Appeal from judgment of sentence of Court of Common Pleas of Westmoreland County, April T., 1973, Nos. 262, 262a, in case of Commonwealth of Pennsylvania v. Roger Walak.
Alfred B. Bell, Assistant Public Defender, with him Albert C. Gaudio, Assistant Public Defender, and Dante G. Bertani, Public Defender, for appellant.
Patrick H. Mahady, Assistant District Attorney, with him Albert M. Nichols, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Jacobs, J., concurs in the result. Dissenting Opinion by Spaeth, J.
[ 228 Pa. Super. Page 405]
The instant appeal from a drug conviction raises two questions worthy of discussion: (1) the trial court erred when it refused to compel the Commonwealth to produce an eyewitness to the alleged crime; and, (2) that the Commonwealth, in violation of Commonwealth v. Kurtz,*fn1 failed to communicate to the Court that the paid informant had received leniency on pending charges as a result of cooperation with the authorities in apprehending the appellant.
On September 18, 1973, the appellant was tried by a jury and found guilty of violations of The Drug, Device and Cosmetic Act. The testimony may be summarized
[ 228 Pa. Super. Page 406]
as follows: Officer Steven Todoric testified that on December 22, 1972, he was introduced to appellant by a George Sam, a paid informant for the Bureau of Drug Control. The three men entered Todoric's car whereupon the appellant sold Todoric a bag containing one pound of marijuana for $100.00. On January 5, 1973, Ernest Fullerton, an agent for the Bureau of Drug Control, met George Sam who introduced Fullerton to Walak, and accompanied the two to the agent's car. Fullerton then gave the appellant $350.00 in exchange for a bag containing marijuana.
On April 10, 1973, defense counsel filed a bill of particulars asking specifically for the names and addresses of any agents or any participants to the alleged criminal action. The District Attorney's Office replied with a referral to Pa. R. Crim. P. 310, which permits the pretrial discovery of "any written confessions and written statements made by the defendant . . .", but which precludes "other discovery or inspection . . . except upon proof by the defendant, after hearing, of exceptional circumstances and compelling reasons." Prior to the selection of the jury on the date of trial, counsel renewed his request through oral motion asking that the Commonwealth furnish the whereabouts of George Sam,*fn2 or in the alternative, that it have George Sam present in Court during the trial. Defendant's motion was denied as being untimely.*fn3
[ 228 Pa. Super. Page 407]
George Sam was not called as a Commonwealth witness, despite the fact that he was an eyewitness to both alleged transactions, and would have offered the only "impartial" testimony at trial.*fn4 During the cross-examination of narcotics agent Rause, testimony revealed the probable whereabouts of George Sam: "Q. (Defense counsel): Do you know where George Sam is today? A. (Pause). No, I don't. Q. Do you know how to contact him? A. If I attempted to contact him, I would attempt to contact him at the home of his mother at Herminie, Pa." Having obtained this lead, defense counsel did not ask ...