No. 375 April Term, 1978, Appeal from the Order in the Court of Common Pleas of Allegheny County, No. CC7704588A, Criminal Division.
Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
J. Roi Jones, Pittsburgh, for appellee.
Price, Hester and Watkins, JJ.
[ 274 Pa. Super. Page 235]
This Commonwealth appeal arises from the order of the trial court dismissing the complaint against appellee at CC7704588A.*fn1 For the reasons stated herein, we reverse that order and remand for a new trial.
The pertinent facts are as follows. At trial, Deputy Sheriff Willie Bowman testified that on November 18, 1976,
[ 274 Pa. Super. Page 236]
he was assigned to the Drug Enforcement Administration. On that date, agent Bowman went to Singer's Tavern in Pittsburgh's North Side accompanied by an informant named "Bonnie". The latter introduced agent Bowman to one Ronald Scott, who asked the agent if he were the individual who was to make a heroin purchase. Agent Bowman answered affirmatively and indicated that he would require three teaspoons, but when asked to quote a price, Mr. Scott could only respond that he would have to discuss it with appellee. Mr. Scott then went to the rear of the tavern, and, beyond the agent's hearing but within his field of vision, spoke with appellee. Upon the former's return, he requested that agent Bowman accompany him to the men's room. There, Mr. Scott stated that appellee demanded $750 for all three spoons, a price to which Agent Bowman acceded. The agent handed Mr. Scott $750 in official funds and seated himself briefly in the tavern. Five minutes later, Mr. Scott returned, again requested agent Bowman's presence in the men's room, and there handed him three teaspoons of what appeared to be heroin. Following the transaction, the agent searched out appellee in the bar and informed him that in the event any further purchases were made, he wished to deal directly through him. The latter refused and retorted that any future dealings would have to be made through either Mr. Scott or "Bonnie". Following this, agent Bowman and "Bonnie" departed. Agent Bowman then met with two other agents who tested the substance and positively identified it as heroin.
After agent Bowman testified to this transaction, identified appellee in court as the same individual who had been in the tavern, and recounted the lab results, he was shown a brown paper bag by the assistant district attorney, William R. Haushalter, Esquire, that bore the identification number D277-X-203. The witness opened the bag and identified its contents as the substance he had received from Mr. Scott. The prosecuting attorney then offered the exhibit into evidence and resumed his questioning. Prior to answering any further questions, however, agent Bowman requested to
[ 274 Pa. Super. Page 237]
re-examine the evidence. Mr. Haushalter complied and the witness privately informed him that the exhibit was not the bag he had received from Mr. Scott, as there were six, not three, packets contained therein.*fn2 Mr. Haushalter asked two further questions concerning surveillance, and then asked the witness to re-identify the exhibit, at which time agent Bowman stated on the record that the packet was not that which he had received in Singer's Tavern. Appellee's counsel immediately moved for a mistrial and dismissal of the information because of the admission of the erroneous contraband. At side bar, the prosecuting attorney explained that the mistake had occurred because the agent who brought the contraband to the courtroom had retrieved the evidence for case No. 277-X-203 (an unrelated matter), instead of that for No. 276-X-203 (the instant case), and that the latter remained in the ...