense and that the
information was not obtainable from another source: the
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controlled buy took place at night; only the [CI] made close,
physical contact with the alleged seller; the alleged seller never
got out of her vehicle; [Trooper Gavrish] never got out of his
vehicle; the only other officers who may have witnessed the
controlled buy were further away; [Shaw] was arrested
approximately one hour later in a different location; and the officer
who arrested [Shaw] was not [Trooper Gavrish,] who arranged
the controlled buy. The Commonwealth could provide no other
eyewitness who could satisfactorily provide a positive
identification of the alleged seller, other than the [CI]. The [c]ourt
therefore found that [Shaw] had shown that the [CI]’s testimony
concerning the identity of the alleged seller was material to her
defense.
The [c]ourt further found that [Shaw]’s request was
reasonable. [Shaw] was charged with two counts of [possession
with intent to deliver], one count of [possession of a controlled
substance], and one count of [possession of drug paraphernalia].
[Shaw]’s argument was that she was not the individual who sold
the crack cocaine. The [CI]’s testimony would therefore be
abundantly relevant, since the [CI] is the only other person who
could satisfactorily provide a positive identification of the
individual who sold the crack cocaine. Moreover, the arrest in this
case did not take place during the controlled buy, … but
approximately one hour later, in a different location, by a different
officer, and in the context of a traffic violation. [Trooper Gavrish]
testified to only one alleged transaction with [Shaw], stated that
he verified [Shaw]’s identity using only a single picture appearing
on a computer screen, and provided no other witnesses to
corroborate the seller’s identity. Furthermore, the
Commonwealth failed to meet its burden, as outlined by the
Pennsylvania Supreme Court in Com[monwealth] v. Bing, [713
A.2d 56 (Pa. 1998)5], of establishing a reasonably specific type of
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5 In Bing, our Supreme Court held that the Commonwealth presented
evidence demonstrating that the confidential informant’s safety would be
jeopardized if his or her identity was disclosed, as testimony was presented
that informants working with the Pennsylvania State Troopers who arrested
the appellant had been assaulted, threatened, and harassed. Bing, 713 A.2d
at 60. Additionally, the Supreme Court concluded that the risk of
misidentifying the appellant was minimal, as the appellant had been identified
during seven separate observations by three different State Troopers. Id. at
59.
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danger which justified keeping the [CI]’s identity confidential.
Under these circumstances, the above-cited case law requires that
the [CI]’s identity be disclosed.
Trial Court Opinion, 3/18/21, at 2-3 (footnote added).
We discern no abuse of discretion in the trial court’s analysis or
conclusion. In this case, Shaw pursued a mistaken identity defense, and her
assertion that the subsequent vehicle search did not yield any of the money
used in the controlled buy provided a reasonable possibility of a mistaken
identity. See Withrow, supra. Further, Trooper Gavrish was the
Commonwealth’s sole witness at the hearing, and he indicated that he would
also be the Commonwealth’s sole eyewitness at trial. N.T., 10/27/20, at 29.
Moreover, the Commonwealth’s only evidence that the CI would be placed in
danger was Trooper Gavrish’s response of “Yes, I do,” when asked by the
Commonwealth. N.T., 10/27/20, at 10; see Bing, 713 A.2d at 60. As a
result, combined with Trooper Gavrish’s testimony regarding his identification
of Shaw during the controlled buy, we agree with the trial court that disclosure
of the CI’s identity was appropriate. See Commonwealth v. Payne, 656
A.2d 77 (Pa. 1994) (stating that disclosure was appropriate where the officer
did not know the appellant; the appellant was arrested seven months after
the controlled buy; and the officer was the only prosecution witness);
Commonwealth v. Carter, 233 A.2d 284, 287 (Pa. 1967) (holding that
disclosure was appropriate where the identification of the appellant was based
on a single police viewing); Commonwealth v. Roebuck, 681 A.2d 1279-7-
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(Pa. 1996) (concluding that disclosure was appropriate when the appellant
sold narcotics on two occasions to an undercover officer, but the only
eyewitness to the initial transaction other than the informant was a police
officer).6 Accordingly, the trial court did not abuse its discretion in directing
the Commonwealth to disclose to Shaw the CI’s identity.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2021
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6 The Commonwealth repeatedly relies on Marsh to support its contention
that Shaw was required to proffer specific evidence for her mistaken identity
defense. See Commonwealth’s Brief at 15-17. However, we note that the
facts in this case differ significantly from those in Marsh, where our Supreme
Court concluded that the informant’s identity was not material to the
appellant’s mistaken identity defense because the appellant was arrested in
the undercover officer’s car immediately following the controlled buy. See
Marsh, 997 A.2d at 320-22.
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