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COMMONWEALTH v. MCGLORY (12/11/73)

decided: December 11, 1973.

COMMONWEALTH
v.
MCGLORY, APPELLANT



Appeal from judgments of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Jan. T., 1970, No. 199, and Jan. T., 1971, No. 373, in case of Commonwealth of Pennsylvania v. Reginald McGlory.

COUNSEL

Robert X. Medonis, for appellant.

Thomas More Lilly, Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Hoffman, J.

Author: Hoffman

[ 226 Pa. Super. Page 494]

Appellant contends that he was denied his constitutional rights when the Commonwealth was permitted to prove that physical evidence seized from the appellant at the time of his arrest was a narcotic drug. Claiming that the evidence had inadvertently been destroyed or lost, the Commonwealth was allowed to establish the corpus delicti on the basis of oral testimony and scientific documentation. Appellant argues that this indirect method of proof was a violation of his right of confrontation and cross-examination.

[ 226 Pa. Super. Page 495]

The facts of the case may be summarized as follows:

On the evening of September 16, 1969, four plainclothes officers of the Pittsburgh Police Department set up a surveillance of a portion of the 2000 block of Centre Avenue encompassing a business establishment known as Erv's Bar. The police stationed themselves at the windows of the second floor of the Number Two Police Station, and through the use of high-powered binoculars, watched the "known drug-traffic area" for a "score" (a sale of drugs). After about fifteen minutes, they observed the appellant in front of the bar. He was approached by four or five different individuals and was seen taking, counting and pocketing money into his right pants pocket. In return, police observed that appellant handed the individuals articles which he removed from a bag in his left pants pocket. While one of these transactions was taking place, police approached from different directions, and when the police identified themselves, a young girl who had been conducting business with the appellant, fled, and the appellant tried to empty the contents of a vial he was holding in his right hand.*fn1 Police then announced that appellant

[ 226 Pa. Super. Page 496]

    was under arrest. Officer Taliaferro testified at trial that a scuffle ensued, during which appellant tried to escape and resist submission. Two other officers had to aid Officer Taliaferro in bringing the appellant under control.*fn2

After subduing the appellant, police found $111.15 as well as a vial containing four capsules, and a cigarette pack containing thirteen capsules of white powder. Officer Taliaferro testified that the materials seized were taken immediately to the inspection branch of the Narcotics Section of the Public Safety Building, where he and an Officer Bryant packaged and labeled the materials in a manila envelope. The envelope was placed in a safe and later delivered by Officer Bryant to the Crime Laboratory for analysis. Analysis revealed that the capsules contained heroin, procaine and cocaine.

Appellant was thereafter indicted on charges of possession and sale of narcotic drugs, assault and battery on a police officer and resisting arrest. Appellant was denied a pre-trial motion to suppress, and the case came up for trial before the Honorable Joseph H. Ridge of the Common Pleas Court of Allegheny County and a jury. In the course of Commonwealth's opening statement, appellant's counsel moved for a withdrawal of a ...


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