J-S32044-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

JANET MARIE SHAW

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 59 WDA 2021

Appeal from the Order Entered December 10, 2020

In the Court of Common Pleas of Fayette County Criminal Division at 

No(s): CP-26-CR-0000334-2020

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED: December 7, 2021

The Commonwealth of Pennsylvania appeals from the Order granting 

Janet Marie Shaw’s (“Shaw”) Omnibus Pretrial Motion.1 In the Order, the trial 

court directed the Commonwealth to provide to Shaw the name and address 

of a confidential informant (the “CI”), in addition to the CI’s criminal history 

and other material to be used for impeachment purposes. We affirm.

During the evening of August 28, 2019, Pennsylvania State Trooper 

Matthew Gavrish (“Trooper Gavrish”), who was undercover, met with the CI 

to arrange a controlled buy of crack cocaine from an individual purported to 

____________________________________________

1 The Commonwealth also has certified that the Order would cause the case 

to be dismissed and/or would substantially handicap the Commonwealth’s 

prosecution of the case if this Court postponed its review of the trial court’s 

Order. See Certification, 1/5/21; see also Pa.R.A.P. 311(d) (stating that the 

Commonwealth may appeal an order that does not end the entire case when 

the Commonwealth certifies in the notice of appeal that the order will 

“terminate or substantially handicap the prosecution.”).
J-S32044-21

- 2 -

be Shaw. Trooper Gavrish was not previously familiar with Shaw. Trooper 

Gavrish and the CI drove to a parking lot in Uniontown, Fayette County, where 

Trooper Gavrish pulled his vehicle alongside a Chrysler 200 that was parked 

in the lot. The CI got out of Trooper Gavrish’s vehicle, approached the 

Chrysler, and purchased crack cocaine from the driver of the Chrysler.2 

Thereafter, the CI returned to Trooper Gavrish’s vehicle, and Trooper Gavrish 

drove out of the parking lot.

Approximately an hour later, a different State Trooper stopped Shaw’s 

vehicle for a violation of the Motor Vehicle Code, at which time she was 

arrested.3 Police charged Shaw with two counts of possession with intent to 

deliver, and one count each of possession of a controlled substance and 

possession of drug paraphernalia.4

Shaw filed an Omnibus Pretrial Motion, wherein she requested that the 

Commonwealth divulge the identity of the CI, as the CI’s identity and 

____________________________________________

2 Trooper Gavrish testified that he provided the CI with documented official 

funds to facilitate the transaction, and properly cleared the crack cocaine after 

the CI returned to the vehicle. N.T., 10/27/20, at 9, 17.

3 The certified record does not contain any information detailing the 

subsequent traffic stop of Shaw’s vehicle, or the circumstances underlying her 

arrest. Trooper Gavrish was the sole witness to testify at the hearing, and he 

indicated that he did not arrange for the subsequent traffic stop to take place, 

nor was he aware of the details surrounding Shaw’s arrest or the search of 

her vehicle. N.T., 10/27/20, at 17-19.

4 35 P.S. § 780-113(a)(30), (16), (32).
J-S32044-21

- 3 -

testimony would exonerate Shaw. In particular, Shaw indicated that when 

her vehicle was stopped and subsequently searched, police were unable to 

locate the funds that the CI had used to purchase the drugs. The trial court 

held a hearing on October 27, 2020, regarding Shaw’s Omnibus Pretrial 

Motion, during which it heard testimony from Trooper Gavrish. Following the 

hearing, the trial court issued an Opinion and Order granting Shaw’s Motion, 

and directing the Commonwealth to disclose to Shaw the name and address 

of the CI.

The Commonwealth filed a timely Notice of Appeal, and court-ordered 

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.

The Commonwealth raises the following questions for our review:

I. Whether the trial court erred in granting [Shaw]’s pre-trial 

Motion to compel the Commonwealth to reveal the identity of [the 

CI,] where [Shaw] presented no evidence, either testimony or 

physical, to establish a need material to her defense[?]

II. Whether the trial court abused its discretion by failing to 

properly balance the relevant factors between the public interest 

in protecting the flow of information against the individual’s right 

to prepare his defense[?]

Brief for Appellant at vi (unnecessary capitalization omitted).

We will address the Commonwealth’s issues together, as it does so in 

its brief. The Commonwealth argues that the trial court erred in granting 

Shaw’s Motion to compel the disclosure of the CI’s identity. Id. at 13-21. The 

Commonwealth asserts that the CI was not the only witness to confirm Shaw’s 

identity, pointing to Trooper Gavrish’s identification of Shaw based on his 
J-S32044-21

- 4 -

review of Shaw’s photograph and the vehicle being registered to Shaw. Id.

at 14, 15-17. The Commonwealth also claims that Shaw failed to present 

evidence that Shaw’s identity was actually mistaken, and as a result, Shaw 

failed to offer a reasonable possibility that the CI’s testimony would exonerate 

her. Id. at 15, 18-19. Further, the Commonwealth claims that the CI’s safety 

would be endangered, and that other investigations would be imperiled, if the 

CI’s identity was disclosed to Shaw. Id. at 20-21.

“Our standard of review of claims that a trial court erred in its disposition 

of a request for disclosure of an informant’s identity is confined to abuse of 

discretion.” Commonwealth v. Jordan, 125 A.3d 55, 62 (Pa. Super. 2015) 

(en banc) (citation omitted).

Under Pa.R.Crim.P. 573, a trial court has the discretion to require the 

Commonwealth to reveal the names and addresses of eyewitnesses, including 

confidential informants, when a defendant makes a showing of material need 

and reasonableness:

(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:

(i) the names and addresses of eyewitnesses....
J-S32044-21

- 5 -

Pa.R.Crim.P. 573(B)(2)(a)(i). 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.” Marsh, 997 A.2d 318, 324 (Pa. 2010) (citation 

omitted); see also id. (stating that safety of the confidential informant is a 

controlling factor in determining whether to reveal his or her identity). To 

overcome the Commonwealth’s qualified privilege, the defendant “must 

demonstrate at least a reasonable possibility the informant’s testimony would 

exonerate him.” Commonwealth v. Withrow, 932 A.2d 138, 141 (Pa. 

Super. 2007). “Only after the defendant shows that 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 weighed toward the 

Commonwealth.” Commonwealth v. Koonce, 190 A.3d 1204, 1209 (Pa. 

Super. 2018) (citation omitted).

In its Pa.R.A.P. 1925(a) Opinion, the trial court stated the following:

Under cross-examination, [Trooper Gavrish] testified that he did 

not leave his vehicle. He observed an individual who was sitting 

inside a parked car from the inside of another parked car, at night. 

[Trooper Gavrish] also testified under cross-examination that the 

[CI] was, indeed, the only person who physically approached and 

made contact with the driver of the vehicle. [Trooper Gavrish]

further testified under cross-examination that although other 

officers may have witnessed the controlled buy, they were even 

further away than he was. [Shaw] thus established an evidentiary 

basis that the [CI] possessed relevant information that would 

materially aid her in presenting her defense and that the 

information was not obtainable from another source: the 
J-S32044-21

- 6 -

controlled buy took place at night; only the [CI] made close, 

physical contact with the alleged seller; the alleged seller never 

got out of her vehicle; [Trooper Gavrish] never got out of his 

vehicle; the only other officers who may have witnessed the 

controlled buy were further away; [Shaw] was arrested 

approximately one hour later in a different location; and the officer 

who arrested [Shaw] was not [Trooper Gavrish,] who arranged 

the controlled buy. The Commonwealth could provide no other 

eyewitness who could satisfactorily provide a positive 

identification of the alleged seller, other than the [CI]. The [c]ourt 

therefore found that [Shaw] had shown that the [CI]’s testimony 

concerning the identity of the alleged seller was material to her 

defense.

The [c]ourt further found that [Shaw]’s request was 

reasonable. [Shaw] was charged with two counts of [possession 

with intent to deliver], one count of [possession of a controlled 

substance], and one count of [possession of drug paraphernalia]. 

[Shaw]’s argument was that she was not the individual who sold 

the crack cocaine. The [CI]’s testimony would therefore be 

abundantly relevant, since the [CI] is the only other person who 

could satisfactorily provide a positive identification of the 

individual who sold the crack cocaine. Moreover, the arrest in this 

case did not take place during the controlled buy, ... but 

approximately one hour later, in a different location, by a different 

officer, and in the context of a traffic violation. [Trooper Gavrish]

testified to only one alleged transaction with [Shaw], stated that 

he verified [Shaw]’s identity using only a single picture appearing 

on a computer screen, and provided no other witnesses to 

corroborate the seller’s identity. Furthermore, the 

Commonwealth failed to meet its burden, as outlined by the 

Pennsylvania Supreme Court in Com[monwealth] v. Bing, [713 

A.2d 56 (Pa. 1998)5], of establishing a reasonably specific type of 

____________________________________________

5

In Bing, our Supreme Court held that the Commonwealth presented 

evidence demonstrating that the confidential informant’s safety would be 

jeopardized if his or her identity was disclosed, as testimony was presented 

that informants working with the Pennsylvania State Troopers who arrested 

the appellant had been assaulted, threatened, and harassed. Bing, 713 A.2d 

at 60. Additionally, the Supreme Court concluded that the risk of 

misidentifying the appellant was minimal, as the appellant had been identified 

during seven separate observations by three different State Troopers. Id. at 

59.
J-S32044-21

- 7 -

danger which justified keeping the [CI]’s identity confidential. 

Under these circumstances, the above-cited case law requires that 

the [CI]’s identity be disclosed.

Trial Court Opinion, 3/18/21, at 2-3 (footnote added).

We discern no abuse of discretion in the trial court’s analysis or 

conclusion. In this case, Shaw pursued a mistaken identity defense, and her 

assertion that the subsequent vehicle search did not yield any of the money 

used in the controlled buy provided a reasonable possibility of a mistaken 

identity. See Withrow, supra. Further, Trooper Gavrish was the 

Commonwealth’s sole witness at the hearing, and he indicated that he would 

also be the Commonwealth’s sole eyewitness at trial. N.T., 10/27/20, at 29. 

Moreover, the Commonwealth’s only evidence that the CI would be placed in 

danger was Trooper Gavrish’s response of “Yes, I do,” when asked by the 

Commonwealth. N.T., 10/27/20, at 10; see Bing, 713 A.2d at 60. As a 

result, combined with Trooper Gavrish’s testimony regarding his identification 

of Shaw during the controlled buy, we agree with the trial court that disclosure 

of the CI’s identity was appropriate. See Commonwealth v. Payne, 656 

A.2d 77 (Pa. 1994) (stating that disclosure was appropriate where the officer 

did not know the appellant; the appellant was arrested seven months after 

the controlled buy; and the officer was the only prosecution witness); 

Commonwealth v. Carter, 233 A.2d 284, 287 (Pa. 1967) (holding that 

disclosure was appropriate where the identification of the appellant was based 

on a single police viewing); Commonwealth v. Roebuck, 681 A.2d 1279 
J-S32044-21

- 8 -

(Pa. 1996) (concluding that disclosure was appropriate when the appellant 

sold narcotics on two occasions to an undercover officer, but the only 

eyewitness to the initial transaction other than the informant was a police 

officer).

6

 Accordingly, the trial court did not abuse its discretion in directing 

the Commonwealth to disclose to Shaw the CI’s identity.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/7/2021

____________________________________________

6 The Commonwealth repeatedly relies on Marsh to support its contention 

that Shaw was required to proffer specific evidence for her mistaken identity 

defense. See Commonwealth’s Brief at 15-17. However, we note that the 

facts in this case differ significantly from those in Marsh, where our Supreme 

Court concluded that the informant’s identity was not material to the 

appellant’s mistaken identity defense because the appellant was arrested in 

the undercover officer’s car immediately following the controlled buy. See 

Marsh, 997 A.2d at 320-22.