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COMMONWEALTH v. CURGES (02/02/76)

decided: February 2, 1976.

COMMONWEALTH
v.
CURGES, APPELLANT



Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Jan. T., 1972, No. 489, in case of Commonwealth of Pennsylvania v. David Lee Curges.

COUNSEL

John H. Corbett, Jr., Trial Defender, John J. Dean, Chief, Appellate Division, and Ralph J. Cappy, Public Defender, for appellant.

Robert L. Eberhardt, Assistant District Attorney, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 238 Pa. Super. Page 253]

The sole contention raised in the instant appeal is that appellant was denied effective assistance of counsel because trial counsel's illness prevented her from adequately cross-examining the Commonwealth's witness on the issue of entrapment.

On December 3, 1971, appellant was arrested on charges of possession and sale of narcotics arising out of the alleged sale of four "half spoons" of heroin to an undercover agent on September 22, 1971. The Allegheny County Grand Jury returned bills of indictment on January 18, 1972, in which appellant was charged with possession of narcotics, dealing in narcotics and conspiracy. On March 8, 1972, after waiving his right to trial by jury, appellant was found guilty of the second and third counts of the indictment (dealing in narcotics and conspiracy). On the same date, the lower court rejected appellant's request to be sent to the federal drug rehabilitation program in Lexington, Kentucky, and sentenced appellant to a term of five to ten years' imprisonment. This Court denied appellant's direct appeal in a per curiam order dated January 10, 1975. Commonwealth v. Curges, 231 Pa. Superior Ct. 751, 331 A.2d 514 (1975). After appellant's petition for allocatur to our Supreme Court was denied, he filed a petition for relief pursuant to the Post Conviction Hearing Act.*fn1 The lower court

[ 238 Pa. Super. Page 254]

    held an evidentiary hearing on May 23, 1975, at which time the court rejected appellant's claim of denial of effective assistance of counsel. Appellant challenges herein the court's order denying his petition.

Appellant bases his claim of ineffective assistance of counsel on the allegation that his trial counsel was ill during trial and, therefore, did not effectively cross-examine the Commonwealth's witnesses.

The Commonwealth's first witness, Pennsylvania State Trooper Edward Oliver, was an undercover agent during the period of the alleged sale. He testified that on September 22, 1971, while working in Pittsburgh's North Side, he contacted an addict whom he knew only as "Darin." Darin had previously sold heroin and cocaine to the undercover agent. On this occasion, the agent testified, "I saw this Darin, and I asked him if he had anything.

"And he said that he did. I told him I wanted four half spoons.

"I reached into my right-front pocket, took out $100. I gave it to this Darin.

"He walked away, approximately five yards; and he called this individual here, Curges over; and Curges gave me the four half spoons which I thought I was getting off of Darin which I gave the money to Darin. And Curges gave me four half spoons."

Appellant's trial counsel, Ms. Sallie Radick, a member of the Allegheny County Public Defender Association, cross-examined the undercover agent as follows:

"Q. How were you acquainted with [Darin]?

"A. I was introduced to him through another individual, and I made a ...


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