No. 1639 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Indictment No. 352, June Session, 1976
John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Eric B. Henson, 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. Cercone, J., concurs in the result. Spaeth, J., files a dissenting opinion, in which Hoffman, J., joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 84]
This is an appeal from a conviction for the unlawful sale of heroin.
[ 258 Pa. Super. Page 85]
Appellant posits that he is entitled to a new trial because the court below improperly denied his Pre-trial Motion*fn1 requesting disclosure of the name and address of a police informant who allegedly was the only neutral witness to the drug sale in question, where Appellant's defense was that of "mistaken identity."
We find Appellant's contention to be without merit and, therefore, affirm the judgment of sentence of the lower court.
The facts are as follows:
On April 8, 1976, at approximately 10:45 P.M., Officer Michael Troutner and a confidential police informant proceeded in a car to the northwest corner of Franklin and Oxford Streets in the city of Philadelphia. Immediately upon parking the car, the informant got out, proceeded to the front of the vehicle, opened the hood, disconnected the headlights, and before the defendant arrived, "walked to the other side of the street and stood there until the transaction was completed and returned a short while afterwards." (Disclosure hearing T. at 30-31). As revealed by direct and cross-examination, the informant was approximately thirty (30) feet across the street from Officer Troutner and the Appellant during the time of the drug transaction (Disclosure hearing T. at 32 and 60).
In addition, at the hearing on Appellant's Motion for Disclosure, Officer Thomas Volkmar testified that he was the backup for Officer Troutner on April 8, 1976, and in that capacity, with the use of binoculars (Disclosure hearing T. at 88) had observed the informant leave the vehicle and walk across to the southwest corner of Oxford Street where the informant was observed throughout the period during which the drug transaction occurred (Disclosure hearing T. at 86-87).
Officer Volkmar further testified that he recognized the Appellant from a prior arrest (Disclosure hearing T. at 89),
[ 258 Pa. Super. Page 86]
that he in fact did arrest Appellant, Bruce Roberts, a few minutes after the drug transaction took place, as a result of information received from Officer Troutner, that he viewed the drug transaction through his binoculars, and that the man he arrested, ...