No. 2207 PHILA. Term, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division of Berks County at No. 79028001-5.
William R. Bernhart, Reading, for appellant.
George C. Yatron, District Attorney, Reading, did not file a brief on behalf of Commonwealth, appellee.
Spaeth, Cavanaugh and Lipez, JJ.
[ 298 Pa. Super. Page 351]
This is an appeal from judgments of sentence for possession, possession with intent to deliver, and delivery of cocaine. Appellant argues, first, that the lower court erred in refusing to grant a mistrial or in giving appropriate curative instructions when the prosecutor in his closing address said that the case was "an air tight delivery case," and second, that the lower court erred in its response to a question from the jury. We are not persuaded by the first argument but we are by the second. We therefore reverse and remand for new trial.
The principal Commonwealth witness was Detective Douglass Rentschler. He testified that on September 22, 1978, while working in an undercover capacity with the Reading Vice Division, he met appellant at a row home in Reading, 1763 Cotton Street, and appellant handed him a clear plastic packet with a clear substance inside, in exchange for which he gave appellant $85. Officer Terry Wagner testified that he waited outside, and that after coming out of the row house, Detective Rentschler gave him a clear plastic packet, which he in turn gave to Officer Keith Fister. Officer Fister testified that he took the packet to the State Police Crime Laboratory, and Paul Skrimcovsky of the laboratory testified that he determined that it contained .86 grams of cocaine.
Appellant's defense was, in essence, that he had been "framed." Through Officer Wagner he proved that in discussions among themselves, members of the Reading police had expressed doubt regarding Detective Rentschler's "credibility and honesty." N.T. 57-58. Appellant also called Patricia Ann Randazzo, with whom appellant was living at 1763 Cotton Street. She testified that on September 22, 1978, one Robert Zoltan was living with them. She further testified that when Detective Rentschler came to the door,
[ 298 Pa. Super. Page 352]
[h]e asked Ralph [appellant] if he had any Cocaine and Ralph said no, he didn't, and he said Zoltan and Ralph said, come on in and I'll go see, and so he came in and sat down.
She described what occurred next as follows:
Q. Did Zoltan room there?
A. A room, yes, the third floor; third floor front bedroom.
Q. Would you please -- after Ralph went up to get Zoltan, Ralph came down the steps first, is that correct?
Q. How far behind was Zoltan?
A. He wasn't on the steps at all. He got down maybe a minute later.
Q. What happened when Zoltan came down?
A. Well, he was almost to the bottom of the steps and he threw something to Rentschler.
Q. Did you see what he threw?