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COMMONWEALTH PENNSYLVANIA v. ROGER WALAK (03/17/77)

decided: March 17, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
ROGER WALAK, APPELLANT



COUNSEL

Alfred B. Bell, Greensburg, for appellant.

Albert M. Nichols, Dist. Atty., David B. Wasson, Asst. Dist. Atty., Greensburg, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Former Chief Justice Jones did not participate in the consideration or decision of this case.

Author: Manderino

[ 471 Pa. Page 458]

OPINION

Appellant, Roger Walak, was convicted of two violations of the Drug, Device and Cosmetic Act. Post-verdict motions were denied and sentence imposed. On appeal, the Superior Court affirmed. Commonwealth v. Walak, 228 Super. 404, 323 A.2d 886 (1974). Appellant's petition for allowance of appeal to this Court was then granted.

Appellant's convictions resulted from two alleged sales of marijuana to agents of the Bureau of Drug Control of the Pennsylvania Department of Justice. In each instance a meeting between the agents and appellant was

[ 471 Pa. Page 459]

    arranged by a paid informer of the Bureau of Drug Control, one George Sam. Sam also witnessed each of the two sales.

Approximately five months prior to trial, on April 3, 1973, appellant filed a request for a bill of particulars to which the prosecution responded on April 10, 1973. About three weeks prior to trial, on August 29, 1973, appellant filed a second request, also entitled a "Request for a Bill of Particulars" asking specifically for the names and addresses of "any agents or participants to the alleged criminal transaction known by the state." The prosecution did not respond to this request. Appellant renewed his request at the beginning of his trial, moving that the prosecution be required to furnish the whereabouts of the witness Sam. Apparently, at this time, the defense knew that the name of the informer was George Sam, but did not know his whereabouts. The appellant's motion was denied.

The prosecution did not call Sam as a witness during appellant's trial. Appellant was convicted solely on the testimony of the agents who allegedly purchased the marijuana from the appellant in the presence of Sam.

Appellant contends that the trial court erred in refusing his request that the prosecution be ordered to disclose the whereabouts of the informer eyewitness, George Sam. We agree. There is no dispute that Sam was a material eyewitness to the crimes charged. Under these circumstances, appellant was entitled to the information sought. Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967); Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

The prosecution argues that, prior to trial, it had no obligation to furnish the information requested about the eyewitness. We are, however, not concerned in this appeal with that issue. Although appellant, prior to ...


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