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COMMONWEALTH PENNSYLVANIA v. KEVIN JOSEPH THIEL (05/24/83)

submitted: May 24, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
KEVIN JOSEPH THIEL, APPELLANT



No. 84 Pittsburgh 1982, APPEAL FROM THE JUDGMENT OF SENTENCE OF DECEMBER 17, 1981 IN THE COURT OF COMMON PLEAS OF POTTER COUNTY, CRIMINAL NO. 134 OF 1980

COUNSEL

Michelle M. Hawk, Erie, for appellant.

Jeffrey E. Leber, District Attorney, Coudersport, for Commonwealth, appellee.

Cavanaugh, Rowley and Cirillo, JJ. Cavanaugh, J., dissents.

Author: Cirillo

[ 323 Pa. Super. Page 94]

Appellant Kevin Thiel was convicted by a jury of delivery of cocaine, and on December 17, 1981 was sentenced in the Potter County Court of Common Pleas to serve one to three years in Rockview State Penitentiary and to pay a fine of $2,500. He appeals the judgment of sentence.

Appellant raises four issues, only one of which we need address. We agree with appellant that the trial court erred in admitting into evidence two airplane tickets which the Commonwealth had not provided to appellant despite his pretrial discovery request for all tangible evidence. Pa.R.Crim.P,

[ 323 Pa. Super. Page 95305]

B(1)(f), 42 Pa.C.S.A. We will reverse and remand for a new trial.

On January 23, 1980, undercover police officers arrested Pamela Sue Palmer and charged her with delivering to them one-quarter ounce of cocaine. Palmer negotiated a plea bargain and was sentenced to one to five years in prison. Pursuant to the plea bargain she agreed to cooperate in all respects in other prosecutions for illegal drug sales with which she had been connected. Palmer identified Kevin Thiel as the supplier of the cocaine she had sold to the undercover policemen. As a result, Thiel was arrested on December 2, 1980, and charged with delivery of a controlled substance. At a preliminary hearing held on December 18, 1980, Palmer refused to testify and invoked her Fifth Amendment right against self-incrimination. Consequently the district justice dismissed the charge against Thiel. The judge who had sentenced Palmer later informed her that she was violating her plea agreement and that as a possible consequence she would have to serve the remainder of her sentence at the state penitentiary rather than the Erie rehabilitation facility. Palmer then agreed to testify against appellant, who promptly was arrested and recharged.

Before trial appellant requested, pursuant to Pa.R.Crim.P. 305 B(1)(f), the disclosure of all tangible evidence in the Commonwealth's possession. The rule at issue provides:

B. Disclosure by the Commonwealth

(1) Mandatory: In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant's attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when ...


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