In the Interest of R.S.

847 A.2d 685, 2004 Pa. Super. 101, 2004 Pa. Super. LEXIS 341
CourtSuperior Court of Pennsylvania
DecidedApril 6, 2004
StatusPublished
Cited by8 cases

This text of 847 A.2d 685 (In the Interest of R.S.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of R.S., 847 A.2d 685, 2004 Pa. Super. 101, 2004 Pa. Super. LEXIS 341 (Pa. Ct. App. 2004).

Opinion

OPINION BY TAMILIA, J.:

¶ 1 R.S.1 appeals from the March 17, 2003 Order of Disposition imposing probation and ordering restitution of $100 to the Allegheny County Police Department, and costs of $112.50 to the Allegheny County Crime Lab. The Order was entered after appellant was adjudicated delinquent, having committed the crimes of possession2 and possession with the intent to deliver3 cocaine. Appellant argues counsel was ineffective for failing to move for the discovery of the identity of the confidential informant (Cl), and that government agencies are statutorily excluded from receiving restitution. The facts as set forth in the trial court Opinion follow.

On April 29, 2002, two detectives, one working for the Allegheny County Police as an undercover officer, the other for the City of Duquesne Police as a support officer, were conducting a narcotics investigation in the Duquesne area. This investigation had been ongoing for some time and was aimed at eliminating or reducing drug trafficking in the area by identifying and arresting numerous suspected drug dealers. On the day in question, the undercover officer and his partner proceeded to Duquesne with the purpose of conducting undercover drug buys. Upon arriving, the undercover officer met with a confidential informant who had arranged a drug purchase from [appellant]. At approximately 1:45 in [687]*687the afternoon, the undercover officer spotted [appellant] standing with his confidential informant on Fifth Street. The informant got into the undercover officer’s car and they pulled into an alley. [Appellant] then came up to the driver’s side window and engaged the undercover officer in conversation. In the course of this conversation, the undercover officer purchased two baggies of cocaine hydrochloride.
Immediately after this transaction occurred, the undercover officer contacted his support officer and recorded notes on paper and in his cell phone. These notes contained the time of the transaction and the appearance and attire of [appellant]. After relaying this information to the support officer, the support officer identified [appellant] to the undercover officer since he had previously arrested [appellant] for robbery. Later, the two detectives returned to the station house and the undercover officer correctly identified [appellant’s] photograph.
[Appellant] was not arrested until February, 2003, a delay of approximately ten months. The police stated the reason for this delay was the ongoing, large scale investigation aimed at making many arrests of many drug dealers. If [appellant] had been arrested earlier, according to police, the undercover officer and the confidential informant would have become exposed and therefore useless in further investigations. The police waited until their entire investigation was complete before arresting [appellant]. At [appellant’s] hearing on March 17, 2003, I found this was a reasonable delay of the arrest and that the testimony of the officers was credible despite testimony from [appellant] and his mother that he was at home at the time of the drug sale. I found that [appellant] has committed the acts of possession with intent to distribute cocaine and possession of cocaine. [Appellant] had successfully completed the Allegheny Academy intensive supervision program as a result of a prior adjudication. Testimony was also presented that he was performing well in school and holding a job, allowing him to make good progress towards repayment of previous restitution. Therefore, I placed him on probation and ordered him to pay restitution to Allegheny County for $100 used to purchase the drugs by the undercover officer and $112.50 in lab fees used for analyzing the contents of the baggies.

Trial Court Opinion, Mulligan, J., 7/10/03 at 1-2.

¶ 2 Appellant first argues trial counsel was ineffective, “for failure to move to discover the identity of the confidential informant who was the only non-police witness to the drag transaction for which [he] was arrested.” Appellant’s brief at 6. While in his statement of matters complained of on appeal appellant failed to provide the court with a reason why the Cl’s identity was of importance to his appeal, in his brief he argues, “there was a reasonable probability that the informant could have given evidence that would have exonerated [him].” Appellant’s brief at 6. “The information was material to [appellant’s] defense of mistaken identity” (appellant’s mother testified he was home with her at the time of the sale), and “the request was reasonable because there was little chance that disclosure of the informant’s identity could have jeopardized the safety of an informant [.] ” Id.

¶ 3 The Superior Court will not disturb the juvenile court’s disposition absent a manifest abuse of discretion. In re J.D., 798 A.2d 210 (Pa.Super.2002). Counsel is presumed effective and the burden of [688]*688proving otherwise lies with the appellant. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). In order to successfully demonstrate ineffective assistance of counsel, the petitioner must establish: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability the outcome of the proceedings would have been different. Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592 (2000). Once it is determined counsel’s choice of tactic had some reasonable basis designed to effectuate his client’s interests, the court’s inquiry ■ into ineffectiveness ends. Commonwealth v. Abdul-Salaam, 570 Pa. 79, 808 A.2d 558 (2001). Moreover, if the petitioner has not met the prejudice prong of the three-part test, we need not consider whether the first two prongs have been met. Commonwealth v. Neal, 713 A.2d 657 (Pa.Super.1998).

¶ 4 The Pennsylvania Supreme Court has adopted the following guidelines with regard to the disclosure of a Cl’s identity.

We believe that no fixed rule with respect to disclosure of the confidential informant’s identity 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. Belenky, 777 A.2d 483, 488 (Pa.Super.2001), (quoting Commonwealth v. Carter, 427 Pa. 53, 59, 233 A.2d 284, 287 (1967)).

This balance is initially weighted toward the Commonwealth, which holds a qualified privilege to maintain an informant’s confidentiality to preserve the public’s interest in effective law enforcement.

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Bluebook (online)
847 A.2d 685, 2004 Pa. Super. 101, 2004 Pa. Super. LEXIS 341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-rs-pasuperct-2004.