Petition — Pennsylvania v. Powell

COMMONWEALTH OF PENNSYLVANIA

Petitioner

y Respondent

PETITION FOR WRIT OF CERTIORARI

TO

THE SUPREME COURT OF PENNSYLVANIA

Donatp A. MANCINI

Assistant District Attorney

Frank J. WILLIAMS

Deputy District Attorney

WiiuaM H. Lams

District Attorney

4th Floor, Court House

West Chester, PA 19380

INDEX

Opinions Below

Jurisdiction

Question Presented

Constitutional Provisions Involved

Statement of the Case

Reasons for Granting the Writ

THE PENNSYLVANIA SUPREME COURT’S RULING

DENYING COMMONWEALTH’S PETITION FOR

ALLOWANCE OF APPEAL, AFFIRMS THE TRIAL

COURT’S ORDER GRANTING DEFENDANT’S MOTION

FOR MISTRIAL. THE TRIAL JUDGE’S ORDER WAS IN-

CORRECT IN THAT DEFENDANT WAS NOT DEPRIVED

OF HIS RIGHT TO CROSS-EXAMINE OR CONFRONT

WITNESSES AS GUARANTEED BY THE 6TH AND/OR

14TH AMENDMENTS TO THE UNITED STATES CONSTI-

TUTION. DEFENDANT’S COUNSEL WAS PRESENT AT

THE PRELIMINARY HEARING AND HAD ADEQUATE

OPPORTUNITY FOR CROSS-EXAMINATION.

Conclusion

APPENDICES TO THE BRIEF

Appendix A: Order of the Supreme Court Denying

Commonwealth’s Petition for Allowance of

Appeal

Appendix B: Orders of the Superior Court of Penn-

sylvania Affirming the Trial Court Judge

Appendix C: Opinion of the Common Pleas Court

of Chester County. Pennsylvania

Page

& hho hh

1A

3A

EEE EEE EEE

TABLE OF CITATIONS

Page

FEDERAL CASES

Barber v. Page, 390 U.S. 719, 20 L.Ed 2d 255, 88 5 IN THE

S.Ct. 1318 (1968) SUPREME COURT OF THE UNITED STATES

California v. Green, 399 U.S. 149, 26 L.Ed 2d 289, 5, 11 OCTOBER TERM, 197

90 S.Ct. 1930 (1970)

Dutton v. Evans, 400 U.S. 74, 27 L.Ed 2d 213,91 7,11 NO.

S.Ct. 210 (1970) ;

Mancusi v. Stubbs, 408 U.S. 204, 33 L.Ed 2d 293, 5 ‘ COMMONWEALTH GF PENNS E LV ANIA

92 S.Ct. 2308 (1972) Petitioner

Mattox v. United States, 156 U.S. 237 (1895) 5 ,

Pointer v. Texas, 380 U.S. 400 (1970) 5, 6 VS

United States v. Banks, 520 F.2d 627 (Cir. 1975) 10

: WE

PENNSYLVANIA CASES wrpaiitsaisdanee

Respondent

Commonwealth v. Bighum, 452 Pa. 554 (1973) 9

Commonwealth v. Bone, 64 Pa. Super 44 (1960) 4 PETITION FOR WRIT OF CERTIORARI

Commonwealth v. Clarkson, 438 Pa. 523 (1970) 4

Commonwealth v. Faison, 452 Pa. 137 (1973) 4, 6

Commonwealth v. Hall, 232 Pa. Super 412 (1975) 6 ”

Commonwealth v. Jackson, 230 Pa. Super 386 9

(1974) THE SUPREME COURT OF PENNSYLVANIA

Commonwealth v. Miller, 203 Pa. Super 511 46 ‘

(1964)

C ; a. 2 = ’ ;

ommonwealth v. Ransom, 446 Pa. 457 ri 6 4 The Petitioner, the Commonwealth of Pennsylvania, respectfully

Commonwealth v. Ryhal, 274 Pa. 401 (1922 4,6,7 ‘prays that a Writ of Certiorari issue to review the judgment and order of

Commonwealth v. Velasquez, 449 Pa. 599 (1972) 46 the Pennsylvania Supreme Court entered on December 22, 1977, in the

Commonwealth v. Zapata, 455 Pa. 205 (1974) 9 above-captioned case.

OPINIONS BELOW

a eer eee Sev eeInee The Opinion below of the Court of Common Pleas, which is not

United States Constitution. Amendment VI officially or unofficially reported, is set out in the appendix. Also in-

cluded in the appendix are the orders of the Pennsylvania Superior

Court affirming the trial court judge and the order of the Pennsylvania

Supreme Court denying the Commonwealth’s Petition for Allowance of

Appeal.

tv te

United States Constitution, Amendment XIV

il |

JURISDICTION .

The Order of the Pennsylvania Supreme Court was entered on

December 22, 1977. This Petition for Certiorari was filed within ninety

(90) days of that denial. The jurisdiction of this court is invoked pur-

suant to 28 U.S. C. §1254(1).

QUESTIONS PRESENTED

A District Justice has sustained certain Commonwealth objections

to defendant’s cross-examination of a Commonwealth's witness at a

preliminary hearing. Is the Sixth and/or Fourteenth Amendments to

the United States Constitution violated when the Commonwealth, be-

cause its witness is now unavailable, seeks to introduce the transcript of

a preliminary hearing at which defense counsel was present and exer-

cised the opportunity for cross-examination.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment Six

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, whic district shall have

been previously ascertained by law, and to be informed of the nature

and cause of the accusation; to be confronted with the witnesses against

him; to have compulsory process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for his defense.

United States Constitution, Amendment Fourteen

Section |

All persons born or naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of the United States and of the

State wherein they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

PROCEDURAL HISTORY

Respondent, Leon Powell, was charged in the Court of Common

2

Pleas of Chester County, at numbers 1229 C and 1254 C of 1975, with

possessing and selling Heroin, a violation of “the controlled substance,

drug, device and cosmetic act” Act of April 14, 1972, P.L. 233, No. 64,

Sec. 13 (a) 16, 30, P.S. 8780-113 (a) (16)(30). The Grand Jury ap-

proved the indictment on the above offenses on August 21, 1975. Prior

to trial, the trial court heard and disposed of an Application to Extend

the Time for trial by the Commonwealth as well as an Application to

Dismiss filed on behalf of the defendant pursuant to Pa. Rules of Crim.

Procedure 1100. The Application to Extend the Time for trial was

granted, the Application to Dismiss was refused and the court then

proceeded with the trial of the case. The Commonwealth told the Trial

Court Judge that an essential Commonwealth witness was unavailable

and that the Commonwealth propused to use a transcript of the wit-

ness’s testimony given at preliminary hearing. After hearing testimony

concerning the efforts made to locate the witness, the Court ruled that

the witness was unavailable, and despite defendant's objections, ruled

that the transcript could be used at trial. The defendant moved for a

mistrial during the reading of the transcript of the unavailable witness

which motion was granted by the court on December 18, 1975.

The Commonwealth appealed from the Order of Mistrial and the

defendant appealed from the 1100 ruling by the trial court. These

appeals were docketed in Pennsylvania Superior Court at numbers 728

October Term 1976 and 921 October Term 1976, respectively. On June

22, 1976, the Superior Court quashed both appeals. Both the Common-

wealth and the defendant filed Petitions for Allowance of Appeal with

the Pennsylvania Supreme Court. On January 10, 1977, the Supreme

Court vacated the Superior Court orders quashing the appeals and re-

manded the records to the Superior Court for consideration of those

appeals. On August 24, 1977, the Superior Court, having considered the

appeals on the merits, affirmed the trial judge's orders. Thereafter, the

Commonwealth petitioned the Supreme Court of Pennsylvania for

Allowance of Appeal. Said Petition was denied on December 22, 1977.

FACTS

Respondent, Leon Powell, was arrested for selling heroin on March

12, 1975, and March 17, 1975 in the City of Coatesville, Chester

County, Pennsylvania. On May 12, 1975, the Commonwealth had pro-

duced at the preliminary hearing, Diane Susan Lazur, an undercover

drug operative for the Pennsylvania Bureau of Drug Control. Ms. Lazur

testified that she made these purchases from Leon Powell in his home

at 751 Diamond Street (N.T. Prel. H. 5, 44).* In both instances, she paid

$100 for the substance. (N.T. Prel. H. 7, 45). There were no other

agents present when Ms. Lazur made these purchases. Prior to trial, the

Commonwealth put on evidence showing Ms. Lazur’s unavailability.

(N.T. 13-37). Following the testimony of five (5) witnesses, the trial

*Commonwealth’'s Exhibit “1” at trial.

3

judge made a finding of unavailability (N.T. 37). In addition, the trial

court permitted the use of the preliminary hearing transcript (N.T. 43).

Subsequently, the trial court granted defendant’s motion for mistrial

(N.T. 80) during the presentation into evidence of this testimony.

REASONS FOR GRANTING THE WRIT

THE PENNSYLVANIA SUPREME COURT'S RULING

DENYING COMMONWEALTH’S PETITION FOR

ALLOWANCE OF APPEAL, AFFIRMS THE TRIAL

COURT’S ORDER GRANTING DEFENDANT'S

MOTION FOR MISTRIAL. THE TRIAL JUDGE’S

ORDER WAS INCORRECT IN THAT DEFENDANT

WAS NOT DEPRIVED OF HIS RIGHT TO CROSS-

EXAMINE OR CONFRONT WITNESSES AS

GUARANTEED Bi THE 6TH AND/OR 14TH

AMENDMENTS TO THE UNITED STATES CONSTI-

TUTION. DEFENDANT’S COUNSEL WAS PRESENT

AT THE PRELIMINARY HEARING AND HAD ADE-

QUATE OPPORTUNITY FOR CROSS-EXAMINA-

TION.

The testimony adduced at the pre-trial hearing clearly satisfied the

degree of proof that is necessary to show unavailability of a witness.

See Commonwealth v. Clarkson, 438 Pa. 523 (1970), Commonwealth v.

Miller, 203 Pa. Super. 51! (1964), Commonwealth v. Ryh al, 274 Pa.

401 (1922), Commonwealth v. Velasquez, 449 Pa. 599 (1972), Com-

monwealth v. Bone, 64 Pa. Super. 44 (1916), Commonwealth v. Faison,

452 Pa. 137 (1973). The Trial Judge properly determined that the

witness was unavailable and the case proceeded to trial. At trial the first

forty-five pages of the preliminary hearing transcript, Commonwealth's

Exhibit #1, had been read into the record when the defendant moved

for a mistrial. The defendant contended that the use of the preliminary

hearing transcript testimony of Commonwealth’s witness, Diane Lazur,

denied him the right to an effective cross-examination of the witness

because of certain rulings made at the preliminary hearing level which

limited the scope of defense counsel’s examination. Also, defense coun-

sel asserted that a certain statement read from the preliminary hearing

transcript before the jury was so prejudicial as to require a mistrial.

Subsequently, the mistrial was granted and the reasons therefore have

been expressed in the Lower Court’s Opinion.

The Sixth Amendment to the United States Constitution guaran-

tees the right of an accused to be confronted with the witnesses against

him. Within the field of confrontation and due process is the specific

issue in this case. As stated by Justice Brennan in his dissenting cpinion

in California v. Green, 399 U.S. 149 (1970):

4

re

How extensive must cross-examination at the Prelimi-

nary Hearing be before Constitutional Confrontation is

deemed to have occurred? If more than an unexercised

chance to cross-examine is required, how thorough and

effective must the questioning be before it satisfies the

Confrontation Clause?

The history and interpretation of the Confrontation Clause is of some

importance in this case and an excellent summary is exposed by Justice

Harlan in California v. Green, supra. The Commonwealth submits that

both the history of the Confrontation Clause and case law precedent

indicate that there was no violation of the Constitutional rights of the

defendant. In Mattox v. United States, 156 U.S. 237 (1895) the

Supreme Court admitted the prior testimony of a witness shown to be

unavailable and the admission of such testimony was not a violation of

the Confrontation Clause. The basis holding of Mattox has been reit-

erated in Pointer v. Texas, 380 U.S. 400 (1975); Mancusi v. Stubb’s

408 U.S. 204 ( ); rv. Page, 390 U.S. 719 (1968); California v.

Green, 399 U.S. 149 (1970). As was stated in Barber, supra, at

725-726:

Although noting that the preliminary hearing is ordi-

narily a less searching exploration into the merits of a

case than a trial, we recognize that there may be some

justification for holding that the opportunity for cross-

examination of a witness at a preliminary hearing satis-

fies the demand of the Confrontation Clause where the

witness is shown to be actually unavailable . . .

And further in California v. Green at 166;

In the present case respondent’s counsel does not appear

to have been significantly limited in any way in the

scope or nature of this examination of the witness,

Porter, at the preliminary hearing. If Porter had died or

was otherwise unavailable, the Confrontation Clause

would not have been violated by admitting his testi-

mony given at the preliminary hearing—the right of

cross-examination then afforded provides substantial

compliance with the purpose behind the Confrontation

requirement, as long as the declarant’s inability to give

live testimony is in no way the fault of the State.

Based on the above case law, it is apparent that the critical determina-

tion made in the above cases is whether the State exhibited a good faith

showing of unavailability so as to warrant the introduction of notes of

testimony from a prior proceeding. The record of testimony in the

present case offered by the Commonwealth at the pretrial hearing was

5

clearly sufficient to show the unavailability of the Commonwealth's

witness, Ms. Diane Lazur.

Putting aside the argument of Justice Harlan as to whether the

Confrontation Clause requires more than the prosecution producing

available witnesses it seeks to use at a criminal trial, the parameters of

the “opportunity for cross-examination”™ must be explored regardless of

whether the opportunity is guaranteed by the Confrontation Clause or

by the Due Process Clause of the United States Constitution. In Pointer

v. Texas, supra, the Supreme Court noted:

The case before us would be quite a different one had

Phillip’s statement been taken at a full fledged hearing

at which petitioner had been represented by counsel

who had been given a complete and adequate oppor-”

tunity to cross-examine.

The Pennsylvania cases examined the above stated question using the

same phraseology wherein in Commonwealth v. Miller, supra the Court

states:

Defendant’s next contention is that the Court erred in

permitting the aforesaid testimony of Donato to be read

in violation of their Constitutional Rights under the

Sixth and Fourteenth Amendments to the Constitution

of the United States since they had no opportunity to

confront the witness. However, defendants did have that

opportunity at the preliminary hearing, where they were

represented by Counsel, who cross-examined Donato at

that time.

And in Commonwealth v. Velasquez, supra at 604:

The cross-examination conducted by appellant’s counsel

at the degree of guilt hearing confirms the presence of

opportunity and motive for adequate cross-examination

and the fact that appellant’s counsel properly utilized

the opportunity.

See also Commonwealth v. Faison, supra; Commonwealth v. Hall, 232

Pa. Super, 412 (1975); Commonwealth v. Ryhal, supra. The underlying

question of establishing what the opportunity for cross-examination

means has been mentioned infrequently in Commonwealth cases. In

Commonwealth v. Velasquez, supra, the Court after talking of the

opportunity to cross-examination commented that, “during the degree

of guilt hearing appellant’s counsel exploited the weakness of Willing-

ham’s direct examination by establishing that the witness never saw

appellant shoot the deceased—the witness only saw appellant firing a

6

ee RTT

gun inside the bar. Appellant’s counsel by proper cross-examination

challenged the accuracy of the witness’s testimony by demonstrating

that the witness was outside the bar fifty feet away and been drinking

shortly before observing these events.”” The opportunity for cross-

examination could be inferred to mean from the above quoted opinion

that defense counsel exploited the weakness of the direct examination

of the Commonwealth’s witness and in Commonwealth v. Ryhal, supra,

the Court stated at 412:

So far as opportunity to cross-examine is concerned, the

record shows the cross-examination filled eighteen type-

written pages. Upon only two matters of any conse-

quence was full opportunity to cross-examine denied by

the rulings of the committing Magistrate, the identity of

the defendant and the statements alleged to have been

made by the witness to a police matron. As to the first,

in a petition for change of venue and on the trial, the

defendant admitted his identity; and as to the second,

the girl denied that she had had any conversation with

the police matron, and thus full opportunity was given ni

to contradict her testimony on the trial if it was desired

to do so, but the police matron was not produced as a

witness.

Further, a leading commentator relates that:

“Former testimony, to be admitted under this excep-

tion to the hearsay rule, must have been given under the

sanction of the oath or such form or affirmation as is

accepted as legally sufficient. More important, because

more often drawn in question, is the requirement that

the party against whom the former testimony is now

offered, or a party in like interest, must have had a

reasonable opportunity to cross-examine.” McCormick

Evidence Section 255 at 616 (1970).

In light of the obscurity and vagueness of the law with regard to

exactly what is the opportunity for cross-examination, the Common-

wealth submits that in addition to the case law already set forth the

most helpful and logical analysis to be followed in this area is that used

in Dutton v. Evans, 400 U.S 74 (1970), wherein the Court discussed

the interrelationship or lack of it, between the hearsay rule and the

Confrontation Clause. The Supreme Court stated at 89;

The decisions of this Court make it clear that the mis-

sion of the Confrontation Clause is to advance a prac-

tical concern for the accuracy of the truth determining

process in criminal trials by assuring that the trier of

-

fact has a satisfactory basis for evaluating the truth of

the prior statement.

Further, in Commonwealth v. Hall, supra, the Court in speaking of the

improper use of a transcript from a Juvenile Hearing at a later trial

where the same criminal issues were not aligned stated at 417, “without

the opportunity to cross-examine, the prior testimony lacks sufficient

‘indicia of reliability’ to afford the trier of fact a satisfactory basis for

evaluating the truth of the prior statement.” It is the law of Pennsyl-

vania that, “well recognized exceptions to the Hearsay Rule supported

by circumstances guaranteeing sufficient indicia of reliability do not

raise Confrontation problems.Commonwealth v. Ransom, 446 Pa. 457,

461 (1972).

The testimony of the Commonwealth witness Diane Lazur that

was transcribed at the preliminary hearing was possessed of sufficient

indicia of reliability to warrant it being placed before the jury for their

evaluation. There is support in the Commonwealth of Pennsylvania for

this analytical approach toward testimonial evidence offered in the

fo a of a preliminary hearing transcript. In Commonwealth v. Clark-

son, supra, the Court stated at 525:

Our basic concern is for the reliability of the testimony

which was elicited in the preliminary hearing, and we do

not feel that its reliability is affected by the scope or

focus of the proceeding. It would certainly be more

desirable to have the witness present at trial, but it

would be vastly less desirable to exclude such evidence

altogether.

Focusing on the notes of testimony from the preliminary hearing,

it appears that defense counsel faced adverse rulings by the District

Justice on six occasions during the preliminary hearing examination. On

page 13 of Commonwealth exhibit “1,’’ the Commonwealth objected

to the defense counsel's inquiring as to the location of the field office

for the Coatesville area drug operation because the location of the

Pennsylvania Bureau of Drug Control field office could not be devulged

for security reasons, not the least of which was providing safety for the

undercover information, Diane Lazur. It was clear from the testimony

that immediately followed defense counsel’s question as to the location

of the field office that the substance of the information that defense

counsel inquired about was testified to in some detail. On page 25 of

Commonwealth's exhibit “1” the Commonwealth objected to the ques-

tion: “Apart from the forgery conviction and the pending theft charges,

do you have any other convictions?” The reason for the objection was

the overbreath of the question and the fact that it called for an answer

by the witness that would be potentially inadmissable according to the

8

—_—- ~—-

case law in Pennsylvania. See Commonwealth v. es um, 452 Pa. 554

(1973); Commonwealth v. Zapata, 455 Pa. 205 (1974); Commonwealth

v. Jackson, 230 Pa. Super. 386 (1974). In fact, defense counsel was

permitted to question on prior crimes where an arrest had occurred and

not a prior conviction. (N.T. 21, 22, 23.)

On page 26 of Commonwealth’s exhibit “1” the Commonwealth

objected to the following defense questions: “Were you paid while you

were in an undercover capacity?” Since the preliminary hearing was to

determine if a prima facia case was made out against the defendant, the

Commonwealth objected to the above question since its answer would

not be d ierminative to a showing of whether a prima facia case was

established. On pages 23 and 24 of Commonwealth’s exhibit “1” the

record reflects that the Commonwealth’s witness stated that in effect

no deal had been made with the law enforcement authorities and she

further testified on page 27 that she received her money from Welfar

By implication the defense received the answers to whether she w

paid because Ms. Lazur stated her source of money was from Welfare. '

is noted that the Commonwealth made an offer of proof at trial thai

one Michael Hirsch, of the Pennsylvania Bureau of Drug Control, wou! |

have testified to the entire relationship between their department anv

Ms. Lazur and therefore the answers given by Ms. Lazur at the prelim:-

nary hearing could have been contradicted at trial, if untrue. The Penn-

sylvania authority for the above technique is stated in Commonwealt!:

v. Ryhal, supra, wherein the Court determined that the opportunity

does exist for defense counsel to bring in witnesses to contradic!

statements that have been testified to by an unavailable Commonwealt’.

witness. On page 27 of Commonwealth’s exhibit “1” the Distric’

Justice sustained a Commonwealth objection to the following question

“Now, when did you buy your new car?” Never in the context of the

testimony immediately prior to said question was it established that Ms

Lazur had purchased a new car so that an insufficient foundation for

the question was present. Further, the argument presented above is

relevant here in that Ms. Lazur testified to the lack of any deals or

leniency between her and the law enforcement authorities.

On page 28 of Commonwealth's Exhibit “1,” the Commonwealt!

objected to the following question: “You haven't had to file any waivei

of anything?”’ The Commonwealth objected because the question was

literally asked four questions prior to the one to which the objection

was sustained. The witness answered she didn’t know what the waiver

was and further answered that the case was never called to trial. The

answer given sufficiently answered the point of defense counsel's

inquiry. Again, Ms. Lazur affirmatively answered that there were no

deals or terms of leniency between her and the law enforcemeni

authorities so that her testimony was preserved for contradiction if any

9

relationship of that type was in fact present. On page 32 of Common-

wealth’s Exhibit “1,” the District Justice sustained a Commonwealth

objection to Defense Counsel’s question as follows:

“Ms. Lazur isn’t it true that you got out of jail in

February as a direct result of the intervention of the law

enforcement authorities?”

Again, the Defense Counsel was probing to whether a deal was nego-

tiated between Ms. Lazur and the law enforcement authorities. The

Commonwealiii objected because it had been established previously by

Ms. Lazur’s testimony that no leniency or deals had been given for her

cooperation as an undercover drug operative.

The Commonwealth submits that the rulings of the District Justice

at the preliminary hearing did not deny the defendant any of his Con-

stitutional Rights and that the testimony was properly offered at trial

in accordance with the former testimony exception of the hearsay rule.

In addition, an examination of the testimony of Ms. Lazur at the pre-

liminary hearing shows that Defense Counsel did not delve into the

basic facts of the drug transaction. The Commonwealth submits that

there is no challenge to the identification of the accused or to the

circumstances of the transaction itself. There was testimony that Ms.

Lazur knew the defendant for approximately two years and the details

of the drug purchase were explored by the Defense Counsel without

objection by the Commonwealth. Thereafter, Defense Counsel confined

his cross-examination essentially to the past history of Ms. Lazur and to

her relationship with the law enforcement authorities. It was only to

this portion of the cross-examination of Ms. Lazur that the Common-

wealth interposed objections to which the District Justice acted.

In the area of cross-examination and the discretion that the trial

judge may exercise thereto, the case of United States v. Banks, 520 F.

2d 627 (1975) contains legal analysis that is helpful to the fact situa-

tion at hand. In Banks, the defendant was precluded from inquiring

into whether the witness (not a preliminary hearing transcript) testi-

fying was using drugs at the time of the trial. Further, the Defense was

not allowed to produce a medical doctor to testify that the prosecution

witnesses were engaged in methadone programs during the trial.

Although the Court felt that the defendant should have had the oppor-

tunity to receive a response to his question related to present drug use

at the trial, the Court added at 631:

“Appellant’s elicited, on cross-examination, substantial

information concerning Pottgiesser’s prior use of drugs.

While the issue of witness’s drug use during trial had

considerable relevance to credibility, we conclude that

10

had the jury found his testimony to be at all confused

or uncertain, the admissions before them would have

been sufficient for consideration in their ultimate

determination of the truthfulness and the reliability of

his testimony.”

The holding in Banks is of importance in the present case because it

stands for the principle that was enunciated in California v. Green,

supra, and Dutton v. Evans, supra, that the testimony is admissible if it

has a sufficient indicia of reliability to afford the trier of fact a satisfac-

tory basis for evaluating the truth of the prior statement. The record in

Banks contained various admissions by the prosecution witness as to

drug use and his relationship between himself and the law enforcement

agency. Because the jury was made aware of this the Court felt that a

satisfactory basis for evaluating the truth was exhibited.

The Commonwealth submits that the record of the preliminary

hearing testimony in the present case clearly put the issue of Ms.

Lazur’s credibility before the jury so that the jury had a satisfactory

basis for evaluating the truth of her testimony.

Finally, it is noted that the elements of the former testimony

exception to the hearsay rule were established and the testimony was

properly put before the jury in accordance with the aforesaid rule. Just

as a dying declaration is admissible evidence because of the inherent

reliability of the statement so too should the reliability of the evidence

be the crucial determination in the present case.

CONCLUSION

For all the foregoing reasons, the Commonwealth of Pennsylvania

respectfully requests that a Writ of Certiorari issue to review the

decision below.

RESPECTFULLY SUBMITTED,

DONALD A. MANCINI

Assistant District Attorney

FRANK J. WILLIAMS

Deputy District Attorney

WILLIAM H. LAMB

District Attorney

4TH FLOOR, COURT HOUSE

WEST CHESTER, PENNSYLVANIA 19380

11

Appendix A

Supreme Court of Pennsylvania

Eastern District

Sally Mrvos

Prothonotary

Laura E. Litchard

Deputy Prothonotary

PHILADELPHIA, 19107

December 27, 1977

Frank J. Williams, Esq.

Deputy District Attorney

Chester County Court House

West Chester, Pa. 19380

Re: Commonwealth, Petitioner v. Leon Powell

No. 3202 Allocatur Docket

Dear Mr. Williams:

This is to advise that the following Order has been endorsed on the

Petition for Allowance of Appeal filed in the above-captioned matter:

“December 22, 1977

Petition denied

Per Curiam”

Very truly yours,

Sally Mrvos

Prothonotary

SM :ejh

cc: Michael Kean, Esq.

(Exhibit “G”)

1A

No. 669/1977

COMMONWEALTH OF PENNSYLVANIA,

Appellant

v.

LEON POWELL

COMMONWEALTH OF PENNSYLVANIA

v.

LEON POWELL,

Appellant

COMMONWEALTH OF PENNSYLVANIA

LEON POWELL

In the Superior Court

: of Pennsylvania

No. 728

~ October Term. 1976

In the Superior Court

: ‘of Pennsylvania

No. 921

- October Term, 1976

> CRIMINAL

ACTION—LAW

NOS. 1229C,

1254C — 1975

Appeals from the Orders of the Court of Common Pleas, Criminal

Division, Chester County, at Nos. 1229, 1254 C of 1975.

PER CURIAM:

Orders affirmed.

Appendix B

(Exhibit “F*’)

FILED: August 24, 1977

IN THE COURT OF COMMON PLEAS

CHESTER COUNTY, PENNSYLVANIA

COMMONWEALTH OF : CRIMINAL

PENNSYLVANIA >: ACTION—LAW

v. >: NOS. 1229C,

LEON POWELL : 1254C — 1975

OPINION

Defendant, Leon Powell, proceeded to trial before a jury having

been charged with a violation of the Controlled Substance, Drug,

Device and Cosmetic Act. Prior to trial the Court heard and disposed of

an application to extend the time for trial by the Commonwealth as

well as an application to dismiss filed on behalf of the defendant pur-

suant to Rule of Criminal Procedure 1100. The application to extend

the time for trial was granted, the application to dismiss was refused

and the Court then proceeded with the trial of the case.

In addition to the aforementioned applications, the Common-

wealth then called to the attention of the Court that due to tre fact

that an essential Commonwealth witness was unavailable, the Com:non-

wealth proposed to use a transcript of that witness’s testimony given at

a preliminary hearing. After hearing testimony concerning the efforts

made to locate the witness, the Court ruled that the witness was un-

available and, despite defendant’s objections, ruled that the transcript

could be used at the trial. The trial was aborted when, during the

reading of the ‘ranscript of testimony of the unavailable witness,

defendant moved for a mistrial which was granted by the Court.

The Commonwealth has appealed from the granting of that mis-

trial. In addition, defendant has appealed from the order of the Court

refusing his application to dismiss pursuant to Pa.R.Crim.P. 1100.

This Court recognizes that perhaps the Commonwealth was pre-

mature in filing its appeal. However, the Court is of the opinion that

the order appealed from involves a controlling question of law as to

which there is substantial ground for differences of opinion and that an

immediate appeal from the order may materially advance the ultimate

termination of the matter. See Act of July 31, 1970, P.L. 673, No. 223,

Art. V,§501, 17 P.S. 211.501. The question of law involves the admissi-

bility into evidence of a transcript of testimony given at a prior pro-

ceeding by a witness who is unavailable at the time of trial. ;

3A

Prior to trial the Court heard testimony concerning the unavaila-

bility of the witness, Diane Lazur. She was an individual who accom-

panied certain police officers to the home of the defendant and it was

she who allegedly made the purchases of heroin which was the subject

of the charges against defendant. From the testimony presented to the

Court, the Court was of the opinion that she was an unavailable witness

and directed its attention to whether or not her transcript should be

admitted into evidence.

The testimony disclosed that defendant appeared at his prelimi-

nary hearing with counsel. The witness was subjected to cross-examina-

tion by defendant’s counsel. However, defendant objected to the ad-

missibility of the transcript on the grounds that certain material was

contained therein which would be prejudicial if read during the course

of the trial. In addition, defendant questions certain rulings by the

District Justice which limited the scope of cross-examination. After a

conference with defense counsel and the Assistant District Attorney,

the Court recessed the trial to give the Commonwealth an opportunity

to review the transcript with defense counsel in an effort to decide

what testimony should be admitted and what should not. When the

trial resumed the following day, it became evident that this was not

done. After considering defendant’s motion the Court was of the view

that the interests of justice mandated a mistrial and granted the motion.

The question of whether or not a transcript of testimony given by

an unavailable witness should be admitted into evidence at the trial of

the charge has been discussed by our courts in several instances. In

Commonwealth v. Clarkson, 433 Pa. 523 (1970) the court held there

was no error in admitting into evidence a transcript of testimony given

by a deceased witness. Again in Commonwealth v. Velasquez, 449 Pa.

599 (1972) testimony given at a degree of guilt hearing was admitted

into evidence. In that case the court in a footnote commented on the

Clarkson case (supra) wherein testimony given at a preliminary hearing

was held to be properly admissible. The court explained its reliance on

prior case law citing Commonwealth v. Ryhal, 274 Pa. 401 (1922),

Commonwealth v. Keck, 148 Pa. 639 (1892) and Commonwealth v.

Miller, 203 Pa. Super. 511 (1964). Thus, where the defendant has been

represented by counsel at the prior proceeding and counsel was given

the opportunity to cross-examine the witnesses, the constitutional pre-

requisites are met.

In this case defendant was represented by counsel who was given

the opportunity to cross-examine at the preliminary hearing. However,

an examination of the notes of testimony indicates to this Court that

the District Justice sustained objections to a line of questioning which

attempted to ascertain whether the witness was a paid informer or

4A

whether she had been offered any other inducement to testify as a

Commonwealth witness. In view of the nature of the witness as evi-

denced by the testimony elicited before the District Justice, it appeared

to the Court that those questions would have been permitted at the

trial if that witness were present to testify. The Court was of the

opinion, therefore, that there was no identity of opportunity to cross-

examine at the preliminary hearing and at the trial. It was for this

reason that the Court suggested a review by both parties of the tran-

script in an effort to keep out any objectionable material. Since no

agreement had been reached and since a further review convinced the

Court that certain portions of the transcript were being deleted by the

Commonwealth, sua sponte, and since rulings made on objections by

the Commonwealth to defendant’s questions on cross-examination

appeared to limit the right to attack the credibility of the witness, it

was the opinion of this Court that a mistrial was proper.

Defendant’s appeal is from the Court’s order granting the Com-

monwealth’s petition to extend the time for trial. This action of the

Court was based on the fact that the petition to extend was filed within

the 180-day period required by Rule 1100. Since the cases of Common-

wealth v. Mayfield, ____ Pa. Super. (1976) filed March 29, 1976

and Commonwealth v. Shelton, Pa. Super. (1976), it may be

that this Court was in error in extending the time for trial and in

refusing defendant’s application to dismiss. However, the reasons for

the Court’s order were that the petition to extend was timely filed, the

matter had been listed for trial at least once prior to the date it was

actually called, and on one occasion it was continued by reason of the

fact that a relative of defendant’s counsel was ill.

BY THE COURT:

Dated: June 16, 1976

Certified From The Record

This 16th day of June, 1976

Attest

Deputy Clerk of Common Pleas Court

SA