The opinion of the court was delivered by: LORD, III
Defendants were indicted on a charge of conspiring to distribute heroin and to possess heroin with the intent to distribute. The jury returned a verdict of not guilty in the case of Michael Hernandez and guilty in the cases of the remaining four defendants: Mildred Carrasquillo, Maria Ayala, Magda Ayala, and William Ortiz. Each of these four defendants has moved for a judgment of acquittal or, in the alternative, for a new trial. We shall deny all the motions. Only the motion for a new trial on behalf of William Ortiz warrants an extended discussion.
The government's case against Ortiz was based entirely on the testimony of two unindicted co-conspirators. The first, Robert Dempster, testified that he visited the residence of 4240 Reese Street, Philadelphia, between 100 and 200 times starting in February or March, 1974 in order to purchase heroin. On two of these occasions he observed the defendant Ortiz. On both occasions, Dempster was in the residence and heard a horn beep. Ortiz entered the residence on each occasion carrying a bag. The first time Ortiz handed the bag to the defendant Carrasquillo and then left the residence. Carrasquillo then gave Dempster heroin from the bag delivered by Ortiz. Dempster testified that on the second occasion he observed Ortiz deliver a package, although Dempster could not recall to whom. Ortiz left immediately thereafter and Dempster was given the heroin.
On cross-examination, Dempster admitted that in his first statement, to police officer Thompson, on February 25, 1975, he did not mention William Ortiz. In his second statement, to the grand jury, he testified that he was present once when Ortiz delivered a brown bag.
The other government witness against Ortiz was Linda Lasasso. She testified that she visited 4240 Reese Street on many occasions from the beginning of 1975. She further stated that she purchased heroin from Ortiz at that address less than a dozen times. On cross-examination, she narrowed the number of times she purchased from Ortiz to between five and twelve times.
At the close of the government's case, we denied Ortiz's motion for judgment of acquittal. In his defense, Ortiz testified that he never sold heroin and never observed the other defendants sell heroin. On cross-examination, the assistant United States attorney probed Ortiz's source of income. Ortiz stated that he had two part-time jobs. Over defense counsel's objection, the government attorney asked Ortiz if he had had over $1000 on his person in February 1975. Ortiz admitted that he had and stated that he obtained the money by selling two cars.
In rebuttal, the government sought to prove: (1) that bills totaling $1050 were found on Ortiz on February 7, 1975; (2) that among these bills were $35 in marked currency; and (3) that these marked bills had been used in a purchase of heroin two days earlier by Robert Dempster at 4240 Reese Street. Defense counsel objected because we had suppressed testimony concerning the marked bills after a pretrial hearing at which we concluded that such evidence resulted from an unconstitutional search and seizure. The government countered that this evidence was admissible under Oregon v. Hass, 420 U.S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975) and Harris v. New York, 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971). We concluded that the evidence was indeed admissible to impeach the credibility of Ortiz's assertion that the money came from the proceeds of the two car sales and therefore overruled the objection.
The government called Officer Joseph O'Hara who testified that he seized $1050 from Ortiz on February 7, 1975. These bills included three tens and one five which contained Officer Raymond Stackhouse's badge number in the upper left-hand corner. O'Hara testified that he then called Stackhouse and asked him to read the serial numbers from the bills which he had given Dempster to use to purchase heroin at 4240 Reese Street. At this point an objection based on the best evidence rule was interposed and withdrawn. When Officer O'Hara testified that the serial numbers recorded by Officer Stackhouse matched those on the bills seized from Ortiz, we sustained the objection based on the hearsay rule.
The government then called Officer Stackhouse who testified that he recorded the serial numbers on three $10 bills and one $5 bill before giving those bills to Robert Dempster to purchase heroin. He then read those serial numbers to the jury.
Officer O'Hara was recalled and testified that the numbers on the bills he seized matched those recorded by Stackhouse.
At this point, the assistant United States attorney informed us at side bar that he would be unable to demonstrate that the bills were unavailable without the use of hearsay. Because the testimony concerning the bills was not the best evidence, and because the government was unable to demonstrate their unavailability, we ordered all the testimony of Officers O'Hara and Stackhouse stricken. We instructed the jury to disregard that testimony "in toto."
Defendant Ortiz has moved for a new trial based on the claimed error in admitting the testimony about the marked bills. Despite the fact that the testimony was stricken, we cannot, given the relative paucity of the evidence against Ortiz, conclude with any certainty that the stricken testimony played no part in the jury's deliberations.
Therefore, we must decide whether our original decision to allow the testimony, over defense counsel's objection, was proper.