Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1974, No. 129, in case of Commonwealth of Pennsylvania v. Russell Barnes.
Bonnie Brigance Leadbetter, Assistant District Attorney, with her Steven H. Goldblatt, Assistant District Attorney, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellant.
Jack M. Myers, with him Zack, Myers & Atkinson, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Cercone, J., concurs in the result.
[ 237 Pa. Super. Page 408]
This case reaches us as an appeal by the Commonwealth from the lower court's grant of a motion in arrest of judgment in favor of the appellee, Russell Barnes. We agree with the Commonwealth's allegations of error, and therefore, will reverse.
The Commonwealth's evidence at trial consisted of the testimony of Special Investigator Carl M. Anderson of the Pennsylvania Department of Justice. In his capacity as undercover agent assigned to the Pennsylvania Crime Commission, Anderson was responsible for approximately sixteen drug-related arrests in the Philadelphia area in
[ 237 Pa. Super. Page 409]
September, 1973. Anderson testified that on the evening of March 20, 1973, he met with his informant, Henry Bradley, and appellee's co-defendant, Walter Drake. When informed that Anderson was interested in purchasing narcotics, Drake replied that he had a cousin in South Philadelphia, named Russell, who would be willing to sell heroin. Anderson, Drake and Bradley drove to a bar in the area of 21st and Reed Streets in South Philadelphia. While Anderson waited in the car, Bradley and Drake entered the bar, and returned in the company of another man, later identified as Russell Barnes, the appellee. Appellee agreed to sell a quantity of heroin to Anderson for $1500, whereupon Anderson followed appellee in his car to 50th and Locust Streets. The sale was consummated one block away, at 50th and Irving Streets.
Testifying for himself, appellee denied ever having seen Anderson, Drake or Bradley, other than in the courtroom. He also denied ever having used, possessed or sold narcotics. Drake testified that he had never known the appellee, although he did admit to knowing Bradley. Despite diligent efforts by both state and federal governments to locate Bradley, his whereabouts were unknown to the Commonwealth at the time of trial, and he did not testify.
At the close of trial, after the appellee had testified, the lower court judge asked that Agent Anderson be recalled. The court asked Anderson whether he had made written reports contemporaneously with the transactions, and when Anderson answered in the affirmative, he asked Anderson to produce those reports on the following day. When trial resumed the next day, Anderson testified that he had been unable to find the original reports and that they had apparently been destroyed. He was, however, able to produce typewritten reports which had been transcribed from the originals. The lower court then found the appellee guilty of manufacturing, delivering, or possession with the intent to manufacture or deliver
[ 237 Pa. Super. Page 410]
heroin, and the appellee filed motions for a new trial and in arrest of judgment. The motion in ...