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Commonwealth v. Ogrod12/30/2003
ormer. An informer is one who voluntarily gives information to law enforcement personnel before being interviewed by them. He is a person who secretly accuses or who gives evidence against another person, often for a reward. The law is that when a witness is an informer, you also must consider whether he is acting out of self-interest and what, if any, reward or benefit he may expect for voluntarily supplying information to law enforcement personnel and for testifying. Also, in judging the credibility of Mr. Banachowski, you may consider his convictions for crimes of dishonesty, theft, forgery, attempted burglary and burglary.
Id. Thus, even if the decision of the trial court to permit the witness to use an alias was in error, which we do not believe, Appellant suffered no prejudice from the decision because the trial court permitted Appellant to fully cross-examine the witness with regard to matters concerning the credibility of the witness and charged the jury accordingly.
Appellant Claims that the Use of an Informant Violated his Sixth Amendment Rights Appellant also claims that his counsel was ineffective when he failed to move to suppress the statements of Mr. Banachowski based on the position that the Commonwealth violated Appellant's right to counsel. Brief of Appellant at 79-80.
Specifically, Appellant claims that "the jailhouse informer had testified on several occasions on behalf of the prosecution . . . [and that] the prosecution knowingly circumvented the defendant's Sixth Amendment right to counsel by having an understanding between the police and the informant that information provided by the informant would be rewarded at the informant's sentencing proceeding." Id. at 80.
Appellant correctly points out that the Commonwealth cannot circumvent a defendant's Sixth Amendment right to counsel by sending in an informant to question the defendant in circumstances where police could not do so themselves without the presence of an attorney for the defendant. Commonwealth v. Franciscus, 710 A.2d 1112 (Pa. 1998). However, where a prisoner volunteers his complicity in criminal activity to a fellow inmate, he does so at his own peril. Indeed, "'the Sixth Amendment is not violated whenever--by luck or happenstance--the State obtains incriminating statements from the accused after the right to counsel has attached' . . . . defendant does not make out a violation of that right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police." Kuhlman v. Wilson, 477 U.S. 436, 459 (1986) (quoting U.S. v. Henry, 447 U.S. 264, 277 (1980) (Powell, J. concurring)). A voluntary jailhouse admission to a fellow inmate is not subject to any more protection than a confession made by the defendant outside of his jail cell to another person willing to notify authorities.
Notwithstanding that Appellant alleges a conspiracy, his brief utterly fails to supply any specific evidence except for the fact that the witness has previously testified against other inmates and received a sentence of three years and four months plus three years of probation for his three attempted burglaries and parole violations. Appellant had a full opportunity to examine all the witnesses that could have supplied evidence of the purported conspiracy. However, he cites no evidence that the Commonwealth arranged for the witness to be placed near Appellant to question him. Appellant asserts that the witness had an understanding with the police that the witness would be rewarded at the witness' sentencing hearing if he testified against Appellant. However, there is no evidence of any understanding or benefit conferred upon the w
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