Dеfendant was charged with delivery of heroin, a violation of MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). Following a lengthy jury trial in August of 1976, he was found guilty as charged. On November 22, 1976, defendant was sentenced to a term of 10 to 20 years imprisonment. He now appeals as of right.
The prosecution’s case was establishеd primarily by the testimony of Alfredo Velasquez, a police informant. On August 26, 1975, Velasquez met with two members of the Michigan State Police to arrange a heroin purchase from defendant. Pursuant to this plan, Velasquez called the LaFamilia restaurant in Saginaw and arranged to mеet defendant there later in the day.
Before departing for this meeting Velasquez was strip-searched and his car searched as well. The officers then followed the informant in separate cars to the restaurant. Upon arrival at the restaurant, the officers maintained surveillance over Velasquez, who entered the restaurant and ordered a *123 meal. Once defendant arrived, he and Velasquez departed and drove to the DeLaCruz home in Saginaw. The officers followed the pair, maintaining their surveillance.
Upon arrivаl at the DeLaCruz home, Velasquez and defendant met with two other persons, identified as Manuel Lozano and Jose DeLaCruz. De-LaCruz entеred the house with Velasquez and defendant. At this time, according to Velasquez, defendant sold him a "quarter” of heroin for $350 which had been provided by the police. Defendant denied having participated in such a sale.
After the alleged sale was consummated, Velasquez and defendant returned to the restaurant. Upon emerging from the DeLaCruz home, the informant was again under constant surveillance until a later meeting with the two officers. At this time he turned over the heroin and was strip-searched again. This search revealed no other drugs othеr than those contained in a tinfoil packet allegedly bought from defendant.
Defendant contends that reversible error occurrеd as a result of the prosecution’s failure to reveal the existence of perjury charges pending against the informant Velasquez at the time of defendant’s trial.
The suppression by the prosecution of evidence favorable to an accused violates due process if the evidence is "material either to guilt or to punishment” and a request for the information is made by defendant.
Brady v Maryland,
*124 The record tends to support defendant’s contention that a request for information concerning charges pending against Velasquez was made by defense counsel. A teletype printout of Velasquez’s record was provided, but no reference to the pеrjury charges is contained therein.
The prosecution argues that it had no duty to disclose the pending perjury charges against Velasquez, because such evidence was inadmissible at trial. In support of their position, the prosecution cites
People v Falkner,
"We hold that in the examinаtion or cross-examination of any witness, no inquiry may be made regarding prior arrests or charges against such witness which did not result in convictiоn; neither may such witness be examined with reference to higher original charges which have not resulted in conviction, whether by pleas оr trial.”
Although the prohibition noted in
Falkner
is proclaimed in very broad terms, subsequent opinions construing
Falkner
have limited its scope to use of prior arrests for purposes of impeaching the witness’s credibility, the use for which they were offered in
Falkner.
See
People v Rappuhn,
Under these circumstances we conclude that a violation of the
Brady
rule has occurred. Since the withhеld information could have been admitted to assist defense counsel in attacking the key witness’s credibility, we conclude that this evidencе is material as to guilt. As noted in
People v Reed,
"[E]vidence concerning the credibility of a witness is relevant toward insuring that defendant receives a fair trial.”
Since the evidence in question certainly related to the trustworthiness of Velasquez’s testimony, we conclude that its suppression by the prosecution requires that a new trial be ordered.
Although the resolution of the above issue requires a remand for a new trial, we find it necеssary to confront three additional issues which may recur on retrial.
Defendant alleges that the trial judge erred in admitting into evidence testimony by Velasquez regarding another heroin buy from defendant, occurring after the sale for which defendant was being tried. No details of the subsеquent sale were brought out at trial. Therefore, we are unable to conclude that the evidence was admissible under MCL 768.27; MSA 28.1050, the so-cаlled "similar acts statute”.
People v Wilkins,
*126
Defendant argues that the 37-day delay between the time of the offense аnd the time of arrest violated due process. We disagree. Defendant is unable to demonstrate any prejudice as a result of this delay.
People v Fraker,
Defendant’s final contention is that the prosecutor committed reversible error in his questioning of defendant. Specifically he сontends that the prosecution intimated through his questions that defendant had been convicted of some prior offense.
1
However, unlike the situation in
People v Di Paolo,
Reversed and remanded for a new trial.
Notes
The questions went as follows:
"Q [Mr. Bearinger, Assistant Prosecuting Attorney] Now, your lawyer — one of your lawyers in his opening statement said you have a clean recоrd. What does clean mean to you?
"A [defendant] A Clean record, I guess.
"Q An absolutely spotless—
“A I don’t know if it’s spotless or not. That I know of, I have never been convicted of anything.
"Q You’re under oath?
"A Yes.
"MR. SMITH [defense counsel]: Your Honor, I’m going to object, perhaps anticipatorily, but I’d ask the Prosecutor properly phrase the question if he’s going to get into the subject mаtter.
"THE COURT: All right, the Court will ask the Prosecutor to—
"MR. BEARINGER: Your Honor, I think I’ll stop at this point. I left something downstairs and by the time I get back it will probably be 1:00 o’clock.”