J-S45038-23
2024 PA Super 50
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SCOTT LEE SUTTON :
:
Appellant : No. 373 MDA 2023
Appeal from the Order Entered February 8, 2023
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000613-2022
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: MARCH 19, 2024
The Commonwealth appeals from a pretrial order entered in the Court
of Common Pleas of Bradford County quashing two counts of Delivery of a
Controlled Substance pursuant to Defendant/Appellee’s habeas corpus
petition seeking dismissal of the drug delivery charges and disclosure of the
identity of the confidential informant (“CI”). We reverse and remand for
further proceedings.
The facts are straightforward. At Appellee’s October 14, 2022,
preliminary hearing, the Commonwealth presented the testimony of Bradford
County Detective Michael Lamana, a law enforcement officer with seven years’
experience and who at the relevant time was assigned to the Bradford County
Drug Taskforce. Detective Lamana described his involvement with two
controlled buys executed by a CI inside of Appellee’s residence on February
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* Former Justice specially assigned to the Superior Court.
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16, 2022, and sometime in March of 2022, respectively. In each controlled
buy, the detective verified that no drugs or money were on the CI’s person,
supplied the CI with pre-recorded buy money, witnessed a transport officer
drive the CI to Appellee’s residence, and observed the CI enter the residence.
Remaining at the scene for the entire time, Detective Lamana eventually
observed the CI exit Appellee’s residence, walk directly to the transport
vehicle, hand over suspected methamphetamine, and undergo a personal
search uncovering no other contraband or money. N.T., 10/14/22, at 6.
As is typical in such situations, no law enforcement officer, including
Detective Lamana, witnessed the exchange of drugs for money that occurred
inside Appellee’s residence. Instead, the CI, alone, witnessed the exchange,
and Detective Lamana’s testimony related the CI’s out-of-court statement to
him identifying Appellee as the person who sold methamphetamine to him in
the trailer. N.T. at 6, 7-11. Appellee’s two delivery charges stem from the
controlled buys described. Detective Lamana was available for cross
examination.
Defense counsel moved to dismiss the charges on grounds that the
Commonwealth relied entirely on inadmissible hearsay to make its prima facie
case identifying Appellee as the methamphetamine dealer in the two
controlled buys. N.T. at 11-12, 13. The magisterial district judge denied
defense counsel’s motion, concluding that the Commonwealth presented
prima facie evidence as to each element of the crimes charged. Accordingly,
he bound over all charges to the Court of Common Pleas.
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On December 2, 2022, defense counsel filed an omnibus pretrial motion
for habeas relief1 asserting, inter alia, that the charges must be dismissed
because the Commonwealth had presented insufficient evidence at the
preliminary hearing to make a prima facie case of the methamphetamine
dealer’s identity when it relied solely on inadmissible hearsay offered by
Detective Lamana’s testimony. Should the trial court deny the motion for
dismissal, the omnibus motion requested disclosure of the CI’s identity as
essential to the preparation of Appellee’s defense against the charges brought
against him.
The Commonwealth filed a brief in opposition to Appellee’s pretrial
motion in which it argued that it had presented prima facie evidence as to
each element of the charges, including the identity of the dealer. It further
contended that it retained a legally recognized, qualified right not to disclose
the identity of its CI at the preliminary hearing, particularly where the defense
had not filed a motion to disclose the CI’s identity prior to the preliminary
hearing.
In its order and opinion of February 8, 2023, the trial court determined
that the lack of admissible direct evidence as to the identity of the individual
who dealt methamphetamine to the CI required quashal of the charges filed
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1 A pre-trial habeas corpus motion is the proper means for testing whether
the Commonwealth has sufficient evidence to establish a prima facie case.
Commonwealth v. Dantzler, 135 A.3d 1109, 1111-12 (Pa. Super. 2016)
(citations and quotations omitted).
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against Appellee. In reaching this determination, the trial court relied on
Commonwealth v. Harris, 269 A.3d 534 (Pa. Super. 2022), reargument
denied (Mar. 14, 2022), appeal granted,
285 A.3d 883 (Pa. 2022),2 in which
a panel of this Court held the Commonwealth may not rely solely on hearsay
evidence at a preliminary hearing to make its prima facie case that the
defendant was the person who committed the crime charged, even if direct
evidence was offered to establish that the alleged crime occurred.
Rejecting Detective Lamana’s testimony regarding the CI’s incriminating
statements, the trial court reasoned that the remainder of the
Commonwealth’s evidentiary proffer at the preliminary hearing was
insufficient to make a prima facie case of identity:
the Commonwealth did not present any evidence that Defendant
possessed or delivered a controlled substance. There was no
evidence that Defendant was in the residence at the time the CI
entered. The only evidence is that the residence is the address
on Defendant’s license and probation plan. This does not give rise
to the inference that Defendant was in the residence and does not
give rise to the inference that Defendant possessed the controlled
substance and delivered the controlled substance.
The charges are hereby quashed.
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2 By per curiam order at No. 104 EAL 202, our Supreme Court granted the
Commonwealth’s petition for allowance of appeal in Harris and identified the
issue to be raised on appeal as, “Whether the Commonwealth, based on
constitutional or non-constitutional principles, is prohibited from proceeding
to trial following a preliminary hearing where it presented non-hearsay
evidence establishing elements of the crimes charged and established the
defendant's identity through hearsay evidence from officers who personally
interviewed the shooting victim in the immediate aftermath of the crime and
to whom the victim identified his shooters by name and in the photographs.”
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Trial Court Order/Opinion, 2/8/23, at 6.
The Commonwealth filed the present appeal raising the following two
related questions:
1. Did the Suppression Court err in granting the Writ of Habeas
Corpus on the grounds/reasoning of Harris/McClelland?
2. Did the Suppression Court err in finding that the
Commonwealth did not present a prima facie case at the
preliminary hearing?
Brief of Appellant, at 3
Addressing the merits of the Commonwealth’s appeal,3 we note our
standard of review. The evidentiary sufficiency of the Commonwealth's prima
facie case for a charged crime is a question of law for which our standard of
review is de novo and our scope of review is plenary. See Harris, supra
(citing Commonwealth v. Wroten, 257 A.3d 734, 742 (Pa. Super. 2021)).
This Court has explained,
The preliminary hearing is not a trial and serves the principal
function of protecting the accused's right against an unlawful
arrest and detention. At a preliminary hearing, the
Commonwealth bears the burden of proving the prima facie case,
which is met when it produces evidence of each of the material
elements of the crime charged and establishes probable cause to
warrant the belief that the accused committed the offense. The
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3 Initially, we sua sponte determine that we have subject matter jurisdiction
over the Commonwealth’s interlocutory appeal from a pretrial order dismissing
charges on a pretrial habeas petition asserting a lack of evidence. See Harris,
269 A.3d at 538-39 (concluding that binding precedential authority holds that
jurisdiction attaches even though the Commonwealth could have opted to
refile charges after an order granting a petition for habeas relief for want of
evidence).
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evidence supporting a prima facie case need not establish the
defendant's guilt beyond a reasonable doubt, but must only
demonstrate that, if presented at trial and accepted as true, the
judge would be warranted in permitting the case to proceed to a
jury.
Wroten, 257 A.3d at 742 (citations omitted and formatting altered); see also
Pa.R.Crim.P. 542(D) (stating that “[a]t the preliminary hearing, the issuing
authority shall determine from the evidence presented whether there is a
prima facie case that (1) an offense has been committed and (2) the defendant
has committed it”).
The first question raised in the case sub judice is whether the trial court
correctly ruled that under controlling authority the Commonwealth may not
rely solely on hearsay evidence to make a prima facie showing at a preliminary
hearing that a defendant perpetrated the crimes charged, even where it
otherwise presents direct evidence that the crimes occurred. See TCO,
2/9/23, at 6. As noted, the trial court relied in substantial part upon this
Court’s recent opinion in Harris, where a panel of this Court addressed this
very question by examining Pennsylvania Rule of Criminal Procedure 542(E)
and interpretive decisional law.
Pursuant to Rule 542(E) of the Pennsylvania Rules of Criminal
Procedure,
hearsay as provided by law shall be considered by the issuing
authority in determining whether a prima facie case has been
established. Hearsay evidence shall be sufficient to establish any
element of an offense, including, but not limited to, those
requiring proof of the ownership of, non-permitted use of, damage
to, or value of property.
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Pa.R.Crim.P. 542(E).4
In Harris, this Court determined that Pennsylvania Supreme Court
jurisprudence5 on Rule 542(E) prohibited the Commonwealth from relying
solely on hearsay evidence at a preliminary hearing to make its prima facie
case that the defendant was the person who committed the crime charged,
even if direct evidence established that the alleged crime occurred. Harris,
269 A.3d at 536. Because the Commonwealth had relied on hearsay evidence
alone to identify and implicate defendant Harris, this Court concluded there
was “insufficient evidence to establish a prima facie case as to each element
at the preliminary hearing.”
There is no dispute that to identify Appellee as the perpetrator of the
charged offenses, the Commonwealth relied on Detective Lamana’s hearsay
testimony relating the CI’s out-of-court statements offered for the truth of the
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4 A statement is hearsay if made out of court and offered in court for the truth
of the matter asserted in the statement. Commonwealth v. Fitzpatrick,
255 A.3d 452, 458 (Pa. 2021); Pa.R.E. 801(c) (defining hearsay as “a
statement that the declarant does not make while testifying at the current
trial or hearing” and “a party offers in evidence to prove the truth of the matter
asserted in the statement.”).
5 See Commonwealth v. McClelland,
233 A.3d 717 (Pa. 2020)
(“McClelland II”) and Commonwealth ex. Rel. Buchanan v. Verbonitz,
581 A.2d 172 (Pa. 1999), discussed infra.
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matter they asserted, namely, that Appellee was the dealer in the two
controlled buys.6
The Commonwealth argues that to read in Harris a requirement that a
prosecutor unilaterally must produce a CI at a preliminary hearing and, thus,
disclose his/her identity at the earliest phase of a prosecution unduly brings
about the unintended consequence of overturning longstanding precedent
recognizing in the Commonwealth a qualified privilege to withhold a CI’s
identity for both the CI’s own protection and society’s interest in effective law
enforcement.7
Under the qualified privilege, not until a defendant demonstrates to the
trial court that the request for disclosure is reasonable and that said disclosure
of either the CI’s identity or the contents of the CI’s communications to law
enforcement will be material to their defense may a court grant a motion to
disclose the CI’s identity. See Marsh (discussed infra).
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6 The Commonwealth argues that it made a prima facie showing of Appellee’s
identity through the detective’s testimony that the inescapable inference was
that Appellee was the person dealing methamphetamine from his own trailer.
At the preliminary hearing, however, Detective Lamana ultimately conceded
that it was the CI’s out-of-court statements identifying Appellee as the dealer
that formed the basis for the filing of charges against Appellee. See N.T. at
16.
7 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.” Commonwealth v. Marsh, 997 A.2d 318, 324 (Pa. 2010)
(OAJC) (citation and internal quotation marks omitted).
.
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We would be bound by the holding in Harris if the present facts
involving the use of a CI fell squarely within its ambit. See, e.g.,
Commonwealth v. McGogney, unpublished memorandum, 293 A.3d 610,
*4 n.3 (Pa. Super. filed February 14, 2023) (citing authority holding
“precedent (stare decisis) requires [a three-judge panel of this Court] to
adhere to a ruling of this Court until it is reversed either by our Supreme Court
or an en banc panel of [the] Superior Court”]).8 Harris, however, does not
vitiate jurisprudence that has promoted an accountable, prescribed system
recognizing a qualified privilege of keeping informants’ identities confidential
and permitting use of their statements to law enforcement at preliminary
hearings. This is particularly so where, as in the present case, the
Commonwealth certified with the trial court that the CI will be produced at
trial and where defendant/Appellee had not established at the preliminary
hearing that the qualified privilege rubric required disclosure because the
information sought was material to the preparation of the defense and that
the request is reasonable.
To apply Harris to the facts in the case sub judice would eliminate the
qualified privilege of protecting the identity of confidential informants at the
preliminary hearing stage of the proceedings. Moreover, as a policy matter,
____________________________________________
8 Per 210 Pa. Code § 65.37 (Non-Precedential Decisions (formerly titled
Unpublished Memorandum Decisions)), non-precedential decisions filed after
May 1, 2019, may be cited for their persuasive value. See also Pa.R.A.P.
126(b) (Citations of Authorities).
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such a result would hamper the effects of law enforcement to enforce the laws
against the illegal use of controlled substances.
This Court has recognized our Supreme Court’s observations in Marsh
on both the important public policy considerations warranting the use of CIs
and the due process safeguards inherent in the procedures that apply to a
defendant’s request for disclosure of a CI’s identity:
Under 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 confidential informants,
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. Commonwealth v. Bing, [551
Pa. 659,
713 A.2d 56 (1998)]; Commonwealth v. Roebuck,
545
Pa. 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 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
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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 weighted toward the Commonwealth.
Bing, supra at 58; Commonwealth v. Herron, 475 Pa. 461,
380 A.2d 1228 (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
court may require disclosure and, if the
Government withholds the information,
dismiss the action.
[N]o 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.
Commonwealth v. Carter, 427 Pa. 53,
233 A.2d
284, 287 (1967) (quoting Roviaro v. United States,
353 U.S. 53, 60–62,
77 S.Ct. 623,
1 L.Ed.2d 639
(1957)).
[Marsh, 997 A.2d at 321–322]
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Commonwealth v. Williams, 256 A.3d 43 (Pa. Super. filed May 20, 2021)
(non-precedential decision).9
We find it was error for the trial court to determine that production of
the CI was required at the preliminary hearing under the facts of this case.
Rather, authority pertaining to the use of confidential informants requires the
balancing of the competing interests present in each individual case prior to
deciding the issue of disclosure.
We do not discern in Harris a sweeping, policy-changing holding that
would undo this entire area of carefully crafted law. To apply Harris here
would substantially impair law enforcement’s use of confidential informants
and repeal a longstanding precedent of a qualified privilege requiring judicial
review as to the disclosure of confidential informants’ identities. Indeed,
Harris did not involve the use of a confidential informant nor did Harris
discuss the qualified privilege as to disclosure of a confidential informant.
Here, the record shows the Commonwealth asserted that its prosecution
of charges against Appellee would be dependent on the live testimony of the
CI, who, it maintained, is willing to testify both to his/her observations made
inside Appellee’s residence during the two controlled buys and to his/her
alleged statements made to Detective Lamana immediately after the
controlled buys, consistent with the content of Detective Lamana’s testimony
____________________________________________
9 Per 210 Pa. Code § 65.37 (Non-Precedential Decisions (formerly titled
Unpublished Memorandum Decisions)), non-precedential decisions filed after
May 1, 2019, may be cited for their persuasive value. See also Pa.R.A.P.
126(b) (Citations of Authorities).
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at the preliminary hearing. This fact, alone, distinguishes the present matter
from Harris, wherein the Commonwealth conceded that the victim of
defendant Harris’ crime indicated an unwillingness to testify. Harris at 548.
Moreover, the facts adduced at Appellee’s preliminary hearing included
Detective Lamana’s admissible testimony that, at each controlled buy, he
witnessed the CI enter Appellee’s residence possessing only prerecorded buy
money and exit the residence possessing only methamphetamine. This direct
evidence established a connection between Appellee and the controlled buys
that was lacking in Harris and McClelland II.10
The qualified privilege rubric also afforded Appellee due process
safeguards that would enable pretrial disclosure of the CI’s identity and the
contents of his/her communications to law enforcement upon a demonstration
that such disclosure was either essential to a fair determination of a cause or
relevant and helpful to Appellee.
The qualified privilege predates the holdings of Harris and McClelland
II, and neither decision addressed the use of CIs or indicated an intention of
modifying the qualified privilege rubric. As qualified privilege jurisprudence
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10 In Harris, this Court noted McClelland II’s admonition against exclusive
reliance on hearsay, where the Supreme Court explained, “The primary reason
for the preliminary hearing is to protect an individual's right against unlawful
arrest and detention. The preliminary hearing seeks to prevent a person from
being imprisoned or required to enter bail for a crime which was never
committed, or for a crime with which there is no evidence of his
connection. . . . Harris, 269 A.3d at 546, quoting McClelland II, 233 A.3d
at 736 (emphasis added in Harris).
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has evolved over time, it carefully has considered the delicate balancing of
important, competing interests unique to prosecutions advanced by use of
CIs. In this regard, it has eschewed the use of a general standard or broadly
applied rule in favor of engaging in a case-by-case assessment of facts within
the qualified privilege rubric to determine whether disclosure and production
of a CI in court is required. See Marsh.
Because nothing in the Harris decision addresses the distinct issues
present in qualified privilege jurisprudence, we conclude that Harris does not
control the case sub judice. Accordingly, finding no deficiency in the
Commonwealth’s evidentiary proffer at Appellee’s preliminary hearing, we
remand to the trial court for further proceedings consistent with this decision.
Order reversed. Case remanded for further proceedings consistent with
this decision. Jurisdiction relinquished.
Judge Bowes joins the Opinion.
Judge Lazarus files a Concurring Opinion.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 3/19/2024
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