No. 654 October Term, 1976, Appeal from the Judgment of Sentence imposed on November 17, 1975, by the Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County, Nos. 524, 527, 610-613, July Term, 1973.
Malcolm W. Berkowitz and Arthur L. Gutkin, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Spaeth, J., joins.
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This appeal arises from convictions on four counts of delivery or possession with intent to deliver a controlled substance, namely heroin, under The Controlled Substance, Drug, Device and Cosmetic Act,*fn1 and three counts of conspiracy.*fn2 Appellant's motion for a new trial and in arrest of judgment was denied by the lower court. We affirm.
The record in this case discloses the following facts. On December 1, 1972, State Trooper Benjamin Brooks, a narcotics undercover agent, went to appellant's home. Brooks was accompanied by Oscar Jenkins, an informant. Appellant transferred to Brooks a bag containing five bundles of heroin and collected $500. Later, appellant gave the money to Robert Mangini, who had provided the drugs. Appellant was permitted to retain $125 from the sale.
A second transaction occurred between Brooks and appellant on December 15, 1972, at which time Donna Jackson, a crime commission agent, and Constance Allen, Jenkins' girlfriend, were present with Jenkins.*fn3 Again, Brooks paid $500 for five bundles of heroin. Appellant gave the cash to Mangini.
Two further transactions, involving six bundles and two bundles respectively, occurred at the appellant's home on January 12, and January 13, 1973. Mangini was present at the third transaction. Appellant received $100 for the final sale.
Appellant was arrested on February 20, 1973. Trial which began on October 25, 1973, resulted in a mistrial. A second trial, postponed by numerous delays and continuances, finally began on April 11, 1975. Appellant defended on the basis of entrapment, saying that he participated in these transactions
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only because of his friendship with Oscar Jenkins. The jury nevertheless found appellant guilty on all counts. Appellant's post-trial motions were denied and the court imposed sentence.
Appellant's first contention is that the prosecution failed to comply with a pre-trial order regarding disclosure of the informer's whereabouts. A defendant's right to disclosure of an informer is recognized in given circumstances. See, McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967). The obligation of physically producing an informer, however, is not ordinarily imposed upon the prosecution.
Appellant maintains that the Commonwealth was instructed by pre-trial order to reveal the whereabouts of the informer, Jenkins, appellant's admitted friend. Moreover, appellant insists that the prosecution had a duty to produce Jenkins. After a careful review of the order, we find it difficult to say what was required of the prosecution.*fn4 The record shows, however, that the Commonwealth complied with the order to the extent of supplying appellant with known addresses of Jenkins, as well as addresses of eye-witnesses, Donna Jackson and Constance Allen.
Interpreting the pre-trial order to require only full disclosure of known whereabouts, rather than production of the informer, comports with current law, since the prosecution is not compelled to call all material eye-witnesses at trial. See Commonwealth v. Horn, 395 Pa. 585, 150 A.2d 872 (1959); Commonwealth ex rel. Sprangle v. Maroney, 423 Pa. 589, 225 A.2d 236 (1967). Moreover, in this case in which one and one half years were consumed in pre-trial delays and continuances, most of them at appellant's request, it would
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have placed an unreasonable burden on the prosecution to have required them to conduct a continuous search for the informer.
One of the most significant deficiencies in appellant's position is that he made no pre-trial request for enforcement of the order as he now construes it. Rather, as late as January 27, 1975, and February 13, 1975, appellant requested continuances so that he could locate witnesses, among them, Jenkins. At trial, appellant's counsel conceded that the prosecution was not required to go out and find the informer or the eye-witnesses. In any event, appellant was not prejudiced, since he personally received leads as to Jenkins' whereabouts just before trial, but failed to find his friend after reasonable efforts. Appellant located Ms. Allen, Jenkins' girlfriend, who testified on appellant's behalf.
Appellant's second contention is that he is entitled to dismissal of his indictments under Pa.R.Crim.P. 1100. During the interim between the mistrial and commencement of a new trial, appellant made several unsuccessful requests for dismissal under Pa.R.Crim.P. 1100(e). Then, on December 9, ...