Com. v. Brown, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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[?]
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(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
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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
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[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.
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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
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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
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