Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1972, No. 1709, in case of Commonwealth of Pennsylvania v. James Pritchett.
Jeffrey Philip Paul, Assistant District Attorney, with him James T. Ranney and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.
Leonard Sosnov, Assistant Defender, with him Jonathan Miller and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J. Jacobs, J., concurs in the result. Wright, P. J., and Watkins, J., dissent.
[ 225 Pa. Super. Page 403]
This appeal by the Commonwealth raises several issues concerning when the Commonwealth must disclose the identity of an informant as an aid to a defendant in the preparation of his defense.
Defendant was charged with felonious possession and sale of narcotics. Evidence in support of the charges was presented at a preliminary hearing before the Honorable Paul A. Dandridge. Pennsylvania State Trooper Edward I. Bowers testified that on May 28, 1971, an informant named "Louie" introduced him to defendant and told defendant that Bowers wanted to buy drugs. Bowers had had no previous encounters with either Louie or defendant (nor did he have any subsequent encounters). Bowers, Louie, and defendant drove around North Philadelphia until defendant spotted a potential seller, an unidentified (and unapprehended) man who was wearing work clothes and a yellow hard hat. An agreement was reached. Defendant turned the money Bowers had given him over to the seller and received in return a plastic bag that he immediately handed to Bowers. Defendant then left. The bag contained only twenty-one packets of drugs,
[ 225 Pa. Super. Page 404]
which was four less than Bowers had expected. The seller handed Bowers one more bag; this was after defendant had gone. Defendant was given neither bags nor money for his role in the transaction.
Before trial, defendant's counsel filed a motion for production of the informant's full name and address. At a hearing before the Honorable Curtis C. Carson, Jr., counsel introduced in support of the motion the notes of testimony at the preliminary hearing. No other testimony was presented. Counsel argued that the informant's identity would be helpful in preparing an entrapment defense. The Commonwealth countered that the proper time for disclosure was at trial. The Commonwealth also maintained that since Bowers did not specifically say at the preliminary hearing where Louis was during the transaction, there was insufficient evidence to prove that he had been an eyewitness. The motion judge, however, concluded from a reading of the notes that Louie had been present and that pretrial disclosure of his full name and address would aid defendant in the preparation of his defense and was required by considerations of fairness. He ordered disclosure and granted the Commonwealth a stay of thirty days in which to appeal to this court.
Five days later the Commonwealth requested the judge to reconsider his decision and to allow it to put Bowers on the stand. The Commonwealth argued that Bowers would supply "new evidence" on whether the informant was present. Defendant's counsel argued that whether the informant was present was irrelevant since there was an issue of entrapment. The judge agreed and refused to hear the Commonwealth's proffered evidence. When counsel for the Commonwealth said that the name of the informant would not be supplied and that the case might as well be dismissed, the judge did dismiss it.
[ 225 Pa. Super. Page 405]
We affirm the decision of the court below in respect to each of the ...