No. 2676 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Lehigh County, Criminal Division - No. 1463 of 1978.
Richard J. Orloski, Allentown, for appellant.
Ann Keck, Assistant District Attorney, Allentown, for Commonwealth, appellee.
McEwen, Montemuro and Shertz, JJ. McEwen, J., concurs in the result. Shertz, J., files dissenting opinion. Decision was rendered prior to Shertz, J., leaving the bench of the Superior Court of Pennsylvania.
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This is an appeal from the Judgment of Sentence by the court below following appellant's conviction, by a jury, of possession,*fn1 possession with intent to deliver,*fn2 and delivery of*fn3 a controlled substance; to wit, phencyclidine (Hereinafter PCP). On appeal, the central issue is whether or not the court below erred in refusing to grant defendant's request for a writ of habeas corpus ad testificandum. For the reasons discussed below, we agree with the appellant on this issue and, accordingly, we reverse and remand for a new trial.*fn4
In this case, the defendant was convicted of possession of PCP, possession with intent to deliver PCP and delivery of
[ 294 Pa. Super. Page 75]
PCP. The Commonwealth's case rested entirely on the testimony of Daniel Licklider, an undercover agent for the Pa. Dept. of Justice, Bureau of Drug Control, and Tony Jaindl, an alleged accomplice to the sale of PCP. Agent Licklider testified that on June 2, 1978, Tony Jaindl directed him to the 900 Block of North 7th Street in Allentown, Pennsylvania, took $245.00 from agent Licklider into the corner house on that street, and returned with four packets of the PCP. Agent Licklider was forbidden to enter the house. There is some controversy as to when Tony Jaindl first implicated the defendant (appellant herein), but his testimony at trial was that June Fava supplied him with the drug. ("Controlled substance" under Schedule III of the Controlled Substance, Drug, Device, and Cosmetic Act.) The house that Tony Jaindl entered on North 7th Street is the residence of the appellant.
On the first day of the trial, appellant's counsel asked Tony Jaindl on cross-examination if he knew Guy Camioni, a one-time boarder at the defendant's residence. Tony Jaindl admitted knowing Mr. Camioni, but stated that he had never purchased any drugs from him. Mr. Camioni was at that time incarcerated in Lehigh County Prison, having been previously convicted of possession and sale of marijuana.
At the close of the second day of trial, the assistant district attorney prosecuting the case went with Agent Licklider to Lehigh County Prison to intervene Guy Camioni. On the record, but out of hearing of the jury, on the opening of the third day of trial, Agent Licklider and the prosecuting district attorney told the court of their interview. Camioni apparently admitted living at the Fava residence and to having once sold some marijuana to Tony Jaindl. Camioni did not, however, specify on which dates he lived at the
[ 294 Pa. Super. Page 76]
residence nor did he take responsibility for selling any PCP on the date in question here. Agent Licklider said he asked Camioni what his response would be if he were called to testify. According to Licklider, Camioni's response was, "I could take the fifth amendment. I'm ...