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decided: May 25, 1979.


No. 1438 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lancaster County, Criminal Division at No. 1329 of 1976.


William A. Atlee, Jr., Lancaster, for appellant.

D. Richard Eckman, District Attorney, Lancaster, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files an opinion in support of affirmance in which Van der Voort, J., joins. Spaeth, J., files an opinion in support of reversal in which Cercone, President Judge, joins. Jacobs and Watkins, former President Judges, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 266 Pa. Super. Page 444]

The six judges who heard this appeal being equally divided, the judgment of sentence is affirmed.

PRICE, Judge, in support of affirmance:

Appellant was charged with delivery and conspiracy to deliver a controlled substance, specifically heroin, contrary to the Controlled Substance, Drug, Device and Cosmetic Act.*fn1 Following a three day jury trial, a verdict of guilty was returned on September 23, 1977. On April 15, 1977, appellant was sentenced on the delivery count to a term of imprisonment of 2 1/2 to 10 years, and ordered to pay restitution to the Commonwealth in the amount of $2,000 plus costs of prosecution. An identical sentence, less restitution, was imposed on the conspiracy count, to run concurrently.

The record indicates that on the evening of March 25, 1976, an undercover agent of the Bureau of Drug Control of the Commonwealth of Pennsylvania went to a house located in the City of Lancaster for the purpose of purchasing narcotics. The home was the residence of a confidential informant, one Henry Rauser, and the informant's wife, who were both present that evening. Two police officers had the house under surveillance from an apartment across the street. At approximately 10:00 p. m., the two officers observed appellant drive up to the house and honk the horn. The informant left the house at that point and walked down the street out of sight of the officers. He returned about five minutes later and reentered his residence through the

[ 266 Pa. Super. Page 445]

    front door. Appellant then drove away but returned several minutes later. When appellant made this second stop, the police observed one Jeuelleo Vulto approach appellant's car on the driver's side, where appellant handed him a small dark package. Mr. Vulto took the package to the rear door of the house and was admitted by the informant. Several minutes later, appellant went to the front door and was admitted by the informant's wife.

The undercover agent in the house testified that he heard a car horn honk at about 10:00 p. m., at which time the informant left the house. He returned a few minutes later and immediately went to the back door and admitted Mr. Vulto. The two of them joined the agent in the living room, where the informant placed a small package on the table in front of the agent. While the agent was examining the package, there was a knock at the front door and the informant's wife left the living room to answer it. The agent testified that although he could not see appellant from where he was sitting, he heard appellant state that she wanted to hold the bag to make sure there was no switch. Appellant, carrying a package, and the informant's wife entered the living room together a moment later. The agent counted out the purchase price of $2,000 and placed the money on the table. At this time, Mr. Vulto got up, crossed the room to where appellant was sitting, and took the package from her. He approached the agent and said to him, "I'm selling this to you: do you understand? I am selling this to you." Mr. Vulto then handed the package to the agent. Appellant immediately said, "Give me the money." Mr. Vulto took the money off the table and handed it to her. She put the money in a small case which she in turn placed in her purse. Before departing, appellant approached the agent and asked to see his "tracks," the marks drug users have as a result of repeated injections. The agent replied that he didn't have any, and appellant retorted, "It don't matter. I didn't sell you nothing anyway." Appellant and Mr. Vulto then left together, and the agent left shortly thereafter.

[ 266 Pa. Super. Page 446]

At trial, the Commonwealth called the undercover agent and one of the policemen who had been observing from across the street, both of whom testified as related above. A state chemist was called who described the various tests he had performed on the substance in the package which led him to conclude that it was heroin. Mr. Vulto also testified for the Commonwealth that he went to see appellant for a shot of drugs, at which time she asked him to take a package to the A & M Bar and wait for Mr. Rauser (the informant). Appellant drove Mr. Vulto to the bar and gave him the package, which he took into the bar with him. He met Mr. Rauser there and followed him to Mr. Rauser's back yard, where Mr. Vulto gave him the package. Mr. Vulto then went to the front of the house and entered through the door. In the living room, he saw Mr. Rauser, appellant, and the undercover agent. Mr. Rauser gave the agent the package, and the agent gave Mr. Vulto $2,000. After placing the money in his pocket, he left with appellant and later gave the money to her. Mr. Vulto testified that he received three sacks of drugs for his efforts.

The defense presented two witnesses. The first of these, one Glenna Springer, stated that she had been in appellant's car with appellant and Mr. Vulto for a short ride immediately before appellant and Mr. Vulto went to the house of the informer. The witness testified that she did not see or hear anything relating to drugs while she was in the car.

The second witness for the defense was appellant herself. She testified that Mr. Vulto had approached her earlier that evening and offered her $5 to give him a ride to the A & M Bar and then take him home again. He told her that he was going to get $200 from Mr. Rauser for delivering something to him. Appellant acceded, dropped Mr. Vulto at the bar, and saw him enter. Shortly afterwards, she saw Mr. Vulto leave the bar and enter a house nearby. Appellant testified that she knew the house belonged to Mr. Rauser because she had dropped Mr. Vulto there several times. She waited a bit longer in the car and finally went up to the house, knocked, asked for Mr. Vulto, and was invited inside. Upon entering

[ 266 Pa. Super. Page 447]

    the house she saw Mr. Vulto, the undercover agent, and Mr. and Mrs. Rauser. She asked Mr. Vulto why he was taking so long, and he responded that he was ready to go. They both left at that point.

Because none of the six contentions raised by appellant on this appeal is meritorious, we will affirm the judgment of sentence. Only two of these issues warrant extended discussion.*fn2

Appellant first argues that the lower court erred in refusing to order the Commonwealth to reveal the names and whereabouts of the confidential informant and his wife. We were recently confronted with the same issue in Commonwealth v. Bradshaw, 238 Pa. Super. 22, 364 A.2d 702 (1975). Our discussion in Bradshaw is directly apposite to the instant situation.

"The leading cases, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), and Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967), note that each case which presents the question of the informer's identity must be decided on an ad hoc basis. 'The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's ...

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