Sherman K. Levine, New Castle, for appellant.
Paul W. Johnson, Asst. Dist. Atty., New Castle, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., dissents.
Appellant, Carl Milo Washington, was tried and convicted of burglary, larceny, receiving stolen goods, and possession of burglary tools in the Court of Common Pleas of Lawrence County. Post-verdict motions were denied and on appeal in the Superior Court, the judgment of sentence was affirmed. A petition for allowance of appeal in this Court was granted, but limited to the question of whether the trial court erred in refusing to require the Commonwealth to disclose the identity of the informant who led to appellant's arrest.
Appellant did not deny committing the acts with which he was charged. Rather, he offered the affirmative defense of entrapment. The defense account of the events is as follows: Appellant and his co-defendant in the trial court, Anthony Frank Testa, resided in Cleveland, Ohio, and had never been in Lawrence County prior to May 8, 1970, the date of the attempted burglary. Appellant testified that he had met a man named Mike Gisondi in March or April of 1969, and that a few weeks before May 8, 1970, Gisondi visited him at appellant's home twice, in a fruitless attempt to convince appellant and Testa to assist him in a burglary. Finally, on May 7, 1970, Gisondi convinced appellant and Testa to participate in the burglary and arranged for a meeting in Pennsylvania on the following morning of May 8, 1970. The three met, as planned, and for the first time Gisondi revealed to appellant and Testa the place of the burglary.
The three drove in a truck to the site, where appellant and Testa made entry. Gisondi dropped off the burglary tools in the front of the house and then drove away, leaving appellant and Testa to the police who were waiting in the house about to be burglarized.
The police did not question appellant or Testa about the identity of the truck driver, whom they saw pull up to the residence about to be burglarized with appellant and Testa. On the Monday morning following the Friday arrest of the appellant, he was placed in a lineup in connection with a prior Beaver County robbery and assault, but was not identified.
The account of the prosecution at trial was the following. On the morning of May 7, 1970, a Beaver County detective received a call from an informant which related that a burglary was to be committed on the following day at a specific residence in Lawrence County. This information was related to the State Police who gained permission from the occupants of the residence to be burglarized to "stake-out" their home. Five police officers arrived at the site on the morning of May 8, 1970, and apprehended appellant and Testa after their forced entry into the residence. Burglary tools were found in a paper bag in the driveway and appellant, when arrested, was wearing gloves and holding a crowbar.
There was also evidence that the Beaver County detective, whom the informant contacted the day before the burglary, had had "dealings" with the informant approximately two weeks prior to the burglary and promised the informant that his cooperation would be related to the court when and if the informant should be brought before the court. The record does not disclose what the events were that might have been "brought before the court" or what the informant's cooperation concerned. There was also evidence that ...