Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1970, No. 1275, in case of Commonwealth of Pennsylvania v. Angel Luis Miranda.
Maryann Conway and Francis S. Wright, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
Romer Holleran and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Watkins, J. Spaulding, J., dissents.
[ 222 Pa. Super. Page 159]
This is an appeal from the judgment of sentence imposed after conviction in a trial by court without a jury of felonious sale and possession of narcotics, by the defendant-appellant, Angel Miranda; and from the refusal of post-trial motions.
On June 7, 1970, the defendant was arrested and charged with felonious possession and sale of narcotic drugs as well as corrupting the morals of a minor and violation of "The Drug, Device and Cosmetic Act". He waived his right to jury trial and was found guilty of sale and possession of narcotic drugs and not guilty of corrupting the morals of a minor.
The facts in this case are as follows: A police officer acting upon an informant's tip went to the corner of Seventh and Master Streets, Philadelphia, Pennsylvania. He arrived at about 8:00 P.M. in his own car and not in full police uniform. The officer was about fifteen or twenty feet away from the defendant when he observed Juan Rodriguez, age 17, speak to the defendant. The defendant then stooped down and stuck his hand into a rainspout from which he pulled out one white, glazed packet, handed it to Rodriguez in exchange for a Five Dollar Bill ($5.00). The arrest was made while the defendant had the Five Dollar Bill and Rodriguez the white, glazed packet. After the arrest, the officer seized the glazed packet and four other packets from the rainspout.
At trial, Rodriguez was called by the Commonwealth as a witness. He was only asked his age at the time of the incident. Defense counsel sought, on cross-examination, to elicit testimony denying that the transaction had taken place. The court sustained the objection
[ 222 Pa. Super. Page 160]
to the testimony concerning the incident and continued the case so that criminal charges against the witness might be disposed of in order to preclude the possibility that the witness might incriminate himself and further that it was improper cross-examination as the only question asked the witness was his age. No objection to the continuance was made by the defendant at that time and no application made to secure the attendance of the witness for the continued hearing. Before the conclusion of the first hearing, the laboratory analysis disclosed heroin was contained in the five glazed packets.
At the continued hearing held on February 16, 1971, the Commonwealth was unable to produce Rodriguez and stated that two bench warrants to secure his attendance were outstanding. Defense counsel confirmed this and believed the witness to be in Puerto Rico.
A motion for a mistrial was made by the defendant because of the absence of the witness. This was denied by the court below. The defense then presented two character witnesses and the defendant denied that the transaction ever took place. The court below found him guilty of possession and sale of dangerous drugs and not guilty of corrupting the ...