No. 412 April Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division at No. CC7600273, entered on October 15, 1976.
Lester G. Nauhaus, Assistant Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, President Judge, concurs in the result. Hoffman, J., did not participate in the consideration or decision of this case.
[ 262 Pa. Super. Page 201]
This is an appeal from a jury verdict in Allegheny County that found appellant guilty of violating the Pennsylvania Uniform Firearms Act.*fn1 Appellant's post-verdict motions were denied. We affirm the decision of the lower court.
At the trial, appellant's counsel stipulated that appellant, Lawrence Calvert, had been convicted of burglary in 1968. The testimony at trial then revealed the following set of facts. Detective Robert Payne received a call from James Dolfi, who was unknown to Payne at the time. Dolfi informed him that illegal sale of firearms was being conducted and Calvert was involved. Dolfi lived in the apartment adjoining appellant's which was connected by a joint bathroom. Dolfi took Payne to the apartment and informed Calvert that Payne was the man who had come to talk about the gun. In response, Payne testified that appellant said, "Tell him to come in," whereupon he entered appellant's apartment through the joint bathroom. Officer Payne testified that appellant went into another room and returned with a gun; Calvert testified that on a prior occasion Dolfi
[ 262 Pa. Super. Page 202]
had come to Calvert's apartment and had placed the handgun on an end table in his apartment and it had not been touched since. After a brief discussion concerning the sale of the handgun, Payne signaled for the other officers to enter the apartment. Appellant was then arrested.
In explaining his version of the transaction, Calvert stated that Dolfi had asked him to help with the sale of the gun because Dolfi needed the money since he wanted to get married. Appellant testified that he protested at first but later acquiesced. According to Calvert, Dolfi then brought the handgun into appellant's apartment and set it on an end table. Calvert said he never touched the gun.
The informant, Dolfi, was Calvert's personal friend who had been a member of a three person partnership with him that had terminated several months prior to the incident in question. Dolfi's name was mentioned in the indictment, but he was not listed on the indictment as a Commonwealth witness nor was he called at trial. Although there were attempts made to locate Dolfi during the trial so that he might testify as a defense witness, the informant could not be found. At the close of the trial, defense counsel requested the following charge:
"Because James Dolfi was working in cooperation with the police, you may draw the inference from the Commonwealth's failure to produce him that his testimony would have been detrimental to the Commonwealth's case."
The trial judge refused to charge on this point. Based on this evidence, appellant was acquitted on the charge of the sale of the firearm, but was convicted of the possession of it ...