Commonwealth v. Kishbach

373 A.2d 118, 247 Pa. Super. 557, 1976 Pa. Super. LEXIS 3191

• Court: Superior Court of Pennsylvania
• Decided: December 20, 1976
• Docket: 975
• Status: Published

Opinions

CERCONE, Judge:

The instant appeal arises from appellant’s conviction by a jury of delivery of a controlled substance.¹ Appellant raises one issue which warrants discussion herein; to wit, whether the lower court erred in refusing to grant a continuance during his trial when a Commonwealth witness disclosed the alias of an informant whom appellant claimed had entrapped him into making the illegal sale. We disagree that the court abused its discretion in denying the continuance and will affirm. The facts are as follows:

In November, 1974, the State Police were conducting undercover investigations of narcotics trafficking in Luzerne County and were relying heavily on entrees into the activities of the narcotics subculture provided by a paid informant, William Harrison. On November 15, 1974, Harrison arranged a meeting between undercover agent Richard Suda and Kathy Grazio, and Suda purchased some marijuana from her. Shortly after the sale had been consummated, Harrison arrived in an automobile driven by appellant. After Harrison introduced appellant to Suda, Suda and Grazio got into appellant’s car and began driving aimlessly around Luzerne County. During the sojourn a pipe full of marijuana was passed around the car, and appellant disclosed that he had a bag in the front seat containing a quarter pound of Colombian marijuana, ten “hits” of morphine and one hundred “hits” of acid, all of which were for sale.² Subsequently that evening the sale took place and, on January 6, 1975, appellant was arrested.

Although appellant knew Harrison’s name and many of his favorite haunts, appellant’s efforts to locate Harrison as a potential witness concerning an entrapment defense failed. Therefore, pursuant to Pa.R.Crim.P. 230 & 310, 19 P.S. Appendix (Supp.1976), appellant sought a bill of particulars and pre-trial discovery of Harrison’s whereabouts. Immediately prior to trial a hearing was held on those motions, and the Commonwealth disclosed that it did not know Harrison’s whereabouts and had not sought to locate him since the undercover investigation had terminated. The jury trial then began and the Commonwealth called Richard Suda as its first witness. On cross-examination Suda disclosed that he had known Harrison by an alias, Billy Dean. Appellant’s counsel requested a continuance so that, armed with this new information, he could again attempt to locate Harrison. The request was denied, the trial proceeded to its conclusion, and the jury returned a verdict of guilty.

At the outset it should be noted that the question on this appeal has little, if anything, to do with the Commonwealth’s duty to inform a defendant of the identity and whereabouts of a confidential informant. Purely and simply the question in the instant case is whether the lower court abused its discretion in refusing to grant a continuance. Measured by this standard, the court did not commit reversible error when it refused to grant appellant more time to find the elusive informant.

Prior to trial in the instant case, appellant not only knew the informant’s real name, William Harrison, but he also knew the places which Harrison frequented. Appellant secured the services of a private investigator to ascertain Harrison’s whereabouts so that he could be questioned, but this effort proved unavailing. The Commonwealth, according to the testimony of its agents, was similarly ignorant of where Harrison could be found.

At trial, appellant learned that Harrison sometimes used an alias, Billy Dean, and requested a continuance hoping that this bit of information would lead to the discovery of Harrison. The court, in our estimation, acted properly within the limits of its discretion in denying this request.

It is blackletter law that an appellate court may not reverse a trial court’s denial of a continuance without a palpable and prejudicial abuse of discretion. Commonwealth v. Warner, 209 Pa.Super. 215, 225 A.2d 98 (1966), cert. den. 389 U.S. 986, 88 S.Ct. 477, 19 L.Ed.2d 479. See generally 24A C.J.S. Criminal Law § 1865, p. 710, n. 78. And, the rule has been applied with equal force when a witness is absent. Id. at p. 712. However, in this case the continuance was requested only in the hope that Harrison could then be found, and in the hope that his testimony would corroborate both the exculpatory testimony of Miss Grazio, who was called by the Commonwealth, and the testimony of appellant himself. In light of that, many factors may have influenced the court in determining that the interests of justice would not be served if a continuance were granted after the jury had begun to receive the evidence in this case. Among these considerations were the fact that, despite the revelation of Harrison’s erstwhile alias, Harrison still might not be found; that, even if he were found, he would not be called to testify if his version of the transaction corroborated the Commonwealth’s version; that, even if he did testify in appellant’s behalf, he was a corrupt source who at most would only corroborate the testimony of Miss Grazio and appellant; that, even if the Commonwealth had not taken steps to assure Harrison’s availability for trial, there was no evidence of willful obfuscation of his whereabouts or identity by the Commonwealth; and, finally, as noted in footnote 2, supra, that, even if Harrison did testify that he cajoled appellant into selling the drugs to Suda, the Commonwealth would have had ample evidence of possession with intent to deliver.

In short, contrary to appellant’s assertion, Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967) is not “controlling”; indeed, it is not even on point, because it concerns the non-disclosure of an informant’s identity and whereabouts on the basis of the Commonwealth’s limited privilege to preserve confidential sources of information. That question is not in this case. Properly conceived, the only question before us is whether the court below abused its discretion in denying a continuance. To reverse appellant’s conviction herein because “it is possible,” that Harrison might be located and might be called to testify as a corroborating witness would be clearly improper.

Judgment of sentence is affirmed.

HOFFMAN, J., files a dissenting opinion in which SPAETH, J., joins.

1 . The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113(a)(30) (Supp.1976), provides as follows:

“The following acts and the causing thereof within the Commonwealth are hereby [illegal]:

“Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.”

2 . Although the point has not been alluded to, we note in passing that “possession with intent to deliver” is a crime equally as serious as actual delivery of a controlled substance. See note 1, supra. We have already established that possession of a large quantity of drugs supports an inference that they were possessed with the intent to deliver. See, e. g., Commonwealth v. Cubler, 236 Pa.Super. 614, 346 A.2d 814 (1975). In the instant case, appellant possessed more than enough marijuana, morphine, and acid (presumably, LSD) to support an inference of intent to deliver beyond a reasonable doubt. Cf. The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113(a)(31) (Supp.1976). Hence, because there is no suggestion that Harrison had anything to do with appellant’s possession of such a large quantity of drugs, even if the Commonwealth had conceded that appellant was entrapped into the actual delivery of the drugs to Officer Suda, the trial court would have erred had it directed a verdict for appellant in this case. Therefore, those contentions of appellant that he was entitled to a directed verdict are obviously without merit.