*1 Appellant. Commonwealth v. Bradshaw, *2 Before December 1974. J., Submitted Watkins, P. Voort, Price, Hoffman, Cekcone, der Van Jacobs, Spaeth, JJ.
Joseph Smith, appellant. Michael for Rosalyn Robinson, Sendrow, K. Mark and Steven FI. Goldblatt, Attorneys, Assistant District Abraham J. Gafni, Deputy Attorney, District and F. Emmett Fitz- patrick, District Attorney, appellee. Commonwealth,
Opinion by Price, J., December 1975: February 16, 1973, On filed a motion to dis- “duplicitous” miss as “insufficiently specific” in- two charged dictments which feloniously him with manufac- delivering turing, possessing with intent to manufac- ture or deliver narcotic drug, heroin.1 The motion was judge sitting denied. was tried before a without jury and convicted on both Post-trial mo- indictments. tions judgment in arrest of and for new trial were sub- sequently denied *3 banc, the court en judge with one dis- senting. years Concurrent probation sentences of seven imposed were on indictment, each from which appeals. now
Appellant alleges (1) four errors: the trial court’s duplicitous; failure to (2) dismiss indictments as compel lower court’s refusal to of disclosure the infor- whereabouts; (3) mant’s prior and the use of impeachment evidence; convictions as (4) and the failure to admit the informant’s into statements evidence.
The relevant facts be summarized as follows: Davis, Philadelphia Willie policeman a who was the Com- only witness, monwealth’s testified on 26, 1972, June assigned investigate illegal he was to sale of narcotics Huntingdon the area of and As he Sartain Streets. Substance, Drug, 1. The Uniform Controlled Device and Cos- Act, April 14, 1972, 64, §13, metic ofAct P.L. No. amended (35 (a) (30)). P.S. §780-113 appel-
patrolled he observed area in unmarked car, an appel- flight he sitting lant the time saw on a of At stairs. accompanied by confidential a Davis lant, Officer appel- of Richardson, acquaintance an informer Michael approached appellant lant. Davis Richardson car, buy cops” “two said like to and Davis he would (two that he had packets Appellant replied heroin). of try get last, sold some. but that he would parked policeman The his car and followed Appellant foot; on the informant remained the car. placed telephone booth in a store. There- call from a a gave after, him walked ahead Davis Officer $12. gained Davis, on Sartain entrance a house he re- Street, where about BOseconds. When remained containing bag turned, paper bundle he carried brown glazed paper packets gave powder. He filled with white packets not two of the did wit- to Davis. informant in a visual ness this transaction because car was line with the scene the sale. packets he subsequently took
Officer Davis the two laboratory, chemi- purchased had where the narcotics analysis they heroin. cal This indicated that contained analysis provided the basis transaction chemical the first indictment. result of
The second indictment was issued as July 14, July 1972. events which 18 and occurred on only on behalf of Officer was the witness Again, Davis ap- testimony at revealed His Commonwealth. proximately appellant at p.m., July 13, he met on Huntingdon The officer bar located 12th and Streets. packets buy (25 appellant he bundle” told would like “a day next heroin), return the and that he would purchase. make *4 returned, ac- July 14, arranged, Davis as Officer
On Appellant and agent. companied undercover another appellant during walk, which for a Davis went short price Davis bundle. $90, for and received asked then returned to the ear and waited with the other officer. A short appellant time later, car, went to the sat in'the seat, gave back glazed paper packets (later Davis 25 analysis confirmed that at least seven of these contained heroin). then appellant Davis informed that he was policeman appellant and that Appellant was under arrest. struggled get away to began and a hostile gather. crowd The officers appellant, body released but later obtained a warrant, on which was arrested.
theAt close of case, appellant the Commonwealth’s moved charges, contending to dismiss both that the Com- required monwealth should be to disclose the informant’s identity and whereabouts. The motion was denied.
Appellant’s specific defense was denial. He testified that on 26,1973, (the informer) June Michael Richardson approached Officer Davis Appellant him in a had car. Richardson, got known who out the car to talk with appellant, prior response for some time this incident. Richardson’s he question, answered that did not any know where narcotics were and that available waiting he purchase himself. Richardson make policeman. then returned to the car and drove off with the Appellant also stated that his next contact with July policeman Officer Davis was on at which time the requested meeting following day pur- order drugs. Appellant chase said did know where there 14th, appellant were a bar available. On went to sitting awith friend and saw Richardson there. Davis talking arrived a few minutes later. admitted outside, but Richardson inside the bar and Davis selling denied heroin to Davis.
I lower issue we must resolve is whether the The first refusing pre-trial appellant’s court motion to erred in duplicitous unspecific. dismiss the indictments only charge count, and Both indictments contain one *5 alleged offenses Only the dates of offense. identical differ.
The read: indictments Philadelphia
“That, about., in or on AS County, ALSO KNOWN ROBERT BRADSHAW feloniously JENKINS, manufac- did JR., MELVIN possess manufacture intent ture, or with deliver, narcotic substance, to wit: or a controlled deliver II, heroin.” or to wit: classified under I drug Schedule drawn that these indictments were concedes substantially the Uniform of 13 of the terms Section Act, Drug, Device Cosmetic Substance, Controlled provides: which causing following thereof
“(a) acts and prohibited: hereby are within the Commonwealth “ act, man- Except by (30) this authorized to man- ufacture, delivery, possession intent or person deliver, substance ufacture a controlled April 14, registered of under this act...Act (35 §13, P.S. as amended 1972, P.L. No. (a) (30)). §780-113 language in the were drawn the indictments
Because of the Act statute, they are in law. of sufficient See §261), pro- (19 which 31, 1860, March P.S. 427, §11 P.L. adjudged “Every be deemed and vides: indictment shall charges good sub- law which crime sufficient pro- assembly language stantially act hibiting crime....” was accused appellant contends that he
Nonetheless, (1) one-count indictment: crimes distinct three substance, (2) the deliv- a controlled the manufacture of (3) possession with substance, and ery of a controlled controlled deliver a substance. manufacture or intent in one joining crimes count these Appellant believes agree. (b). do not Pa. R. P. We violates Crim. (b) provides: Rule 219 offenses, “Two or more grade, other than murder, may charged in the same they indictment if of the same or are similar character or are based on the same act or transaction or two on or more acts together or transactions connected or con- stituting parts of a plan. common scheme or There shall separate be a charged.” count each (emphasis offense added). (b)
Rule 219
has
require,
been
construed
when one
charges
indictment
statutes,
violations
two or more
*6
allegations
those
separate
must
be made
counts.
Lee,
Commonwealth v.
526,
454
(1973).
Pa.
A.2d 284 note that each which case question must on an informer’s be decided balancing problem one that calls ad “The hoc basis. flow of information public protecting interest against right prepare defense.” 427 his the individual’s 287, quoting at 62. at 353 U.S. at 233 A.2d are the instant case and circumstances of
The facts forcing by purpose be served such that' ho -useful would identity and whereabouts. disclosure of the informant’s in- appellant dispute that he does not knew the prior name, him for some time formant had known The record also discloses of this crime. to the commission attempted the informant to contact these parents’ home, not locate him there. Under but could possession of the informa- circumstances, inwas prejudiced by requests tion he and was not a lack now States, F.2d Churder United disclosure. government here (8th 1968) (“The in its brief Cir. during argument ‘well that the defendant oral stated case,’ because informer in this knew the name of the Aron) him the (Leonard the man who was with on was the informants parking motel one of lot.... If Aron was the issue defendant, fact known to the and this disappears.”) protecting public the flow
Balancing interest need of this drug with the sales information about *7 is identity, as appellant informant’s of the for disclosure Carter, supra, we conclude by required v. Commonwealth has public interest. It tip in that scales favor the infor- protect long policy courts of our been a defendant unless from disclosure mant’s for his motion support of “produc evidence able [e] Superior Pritchett, 225 v. disclosure.” Commonwealth allegation mere A 434, (1973). 401, 438 A.2d 407, Ct. 312 helpful not testimony might be the informant’s that Prit- v. compel disclosure. sufficient produced evidence not supra. appellant has chett, This present the sales occurred. when informant was true, the events as accepting appellant’s Even version be able informant would has not shown he specific corroborate his By appellant’s defense denial. own testimony, present informant was not meeting second consequently Davis, Officer could not corroborate the which events occurred at that time. participation
“Here the peripheral. informant’s was He position was not ain amplify any to contradict or testimony the... [appellant’s] on which conviction rests.” United States Brenneman, v. F.2d (3d 1972). appellant Cir. This has not shown that informant would be a material witness for the “valuable Zaroogian States, defense.” v. United 367 F.2d (1st 1966). Cir.
A case policy case protecting erosion of the in- formants from moving disclosure is not sound where the party compelling doing. has shown a need for so This need, has shown no find no we error action of the lower court. point concerning
There is one further
this
which
issue
should be
pre-trial
discussed. This
did not file a
discovery
motion
identity. Instead,
of the informant’s
attempted
to elicit that
information from the Com-
during
monwealth’s
pre-
witness
trial.
believe that a
We
application
trial
for disclosure should be made under
Pa.R.Crim.P. 310.
see the discussion in
Also,
Common-
Pritchett,
supra.
procedure
wealth
pro-
Such
would
delay during
vide minimal
trial in situations which war-
rant
pre-trial
disclosure. Where a
motion for dis-
made,
closure is not
the issue is waived. Commonwealth
Clair,
(1974).
Ill prior asserts that evidence of his convic- improperly impeach tions2 credibility. used 1966, appellant larceny burglary, 2. In was convicted of receiving goods. stolen he was convicted of same of- illegal conspiracy fenses and also of and the use of narcotics.
31
Appellant
Bighum,
relies on Commonwealth v.
support
(1973),
Judgment affirmed. by Supreme on June Court refused
3. Allocatur was 1975. Opinion Dissenting
Concurring Hoffman, J.: majority part part III of the I and join in
IWhile part II. discussion from its opinion, I dissent privilege to government has a clear that It information furnish persons who withhold priv- purpose of the “The officials.1 to law enforcement public protection of the ilege the furtherance privilege rec- law enforcement. interest effective their to communicate obligation ognizes of citizens evidentiary privilege peculiar privilege ais 1. The factfinder, from also only but from withheld the evidence is the defendant.
knowledge of the commission of crimes to law-enforce-
by
ment
preserving
anonymity,
officials and,
their
en-
courages
perform
obligation.”
them to
Roviaro v.
States,
United
353
53,
(1957).
words,
U.
In
S.
59
other
purpose
the
privilege
obvious
of the
is to maintain the
by shielding
Government’s channels of communication
identity
the
of an informer from those who would have
cause
resent his conduct.2
scope
The
of the privilege, however,
is limited
its
underlying purpose:
identity
the
of the informer
“[O]nce
has been disclosed to those who would have cause to resent
communication,
longer
the
privilege
applicable.”
the
is no
supra
Roviaro v.
States,
United
at 60.
the defend
“Once
ant
learns the state
informer,
secret
the
of the
underlying
privilege
the
disappears.
basis for the
. . .”
States,
(Con
Jencks United
353 U.S.
675 (1957)
v.
curring opinion by
J.).
See also United States
Burton,
v. Brenneman,
(3d
1972);
455 F.2d
810 n. 1
Cir.
Day,
(3d
United States v.
1967);
In the instant the is unaware of the present whereabouts of the informer. The con- however, cognizant cedes, that he is of the informer’s name, address, parents’ most recent address.3 Because graphically Justice Clakk’s dissent in Roviaro de- 2. Mr. consequences upholding scribes privilege: of not this “Enforce- is, therefore, ment pigeons’ most difficult without the use of ‘stool give protection governments or informants. ... To them have always policy Experi- followed of nondisclosure of their identities. policy though ence teaches that once is this relaxed —even destroyed. informant be dead —its effectiveness is Once an in- drug quick formant is known the traffickers are to retaliate. Dead penalty removal, men tongue tell no tales. old The once visited upon Larunda, the informer has been found obsolete.” Roviaro v. States, supra United at 66-67. important preserving
3. An anonymity facet safety family. informant is informant’s concern for the of his
35
appellant possesses
underlying
information,
this
privilege
longer applicable.
supporting
rationale
no
privi
government,
therefore,
The
cannot assert that
leged
essence, the
relevant
information.
withhold
privilege
government
its
issue whether the
can assert
(8th
disappears.
States,
F.2d 825
v. United
Churder
govern
1968).
therefore,
Upon proper request,
Cir.
pertinent
its
information in its or
ment must disclose
possession.
government,
need
witnesses’
Super,
produce
v.
States
informant.4
United
See
Nagh
(2d
1974);
v. Sin
controls the instant case.
Finally,
appellee
any
contends that
error com
revealing
mitted in
requested
not
information was
harmless,
harmless. To be classified as
the error must be
beyond
harmless
Chapman
a reasonable doubt.
v. Cali
fornia,
(1967) ;
Davis,
U.S.
Commonwealth v.
(1973);
Pearson,
I would reverse and remand for a new trial. Concurring Dissenting by Opinion Cercone, J.: agree
I majority opinion; Parts I and III agree by I with the result reached the Concur- ring Dissenting Opinion Judge II, in Part Spaeth, concerning obligation pro- of the Commonwealth to duce the name and whereabouts of an informant. event, I pro- also believe that some refinement aspect cedural problem necessary. of this Pennsylvania Rule 310 of the Rules of Criminal Pro- provides cedure1 discovery vehicle for the defendant *11 Discovery 1. Inspection. appli- “Rule 310. Pretrial and All pretrial discovery cations a inspection of defendant for and shall days be prior made not less than to five the scheduled date of trial. may attorney permit court order the for the Commonwealth to attorney, the persons necessary defendant or his and such as are him, to inspect copy photograph any assist to and or written con- by fessions and written statements made the defendant. No other discovery inspection except upon proof or shall be ordered the defendant, hearing, exceptional compell- circumstances and after of ing time, specify place The order shall reasons. the and manner By of the and whereabouts of material names witnesses. hearing may requiring wherein the defendant demon need the and of an strate his to know name whereabouts informant, “for appropriate the establishes forum rule an balancing public protecting the of interest flow the against prepare right information the individual’s (1957) ; defense.” Roviaro United U.S. States, (1967). Carter, preliminary hearing appellant the have At must testimony concerning learned that the Officer Davis’ going alleged drug with his to be at variance sales was Richardson, only witness, There one other own. remained Therefore, informant, might the who resolve this conflict. would corrob- if recollection events Richardson’s appellant’s, whereabouts would orate Richardson’s Hence, preparation appellant’s vital defense. expect appellant’s would want counsel one would the testi- question prior Richardson to trial ascertain severe, therefore, might provide. mony It is not the employ to discover the accused Rule 310 require that witnesses, or waive of material names and whereabouts non-production there- right complain about their the after. especially context of alternative, the
Consider Upon request for disclosure appellant’s jury trial. “hearing” on and conduct trial, court must recess to know out- need the accused’s question of whether infor- protecting flow weighs public interest himself, such a case makes out If accused mation. jury held over interrupted trial must be witness, determines out seeks while the accused brought before him and has at trial to call him whether terms prescribe such inspection and discovery making or event, proper. no necessary are conditions inspection of written discovery pretrial order the court shall Commonwealth.” possession of the witnesses statements [Emphasis added.] *12 disruptive testify. pro-
the court This and wasteful unnecessary light 310; and, cedure of Rule we should not its use in the future. countenance question
I reach merits would instant only suggested that case because have heretofore we employ the accused Rule discover the name and 310 to However, whereabouts of a material witness. henceforth application such an under must be made or the Rule 310 issue will be waived.
Concurring Dissenting Opinion by Spaeth, and J.: agree majority’s I with the conclusion in Part I opinion appellant’s upon its attack his indictment as duplicitous conclusion, however, must fail. I reach that majority. a different route than the Part II of what dealing with follows, Commonwealth’s failure informer, disclose whereabouts of an is submitted as express a major- I dissent. no comment Part on III ity’s opinion. August 19, was arrested on and 1972,
charged feloniously delivering, manufacturing, possessing with intent to deliver, manufacture or a con- substance, returned, trolled heroin. Two indictments were February appellant on filed a motion attack- ing duplicitous, the indictments as which was denied. The proceeded judge sitting case at once to before a trial with- jury, out guilty was found on both judgment indictments. in arrest Motions and for a new trial filed, Judge were but the them, court banc en denied Bradley dissenting. Appellant was sentenced to seven years probation on each indictment with the sentences to concurrently, run appeal and this followed. police Davis, Philadelphia officer,
Willie only testify witness to regard Commonwealth. indictment, testimony first be summarized follows. On June assigned he was to investí- gate illegal Huntingdon sale of narcotics in the area of Philadelphia. patrolling Streets He was Sartain accompanied by con- unmarked area an car, sitting on informer, fidential when observed appellant, steps. but he had before seen some Davis never *13 greeting him exchanged of with nevertheless a few words cops.” Appellant buy and told “two him he wanted to “cop” allegedly replied was that he had but sold his last get willing go parked try Davis to some. Davis to with to appellant; with his car and started to walk down street point appellant At the informer remained in car. one Shortly telephone variety a call. entered a store and made gave ap- appellant dollars, and thereafter Davis twelve house, a ahead, of pellant on the walked knocked door paper thirty seconds, returned with brown remained packets. bag glazed paper He containing of a bundle packets analysis gave Later showed of these to Davis. two cross-examination, Davis they heroin. On contained speak appellant. He did not to stated that the informer drugs car view when also stated that the was appellant though him, he and to even were delivered the car. most half a block from were at testimony regard indictment, Davis’s to the second evening July On as follows. be summarized buy appellant him he wanted and told 1972, he met any money him, with did not have a bundle. Since Davis day. to the agreed Davis returned they meet the next day, time another neighborhood this with the next but went plainclothes met appellant, He officer car. to return eventually told him, was for a walk waiting. Appellant car, the other officer was where paper glazed gave twenty-five Davis came to the car analysis showed later packets, seven of which at least police as a himself identified heroin. Davis contained ensued, struggle A appellant. arrest tried to officer and gather. began than Rather loud, hostile crowd and a officers bystanders, appellant injuring or some risk immediately. decided not arrest was later He body on arrested warrant.
the At close the Commonwealth’s case, charges moved for dismissal of both “for lack of nec- essary witnesses”, arguing that the Commonwealth should required disclose the and whereabouts the informer. The motion was denied.
Appellant gave testified on his own an behalf and quite account given by different from that Davis. He stated that on 26th, Richardson, June one ob- Michael viously the up confidential informer, drove with Officer Davis; that he Richardson; knew and that Richardson got speak Appellant out of the per- car to with him. to relate his mitted side the conversation but not Richardson’s. “said to him I didn’t know where time; waiting narcotics was at that I that was around myself because waiting I use stuff and I was to make purchase myself,” whereupon got into Richardson back *14 the car with Appellant Davis and specifically drove off. walking away denied ever from the car with Davis. As July second 13th, spotted ap- occasion: On Davis pellant, said he wanted to day, him the next and see purchase asked if he knew where he could “some stuff.” Appellant evening appellant said no. The next went to a bar already with a bar, Richardson friend. in the and Davis speaking entered a few minutes later. He admitted with Richardson inside the and bar with Davis outside bar, selling but he denied ever heroin to Davis.
I question presented The first judge is whether the trial in denying appellant’s pre-trial attacking erred motion duplicitous. the indictments as are two indictments except alleged identical for the date of the offense. Each only contains one count:
That, Philadelphia on or about., County, ROBERT BRADSHAW ALSO AS KNOWN
39 feloniously JR., did manufac- JENKINS, MELVIN ture, deliver, possess intent to manufacture or with narcotic substance, to wit: a or deliver a controlled drug II, to heroin. wit: under I or classified Schedule pre- were that incidents drawn concedes these argues never- cisely language statute,1 but crimes, separate that three theless creates statute delivery of substance, the the manufacture of a controlled substance, possession with intent controlled and the substance, and a controlled manufacture or deliver single makes joinder count of these crimes insufficiently specific. duplicitous an indictment and long recognized or more distinct It has been that two charged separate and unconnected offenses should be count, indict charged single counts, and if in a Pa. duplicitous. Morgan, v. 174 ment is Commonwealth (1954) ; Superior 586, 102 Ct. A.2d Commonwealth requirement Hall, Superior (1903). This Ct. purpose: it the defendant a dual has alerted has served defend; charges it has against and which must verdict, provided protection whether him of a Only prosecution. guilt innocence, against a or second one of an indict verdict be returned each count charges ment, single specific and if is not count impossible to than determine more one offense, one, several, all whether the was returned as verdict one offenses, prosecution on in turn whether further Binns, charges barred. See Substance, Drug, 13(a) Device 1. Section of The Controlled 233, (a) Act, 64, April Act of P.L. No. Cosmetic §13 (30), effective, 26, 1972, P.L. imd. as amended Oct. No. *15 §1, effective, (30), §780-113(a) provides: imd. 35 P.S. causing
“(a)
following
and
thereof within
acts
hereby prohibited:
are
the Commonwealth
manufacture,
by
act,
“(SO) Except
as authorized
this
deliver,
delivery,
possession
a
sub-
intent
controlled
or
registered
person
a
under this act.
. .
stance
D
(1972). Early
2d
Pennsylvania
& C
in
common
law, however,
exceptions
general
two
this
rule were
recognized.
separate
Our courts allowed two or more
joined
single
offenses to be
in a
count of an indictment
if
single
those offenses arose
a
from
act or transaction.
Commonwealth
(1884);
v. Miller,
“operated upon public highway a motor vehicle unlawfully and injure person did property and person [named], another then and there user highway, said and that the said defendant did then unlawfully neglect and stop there fail and the said motor he, vehicle the defendant, which was then and operating, unlawfully there and did then and there necessary, fail to render such as assistance unlawfully neglect give did then and there fail and party.” his injured name address to upon imposed duty relevant statute case any operator injured person of a motor vehicle who property highway “stop, other user necessary, and render such assistance and... upon give request, his name and address [to] injured party representative.”2 proper or The de- argued charged sep- fendant the indictment three statute, arate offenses under the therefore three required. counts were The court that the held, 2. Act of June P.L. §23.
41 offense, charged represented phases of the all acts same pleading of criminal and therefore “under the rules they practice courts,” be of our could all the established charged at in one count. Id. 83. 650, Superior Cese,
In Ct. Commonwealth v. for (1954), was arrested A.2d 228 defendant 109 violating gambling involved of the statutes laws. One publicly provided privately or “[w]hoever, that either any lottery... erects, up, opens, or draws sets makes ,”3 charged indictment guilty . of a misdemeanor. . up” “open, did and set the defendant “erect lottery. defendant’s conten- make, or draw” a It was separate offense of constituted tion that each acts these As in joined in one count. not be and therefore could “In rejected It reasoned: Zeitler, court this claim. joined count in one it is have this case clear we each dis- phases and for of offense successive the same However, when phase tinct an indictment will lie. person at by the same separate are committed offenses separate case, the in this time, occurred as same 658, 109 count.” Id. phases may included in one be supra; Miller, also at 231. Commonwealth A.2d See Hall, supra. present case, it would seem purposes of the For the dispositive. Here, be that Zeitler and Cese would that makes dealing statute with a cases, we are those with factual separate crime and phase an offense each Zeitler Both concerning only transaction. settings one adoption of before decided Cese, were Pro- Pennsylvania Criminal Rules (b) Rule recognizing appellate decisions the other cedure,4 as were (b) duplicity rule. Rule general exception this reads: 872, §607, 18 P.S. 24, 1939, §4607. P.L. of June
3. Act
1965,
1,
1964,
effective Jan.
adopted June
This rule was
4.
this
which
The section
1974.
and effective
amended
Feb.
applicable here.
it is
and so
was effective
concerned
case is
“Two
or more offenses, other than
grade,
murder, may
charged
be
if
same indictment
they are of the same or similar character or are based
on the same act or transaction
on two
or
or more
or
together
acts
transactions connected
or constitut-
ing parts
plan.
aof
common
There
scheme
shall
separate
charged.”
count
[Emphasis
each
offense
added.]
Lee,
Commonwealth v.
that separate shall be here a count for each offense [t] charged’ even if the same act or transaction the basis separate for the in offenses. To allow count one this case charging serve as the basis for under two offenses separate require (b) statutes would be ... that Rule 219 ignored.” 531, Id. 312 A.2d at as of 394. Therefore, January 1, 1965, exception separate the common law may joined single they crimes be in a count if arise from good law, same transaction ceased to be at least when joined separate the offenses are based on The statutes. presented present narrow issue case whether 219(b) suspended exception Rule also the common law dealing single with offenses on statute. I think based a not.
First, require that each indictable act be listed in separate a require grand jury count would be up a every carve statute like the one here time it involved legis- wished to return an it. indictment under If the lature up, wished to statutes it have its carved would presumably specifically, done so have itself. More would “Every not have said that be indictment shall deemed adjudged good charges sufficient in law which substantially the crime language in of the act assembly prohibiting 31, the crime....” Act of March 1860, 427, §11, Cf., P.L. v. 19 P.S. Commonwealth §261. Lee, supra.
Second,' and
important,
there would be little
more
benefit
by making
requirement.
to the defendant
a
such
single
not
joinder
count
offense
a
will
each
danger
those
prosecution on one of
later
a
create
they
joined, one
true that when
are so
It
be
offenses.
the defendant
not
able to tell of which act
will
be
consequence. In
no
guilty. That,
is of
found
432,
Campana,
A.2d
452 Pa.
Commonwealth
(1973)
314 A.2d
vacated,
reh.,
414 U.S.
Pennsylvania
(1974), the
denied,
cert.
has set forth in bill,” id. at 291 A.2d at held that for the stand, conviction to the evidence had to be sufficient to establish that the defendant sold hashish. (b),
Rule 219 therefore, suspend does not the common single law rule that when a statute makes two or more distinct they acts may joined single indictable, count if phase each act be considered as a in the same offense and if each is connected with the same transaction. Accord, Binns, supra. Appellant properly brought therefore to trial on the indictments against returned him.
II
judge
also contends that the trial
committed
during
several reversible errors
the course of his trial.
Specifically,
judge
contends
refusing
that the
erred in
require
disclosure of the whereabouts of the Common-
wealth’s
informer,
confidential
permitting
the intro-
appellant’s
duction of
record,
criminal
refusing
testify
allow
what the confidential informer
said
majority
to him. The
opinion
is of the
that the refusal
require
disclosure
the informant’s whereabouts was
disagree.
not reversible. I must
leading
are
States,
cases
Roviaro v. United
(1957)
U.S. 53
Commonwealth v.
Carter,
(1967).
Roviaro,
In Roviaro
Here, the Com-
transaction.
specific criminal
to the
ness
required because
not
was
argues, disclosure
monwealth
how-
argument,
eyewitness. This
an
informer was
In
holdings
Carter.
in Roviaro
ever, misconstrues
of whether
question
attention
fact,
one’s
to direct
many
inwill
crime
eyewitness
was an
the informer
Carter, the defendant
inquiry.
cases be misdirect
Therefore,
fact
identity.
mistaken
claimed
important.
the transaction
witnessed
informer had
*20
not, however,
That did
make it essential. In Common
Pritchett,
wealth v.
Superior
Ct.
812 A.2d
(1973),
entrap
the defendant
intended to
an
raise
ment
the
defense.
we said that
crucial in
Accordingly,
quiry was not whether the informer had witnessed the
drugs,
provide testimony
of
sale
the
but whether
could
he
negotiations
that would be
relevant
activities or
preceded
Lopez-Hernandez
that
the sale.
v.
also
United
See
States,
1968) ;
(9th
To review regard Davis facts: Officer testified appellant first transaction that asked him to sell he drugs, some any him, that not did have with appellant’s but that at suggestion, they away walked from appellant got car and heroin some and sold it to him. Davis admitted that the he informer was his car when spoke first appellant, but he testified that the informer part took no in the discussion and him or could see when the sale was made. admitted seeing Davis and the informer. claimed, He however, that spoke with the informer and told him he did not have to sell, narcotics and then Davis and in- away. former walking away drove denied He ever from according car Moreover, with Davis. appellant, spoke seem he never even would The crucial Davis. question, story therefore, should be whose credited. question credibility.
Carter also turned on a There Supreme concept Court said: to our “Elemental well as that embodied federal constitu fairness, perspective tion, is the awareness the testimonial competitive police officers is conditioned the ‘often enterprise ferreting out crime.’ Johnson United States, 10, 14, (1948). 333 U.S. 68 S.Ct. This permit the awareness makes us reluctant to establishment guilt solely by police of facts crucial to criminal testi *21 single testimony mony on where based a observation from Thus, is available. while disclosure a disinterested source necessary might police in a case where evidence not be witnesses, by neutral corroborated to crucial facts was unwilling the one.” are to do so in case instant we like 61-62, A.2d at 288. Id. at Myers, F.2d 174 rel. Drew v. States ex United There, police 1964) officer (3d to the effect. same Cir. they when walking Philadelphia an informer with was arranged a informer defendant. The across the came walked defendant and the officer with for narcotics sale judge to force away. refused The trial feet about ten appeal, the informer. On identity of the disclosure stated: Third Circuit argument whether Irv- engage in a semantic
“To eye- the of an definition ing fits within informer] [the Although discussion. provoke a needless witness pass- the claimed Irving may unable have been see Drew package between tiny ing narcotics the officer], police con- and Harold [the defendant] [the Drew is untenable. to see unable that he was clusion eyewitness, Irving anwas Therefore, or not whether identity of the indi- it relates he saw—as what illegal transfer with conducting allegedly vidual appear him wit- to make an essential Harold —would Calling him could have relevant ness. elicited contributing a determination of the material facts right Drew, clear, it is ‘to truth.... had have all [alleged illegal possession with facts connected fairly fully and sale of ... disclosed narcotics] (footnotes prosecution...” Id. 179-80 omitted). identity and it is clear that an informer’s where-
Thus,
only
when
is the
disinterested
abouts must
disclosed
he
explain,
amplify,
who
controvert
testi-
witness
can
mony
police
Here,
in-
officers as
crucial facts.
just
appellant’s
former
such a
Davis’s and
was
witness.
testimony
either could
cannot be
The informer
reconciled.
testimony
Davis’s
that
have corroborated
agreed
away from
sale,
to make the
and walked
the car
appel-
so,
to do
or he could have corroborated
Davis
testimony
any drugs.
lant’s
was unable
sell
I
he
am
of the view that
it was
trial
therefore
error
judge
compel
to refuse to
disclosure.6
Commonwealth,
Judge
opinion,
PRICE
so,
submit
ap-
that even
the error was harmless because
pellant admits
identity,
he was aware of
informer’s
specifically,
awas man named Michael Richard-
mean,
son. This does
that the nondisclosure
very
purpose
harmless. The
of disclosure is to allow
*22
Judge
upon
6.
Brenneman,
relies
United States v.
PRICE
455
(3d
F.2d
1972)
Zaroogian
States,
809
Cir.
v. United
367 F.2d
(1st
1966)
support
959
Cir.
to
that
view
disclosure should not
required.
cases, my
be
judgment,
Both
distinguishable
in
are
from
Brenneman,
the facts here. In
implicated
the defendant was
in a
drug charge by
testimony
co-conspirator
aof
who had no con-
nection whatever
was,
with the
therefore,
informant. Disclosure
“ ‘palpably not
to
essential
the fair determination of this cause’.”
Zaroogian,
49
person
the defense to be able to
call
to the witness
this,
In order
do
counsel
stand.
must know his where
Carter,
merely
speak
abouts. In
court did not
identity, but rather of
“names and
whereabouts”
Carter, supra
60,
v.
233
informer. Commonwealth
People
799,
Accord,
Diaz,
A.2d at
2d
287.
v.
174
345
Cal.
(1959).
jail
2d
from
P.
370
was
arrest
Here,
parents’
He knew the informer’s name and his
trial.
however,
staying
Richardson,
address.
was not
with his
parents,
he could be
did not know where
impression
found. He
had
was under the
that Richardson
Philadelphia
living
left
in New York
somewhere
City.
should have been
Therefore,
Commonwealth
Richardson,
lim
forced to
the whereabouts of
disclose
pertinent
ited of course to the
information
its
its
“harmless”,
possession.
witnesses’
To be classified as
“beyond
error must
be harmless
reasonable doubt.”
Chapman
California,
(1966);
v.
Common
386 U.S.
(1973);
Davis,
wealth v.
452 Pa.
first sale and the first Indictment.
to Officer
testimony,
present
Davis’s
the informer was not
all
during
subject
the second transaction,
is the
to the
which
indictment,
second
according
appellant’s
and even
testimony,
played
the informer
inconsequen-
far
more
part
meeting
tial
in this
than in the first one.
There is
question
substantial
then
proffered
whether the reasons
require
reversal
the one conviction would also
conviction,
reversal of
second conviction. The second
however, need not be
an
considered as
isolated occurrence.
People Williams,
In
(1958),
Cal. 2d
“Although the informer did not witness the second transaction, upon was consummated reliance prior one, theory prosecution, sought and the of the testimony, to be established the officer’s was that person, allegedly defendant, the same committed the two If the offenses. informer had contradicted the sale, officer’s identification of defendant as to first highly this would have been material evidence to show connecting the officer also mistaken in de- fendant with the second transaction. compel
“The failure to disclosure informer’s miscarriage justice resulted in re- spect to both counts.” Id. at at 22. 333 P.2d reasoning persuasive applicable This is both present Williams, Here, case. as in if the informer had testimony sale, contradicted officer’s as to the first testimony officer’s as to the second also sale would have impugned. been judgments
I would reverse the sentence therefore and award a new trial.