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COMMONWEALTH v. WAITERS (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
WAITERS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lackawanna County, No. 300 a, b, c of 1973, in case of Commonwealth of Pennsylvania v. James Waiters.

COUNSEL

James J. Powell and Robert T. Gownley, Jr., Assistant Public Defenders, for appellant.

Ernest D. Preate, Jr., Assistant District Attorney, and Paul R. Mazzoni, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Concurring Opinion by Spaeth, J. Hoffman, J., joins in this opinion.

Author: Jacobs

[ 233 Pa. Super. Page 85]

Appellant was found guilty by a jury on three counts of possessing a controlled substance, specifically heroin, with the intent to deliver in violation of The Controlled Substance, Drug, Device and Cosmetic Act.*fn1 On appeal it is argued by appellant that he was prejudiced by the excessive use of leading questions by the prosecutor and that the lower court erred in failing to clear the courtroom of persons not connected with the trial when appellant was questioned on his role in informing the police of persons selling drugs. After a review of the record and the law, we find both contentions to be without substance and affirm the judgment of the lower court.

Although a detailed history of the facts of this case is unnecessary for the discussion of the issues involved, a short summary thereof would be helpful. The Commonwealth's evidence established that on December 5, 1972, in the area of Jimmy's Recreation Hall, a business owned and operated by appellant and his brother, in Scranton, Pennsylvania, appellant approached an undercover agent of the Pennsylvania Bureau of Drug Control and asked the agent whether he wished to purchase drugs. Shortly thereafter a sale of heroin took place for $20.00. On December 22, 1972, the undercover agent entered appellant's place of business and offered to purchase an additional amount of heroin. Appellant produced three glassine bags of heroin and the agent paid him the sum of $25.00. Again on January 2, 1973, the same agent attempted

[ 233 Pa. Super. Page 86]

    another purchase but was told by appellant to return the next day. The agent returned to appellant's business location on January 3, 1973, and purchased from appellant several packages of "snorting heroin" for $50.00. The agent identified appellant as the seller of the drugs on all three occasions and chemical analysis disclosed that the substance sold each time was heroin.

Appellant took the witness stand and denied making any of the alleged sales of drugs to the agent and claimed that he was out of town during part of the period of the sales. He further testified as to his reputation in the community as a concerned citizen and stated that he had informed the police at times of the presence of drug pushers in the neighborhood. At the conclusion of the trial the jury found appellant guilty on all counts. After denial of his post-verdict motions and imposition of a 2-4 year sentence of imprisonment, appellant took the present appeal.

The first issue argued by appellant is whether the repeated use of leading questions by the prosecutor deprived appellant of a fair trial. A review of the record discloses that several leading questions were propounded by the prosecutor. However, the court below sustained appellant's objections to such questions whenever they were made, and appellant does not contend that the trial court abused its discretion in that respect. Nevertheless, appellant did on one occasion demand a mistrial as a result of a leading question by the prosecutor. This was denied by the court below.

We agree with the lower court that the use of leading questions did not warrant a mistrial for the following reasons: First, the lower court found as a fact that there was no "bad motive" or any "attempt to prejudice" the appellant by the prosecutor; second, a review of the testimony discloses that counsel for both parties continuously used leading ...


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