dissenting.
I agree that appellant’s PFO conviction should be reversed but disagree with my brethren as to the underlying offenses. For that reason I would reverse these convictions and remand for a new trial.
In affirming the underlying offenses the majority finds that the admissibility of the hearsay testimony by Lt. Rieger was harmless error. I disagree. It is true that Lt. Reiger was merely “parroting” the testimony of Elam, but the same testimony coming from a police officer would be more persuasive to a jury than the testimony of an informer.
I also disagree with the majority’s conclusion that the trial court did not abuse its discretion when it failed to sustain appellant’s motion for a mistrial or continuance after it was developed that Elam was in fact a paid informer. KSP officer John Fuqua knew that he was paid between two hundred and five hundred dollars for the evidence obtained from appellant. It was also established that Elam was receiving one hundred fifty dollars per week on a regular basis — an amount substantially different from a range of between two hundred and five hundred. Ascertainment of more precise information about the financial arrangement between Elam and the police was relevant and material. The Commonwealth cannot be held to say that it did not know about the financial relationship of Elam until Fuqua testified. Fuqua was an officer of the Commonwealth at this time and his knowledge is imputable to the Commonwealth.
As stated by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83, S.Ct. 1194, 10 L.Ed.2d 215 (1963):
Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to the guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. [Emphasis added.]
I agree with my brethren that appellant waived his right to confront Elam at the deposition. His counsel had ample notice of the deposition and ample opportunity to prepare for cross examination but failed to do so. While appellant’s counsel had sought to withdraw as counsel his motion had not been granted and therefore he was obligated to represent appellant. Thirdly, his counsel did not request a continuance of the deposition or object to it being taken prior to leaving. See Richmond v. Commonwealth, Ky., 637 S.W.2d 642 (1982).
*603The most egregious error committed at this trial was the denial of appellant’s right of confrontation. This right is guaranteed by Section 11 of our constitution and is one of the most important rights granted to the accused. The pertinent portion of that section is as follows:
In all criminal prosecutions the accused has the right, ... to meet the witnesses face to face....
Appellant, Claude Earn Carter, was denied that right!
The Commonwealth failed to demonstrate that it ever made a good faith effort to obtain the presence of Elam at the trial. A pattern of disregard for appellant’s constitutional rights began as early as two days after the deposition was taken. It was that soon that the Commonwealth moved the court to rule on the admissibility of the deposition at trial.
The Commonwealth on two separate occasions issued two batches of subpoenas for witnesses to appear at trial, but never issued a subpoena for Elam.1 The Commonwealth procured Elam’s presence at the deposition by utilizing the Uniform Nonresident Witness Act, but never made use of the same act to assure Elam’s presence at trial. The Commonwealth contends that it did not know Elam’s whereabouts at the time of trial. On September 10, 1986, the court continued the case until January 5,1987, yet the Commonwealth at that time failed to inform Elam that he would be needed at trial. Moreover, two police officers working with the prosecution testified that although they did not know Elam’s whereabouts at the time of trial they knew in advance that Elam wanted to stay away from Kentucky because he was afraid of Carter. Unavailability of a witness for trial for purposes of the traditional exception to the confrontation right is not recognized unless the prosecution has made a good faith effort to obtain the presence of the witness at trial. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). It is the obligation of the Commonwealth to provide a fair trial to every accused, and to that end the prosecution must see that the legal rights of the accused as well as those of the Commonwealth are protected. Moore v. Commonwealth, Ky., 634 S.W.2d 426 (1982). Here the Commonwealth failed to perform that vital duty owed to appellant.
. The Commonwealth in its brief asserts that it tried to assure Elam’s trial appearance as evidenced by a "unserved subpoena”. However, it refers this Court to no portion of the record to show that, and the only subpoenas we find in the record are not for Elam. We are not surprised that any such subpoena was unserved for reasons that will become clear infra.