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COMMONWEALTH PENNSYLVANIA v. PETER S. CLUCK (12/02/77)

decided: December 2, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
PETER S. CLUCK, APPELLANT



No. 1712 October Term, 1975, Appeal from the Judgment of Sentence Imposed July 8, 1975, of the Court of Common Pleas of Centre County, Criminal, at No. 888 of 1974.

COUNSEL

Alan Ellis, State College, for appellant.

Robert A. Mix, Assistant District Attorney, Bellefonte, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion in which Hoffman, J., joins.

Author: Cercone

[ 252 Pa. Super. Page 231]

The instant appeal arises from appellant's conviction for violating The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 (1977) (Hereinafter, CSDD & C). In particular, the jury found appellant guilty of sale at retail of a nonproprietary drug. Id. at § 780-113(a)(10). On appeal appellant argues: (1) The Commonwealth permitted an unreasonable period of time to elapse between the date of the offense and the date of appellant's arrest; (2) The Commonwealth improperly permitted testimony concerning an out-of-court photographic identification; (3) The Commonwealth improperly concealed the existence of a promise to its principal witness of leniency in return for testimony against appellant; and, (4) The Commonwealth failed to prove that appellant's conduct was proscribed by the terms of the CSDD & C, 35 P.S. § 780-113(a)(10). Since we disagree with those of appellant's arguments which are properly before us on this appeal, we will affirm.*fn1

Prior to October 31, 1973, a former boyfriend of Susan Dunkle contacted her and asked her to arrange for him to purchase cocaine. At first Miss Dunkle, who was a student at Penn State, declined to get involved, but eventually she succumbed to her friend's persistence and agreed to try to arrange a drug transaction. On October 31, 1971, Miss

[ 252 Pa. Super. Page 232]

Dunkle met her friend, who was accompanied by two other persons, and the group proceeded by automobile to 1915 North Oak Lane in State College, Pennsylvania. Miss Dunkle was to act as the agent for the three in purchasing the cocaine while they waited outside in the car; she did not know that her companions were in fact undercover agents for the Pennsylvania Department of Justice. The purchase was to be ten grams of cocaine for $550; and the sale was consummated, after some haggling over the price, when appellant agreed to accept $550. Miss Dunkle paid appellant the $550 she had received from her companions, and appellant delivered to her ten individually wrapped packets of what he purported to be cocaine. Subsequent chemical analysis revealed that the substance was lidocaine hydrochloride rather than cocaine.

This episode was part of larger investigation, coincidentally, of appellant's sister and brother-in-law, who were suspected to be trafficking in narcotics from their business place, a gift shop called the Lazy-J.*fn2 Not wishing to reveal the identity of their undercover agents, and thereby eliminate their chances of succeeding in the larger investigation, the police postponed arresting Miss Dunkle. However, in the spring of 1974 Miss Dunkle was arrested and charged with possession of lidocaine hydrochloride. Since it was her first offense of any kind, and she was a student working her way through college, on June 26, 1974 the court accepted a recommendation of probation without verdict. CSDD & C, 35 P.S. § 780-117. The court established a one-year probationary period, set a fine of $200, and ordered Miss Dunkle to pay the costs of prosecution, a sum which included the $550 expended by the Commonwealth to make the drug purchase. However, when counsel explained to the court that Miss Dunkle's agreement to purchase the drugs was wholly gratuitous so that she had received no part of the purchase money, the court stated that the costs would be

[ 252 Pa. Super. Page 233]

    reduced by $550 if Miss Dunkle testified at the expected trial of the person from whom she purchased the lidocaine hydrochloride.*fn3

By November, 1974, the Commonwealth's investigation of the Lazy-J had terminated, and appellant's identity had been established. Appellant was then arrested and charged with sale at retail of a nonproprietary drug, and theft by deception.*fn4

Appellant first maintains that the lengthy delay of one year between the occurrence of the offense charged and his arrest denied him due process of law.*fn5 Appellant alleges that his defense was damaged by the delay because he was unable to reconstruct his activities on the night in question, October 31, 1973.

In Commonwealth v. McCloud, 218 Pa. Super. 230, 235, 275 A.2d 841, 844 (1971) we recognized that "a proper balance must be struck between defendant's right to identification testimony of probative value and the public's right to effective police detection and control of the trafficking in narcotics."

[ 252 Pa. Super. Page 234]

Into the balance, given some prejudice to the defendant, must be put "the reasonableness of the delay necessitated by the conduct of an effective investigation." Id. 218 Pa. Super. at 236, 275 A.2d at 844. In McCloud, this court upheld the conviction because the identification testimony was strong and the Commonwealth's justification for the delay was reasonable. Compare Commonwealth v. DeRose, 225 Pa. Super. 8, 307 A.2d 425 (1973). In the instant case, Miss Dunkle had been acquainted with appellant prior to conducting a drug transaction with him, and her testimony in court was strong and sure. In addition, eight months of the one year between the offense and appellant's arrest elapsed before the Commonwealth learned appellant's identity; and, as the Commonwealth explained, appellant was not then arrested because of his close relationship to the targets of the larger investigation, his sister and brother-in-law. In light of the foregoing, the lapse of one year between the offense and appellant's arrest did not deny him due process of law. See also Commonwealth v. Barnes, 237 Pa. Super. 407, 352 A.2d 107 (1975); Commonwealth v. King, 234 Pa. Super. 247, 338 A.2d 621 (1975); Commonwealth v. Butler, 232 Pa. Super. 283, 331 A.2d 678 (1974).

Appellant next argues that he is entitled to a new trial because of Miss Dunkle's reference to a photographic identification she had made of appellant prior to trial. The testimony challenged is reported as follows:

"Q. At what time did you go to Mr. Kerr's [a narcotics ...


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