Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1972, Nos. 1019 and 1020, in case of Commonwealth of Pennsylvania v. Robert Bradshaw a/k/a Melvin Jenkins, Jr.
Joseph Michael Smith, for appellant.
Rosalyn K. Robinson, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Concurring and Dissenting Opinion by Hoffman, J. Concurring and Dissenting Opinion by Cercone, J. Concurring and Dissenting Opinion by Spaeth, J.
[ 238 Pa. Super. Page 24]
On February 16, 1973, appellant filed a motion to dismiss as "duplicitous" and "insufficiently specific" two indictments which charged him with feloniously manufacturing, delivering or possessing with intent to manufacture or deliver a narcotic drug, heroin.*fn1 The motion was denied. Appellant was tried before a judge sitting without a jury and convicted on both indictments. Post-trial motions in arrest of judgment and for new trial were subsequently denied by the court en banc, with one judge dissenting. Concurrent sentences of seven years probation were imposed on each indictment, from which appellant now appeals.
Appellant alleges four errors: (1) the trial court's failure to dismiss the indictments as duplicitous; (2) the lower court's refusal to compel disclosure of the informant's identity and whereabouts; (3) the use of prior convictions as impeachment evidence; and (4) the failure to admit the informant's statements into evidence.
The relevant facts may be summarized as follows: Willie Davis, a Philadelphia policeman who was the Commonwealth's only witness, testified that on June 26, 1972, he was assigned to investigate the illegal sale of narcotics in the area of Huntingdon and Sartain Streets. As he
[ 238 Pa. Super. Page 25]
patrolled the area in an unmarked car, he observed appellant sitting on a flight of stairs. At the time he saw appellant, Officer Davis was accompanied by a confidential informer Michael Richardson, an acquaintance of appellant. Davis and Richardson approached appellant in the car, and Davis said he would like to buy "two cops" (two packets of heroin). Appellant replied that he had sold his last, but that he would try to get some.
The policeman parked his car and followed appellant on foot; the informant remained in the car. Appellant placed a telephone call from a booth in a store. Thereafter, Officer Davis gave him $12. Appellant walked ahead of Davis, and gained entrance to a house on Sartain Street, where he remained about 30 seconds. When he returned, he carried a brown paper bag containing a bundle of glazed paper packets filled with white powder. He gave two of the packets to Davis. The informant did not witness this transaction because the car was not in a visual line with the scene of the sale.
Officer Davis subsequently took the two packets he had purchased to the narcotics laboratory, where chemical analysis indicated that they contained heroin. This transaction and chemical analysis provided the basis for the first indictment.
The second indictment was issued as the result of events which occurred on July 13 and July 14, 1972. Again, Officer Davis was the only witness on behalf of the Commonwealth. His testimony revealed that at approximately 9 p.m., on July 13, 1972, he met appellant at a bar located at 12th and Huntingdon Streets. The officer told appellant he would like to buy "a bundle" (25 packets of heroin), and that he would return the next day to make the purchase.
On July 14, as arranged, Officer Davis returned, accompanied by another undercover agent. Appellant and Davis went for a short walk, during which appellant asked for and received $90, the price of the bundle. Davis
[ 238 Pa. Super. Page 26]
then returned to the car and waited with the other officer. A short time later, appellant went to the car, sat in the back seat, and gave Davis 25 glazed paper packets (later analysis confirmed that at least seven of these contained heroin). Davis then informed appellant that he was a policeman and that appellant was under arrest. Appellant struggled to get away and a hostile crowd began to gather. The officers released appellant, but later obtained a body warrant, on which appellant was arrested.
At the close of the Commonwealth's case, appellant moved to dismiss both charges, contending that the Commonwealth should be required to disclose the informant's identity and whereabouts. The motion was denied.
Appellant's defense was specific denial. He testified that on June 26, 1973, Michael Richardson (the informer) and Officer Davis approached him in a car. Appellant had known Richardson, who got out of the car to talk with appellant, for some time prior to this incident. In response to Richardson's question, appellant answered that he did not know where any narcotics were available and that he was waiting to make a purchase himself. Richardson then returned to the car and drove off with the policeman.
Appellant also stated that his next contact with Officer Davis was on July 13, at which time the policeman requested a meeting the following day in order to purchase drugs. Appellant said he did not know where there were any available. On the 14th, appellant went to a bar with a friend and saw Richardson sitting there. Davis arrived a few minutes later. Appellant admitted talking with Richardson inside the bar and Davis outside, but denied selling heroin to Davis.
The first issue we must resolve is whether the lower court erred in refusing appellant's pre-trial motion to dismiss the indictments as duplicitous and unspecific. Both indictments contain only one count, and charge the
[ 238 Pa. Super. Page 27]
identical offense. Only the dates of the alleged offenses differ.
"That, on or about . . ., in Philadelphia County, ROBERT BRADSHAW ALSO KNOWN AS MELVIN JENKINS, JR., feloniously did manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance, to wit: a narcotic drug classified under Schedule I or II, to wit: heroin."
Appellant concedes that these indictments were drawn substantially in the terms of Section 13 of the Uniform Controlled Substance, Drug, Device and Cosmetic Act, which provides:
"(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
"(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act. . . ." Act of April 14, 1972, P.L. 233, No. 64, § 13, as amended (35 P.S. § 780-113(a)(30)).
Because the indictments were drawn in the language of the statute, they are sufficient in law. See the Act of March 31, 1860, P.L. 427, § 11 (19 P.S. § 261), which provides: "Every indictment shall be deemed and adjudged sufficient and good in law which charges the crime substantially in the language of the act of the assembly prohibiting the crime. . . ."
Nonetheless, appellant contends that he was accused of three distinct crimes in a one-count indictment: (1) the manufacture of a controlled substance, (2) the delivery of a controlled substance, and (3) the possession with intent to manufacture or deliver a controlled substance. Appellant believes that joining these crimes in one count violates Pa. R. Crim. P. 219(b). We do not agree.
[ 238 Pa. Super. Page 28]
Rule 219(b) provides: "Two or more offenses, of any grade, other than murder, may be charged in the same indictment if they are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. There shall be a separate count for each offense charged." (emphasis added).
Rule 219(b) has been construed to require, when one indictment charges violations of two or more statutes, that those allegations must be made in separate counts. Commonwealth v. Lee, 454 Pa. 526, 312 A.2d 391 (1973). There is nothing in our case law, however, which requires separate counts where a violation of one section of one statute constitutes the alleged offense. Moreover, the Pennsylvania Supreme Court has recently stated that indictments must be read in a common-sense manner, and not in an overly technical sense. Commonwealth v. Pope, 455 Pa. 384, 317 A.2d 887 (1974). To require grand juries to separate the offenses proscribed by one statute into separate counts is to require an "overly technical" act.
In the instant case, the indictments could not mislead the appellant at trial as they charged the offense in the language of the statute. The indictments were sufficiently drawn so that appellant could both anticipate the prosecution's proof and prepare his defense. Consequently, appellant was in no way prejudiced by the use of these one-count indictments. See Commonwealth v. Pope, supra.
Appellant next alleges that the lower court committed reversible error by refusing to compel the Commonwealth to disclose the identity and whereabouts of the informant.
The leading cases, Roviaro v. United States, 353 U.S. 53 (1957), and Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967), note that each case which presents the question of ...