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decided: June 21, 1974.


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.

Author: Hoffman

[ 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 for a continuance, nor is there any indication in the appellant's brief or in the record that demonstrates an attempt by the defense to locate Mr. Sam.

Appellant contends that the lower court erred in denying his application for the whereabouts of a key

[ 228 Pa. Super. Page 408]

    eyewitness to the alleged crimes. Appellant concedes that the general rule is that the Commonwealth is not compelled to call to the stand all available eyewitnesses. Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967); Commonwealth v. Garnett, 204 Pa. Superior Ct. 113, 203 A.2d 328 (1964). However, he argues that the trial court violated the holding in Carter which expressly stated that "when the Commonwealth does not call to the stand such eyewitnesses, it must apprise the defense of the witness' name and whereabouts at trial unless the defense is able or should have been able to procure the witness unaided." 427 Pa. at 55.

At the time of defense counsel's motion, the trial court was informed that appellant had no knowledge as to the whereabouts of George Sam. Despite the fact that the jury had not been selected, the trial had begun. Under Carter, the defendant was entitled to information concerning the identity or whereabouts of the only "disinterested" eyewitness, and Commonwealth's failure to disclose this matter was error. We must decide, however, whether disclosure of the "probable" location of George Sam during the course of the trial rendered this error "harmless".

Upon receiving the information he was seeking in his previous motion, defense counsel had the opportunity to ask for a continuance. Had such a request been made and denied we would be inclined to reverse appellant's conviction.*fn5 On the state of the record, however,

[ 228 Pa. Super. Page 409]

    we are unable to determine whether counsel's failure to ask for a continuance was prompted by a justifiable tactical or strategic reason. Such a determination is properly a subject of a collateral proceeding. See, e.g., United States ex rel. Jones v. Brierley, 276 F. Supp. 567 (1967); Commonwealth v. Allen, 428 Pa. 113, 237 A.2d 201 (1968). Since the requested information was made available to the defense during the course of the trial, the court's refusal to compel the Commonwealth to make the whereabouts of George Sam, an eyewitness, known to the defense at the opening of the trial constituted "harmless error".

Appellant's second contention is that the Commonwealth committed what has become known as the "Kurtz error". Through examination of a Westmoreland County detective Donald Raneri, defense counsel was able to discover that in February of 1972, the paid informant, George Sam, had had criminal charges made against him. Independent investigation disclosed that the charges were nolle prossed following his cooperation with the state agents in their contacts with the appellant.

In Commonwealth v. Kurtz, supra, our Court held that the Commonwealth was under a duty to bring to the attention of the trier-of-fact the existence of a

[ 228 Pa. Super. Page 410]

    promise or agreement of leniency for an accomplice who is testifying for the prosecution, whenever the defense inquires into the matter. In Kurtz, the witness, a co-defendant, had testified against the appellant. This Court rested its holding on the fact that because said witness testified, "[t]he jury was entitled to know that [promise or agreement of leniency] as affecting [their] credibility." 219 Pa. Superior Ct. at 3.

In the instant case, George Sam was not a co-defendant. He was admittedly acting as an agent for the police, and could not, therefore, be considered an accomplice. In addition, Sam did not testify against the appellant, and his credibility was not at issue. Our decision in Kurtz is not applicable to the instant case, and appellant may not prevail on this ground.

Accordingly, we affirm the judgment of sentence.*fn6


Judgment of sentence affirmed.

[ 228 Pa. Super. Page 411]

Dissenting Opinion by Spaeth, J.:

Appellant could have been given prior to trial the information the Commonwealth had on the whereabouts of the paid informant who was an eyewitness to the crime with which he was charged. Footnote 6 of the majority's opinion is incorrect. In Commonwealth v. Pritchett, 225 Pa. Superior Ct. 401, 312 A.2d 434 (1973), this court held that Rule 310 does not bar pretrial disclosure of the name of an informant who was an eyewitness to a crime.

At the latest, appellant should have been given the information at the start of trial. The error that arose

[ 228 Pa. Super. Page 412]

    from the Commonwealth's refusal to turn over the information at least by then cannot be characterized as harmless. The agent's answer was so qualified and general that to describe it as a "lead" is somewhat generous; in any event, it hardly "revealed the probable whereabouts" of the informant. In addition, considering the court's earlier rulings regarding disclosure of the informant's whereabouts, counsel had little reason to suppose that a request for a continuance would have been granted.

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