*1 Pеnnsylvania COMMONWEALTH CLUCK, Appellant. Peter S. Pennsylvania. Superior Court of June 1976. Submitted Decided Dec. 1977. *3 appellant. for Ellis, College, Alan State Mix, Robert A. Assistant District Attorney, Bellefonte, for Commonwealth, appellee. WATKINS,
Before President Judge, JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
CERCONE, Judge:
The instant arises from appeal appellant’s conviction for violating The Controlled Substance, Drug, Device and Act, Cosmetic (1977) P.S. 780-101 (Hereinafter, § CSDD C). In & particular, jury found appellant guilty sale at retail of a Id. nonproprietary drug. 780-113(a)(10). § appeal On appellant argues: (1) The Commonwealth permit ted an unreasonable period of time elapse between the date of the offense and the date of appellant’s arrest; (2) The Commonwealth improperly permitted con testimony an cerning identification; out-of-court photographic (3) The Commonwealth improperly concealed the existence of a promise to its principal witness of in return leniency testimony against and, appellant; (4) The Commonwealth failed to prоve that appellant’s conduct was proscribed by the terms C, of the CSDD & 35 780-113(a)(10). P.S. § Since we disagree with those of appellant’s arguments which are properly before us on this we will appeal, affirm.1 31, 1973,
Prior to October a former boyfriend of Susan Dunkle her contacted and asked her to arrange for him to purchase cocainе. At first Miss Dunkle, who was a student at Penn State, involved, declined to get but she eventually succumbed to her friend’s persistence and agreed to try *4 arrange a drug transaction. On 31, October 1971, Miss Appellant 1. also contends that judgment he is entitled to arrest of proof because the Commonwealth's at trial did not conform to the allegations in the chаrged appellant indictment. The indictment with delivery hydrochloride, substance," of lidocaine "a controlled while proof hydrochloride the at trial showed that lidocaine was not a but, rather, "nonproprietary controlled drug," substance a the sale of proscribed by which is also the Act. Whatever the dubious merit of argument, herein, this we need not decide it because counsel did not post-trial Clair, raise it in motions. Commonwealth v. 458 Pa. friend, who two other accompanied by met her was
Dunkle to 1915 proceeded by and automobile group the persons, Dun- Miss College, Pennsylvania. Lane in North Oak State three the purchasing to the for the agent kle was act as car; in the not waited outside she did while they cocaine agents were in fact undercover know that companions her of Justice. purchase The Department the Pennsylvania $550; the sale was be of cocaine for and grams was to ten over when price, some the consummated, haggling after appellant Miss Dunkle agreed aсcept paid to appellant $550. companions, appel- she received from her and the had $550 of individually wrapped packets to her ten lant delivered be chemical Subsequent what he to cocaine. purported was hydro- that the substance lidocaine revealed analysis than cocaine. chloride rather of coincidental- larger investigation, was episode part This brother-in-law, and who were sus- sister appellant’s of ly, in narcotics from their business trafficking to be pected the Not to reveal Lazy-J.2 wishing a called gift shop place, elimi- undercover identity agents, thereby of their the larger investigation, of in the succeeding nate their chances However, in Miss Dunkle. postponed arresting the police charged Miss Dunkle was arrested and of 1974 spring the was her it with of lidocaine Since possession hydrochloride. her kind, working was a student offense and she any first of the accepted on June court through college, way C, without verdict. & CSDD probation recommendatiоn proba- a one-year The court established 35 P.S. 780-117. § $200, Dunkle a fine of and ordered Miss period, set tionary a sum which included pay prosecution, to costs drug to expended the Commonwealth make However, when the court explained counsel purchase. agreement purchase drugs Miss Dunkle’s that received of the part so that she had no wholly gratuitous would be the court stated costs purchase money, “coincidentally” agents say not the undercover did 2. We because pur- identity person whom Dunkle had know the of the from Miss particu- eight until months after this chased the ersatz cocaine some lar sale.
233 if Miss Dunkle testified at the by reduced expected from whom she person purchased trial of the the lidocaine hydrochloride.3 November, 1974, the investigation Commonwealth’s of
By terminated, and appellant’s the had had been Lazy-J identity was then arrested Appellant charged established. with of a and theft nonproprietary drug, by decep- sale retail tion.4 first maintains that the delay of
Appellant lengthy one between the occurrence of the offense year charged and due of law.5 process Appellant him alleges his arrest denied damaged that his defense was because he was by delay to reconstruct his activities on the night question, unable 31, 1973. October McCloud, 230, 235,
In Commonwealth
218
275
Pa.Super.
(1971)
A.2d
we
that
recognized
"a
bаlance
proper
must be struck between defendant's
right
identification
of
value and the
testimony
probative
public's right
to effec
tive
detection and control of the
police
trafficking
narcot
Although
already provided
given
3.
Miss Dunkle had
name and
bought
drugs, apparently
of the man from whom she
address
Commonwealth had not then estаblished that
appellant
had been the
seller.
trial,
appellant’s
4. At
the court sustained
demurrer to this latter
charge.
challenge
delay
Appellant's
pre-arrest
5.
to the
does not raise a Sixth
Amendment, speedy
question.
Supreme
trial
theAs
Court stated in
Marion,
307, 321-22,
455, 464,
United States v.
404 U.S.
92 S.Ct.
occurs,
(1971): "Until
a
L.Ed.2d 468
straints on his
citizen suffers no re
[arrest]
liberty
accusation;
subject
public
and is not the
of
his
compare
situation does not
with that of a defendant who has been
time,
Passage
arrested and held to answer.
of
whether before or
arrest,
memories,
may impair
lost, deprive
after
cause
be
evidence to
witnesses,
ability
the defendant
and otherwise interfere with his
possibility
prejudice
dеfend himself. But this
at trial is not itself
proper
sufficient reason to wrench the Sixth Amendment from its
prejudice
any
short;
delay,
context. Possible
it
is inherent in
however
* * *
may
also weaken the Government's case.
There is thus
press
guard against
no need to
the Sixth Amendment into service to
possibility
pre-accusation delays
prejudice
the mere
will
already per
case
defense in
criminal
since statutes of limitation
form that function."
balance,
ics." Into the
some
given
prejudice to the defend
ant, must
put
be
"the reasonableness of the delay necessitat
ed
the conduct of an effective
investigation."
Id. 218
*6
236,
McCloud,
Appellant argues that he is entitled to a new trial because of Miss Dunkle’s reference to a photographic identification she had made of appellant prior trial. The is as testimоny challenged reported follows: “Q. At what time did you to Mr. Kerr’s go narcotics [a office?
agent] A. Sometime after trial. my within a Probably week. Q. And what you did do then?
A. I talked to him and recalled the whole incident again
and had about—he had about six pictures and I told him that Peter was in the pictures.
MR. Objection, ELLIS: Your Honor. weMay approach
the bench?” The photographs to which Miss Dunkle referred were never displayed, marked as exhibits or otherwisе offered into evidence at In Allen, trial. Commonwealth v. 177, 448 Pa. that a Supreme recognized our Court (1972) to a is reversible error if a photograph testimonial reference activity infer criminal reasonably prior could jury add, hastened to the reference. The Court accused from however: from which mere reference to passing photographs
"A
inference of
criminal
cannot
prior
activity
reasonable
proceedings
be drawn does not invalidate the
properly
no
as a result of the
prejudice
since there has been
.
.
.
Id.
Appellant argues trial because the Commonwealth failed to inform the jury that, hearing at her which resulted in "guilty plea" proba verdict, without Miss Dunkle was promised tion a reduction in the in return for her prosecution costs of testimo trial. maintains that the ny appellant's Appellant Com monwealth's failure to take the initiative this to disclosing him within the of Commonwealth v. jury brings holding Kurtz, We Pa.Super. disagree.
Miss Dunkle’s her was testimony concerning “guilty plea” as follows: After arrest in March of
“Q. 1974, were your you con-
tacted the Bureau of Drug Control in an attempt to ascertain from whom had you purchased these drugs?
A. Yes.
Q. And to did prior your guilty plea, you cooperate with
them?
A. No.
Q. you Did have an at the time? attorney A. Yes.
Q. Who that?
A. James Jubelirer.
Q. Did you subsequently agree cooperate with the
Bureau of Drug Control? to, A. Not no. actually agree Q. Do you recall the circumstances under you which them
gave information who concerning you had from? bought drug A. Yes. I went to Mr. Kerr’s office up and talked to
him; he had— Q. Excuse me. Prior to actually going Mr. Kerr’s
office, were there any arrangements made the day your guilty plea? A. No arrangements, no.” light In of this Commonwealth v. tеstimony, Kurtz, is supra Kurtz involved a situation where inapposite. two of appel accomplices lant's testified for the Commonwealth and lied whether had been concerning leniency promised in return *8 for their testimony. Although prosecutor knew that a had, fact, bargain witnesses, been struck with the was never to the bargain brought attention of the judge, Hence, without a or defense counsel. sitting jury, Kurtz fell clearly prohibition within the laid down Supreme Illinois, Court in 360 79 Napue U.S. S.Ct. L.Ed.2d 1217
At least two factors this case distinguish from Kurtz and however. In the first there Napue, place, was no induce- ment for Miss Dunkle to prevaricate; she had already verdict, received without probation and the court’s promisе to reduce costs was in return for her testimony trial, appellant’s regardless of its ostensibly, content. This was not a situation where the court held the sword of over a witness’ discretionary sentencing head prior to his Thus, sense, in that Miss testifying. Dunkle’s testimony that no been arrangement had made was not even false. Secondly, and most importantly, defensе counsel had been provided with a transcript the hearing, including the judge’s costs, promise reduce prior to trial. Defense counsel could have read the relevant portions of the hearing wished; into the and, record if he we do not interpret our decision in Kurtz to require Commonwealth to supply this information to the when the jury defense has already it in its possession in such a readily usable fashion. Hence, neither Kurtz nor Napue require appellant receive a new trial.
Appellant’s closing argument, to be sustained, re quires an technical exceedingly to the reading C, CSDD & 35 P.S. 780 113(a)(10); appellant argues that, § because his sale of the lidocaine took hydrochloride place through an inter Dunkle, Miss mediary, delivery the undercover agents in the waiting automobile, it was not a sale “at retail.” Presumably, appellant fancies himself a wholesaler.
In pertinent part 113(a)(10) Section of the Act provides: “The following acts and the causing thereof within the Commonwealth are prohibited: The sale at rеtail of a non-proprietary drug except by a registered pharmacist a licensed or pharmacy by a . practitioner . . [Emphasis added.] course, Of we are mindful of our obligation to construe this penal statute The strictly. Statutory Act, Construction 1928(b)(1) Pa.C.S. (Supp.1976). The § Pennsylvania Rules of Procedure, 3(k) Criminal Rule defines Penal Laws as includ- ing
238 embodiments of the common law which
“all stаtutes and establish, define crimes or offenses including create or any for may provide imprisonment upon ordinances which to a fine or pay or failure upon penalty.” conviction which appellant the subsection under Although particular for its viola- incorporate penalty does not charged and, law becausе it establishes tion, penal it is nevertheless a statutes must be strictly the crime. Such part, in defines court will not create offenses in order that a construed create,6 intend to did not legislature especially which are of ex facto paradigm examples post since such offenses addition, protects against giv- In strict constructiоn laws.7 breadth of that it is application law such ing penal vague.8 unconstitutionally rendered a means of assuring is fairness to construction “[SJtrict by requiring penal to the law statutes to persons subject that unequivocal warning language clear and give understand, would as to what actions people generally them to and what the liability penalties would expose Statutory would be.” 3 Construction Sutherland penalties (4th 1974). ed. 59.03 § a penal ambit of statute
Thus,
ambiguity concerning
any
life and liberty.
in favor of
Common
must be resolved
155,
Exler,
162,
(1914).
Pa.
Notwithstanding
with the
agree
we
Commonwealth
question,
statute
within its proscription.
fell
clearly
appellant
(4th
1974).
Sutherland, Statutory Construction
59.03
ed.
§
6. 3
347,
1697,
Columbia,
City
378 U.S.
84 S.Ct.
L.Ed.2d
7. Bouie v.
(1964).
respect
vague
if it is
with
to either the
is unconstitutional
8. A statute
451,
Jersey,
subject
prosecution,
persons
Lanzetta v. New
306 U.S.
forbidden,
618,
(1939);
the conduct
Interstate
SPAETH, J., files a concurring opinion in which HOFF- MAN, J., joins.
SPAETH, Judge, concurring:
I
in one
join
opinion, except
CERCONE’s
Judge
respect.
Kurtz,
I do not
that Commonwealth v.
agree
Pa.Su-
(1971), is distinguishable.
The reason I nevertheless the order only affirming of sentence is that counsel knew or judgment appellant’s should have known all about the arrangement. Query e., ineffective, i. had reasonable basis any he was
whether jury. it to the disclosing for not HOFFMAN, J., joins. L.
William HERSHEY wife, Stoll, Mary Segro, his and Richard C. Frank and SEGRO Dorothy Stoll, R. his wife. Sr. and Mary Segro. Appeal of Frank SEGRO Pennsylvania. Superior Court *11 20, 1977. Argued June Dec. 1977. Decided