CI Disclosure • Contempt • Sanctions • Preclusion of Evidence

Commonwealth v. Jordan, PICS Case No. 14-0502 (Pa. Super. March 28, 2014) Wecht, J. (23 pages).

Trial court did not abuse its discretion in suppressing evidence as sanction for commonwealth’s refusal to disclose the identity of confidential informant where prosecutor’s conduct was flagrant violation of order. Affirmed.

Office Francis used CI-1 to conduct a controlled buy on the 2700 block of North Judson Way, Philadelphia. Francis had used CI-1 in drug trafficking investigations on more than 10 prior occasions, and in each instance, the collaboration led to the seizure of narcotics as well as arrests. Francis observed CI-1 speak briefly with Jordan, enter a row house at 2737 Judson Way with Jordan, and exit that location shortly thereafter. CI-1 handed Officer Beattie two packets of crack cocaine.

The following day, CI-1 conducted another controlled buy from Jordan who sold CI-1 packets of crack cocaine.

Two days later, on Sept. 10, 2010, Officer Mitchell met with CI-2, who had aided Mitchell in 20 to 25 prior drug investigations, all of which had led to the recovery of narcotics and arrests. CI-2 conducted a controlled buy from Jordan and an individual named James Lofton. When CI-2 handed Mitchell two pieces of crack cocaine, he informed Mitchell that he had handed Lofton the buy money and that Lofton had sold him the crack inside 2737 Judson Way. That same day, police obtained a search warrant for 2737 Judson Way. When the warrant was executed, Jordan and Lofton were present. Items were recovered and Jordan and Lofton engaged in certain actions in the presence of the officers evidencing a conspiracy between them to distribute narcotics.

Jordan was charged with various drug-related offenses and conspiracy. He moved to reveal the identities of the two CI’s used in connection with the investigation. CI-1 lived in the community, had knowledge of the drug trade therein, and was still “in use” in drug investigations. CI-2 frequented the area where the drug purchases occurred and had family there.

Trial court denied the request to reveal CI-1′s information, but granted the motion to reveal the identity of CI-2, the only person who could testify that Lofton, not Jordan, sold drugs to him.

Commonwealth immediately withdrew the delivery charge premised upon the controlled buy conducted by CI-2 and agreed to stipulate that Lofton sold the drugs to CI-2 on Sept. 10, 2010. However, it kept the conspiracy charge because the search warrant was executed on that date, and “items recovered in the house and on the persons in the house” during the search as well as the “behavior of the defendant” while the warrant was being executed were “relevant to the conspiracy charge.”

After commonwealth failed to comply with the order to disclose, court sanctioned commonwealth by precluding it from presenting any evidence adduced during execution of the search warrant, effectively dismissing the charges relating to Sept. 10, 2010.

Commonwealth appealed, arguing that trial court erred, not in the propriety of the order requiring disclosure, but in suppressing evidence as a sanction for its refusal to disclose the identity of CI-2. The Superior Court affirmed.

The sanction, while severe, was warranted due to prosecutor’s flagrant violation of trial court’s discovery order. As such, the sanction was not an abuse of discretion. Here, prosecutor openly refused to follow the trial court’s order. Throughout the hearing, prosecutor maintained the position that, because the police officers could testify as to what was recovered and observed during execution of search warrant, prosecutor did not need to disclose the identity of the informant, and could prove the conspiracy charge with the officer’s testimony alone.

At a second hearing, prosecutor attempted to circumvent the order by arguing that she would not be introducing any evidence pertaining to the informant, both parties had the same evidence in their file for trial purposes and, therefore, Jordan would not be put at a disadvantage. However, it already had been revealed that CI-2 had some exculpatory information. Defense counsel sought to interview the witness to determine whether informant had observed other evidence within the home that would exculpate Jordan, particularly with regard to the conspiracy charge. To this claim, prosecutor defiantly stated: “The CI will never be produced.”

Where, as here, prosecutor’s actions were blatant, egregious, and prejudicial, it could not be said that trial court’s sanction was manifestly unreasonable.