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COMMONWEALTH PENNSYLVANIA v. GEORGE LEE (12/15/76)

decided: December 15, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE LEE, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, at No. 1398 (a) (b) of 1974, Lackawanna County, Pennsylvania. No. 149 October Term, 1976.

COUNSEL

Gene E. Goldenziel, Asst. Public Defender, Scranton, for appellant.

Anthony J. Popeck, Asst. Dist. Atty., and Paul R. Mazzoni, Dist. Atty., Scranton, for appellee.

Watkins, P. J., and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, Price and Spaeth, JJ., concur in the result.

Author: Cercone

[ 244 Pa. Super. Page 462]

The instant appeal arises from appellant's conviction by a jury of delivery of a controlled substance and conspiracy to deliver. The sole issue raised in this appeal is whether the trial court erred in refusing to admit the magistrate's transcript of the preliminary hearing to enable appellant to impeach the credibility of the Commonwealth's sole eyewitness, an undercover narcotics agent with the State Police, who allegedly gave contradictory testimony at the preliminary hearing. We disagree with appellant's allegation of error in that regard and will affirm.

At appellant's trial State Trooper Nicholas Genova testified as to the following facts. On August 13, 1974 he was acting as an undercover narcotics agent in Scranton, Pennsylvania. While drinking in a local bar in hope of finding someone to sell him marijuana, Trooper Genova met one Preston Cross who told Genova that he could not get him marijuana, but could get methamphetamine. Cross and Genova then went to the corner of Mulberry and Taylor Streets, where Trooper Genova saw appellant drive up in a Datsun automobile, get out and hold a brief discussion with Cross, after which appellant handed Cross something which Cross in turn then delivered to Genova. After examining the contents of the foil packets which Cross handed to him and determining that the substance inside was methamphetamine, Trooper Genova gave Cross forty dollars which Cross in turn paid to appellant. Appellant then went into a bar on the corner. Appellant was not arrested until the undercover narcotics investigation was completed. Although there currently is an outstanding arrest warrant for Cross, his whereabouts are unknown and he was not available at trial.

Appellant testified at his trial and denied ever having made the sale. He admitted only seeing Cross on the corner that night, exchanging greetings with Cross at

[ 244 Pa. Super. Page 463]

    that time because they had been long-time neighbors in Wilkes-Barre where both men still lived, and entering the bar to buy some beer. Appellant explained that he had been visiting with two women in a nearby apartment, and had been appointed to go out and get beer.

Appellant's story was corroborated by Catherine Cummings, one of the women with whom appellant had been visiting. Miss Cummings had also attended the preliminary hearing and, at trial, she testified that Trooper Genova's recitation of the facts at trial, as condensed above, was different from the testimony he gave at the preliminary hearing in several crucial aspects. Indeed, she testified that Genova first recounted at the preliminary hearing that the sale took place inside appellant's Cadillac rather than outside of her Datsun which appellant and she had been using that evening, and that Cross had the money when he received the narcotics from appellant. Miss Cummings further testified that, after a recess at the preliminary hearing, Genova resumed the witness stand, only this time he said appellant drove up in a Datsun and got out, and that Cross met him beside the car where the transaction took place. In either event, according to Miss Cummings, Trooper Genova testified that Cross had the money when he met appellant, rather than having to return with it after the drugs received Genova's approval.

In order to corroborate Miss Cummings testimony, and thereby demonstrate that Trooper Genova's testimony was a fabrication, appellant sought to introduce the search warrant for his car, and the magistrate's transcript of the preliminary hearing. The court admitted the search warrant into evidence, ...


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