No. 600 October Term, 1979, No. 1388 October Ter, 1979, Appeals from the Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Columbia County at Nos. 532 & 542 of 1977.
Alan Ellis, State College, for Arenella, appellant.
Robert C. Fogelnest, Philadelphia, for Hunsinger, appellant.
Gailey C. Keller, District Attorney, Bloomsburg, for Commonwealth appellee.
Spaeth, Hester and Cavanaugh, JJ. Spaeth, J., files concurring and dissenting opinion.
[ 306 Pa. Super. Page 121]
These two appeals are from judgments of sentence for possession with intent to deliver or delivery of marijuana in violation of The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, § 13(a)(30), as amended, 35 P.S. § 780-113(a)(30). Appellant Frank Arenella was convicted of one count; appellant Bruce Hunsinger of two counts. Their activities and their trials, in each case before a jury, were separate. However, their arrests resulted from the same undercover investigation of drug dealing in the Bloomsburg area, and the principal witnesses for the Commonwealth were the same in each case. In addition, various pre-trial proceedings in each case, as well as in other cases resulting from the same investigation, were consolidated, and the testimony of an expert witness who testified at the sentencing proceeding was before the lower court in each of these cases. We therefore ordered the two appeals consolidated. Appellants make numerous arguments in support of their motions for a new trial;*fn1 several of these have merit and warrant consideration by this Court. For the following reasons, we conclude that these cases must be remanded.
[ 306 Pa. Super. Page 122]
We first address the argument raised by both appellants that the lower court should have granted their applications for an independent expert examination of the substances in question. Well before trial appellants filed applications for discovery. Arenella's application read in relevant part:
3. The prosecution will attempt to prove that the substance or substances were, in fact, a controlled substance or substances through expert testimony of a Pennsylvania State Police chemist, who allegedly tested said substance or substances.
4. Without a representative sample or samples of the alleged substance or substances, Defendant does not have the means to determine, independently, whether the substance or substances, are, in fact, a controlled substance or substances, as said information is in the exclusive control of the Commonwealth.
5. Defendant requests that the Court order the Commonwealth to provide his attorney with a representative sample of the alleged controlled substance or substances tested in connection with this case in order that he may have an independent analysis performed on the same.
6. Refusal of the relief sought would deny Defendant his constitutional rights to compulsory process for obtaining witnesses in his favor and due process of law under the 6th and 14th Amendments to the United States Constitution and the applicable provisions of the Pennsylvania Constitution.
The equivalent paragraphs of Hunsinger's application were virtually identical. The lower court denied both applications. In their post-verdict motions appellants assigned the refusal of discovery as error. In denying the motions, the lower court held that under (the then effective) Pennsylvania Rule of Criminal Procedure 310*fn2 it had no authority to
[ 306 Pa. Super. Page 123]
order the requested discovery unless appellants showed "exceptional circumstances and compelling reasons," which, the court said, they had not done.
We have found no controlling Pennsylvania appellate court decision on the right of an accused, in a narcotics prosecution, to have an independent expert examination of the substances in question. Indeed this Court evenly divided on this question in Commonwealth v. Dorsey, 266 Pa. Super. 442, 405 A.2d 516 (1979), and that opinion, therefore, lacks precedential force. We are persuaded, however, by the reasoning set forth in the opinion in support of reversal in that case, that such independent testing should be granted. In that opinion, Judge Spaeth found the "exceptional circumstances and compelling reasons" requirement of Pa.R.Crim.P. 310 satisfied by defendant's request to have his expert test the substances alleged by the prosecution to be heroin:
it is most "exceptional" when the Commonwealth asks a defendant to accept the word of one of its witnesses -- which was the practical effect of what was done here; and the reasons for seeking an independent examination and test, as the only way to impeach that witness, are most "compelling" when the substance in question is the entire case -- if the substance was not heroin, there is no case.
266 Pa. Super. at 454, 405 A.2d at 522. Other jurisdictions presented with the same issue ...