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COMMONWEALTH v. HACKETT (06/14/73)

decided: June 14, 1973.

COMMONWEALTH
v.
HACKETT, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas of Montgomery County, Nov. T., 1971, No. 407, in case of Commonwealth of Pennsylvania v. James Patrick Hackett.

COUNSEL

George P. O'Connell, Assistant Public Defender, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, with him J. David Bean, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J. Jacobs, J., concurs in the result. Watkins and Cercone, JJ., dissent.

Author: Hoffman

[ 225 Pa. Super. Page 23]

This is an appeal from a judgment of sentence of possession of heroin and operating an automobile under the influence of a narcotic drug. Appellant contends that the trial court erred in excluding exculpatory evidence during the trial.

On November 13, 1971, at approximately 12:30 a.m., police found appellant unconscious at the wheel of his automobile. The motor was running, the headlights on, and the vehicle's wheels partially on the sidewalk. Officer McCallion of the Lansdale Police observed an empty vial, a tourniquet and an empty syringe with fresh blood on the car's front seat. Appellant was aroused and taken to the North Penn Hospital by the police for a suspected drug overdose. From there, police took appellant to the station, where upon request appellant stripped himself and was examined. No needle marks were found on his body. Appellant also gave a urine sample to the police. Chemical analysis of the urine established the presence of heroin.

At the time of trial, appellant offered the defense that he had been involuntarily drugged. He testified that at about 9:00 p.m., at a gas station where he was working, he consumed an unfinished soda, which had been left by one Dennis Keyser. Appellant said that after closing time, he drove to visit his mother and then proceeded to his sister's home in Phoenixville when he passed out behind the wheel. He denied injecting himself, and maintained that the soda contained the heroin which he had orally consumed, ignorant of its contents.

[ 225 Pa. Super. Page 24]

Appellant sought to have Dennis Keyser testify as a defense witness. The trial judge conducted an in camera Greene hearing,*fn1 at which he ascertained that Keyser would refuse to answer all questions on the basis of the Fifth Amendment privilege against self-incrimination. As a result of this hearing, the trial judge refused to permit appellant to call Keyser to the stand.*fn2

The trial judge further refused to allow into evidence oral and written statements made by Keyser, which if believed, would have exculpated defendant entirely. Likewise, the trial judge refused to allow defense counsel to question Detectives Vance and Kulp about the significance of the lack of needle marks on the body of a suspected drug user. It is on the basis of these evidentiary rulings that appellant appeals his conviction.*fn3

During the examination of Detective Vance, defense counsel asked if needle marks are easily found and identified on a person recently injected. Vance was then "Chief of Narcotics for the County Detectives." He had an extensive background in drug arrests and testified that he had conducted numerous physical examinations of drug offenders. The Commonwealth objected to the question propounded by defense counsel. The trial judge sustained the objection and stated that he would not permit testimony "as to the general fact" that ...


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