Appeal from Judgment of Sentence of the Court of Common Pleas of Lackawanna County, Criminal Division, at No. 291 of 1973
Michael Basista, Scranton, for appellant.
Ernest D. Preate, Jr., Assistant District Attorney, and Paul R. Mazzoni, District Attorney, Scranton, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Hoffman and Spaeth, JJ., concur in the result only.
[ 248 Pa. Super. Page 423]
Appellant, Robert Lee Jackson, was found guilty by a jury of being an accessory before the fact to the delivery of a controlled substance in violation of the Pennsylvania Penal Code, 18 P.S. 5105.*fn*
The transaction, as identified by Thomas F. Lepere, an undercover agent for the Bureau of Drug Control, consisted of a sidewalk negotiation in the City of Scranton between the appellant and the undercover agent. The agent inquired of appellant as to the availability of several drugs and was told that cocaine was available from a Mr. Clay who stood nearby. The agent negotiated with appellant the price to be paid for six bags of cocaine which were then delivered to the agent by Mr. Clay, the bystander.
Appellant's major challenge is to the adequacy of his identification. The agent was certain of his identification of appellant on direct examination, but conceded on cross examination that he could not remember how appellant was dressed or whether he wore a beard, a goatee or long sideburns. The agent admitted that he had never dealt with appellant before this case. However, he concluded his cross examination with the statement that there was no doubt in his mind that appellant was the person with whom he negotiated. He explained his failure to identify dress or hair by the fact that in his training as an undercover agent he was taught through caricature drawings to concentrate upon essential facial characteristics which could not be changed as hair or dress could be.
Appellant's defense was the alibi that he had been in Philadelphia at the time of the alleged transaction in Scranton. This was supported by three witnesses. However, the jury found for the Commonwealth, thereby resolving the
[ 248 Pa. Super. Page 424]
issue of the adequacy of the agent's identification and the credibility of appellant's alibi.
Appellant next contends that the trial court erred in not including in its charge to the jury specific instructions as to how to evaluate identification testimony. No such instruction was requested of the trial court by appellant nor were any exceptions or additions taken to the charge when opportunity was afforded for such moves. The court included in its charge detailed instructions on how to evaluate the credibility of witnesses, which would include the issue of identification. We have read the charge in its entirety and find it adequate. There is nothing in the law which requires specific instructions on the issue of identification, particularly if none are requested.
Appellant makes the further contention that he should be granted a new trial because, in the course of the cross examination of the undercover agent by appellant's counsel, the agent testified that he saw appellant's picture in the Scranton Detective Bureau in connection with ...