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COMMONWEALTH PENNSYLVANIA v. BARRY CHARLES GORDON (06/30/87)

filed: June 30, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
BARRY CHARLES GORDON, APPELLANT



Appeal from the judgment of sentence May 23, 1983 in the Court of Common Pleas of Delaware County, Criminal No. 2739 of 1982.

COUNSEL

H. Robert Fiebach, Philadelphia, for appellant.

Sandra L. Elias, Deputy District Attorney, Media, for Com., appellee.

Cirillo, President Judge, and Olszewski and Montgomery, JJ.

Author: Per Curiam

[ 364 Pa. Super. Page 524]

We have this appeal on remand from the Pennsylvania Supreme Court. In Commonwealth v. Gordon, 342 Pa. Super. 480, 493 A.2d 691 (1985), rev'd, 511 Pa. 481, 515 A.2d 558 (1986), we found insufficient evidence to support appellant's convictions for possession and delivery of a controlled substance, holding that appellant's status as a licensed and registered pharmacist exempted him from prosecution under clauses (16) and (30) of section 13(a) of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113(a)(16), (30). We found that the provision of the Act applicable to appellant's conduct was clause (14) of section 13(a), as amended, 35 P.S. § 780-113(a)(14), prohibiting the unlawful delivery of a controlled substance by a "practitioner." Based on our determination, we ordered appellant discharged from his convictions under clauses (16) and (30).

[ 364 Pa. Super. Page 525]

However, in Commonwealth v. Gordon, 511 Pa. 481, 515 A.2d 558 (1986), the Supreme Court determined that we had erroneously interpreted the Act, and held that a practitioner who sold drugs on the street could be prosecuted the same as any other street dealer. The Court reversed our order vacating the convictions, and remanded the case to this Court for disposition of the two issues remaining on appeal which we did not address in our earlier decision. Having reviewed these issues, we conclude that neither warrants relief. Accordingly, we now affirm the judgment of sentence.

This case arises from a transaction conducted in a motel parking lot in which Mr. Gordon sold a bottle of 100 Dilaudid pills to a criminal informant without a prescription. Before the meeting, Gordon had arranged to sell the informant two bottles of the drug, each containing 100 pills, for a total of $1600. However, the police were able to supply the informant with only $800, and therefore when Gordon entered the informant's car to deliver the drugs, the informant explained that his "contact" had fallen through and that he had been able to obtain only $800, enough for only one bottle. Consequently, Gordon sold only one of the two bottles he had brought with him, although he agreed to keep the second bottle overnight and sell it to the informant the following day.

A team of narcotics detectives had been stationed about the parking lot watching the transaction, and they had also managed to capture the conversation on audiotape. Before Gordon's arrival, they had equipped the informant with an electronic recorder and transmitter which he wore secreted on his person. From a car near the scene, Detective Craig Siti, an officer specially certified in electronic surveillance, monitored and recorded the oral exchange between the parties, while in a separate car Officer Susan Cory and her partner listened in on the transmissions for the informant to say a code phrase that meant the transaction had been completed. When the informant said the word, the police moved in and arrested Gordon, who had exited the informant's

[ 364 Pa. Super. Page 526]

    car and was opening the door to his own. From the front seat of Gordon's car, the officers seized the $800 in traceable bills that the informant had given him and the unsold bottle of Dilaudid pills. From the informant, the officers secured the bottle of Dilaudid which Gordon had sold.

The case went to trial before the Honorable Charles C. Keeler in the Court of Common Pleas of Delaware County. During trial, the defense learned that Officer Cory had prepared a police report which the Commonwealth had not disclosed in response to a pre-trial discovery request. Upon learning of the report and after reviewing its contents, defense counsel moved for dismissal of the charges. The court denied the motion. The defendant also objected to the court's admission of tapes and a transcript of his electronically recorded conversation. The court denied this objection as well, and proceeded to find the defendant guilty of one count of possession and one count of possession with intent to deliver and delivery of a controlled substance. After denying post-trial motions, the court sentenced Gordon to a prison term of eleven months to twenty-four months less one day. The court held that the simple possession count merged with the greater charges.

Presently before this court are Gordon's contentions that his convictions should be reversed because 1) the Commonwealth failed to disclose before trial the existence of Officer Cory's police report; and 2) the court received into evidence tapes and transcripts of an illegally intercepted conversation.

I.

Before trial the defendant had requested, pursuant to Pennsylvania Rule of Criminal Procedure 305(B)(1)(a), that the Commonwealth provide him with "any evidence favorable to the accused which is material either to guilt or to punishment, and which is within the possession or control of the attorney for the Commonwealth." Defense counsel also asked to see any police reports made of the incident. The

[ 364 Pa. Super. Page 527]

Commonwealth allowed counsel to review tapes and transcripts of the recorded conversation and Detective Siti's report on the interception, but identified no other reports in its possession.

On the eve of trial, arresting officer Susan Cory appeared in the district attorney's office to go over the case and there revealed for the first time that she had prepared a report of the incident. The prosecuting attorney then reviewed and copied portions of the report, but she inadvertently neglected to inform the defendant of its existence before trial began the next day. See generally Pa.R.Crim.P. 305(D) ("If, prior to or during trial, either party discovers additional evidence or material previously requested . . . which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material or witness."). The defense did not discover the report until recross-examination of Officer Cory at trial. Gordon now advances four reasons why late disclosure of the report allegedly prejudiced him in defending the case.

A.

Gordon focuses first on statements in the report that he had delivered only one bottle of Dilaudid rather than two. He juxtaposes these statements with one of the informations filed against him by the district attorney, which charged that Gordon "did unlawfully, knowingly and intentionally have in his possession or under his control . . . TWO BOTTLES DILAUDID (200 PILLS) with intent to deliver . . . and did deliver same." (Emphasis ours). Gordon maintains that the late disclosure of the Cory report violated the ruling of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which established that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373

[ 364 Pa. Super. Page 528]

U.S. at 87, 83 S.Ct. at 1196-97; cf. Pa.R.Crim.P. 305(B)(1)(a) (codifying Brady doctrine as rule of discovery in Pennsylvania). We reject Gordon's attempt to manufacture a Brady violation out of the discrepancy between the criminal information and the late-disclosed report, because the evidence in the report about the quantity of drug sold was neither withheld nor exculpatory.

Brady affirmed the grant of a new trial in the sentencing phase of a murder prosecution where the prosecutor had failed to inform Brady of his accomplice's confession to the actual killing despite Brady's pre-trial request for the accomplice's extra-judicial statements. In Brady, however, the withheld confession "did not come to [Brady's] notice until after he had been tried, convicted, and sentenced, and after his conviction had been affirmed." 373 U.S. at 84, 83 S.Ct. at 1195. Therefore, Brady's jury had imposed the death penalty unaware of a crucial piece of evidence mitigating Brady's culpability in the murder. This, the Supreme Court held, denied Brady his constitutional right to a fair trial. (The Court left the verdict of guilt undisturbed on the ground that under Maryland law the accomplice's confession would not have been admissible in the guilt-or-innocence phase of the trial). See id. at 88-90, 83 S.Ct. at 1197-98.

Here, by contrast, the undisclosed police report came to light at trial, and thereafter Judge Keeler reviewed the report and admitted it into evidence. Thus, anything in the report favorable to the defendant was before the learned finder of fact.

In Commonwealth v. Murphy, 493 Pa. 35, 425 A.2d 352 (1981), the Supreme Court of this State laid down the applicable rule where previously withheld Brady ...


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