decided: December 11, 1973.
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.
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.
[ 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 juror because of prejudicial remarks made by the district attorney. The jury was discharged, and a mistrial
[ 226 Pa. Super. Page 497]
declared. A subsequent trial before another jury resulted in a guilty verdict on all charges.*fn3 Post-trial motions were denied, and this appeal followed.*fn4
Appellant's primary contention which requires close examination is that oral testimony about material seized which formed the basis of the charges against him should not have been permitted, where the physical evidence had been destroyed and the chain of events were not established. The basis of appellant's argument is that to allow this "secondary" evidence is to deny him of his Sixth Amendment right of confrontation, which includes the right of cross-examination. He submits that this safeguard is established by the United States Supreme Court cases of Pointer v. Texas, 380 U.S. 400 (1965) and Douglas v. Alabama, 380 U.S. 415 (1965). Those cases, however, involved the denial of cross-examination of prosecution witnesses and the submission of testimony from a prior hearing at which cross-examination was not permitted.
[ 226 Pa. Super. Page 498]
In the instant case, the appellant was given full latitude to cross-examine the prosecution witnesses and attack any portion of the laboratory report. There are no cases in this Commonwealth that require the production of tangible physical evidence, and "there exists no such rule as expounded by the defendant which would automatically necessitate his acquittal upon the Commonwealth's failure to produce physical evidence shown to be unavailable." Commonwealth v. Cromartie, 222 Pa. Superior Ct. 278, 280, 294 A.2d 762, 763 (1972); see also, Commonwealth v. Gazal, 185 Pa. Superior Ct. 91, 137 A.2d 814 (1958).
The fact that the inability of the Commonwealth to produce physical evidence in some cases would not serve as a basis for a reversal of a conviction does not mean that the Commonwealth does not have a burden in establishing the unavailability of the evidence and that the testimony is based upon an unbroken chain of events supporting the validity and connection to the evidence thereof. While the Commonwealth was unable to produce the drugs themselves because of inadvertent destruction of the evidence, the chain of custody, starting with the seizure of the materials from the appellant and leading up to the analysis of the material by the Crime Laboratory, which identified the material as narcotic drugs, was unbroken. The officer who took possession of the drugs personally delivered them to the police station where the material -- as immediately packaged, labelled and placed in a safe by this same officer and an Officer Bryant. This labelled package was removed by Officer Bryant, who personally delivered the package to the Crime Laboratory. Since the chain of custody appears unbroken, there can be no attack on the laboratory report on the basis that the drugs identified were not the materials seized. See, United States v. Clark, 425 F. 2d 827 (3d Cir. 1970), cert. den. 400 U.S. 820; Commonwealth v. Cromartie, supra.
Judgments of sentence are affirmed.
Judgments of sentence affirmed.