Commonwealth v. Taylor
| Decision Date | 27 October 1978 |
| Citation | 393 A.2d 929,259 Pa.Super. 484 |
| Parties | COMMONWEALTH of Pennsylvania v. Deborah Ann TAYLOR, Appellant. |
| Court | Pennsylvania Superior Court |
Argued March 21, 1978. [Copyrighted Material Omitted]
Daniel W. Shoemaker, York, for appellant.
J. Kenneff, Asst. Dist. Atty., with him D Richard Eckman, Dist. Atty., Lancaster, for Commonwealth appellee.
Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT and HESTER, JJ.
On April 23, 1976, appellant, Deborah Ann Taylor, was arrested and charged with unlawful delivery of a controlled substance. It was alleged that appellant sold an ounce of heroin to an undercover agent of the Pennsylvania Department of Justice on the evening of February 13, 1976. Later in the day, on April 23, 1976, appellant was also charged with making terroristic threats. This latter charge stemmed from an incident at the City of Lancaster Police Station on the day of appellant's arrest. Appellant was said to have made threatening remarks towards the undercover agent who participated in appellant's arrest.
At trial, the undercover agent testified that he and an informer went to appellant's apartment on February 13, 1976. According to the agent's testimony, his informant had previously contacted appellant and made the arrangements for the sale. During the actual transaction, the undercover agent stood in the doorway between the kitchen and the dining room of appellant's apartment and watched her mix a quantity of white powder, putting the powder into a small plastic bag and weighing the bag on a postal scale provided by the agent. While appellant was doing this, the confidential informant, said to be a man named Henry Rauser, took some of the white powder, heated it, mixed it with water and injected it into his arms. After a moment, Rauser nodded to the agent, indicating that the powder was truly heroin. Appellant then gave the bag of powder to the agent in exchange for $2,000.00. The white powder was later tested by the Commonwealth and found to contain heroin.
After a jury trial, appellant was acquitted on the terroristic threat charge but convicted on the heroin charge. Appellant advances many reasons why her conviction should be reversed. We have considered her arguments and find them to be without merit. For the reasons set forth below, we affirm.
In her first argument appellant asserts that the trial court erred by not ordering the Commonwealth to disclose to the defense before trial the name and address of the Commonwealth's informant as requested by appellant in pre-trial motions. We find that the lower court committed no error in its disposition of this motion.
At the time of appellant's trial, Pa.R.Crim.P. 310 set forth the rule for pre-trial discovery and inspection. Rule 310 read in relevant part:
When an accused makes a motion to have an informant's identity disclosed, the mere allegation that this information would be "helpful" is not sufficient to compel disclosure of an informant's identity. Commonwealth v. Bradshaw, 238 Pa.Super. 22, 364 A.2d 702 (1975). Appellant in this case did not list any particular compelling reason in her motion for requesting the name and address of the police informant. On this point, the Supreme Court has said that an accused's pre-trial motion is properly denied where "appellant's application failed to set out any showing of exceptional circumstances required by Rule 310 of the Pennsylvania Rules of Criminal Procedure . . . ." Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976). See also Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975). Because appellant failed to give the trial court a specific reason for requesting the name and address of the informant, a reason which would indicate that appellant's case involved exceptional circumstances which justified the release of this information, the lower court acted within the parameters of Rule 310 in denying appellant's motion for disclosure of the informant's identity.
Appellant next argues that the trial court erred by denying appellant's pre-trial motions for discovery and for a change of venue Without a hearing. [1] Appellant contends that the lower court was required to give appellant a hearing "(r)egardless of the merits of (appellant's) position in its (sic) pre-trial applications," so that appellant might have an opportunity to establish the merits of her pre-trial motions.
As set forth above, Pa.R.Crim.P. 310 specifies that an accused has no right to pre-trial inspection and disclosure of the Commonwealth's evidence, other than defendant's confession or admissions except where exceptional circumstances and compelling reasons indicate that a different rule should be followed in a particular case. Commonwealth v. Turra, 442 Pa. 192, 275 A.2d 96 (1971); Lewis v. Court of Common Pleas of Lebanon County, 436 Pa. 296, 260 A.2d 184 (1969); Commonwealth v. Jones, 245 Pa.Super. 487, 369 A.2d 733 (1977). The Supreme Court, interpreting and applying Rule 310, decided that Rule 310 Commonwealth v. Ware, 459 Pa. 334, 368-369, 329 A.2d 258, 275-276 (1974). Because appellant failed to assert any specific reasons in her pre-trial motion for discovery, the trial court committed no error by summarily dismissing this motion.
We do not, however, reach the merits of appellant's argument regarding his motion for a change of venue because we find that if any error was committed by the lower court in summarily denying this motion, it was harmless. Appellant requested a change of venue [2] because she claimed that "extensive and adverse publicity" surrounded this case. The Commonwealth answered by disclaiming the existence of such publicity. Appellant argues that the lower court was bound, under Pa.R.Crim.P. 313, to conduct a hearing. However, even assuming that the trial court should have conducted a hearing, the alleged error here was harmless. "Error in granting or denying a change of venue, if not prejudicial to the complaining party, is not ground for reversal." 5A C.J.S. Appeal and Error § 1697 (1958). Appellant's express concern was that extensive adverse publicity would preclude appellant from getting a fair trial. If prospective jurors were influenced by this adverse publicity, then they might be prejudiced against appellant. However, during the voir dire, appellant asked each prospective juror if he or she had read or heard any adverse publicity concerning appellant's case. All the jurors replied that they couldn't recall any such publicity. Since appellant's concern was that adverse publicity would affect the verdict returned at trial, the fact that none of the jurors selected could recall media accounts of appellant's case shows that the jurors selected were not influenced by the adverse publicity about which appellant was concerned. Therefore, this argument of appellant's is rejected.
Appellant also contends that the lower court committed reversible error by denying appellant's application to sever the trial of the terroristic threat charge from the drug charge. The question of consolidation versus separation of indictments is for the trial judge to decide; on appeal, his decision will not be reversed absent a clear abuse of discretion. Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690 (1975); Commonwealth v. Shriner, 232 Pa.Super. 306, 332 A.2d 501 (1974). The denial of a motion for severance is not an abuse of discretion if the facts and elements of the two crimes are easily separable in the minds of the jurors and if the crimes are such that the fact of commission of each crime would be admissible as evidence in a separate trial for the other. Commonwealth v. Terrell, 234 Pa.Super. 325, 339 A.2d 112 (1975); Commonwealth v. Irons, 230 Pa.Super. 56, 326 A.2d 488 (1974).
In appellant's case, the trial judge did not abuse his discretion, because the two charged offenses are easily separable from one another and their elements would not likely be confused by the jury. Furthermore, evidence of appellant's arrest on the drug charge would have been admissible in a separate trial for terroristic threats as evidence of appellant's motive for making the threats. Conversely, evidence of the terroristic threats would have been admissible in a separate trial on the drug charge because it was a crime committed in an attempt to conceal the commission of the drug offense. Commonwealth v. Lasch, supra; Commonwealth v. Irons, 230 Pa.Super. 56, 326 A.2d 488 (1974).
Next appellant argues that she was unduly prejudiced by the introduction at trial of the results of a field test which was conducted on the substance appellant allegedly sold to the undercover agent. Appellant says that she tried to ascertain at preliminary hearing whether a field test had been conducted on the substance purchased by the agent. Appellant claims that her inquiry led to firm denials by certain police agents, but that at trial, the results of such a test were introduced. We do not...
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