*1
465
Y.,
In Re D. J.
in their efforts.
life, but were thwarted
H.,
1390,
131,
Adoption
A.2d at
S.
FLAHERTY, concurring. would have taken opinion. History I join majority been born in Lackawan- a different course had Jesus Christ na County. Pennsylvania,
COMMONWEALTH CONTAKOS, Appellant. Samuel C. Pennsylvania. Supreme Court 26, 1980. Argued Sept. 4, 1981.
Decided Feb. *3 for Clark, Pittsburgh, appellant.
Dennis J. Davis, Asst. Dist. Solomon, Dist. Atty., Gerald R. Samuel Uniontown, for Atty., appellee. LARSEN, ROBERTS, NIX, O’BRIEN, J.,
Before C. KAUFFMAN, JJ. FLAHERTY and
OPINION O’BRIEN, Justice. Chief Contakos, was convicted aby jury C.
Appellant, Samuel Post- conspiracy. murder of the first and degree was sentenced to appellant verdict motions were denied and for murder conviction and a consecu- life imprisonment for the conspiracy tive term of five-to-ten prison years judg- We vacate conviction. This direct followed. appeal the case to the trial court for sentence and remand ment of with this Opinion. consistent proceedings principal follows. The The facts are as Colvin, who had previ- Harry at. was Thomas witness case, victim in the instant to killing ously pled guilty he that and appellant Colvin testified Lowry. Charles Jacob Lowry to kill with two other individuals agreed had had, he appellant that $1,500 each. Colvin stated but were unable to to Johnstown October traveled later and same three trip days find made the Lowry. They him. victim, shot and killed locating pair upon caliber while gun he had used .25 Colvin testified that were no While there magnum. a .357 had used appellant other witnesses various shooting, other eyewitnesses in the area on both and Colvin were able to place appellant also present- 3 and 6. The Commonwealth October October had been shot nine the victim testimony ed medical .25 caliber had been caused times. the wounds Seven bullets of wounds were caused bullets the other two while an undeterminable origin. claims, meritorious, if
Two of appellant’s evi He first that the discharge.1 argues entitle him ato to sustain either of was insufficient dence at trial presented oft stated: his convictions. As we have whether, of the evidence sufficiency “The test of to the most favorable light viewing the evidence inferences favor- Commonwealth, drawing proper Commonwealth, trier of fact could reason- able to the *4 eleménts of the crime had all of the have found that ably .. More- doubt . been a reasonable beyond established to the upon of fact over, pass it is the of the trier province be accorded the the to weight of witnesses and credibility to is free believe The factfinder evidence . .. produced all, none of the evidence.” or part successful, claims, only him a Appellant’s if entitle 1. other the evidence was his assertions that new trial. We therefore address court lacked and that the insufficient to sustain his convictions charges jurisdiction have been dismissed. case and the should Rose, 264, 276-68, 344 A.2d 825-26 (1975) Pa. (Citations omitted).
In the Colvin alone is suffi- case, testimony instant of both cient to murder of establish all the elements first degree conspiracy. and criminal assertion that would entitle him
Appellant’s second to a jurisdiction trial court did not have discharge that the the case dismissed charges and the should have been because neither of the informations had been personally signed by attorney. district Both informations were rubber with stamped Each, the district how- attorney’s signature. ever, is also “Approved marked 12-20-78 R.C.W.” The Commonwealth asserts that “R.C.W.” is Assistant District C. Warman. Attorney Ralph
The provides: Judicial Code
“(d) prosecuting Duties of attorneys. —Whenever and all related transcript proceedings, complaint papers in a criminal where the defendant has been proceeding held for the clerk court have been transmitted to of court court, or officer, such designated officer after by same, shall recording the docu- immediately transmit ments or a thereof to the The attorney. district copy district his have shall attorney designee duty inquire into and make full examination all the facts and circumstances with each case to connected such determine if the facts filing and circumstances warrant an information upon or informations premised transcript. No information district shall filed by attorney where a concerning violations alleged preliminary hearing has held or waived not been properly except prescribed rules. general by
“(e) of cases.—The district Disposition shall attorney all sign shall be informations. information filed in the form prescribed by general rules.
[******] “(i) Definition.—As used in this section ‘district attor- ney’ includes a special attorney appointed Attorney statute, General in an provided the manner acting *5 470 district whose attorney
district and assistant attorney any under this section to act for the district authority attorney the is executed designation by evidenced a written by with attorney district district and filed attorney acting No. 9,1976, 586, of P.L. July the clerk of the courts.” Act 2, 42 8931. Pa.C.S.A. § § Furthermore, our provide: rules the by “The information shall be the for signed attorney ” 225(b).
Commonwealth.... Pa.R.Crim.P. Belcher, Pa.Super. 392 In Commonwealth question was with a (1978), presented A.2d 730 the court no what- signature which contained informations concerning unsigned an information was soever. The court held that voidable, and stated: merely void ab initio as opposed a has grand presented by jury “A bill of indictment in a bill of information. indicia of not bound reliability determination of independent The has made an grand jury which be merely the evidence need sufficiency of of In case of a bill attorney. ratified district by who must information, however, is the alone prosecutor it defendant trial. When bring decide whether to (i. e., information) list vehicle a criminal initiating for is that a reasoned it is not at all unsigned, apparent a instituting of advisability evaluation is, on the information has been made. The signature therefore, guarantees which the authen a vital ingredient document. requirement ticity reliability be attorney Rule that the information 225(b) signed result, must, deemed Pa. Id. 258 directory.” merely rather than mandatory at 731. Super. 392 A.2d at We the informa- initialing believe that the approval with the along tion an attorney, assistant district our with signature attorney, complies district stamped the concerns enunciated rules, the Judicial Code and to act in the Belcher, designated as Warman been had the manner called for in the district stead in attorney’s without merit. argument Judicial thus Code. Appellant’s *6 erred in re- that the trial court next argues Appellant disclosure production fusing repeated requests his or statements, notes reports, of any the Commonwealth of Commonwealth concerning interviews written records at trial. Common- testified witnesses who subsequently which is sought of that not the existence wealth does deny that argues appel- rather, the Commonwealth by appellant; as “investigatory what classify entitled to they lant not of the interviews. notes summaries” incomplete 560, Wade, 160, 169, 389 Pa. A.2d In v. 480 Commonwealth we stated: (1978) opinion), 564 (plurality of those production only we have required “In the past verbatim notes of a wit- which statements are pre-trial statements, Commonwealth ness’ See omitted] [footnote 364, (1971). A.2d 851 We have Morris, v. 444 281 Pa. which in- to to situation... declined extend rule statement], notes taking volves the of the [individual ‘selection, that subject interpreta- are to they [person’s] Cain, v. 471 Pa. tion and recollection.’ Commonwealth 1234, 140, 154, (1977)(opinion 1241 support 369 A.2d Collins, v. Pa. also 440 affirmance). See 368, (1970).” above-quoted standard of Wade requires
We believe that the what must be concerning a minor clarification precisely» witness’ testimony disclosed the Commonwealth following examination. direct 466 Pa. Grayson, As we stated in Commonwealth when (1976), discussing reasons 353 A.2d such statements must be disclosed: why statement defense was entitled to examine the “The to opportunity to a fair witnesses in order have Whether statements of witnesses. cross-examine the helpful have been to the witnesses would prosecution’s not a to determined by prosecu- defense is be question would not be reading tion or court. They advocate engaged statements with of a trial eyes witness’s state- in a a client. Matters contained defending some, but have great to appear ment innocuous may the statements from the viewing to counsel significance to cross- for the accused about of an advocate perspective witness.” examine a notes interviews seeking only
While a defendant may witness, *7 verbatim are, fact, substantially either verbatim *8 respective concerns The regarding scheduling. prose- cuting informed the Court: attorney have, Honor,
“The I would is your because only problem reasons, of witness, chief security Commonwealth’s Colvin, Thomas I problem is not in this county. is, it, have and I want the court to know about selected, the event that when a is if Mr. jury finally Colvin witness, is the first I about an hour or an need hour may and a half to here.” get the witness remaining allegations appellant’s 2. We need not address of error may disposition appeal. of because our “These claims again appeal ruling raised if an trial court’s is taken from the on Hamm, supra, 502, n.13, Commonwealth remand.” 474 Pa. at A.2d at n.13. until morn- Wednesday not completed selection was Jury not for trial until ready March the case was ing, Colvin chose not to present The Commonwealth afternoon. following day. until the regarding Colvin, there
Despite “security” problems for that the court called to indicate nothing on record Indeed, the at trial. spectators precautions regarding any March that, morning, on Thursday record indicates as fifty were as many per- there testimony, second day of a school trial, high members including sons observing assigned not thirty jurors yet class and at least prospective to a trial. wit- chief
That before Commonwealth morning, Thursday informed the testified, attorney the prosecuting ness Colvin be on the stand he will court that was sure “quite [Colvin] “we let and suggested of time ...” length that, quite The court agreed at 196a. recess....” Record jury a recess. prosecuting attorney, thé the recess suggested
During record: chambers, following on the court, in put Commanding Officer “I informed by have been have information they Police that Pennsylvania State on the life the next attempt to be an going that there is different it come from three witness has [(Colvin)], recess.” I of this at sources, and was informed alternatives, less considering prejudicial Rather than the courtroom cleared court, ordered objection, over defense couple of a members exception of “all with the spectators resumed trial immediate- and radio ...” and the newspaper With begun. only the recess had one-half hour after ly, excluded, Col- public and the present, media representatives in the homicide alleged his vin testified to own involvement involvement of appellant. well as remainder of that Thurs- covered the Colvin’s testimony additional day, Friday, eight The next day. recess, the defense a weekend After
witnesses testified. 12, and Tuesday March testimony Monday, its presented *9 indicates, record so far the days, the On these three 13th.
475 Late Tuesday no access were public imposed. limitations of murder of afternoon, returned verdicts of guilty the jury and the first degree conspiracy. the of the court’s order jury upon
The prejudicial impact during presenta- of all spectators the courtroom clearing must be obvious. of chief witness tion the Commonwealth’s when public exclusion of members of the Surely, abrupt present- the accused is damaging against the most testimony for wide of range speculation by ed would set the stage that the witness’s safety jury, including possibility from The court’s exclusion of the public in jeopardy. circumstances, of trial, and the range jury attending cause the to focus jury upon all would speculation inevitably cause. the defense and prejudice appellant’s It courtroom-closing Such affects more than the jury. trial, denies his constitutional to a right public appellant impairs integrity truth-seeking process. adversely As Mr. observed in Richmond Burger Newspa- Chief Justice Inc. v. pers, Virginia, 448 100 65 U.S. S.Ct. (1980), L.Ed.2d 973
“the
evidence demonstrates
that at
historical
conclusively
the time
laws were
organic
adopted,
when our
trials both here and in
had
been
England
long
presump-
rather,
This is no
it has
tively open.
quirk
history;
attribute of an
indispensible
been
as an
long
recognized
trial. Both Hale
the 17th
Anglo-American
Century
importance
openness
Blackstone in the 18th saw the
trial;
of a
it
assurance that
proper functioning
gave
concerned,
to all
were conducted
proceedings
fairly
misconduct of participants,
and it
discouraged perjury,
and decisions based on secret bias or partiality.”
448
(Opinion Announcing
U.S. at
2823
at
S.Ct.
Brennan,
Mr. Justice
Black-
Judgment
Court).
quoting
“
stone,
of witnesses viva
also wrote:
examination
‘open
voce,
mankind,
is much more conducive
all
presence
Id.,
584-585,
of truth ....’”
at
clearing up
to the
448 U.S.
ex rel. Bennett v.
at 2830. See also United States
S.Ct.
Rundle,
v. Denno
(3d
1969) (Jackson
hearing, objection). over defense closed to public witness testified where the chief Commonwealth Here, non-public few media in the representatives before a only concluded otherwise it must be fully open, of a trial portion the courtroom was closing preju trial court’s order that the be granted.* dicial that a new trial should and Justice, LARSEN, concurring. that claim appellant’s
As the disposition to majority’s him with statements failed to provide the Commonwealth interviews of Commonwealth concerning police and reports trial, I that the case should agree witnesses who testified at I hearing. for an evidentiary be remanded to the trial court however, advanced the not, agree reasoning do with result. in of that support majority provide a to the defense has duty The Commonwealth or substantially records verbatim with the prosecution’s at of witnesses who testify statements verbatim pre-trial Wade, 480 Pa. v. trial. Commonwealth it terms a “minor clarificar The in what (1978). majority, rule, must now prosecution states that tion” of this notes, written or “any reports, for defense counsel produce majority with witnesses ...” records to interviews relating This is not a minor (emphasis supplied). at 1288 opinion of the duties clarification, previously but a revision major Wade, in Commonwealth the prosecution imposed upon review of And, will language permit supra. sweeping this policemen’s or file, investigator’s including the entire * support majority agree is sufficient I that the evidence with Colvin, testimony witness of chief Commonwealth verdicts. effect, directly prejudicial in order was who testified while the court’s killing appellant plan victim as well as to the a to kill the linked discharged appellant’s he must be because As to claim that itself. information, majority “jurisdictional” also correct- a defect however, not, majority’s apparent ly share the denies relief. I do attorney signature a district authorized belief that defective time, I provide At the same a basis for relief. staff member stamp” process employed here would not condone the “rubber attorney’s district office. and since impressions opinions prosecutor’s strategy, all of matters could be derived from pre-trial these interviews thus be considered as investigative may to” those interviews. Such a vast intrusion into “relating unwarranted, the state’s files is and I would follow and adhere to the standards set forth in Wade. case,
In the instant has provided Court with the and it is evident police reports question, contain verbatim and verbatim state- substantially they *11 I must be remanded to agree ments. therefore that the case the trial court for a on whether the Common- hearing wealth’s failure to make these available to reports appel- lant’s counsel was harmless error. J.,
KAUFFMAN, joins concurring opinion. Lucy Lucy In re ESTATE of Frances LAURIN Frances a/k/a Tryall Tryall Olsen L. a/k/a Frances a/k/a Frances Olsen, Deceased. FLEMING,
Appeal Individually, L. E. of Susan Richard Flem- ing, Fleming, Fleming. L. Lori M. Susan Guardian of
Supreme Pennsylvania. Court of 29, 1980. Sept.
Submitted Decided Feb. 1981. those notes portions with a Commonwealth verbatim, verbatim, substantially which contain either the matter tried being are relevant statements which for the reasons enunci- to the defendant should be available ated in Grayson. is entitled review any We a defendant thus believe with records to interviews notes, relating or written reports at trial. testify Recognizing who subsequently witnesses concerning which portions will arise questions
Notes
notes outside the accounts, hearing, jury’s pres we feel a factual ence, transcript those disputes. resolve initially could record for adequate an hearing provide from such a As we stated in Common review. meaningful appellate 487, 499, 378 A.2d Hamm, v. 474 Pa. wealth (1977): has the ultimate re- “We the trial court recognize statements prior to determine whether sponsibility of the witness or are in cross examination may be used However, like other evidentiary otherwise admissible.. are made in an properly these determinations rulings, that the trial court We do not believe context. adversary statements have may that prior can determine the value argument defense after hearing to the defense without inspection.” never had an case, In appellant opportu the instant to show argument to review the notes and present nity which could have been statements which notes contained remand case to the trial Thus we used by appellant. the notes question, court. After reviews appellant the Commonwealth’s fail if court should determine hearing If error. the Com ure to notes was harmless produce a reasonable doubt that beyond monwealth fails to establish harmless, appellant court should a grant the error was Hamm, trial. v. Com- supra, citing, new Davis, monwealth If (1974). 455 Pa. harmless, court it should determines the error was reinstate Following of sentence. court’s judgment ruling, new to this be taken.2 appeal Court may Judgment of sentence is vacated and the case is remanded with this opin- the trial court for consistent proceedings ion. LARSEN, J., files a in which KAUFF- concurring opinion MAN, J., joins. J., ROBERTS, files a dissenting opinion. ROBERTS, Justice, dissenting. must be a new trial Appellant granted charges homicide, because in and criminal conspiracy course of on both charges, the trial appellant’s jury court committed reversible error the courtroom by clearing of all members of the for media public except representa- Thus, tives. I dissent. 5,1979, On court and March counsel discussed Monday, matters before commencement of selection. preliminary jury dire, After review of voir both de- proposed questions fense counsel and the addressed their prosecuting attorney