No. 2004 Philadelphia Term, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lancaster County, Criminal Division, at Nos. 1812, 1815, and 1816 of 1978.
John F. Pyfer, Jr., Lancaster, for appellant.
Edward F. Browne, Jr., Assistant District Attorney, Lancaster, submitted a brief on behalf of Commonwealth, appellee.
Spaeth, Hoffman and Van der Voort, JJ. Van der Voort, J., files a concurring and dissenting opinion.
[ 299 Pa. Super. Page 116]
Appellant contends that the lower court erred in: (1) consolidating for trial offenses arising from two drug transactions; and (2) excluding his offer of prior recorded testimony of an unavailable witness. We hold that the charges were properly consolidated but that the testimony was erroneously excluded. Accordingly, we reverse the judgment of sentence and remand for a new trial.
Appellant was charged in three informations with several drug offenses arising from transactions with an undercover police officer and a paid police informant. The first two informations concerned sales of cocaine on April 6 and 7, 1978. The other involved a deal for liquid cocaine on June 1, 1978. Before trial, appellant sought to sever the latter (June) from the former (April) informations. The lower court denied his motion and held trial on all charges on June 14, 1979.
At about 9:30 p. m. on April 6, 1978, the paid informant, Danny Krushinski, in the presence of Robert Roderick, the undercover police officer, arranged by telephone to meet appellant at a local hotel. At 11:45 p. m. the three met in
[ 299 Pa. Super. Page 117]
appellant's car, and appellant displayed a one-ounce bag and a quarter-ounce bag of cocaine. Roderick paid appellant $1,900 for the larger bag and agreed to buy the smaller one the following day. After the transaction, Roderick also said he could supply to appellant a bottle of phenyl 2 propenone (P2P), a non-controlled substance essential to manufacturing methamphetamine, in exchange for some finished product. The three briefly negotiated this future deal, then parted. The following morning, April 7, 1978, Krushinski arranged to meet appellant in the parking lot of a tavern during appellant's lunch hour. Krushinski then told Roderick of the meeting. At about 12:30 p. m., appellant met Roderick and talked about selling the smaller bag. After Krushinski arrived, Roderick paid $500 for it. The three then further planned the exchange for P2P. Roderick and Krushinski suggested they would accept a small quantity of drugs as "collateral," provided Roderick could visit the laboratory and later receive some finished methamphetamine. Leaving the terms to further negotiation, appellant returned to work by 1:00 p. m. On May 31, 1978, Roderick arranged to meet appellant at 10:30 p. m. the following day. On June 1, 1978, Roderick and Krushinski met appellant in the hotel parking lot, and after a brief conversation, Roderick gave appellant a bottle of P2P in exchange for a small vile of liquid cocaine.
Appellant advanced an entrapment defense. He testified that Krushinski had rehearsed him and had supplied all the drugs involved. He testified that Krushinski had approached him at work several times in March, 1978, and on one occasion showed him four hundred-dollar bills, and told him he could make similar money by posing as a drug seller in Krushinski's scheme to defraud his "partner." He also testified that he returned to Krushinski all the P2P and all but $150 of the money he received in the drug sales. Krushinski denied these assertions. Another defense witness testified that she had heard Krushinski bragging that he had supplied the ...