Appeal from order of Superior Court, Oct. T., 1966, No. 394, affirming judgment of Court of Quarter Sessions of Philadelphia County, Jan. T., 1966, No. 1439, in case of Commonwealth of Pennsylvania v. Melvin Carter.
Herman I. Pollock, Defender, with him Leonard Packel, Assistant Defender, and Martin Vinikoor, First Assistant Defender, for appellant.
John A. McMenamin, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.
Pennsylvania decisions have long recognized that in criminal trials the prosecution is not absolutely bound
to call to the stand all available and material eyewitnesses. Commonwealth ex rel. Sprangle v. Maroney, 423 Pa. 589, 225 A.2d 236 (1967); Commonwealth v. Horn, 395 Pa. 585, 150 A.2d 872 (1959); Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540 (1951); Commonwealth v. Deitrick, 221 Pa. 7, 70 Atl. 275 (1908).*fn1 On the other hand, a number of decisions clearly indicate that when the Commonwealth does not call to the stand such an eyewitness, it must apprise the defense of the witness's name and whereabouts at trial, unless the defense is able or should have been able to procure the witness unaided. Commonwealth v. Giacobbe, 341 Pa. 187, 19 A.2d 71 (1941); Commonwealth v. Karamarkovic, 218 Pa. 405, 67 Atl. 650 (1907); Commonwealth v. Danz, 211 Pa. 507, 522, 60 Atl. 1070, 1075 (1905).*fn2 Unquestionably, this latter precept is derived from deeply rooted concepts of the proper role of the prosecution in criminal litigation and of the principles of fair trial. See Commonwealth v. Palermo, supra; Commonwealth v. Cramer, 168 Pa. Superior Ct. 1, 76 A.2d 661 (1950). The instant appeal presents to our Court for the first time the question of whether and to what extent a governmental privilege to refrain from disclosing the identity of an informer limits the prosecution's duty to make available to the defense the names and whereabouts of all
material eyewitnesses.*fn3 The issue arises in the following factual setting.
Appellant, Melvin Carter, was indicted for felonious possession and sale of narcotic drugs in January, 1966. At a jury trial in February, 1966 the prosecution's principal witness was Norton Wilder, a Philadelphia policeman. Wilder testified that, while acting as undercover agent on October 18, 1965, he was introduced to Carter by an informer and that appellant sold to the informer in Wilder's presence and for Wilder $36 worth of heroin. LaForrest Russell, an agent for the Federal Bureau of Narcotics, testified that, while sitting in a car parked a half block away, he observed Wilder, appellant and the informer in conversation at the time and place of the alleged sale. Russell stated that although he was unable to see the narcotics transaction, he did recognize Carter. Between October 18, 1965 and appellant's arrest on December 15, 1965 neither Wilder nor Russell had further contact with appellant as far as the record shows. Thus the identification of appellant by both witnesses was based solely on a single meeting.
During the cross-examination of Officer Wilder, appellant's attorney asked him to disclose the name of the informant. An objection to this question by the prosecutor was sustained by the trial judge. Following the close of the Commonwealth's case, the defense moved to have the case dismissed because of the failure of the ...