No. 1634 October Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal Division, at 6042, September Session, 1978.
Ronald D. Ashby, Media, for appellant.
Jean Marie Cella, Assistant District Attorney, Media, for Commonwealth, appellee.
Spaeth, Brosky and Van der Voort, JJ. Van der Voort, J., files a dissenting opinion.
[ 281 Pa. Super. Page 123]
This is an appeal from a judgment of sentence imposed after a jury convicted appellant of possession of controlled substances*fn1 and possession with intent to deliver.*fn2
The trial was on January 9, 1979. Appellant argues that the lower court abused its discretion when it refused his request to continue the trial so that he could obtain the notes of testimony at the suppression hearing, which had been held on January 4, 1979.*fn3 Since we agree with appellant,
[ 281 Pa. Super. Page 124]
we do not reach the other arguments he has raised on this appeal.*fn4
The Commonwealth's evidence at the trial may be summarized as follows.
At approximately 11:30 A.M. on October 20, 1978, one Joseph Baldwin security manager at the Sun Shipbuilding and Dry Dock Company, received a telephone call concerning a suspicious vehicle parked outside the company parking lot. As a result of the telephone call, one Nathaniel Reedy, a security officer, was sent to the parking lot. Reedy observed a blue and white pickup truck parked on the street adjacent to the parking lot. N.T. at 15-16 (January 9, 1979). A blue van drove up and the driver of the van walked up to appellant, who was sitting in the driver's seat of the pickup truck. Reedy testified that he observed something being exchanged between appellant and the driver of the van. N.T. at 16 (January 9, 1979). Reedy returned to the security office and Baldwin called the Chester Police. N.T. at 23-24 (January 9, 1979). At approximately 11:45, Officers Fennell and Gretsky of the Chester Police arrived at the scene. Fennell testified that he and Gretsky approached the pickup truck, with Fennell on the driver's side and Gretsky on the passenger's side. N.T. at 53 (January 9, 1979). Fennell knocked on the window of the driver's side and asked appellant for identification. N.T. at 53 (January 9, 1979). Appellant produced a wallet and handed his driver's license to Fennell. N.T. at 53-54, 98 (January 9, 1979). Appellant reached into his glove compartment to recover his owner's card which he was unable to find. N.T. at 54 (January 9, 1979). As appellant was opening the glove compartment, Fennell ordered him out of the truck. N.T. at 54 (January 9, 1979). Fennell observed plastic bags protruding from appellant's left coat pocket, which Fennell believed contained
[ 281 Pa. Super. Page 125]
marijuana. Appellant was placed under arrest and the plastic bags were confiscated. Subsequent chemical analysis revealed that the substances confiscated were 329.6 grams of marijuana and 27.4 grams of hashish.
The testimony at the suppression hearing, which, as mentioned above, was only five days before the trial, was inconsistent with the testimony at the trial in several respects. Reedy testified at trial that he had not seen appellant prior to the incident, while at the suppression hearing he testified that he knew appellant "by sight," though not by name. N.T. at 6 (Suppression Hearing, January 4, 1979). While Fennell testified at trial that he had approached the driver's side of the pickup truck and asked appellant to produce identification, Gretsky testified at the suppression hearing that it was he who had approached appellant and asked him to produce his driver's license and owner's card. N.T. at 16 (Suppression Hearing, January 4, 1979). Further, while Fennell testified at trial that appellant handed him his driver's license, Gretsky testified at the suppression hearing that it was he to whom appellant handed his driver's license. N.T. at 31 (Suppression Hearing, January 4, 1979).
Appellant's counsel's inability at trial to refer to the notes of testimony at the suppression hearing rendered futile his attempt to impeach Fennell. Thus, the ...