No. 595 October Term, 1978, Appeal from judgment of sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, Nos. 1036-37, 1040-43, 1047-48, and 1053-54 April Term, 1977.
Colie B. Chappelle, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Van der Voort, Hester and Wieand,*fn* JJ.
[ 277 Pa. Super. Page 365]
Following a jury trial, appellant Maria Ayala was convicted of five counts of knowingly or intentionally possessing a controlled substance (heroin), two counts of manufacture, delivery, or possession with intent to deliver a controlled substance (heroin), and five counts of criminal conspiracy. Post trial motions were argued and denied and an aggregate sentence of nine and one-half to twenty years imprisonment was imposed. This direct appeal followed.
Facts adduced at trial established that on divers dates in February and March, 1977, undercover narcotics Officer Walter Smith visited a residence at 513 Rising Sun Avenue in Philadelphia for the purpose of purchasing quantities of heroin. Appellant and one Michael Hernandez were present at each transaction and jointly participated in the sales to
[ 277 Pa. Super. Page 366]
Officer Smith. Both individuals were arrested following the fifth and final sale in the early morning hours of March 11, 1977. In defense to the charges, appellant flatly denied participating in any of the transactions and presented testimony suggesting that the Commonwealth's scenario was a fabrication by narcotics officers in an effort to pressure appellant's daughter, Mildred Carrasquillo, a reputed drug dealer, to act as a police informant.
Appellant first contends that the Commonwealth's use of a blackboard before the jury was prejudicial error. During the direct examination of Officer Smith, the assistant district attorney wrote on the blackboard, for each drug sale, the date, amount of heroin and money exchanged, and the property receipt number for the drugs. When subsequent police officers testified, the blackboard was turned away so as to prevent the witnesses from conforming their testimony to the recorded figures. Only when each witnesses' testimony was shown to be in accord with that already recorded was the board turned back. We find no error in the prosecutor noting the basic facts of the case as Smith testified where there were a series of five separate transactions and varying figures involved. Such diagrams are normally admissible, if shown to be accurate, in order to aid the jury in understanding the testimony of a witness. Cf. Wilson v. Nelson, 437 Pa. 254, 258 A.2d 657 (1969). "Whether the . . . diagram is admissible is a question for the trial court in his discretion to resolve and his ruling will not be disturbed unless there has been an abuse of that discretion." Wharton, Criminal Evidence, (14th ed., Torica, 1973) § 641. In Commonwealth v. Laniewski, 427 Pa. 455, 235 A.2d 136 (1967), the police officer was permitted to transcribe onto a board the contents of bookmaking slips seized from the defendant. The Court stated it was not "error for the court to permit the witness to demonstrate on the board diagram the contents of the slips. 'A wide discretion is vested in the trial judge in permitting demonstrations or experiments to be made in the presence of the jury.' Henry, Pa. Evidence, Vol. 1, § 424. The judge's determination that
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it would be helpful for the jury to see the diagram on the board was a proper exercise of that discretion." Id., 427 Pa. at 460, 235 A.2d at 139. See also, Commonwealth v. Morgan, 448 Pa. 494, 295 A.2d 77 (1972); Commonwealth v. Kelly, 484 Pa. 527, 399 A.2d 1061 (1979) (due to complexity of charges and nature of perjury-bribery trial, court did not err in placing identifying notations for jury on verdict slip).
In the instant case, five sales were involved each on different dates with different amounts of drugs and money, and different property receipt numbers. To record such figures was certainly an aid to the jury in ferreting out the facts of the case. The board did not go into the jury room during deliberations nor were the jurors themselves permitted to record the figures. Pa.R.Crim.P. 1113. Moreover, we note that, during the cross-examination of Officer Smith, appellant's counsel himself employed a diagram in order to show the jury the streets and homes surrounding 513 Rising Sun Avenue. N.T. ...