COMMONWEALTH of Pennsylvania v. Joseph Jude OLIVER, Appellant.
379 A.2d 309
Superior Court of Pennsylvania.
Decided Oct. 6, 1977.
Submitted Feb. 2, 1976.
Charles M. Guthrie, Jr., Assistant District Attorney, and Grant E. Wesner, Deputy District Attorney, Reading, for Commonwealth, appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
VAN der VOORT, Judge:
The appellant, Joseph Jude Oliver, filed the instant appeal following the denial by the lower court, after a hearing of his petition for relief under the Post Conviction Hearing Act. (Act of January 25, 1966, P.L. 1580,
The appellant‘s initial contention is that his conviction should be reversed because of his compliance, despite his objection, with the mandates of former Rule 312 of the Pennsylvania Rules of Criminal Procedure. That Rule re-
In deciding any question of retrospective application of a case holding to prior convictions, it is initially pertinent to quote the Supreme Court of the United States, in commenting on the philosophic and decision making process in cases involving such questions: “We . . . stress that the choice between retroactivity and non-retroactivity in no way turns on the value of the Constitutional guarantee involved.” Johnson v. New Jersey, 384 U.S. 719, 728, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882, 889 (1966). In each such case, we are guided in our deliberations by consideration of the following factors:
- The purpose to be served by the newly enunciated standards;
- The reliance which may have been placed upon prior decisions by authorities; and
- The effect on the administration of justice of a retroactive application of the new standards.
See Linkletter v. Walker, 381 U.S. 618, 636, 85 S.Ct. 1731, 1741, 14 L.Ed.2d 601, 612 (1965); Tehan v. Shott, 382 U.S. 406, 413, 86 S.Ct. 459, 463, 15 L.Ed.2d 453, 458 (1966). With respect to the second factor above, it cannot be contested that there was a strong reliance by authorities on the former
The purposes to be served by the new standards must be carefully reviewed. It is abundantly clear from Wardius that the United States Supreme Court has not condemned the practice, as a violation of due process standards, or any other constitutional safeguard, of requiring a criminal defendant to reveal his alibi defense prior to trial. Rather, the Court held that if such revelations are required of a defendant, state procedures must provide reciprocаl discovery rights to an accused. Thus, the holding of the Supreme Court in Wardius was akin to prior and subsequent cases involving exclusionary or prophylactic evidentiary rulings, in which no retrospective application was made. See Johnson v. New Jersey, supra (in which the rules of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), both involving use of confessions at trial, were denied other than prospective application); Linkletter v. Walker, supra (in which the court held prospective only the rule involving the exclusion of improperly seized evidence at trial as enunciated in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (which held prospective only the holding of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), concerning exclusion at trial of identification evidence procured through impermissibly suggestive pretriаl confrontations between the witness and the accused). While these cases are highly instructive to us as guidance in the instant circumstances, we find the Supreme Court‘s decision in Tehan v. Shott, supra, to be highly analogous and particularly appropriate
We must also consider the factor of the effects on the administration of justice of the retroactive application of Wardius in this Commonwealth. We find the following discussion by the United States Supreme Court, in Tehan v. Shott, supra, to be particularly appropriate in the instant case:
Empirical statistics are not available, but experience suggests that California is not indulging in hyperbole when in its amicus curiae brief in this case it tells us that “Prior to this Court‘s decision in Griffin, literally thousands of cases were tried in California in which comment was made upon the failure of thе accused to take the stand. Those reaping the greatest benefit from a rule
compelling retroactive application of Griffin would be [those] under lengthy sentences imposed many years before Griffin. Their cases would offer the least likelihood of a successful retrial since in many, if not most, instances, witnesses and evidence are no longer available.” There is nothing to suggest that what would be true in California would not also be true in [other States]. To require all of those States now to void the conviction of every person who did not testify at his trial would have an impact upon the administration of their criminal law so devаstating as to need no elaboration. 382 U.S. at 418 and 419, 86 S.Ct. at 467.
Likewise, we believe it certain that former Rule 312 was followed in hundreds or even thousands of cases which resulted in convictions in our Commonwealth prior to Wardius and Commonwealth v. Contakos, supra. The results of a retrospective application of Wardius would virtually flood our courts with new appeals by defendants, otherwise properly convicted and whose appeals have been exhausted, seeking new trials. Many resulting new trials would certainly end up in acquittals or probable inability by prosecutors to proceed because of missing or deceased witnesses, lost recollections, and destroyed or irretrievably lost evidence. Such likely dire consequences cannot and should not be ignored or understated.
For all of the above reasons, we believe it clearly mandated that Wardius not be given retrospective application. With respect to the instant appeal however, we note that even if we held Wardius to be deserving of retroactive application, we would find that there was both harmless error and the realistic existence of reciprocal discovery in the lower court.
With respect to our conclusion that there was an absence of harmful еrror, we need only briefly state that the evidence offered by Commonwealth witnesses was clear in establishing sufficient evidence that the appellant was one of two men who abducted and sexually attacked a fifteen year old girl. The jury obviously believed such evidence and
Finally, we can conclude thаt effective reciprocal discovery was present in the instant circumstances. The Commonwealth presented the defense with the names of all of its witnesses, prior to trial, except for some called only on rebuttal. Thus, the main and principal witnesses for the prosecution were known to the defense. It would be impossible for the Commonwealth, even if there existed rules for reciprocal discovery, to provide the defense with a complete list of every possible witness who might be called in rebuttal, since plans for such rebuttal obviously cannot be finаlized until the defense is presented. Moreover, the defendants in the instant case were permitted to present an alibi witness who had not been disclosed to the prosecution prior to trial, despite the existence of Rule 312. In light of all of these factors, effective reciprocity was accomplished in the instant case.
On this appeal, the appellant also argues that his trial counsel was ineffective for complying with Rule 312. This claim has no merit. Counsel not only had no choice in the matter, but demonstrated extreme effectiveness in preserving a constitutional challenge to Rule 312, despite the fact that the trial in this case predated the Wardius decision
Affirmed.
SPAETH, J., files a dissenting opinion in which HOFFMAN, J., joins.
SPAETH, Judge, dissenting:
The majority‘s holding that appellant‘s conviction was not violative of due process rests, as I understand it, on three alternate conclusions: First, that the rule of Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), should not be applied retrospectively; second, that even if Wardius were to be applied retrospectively, and appellant therefore held entitled to reciprocal discovery, here the dеnial of such discovery was harmless error; and third, that in any case, appellant got reciprocal discovery. For the reasons that follow, I disagree with all three of these conclusions. I therefore dissent.
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The Facts
After being convicted by a jury of rape, appellant was sentenced on May 29, 1969, to ten to twenty years in prison. On October 30, 1969, we affirmed. 216 Pa.Super. 744, 258 A.2d 337. On January 10, 1970, the Supreme Court denied appellant‘s petition for allowance of appeal. On September 13, 1974, appellant filed a petition under the Post Conviction Hearing Act1 in which he contended that Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), requires that he be awarded a new trial. After a hearing the lower court denied appellant‘s petition.
Appellant‘s principal defense at trial was an alibi. In order to be able to present that defense, appellant‘s counsel
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The Rule of Wardius
In Wardius, the United States Supreme Court reviewed an Oregon statute that was very similar to Rule 312.4 There the defendant had been prevented from testifying concerning an alibi, and the testimony of an alibi witness was stricken because of failure to give the pre-trial notice required by the statute. The Court noted that while the statute obliged the defense to disclose its strategy and witnesses, it did not impose a reciprocal obligation on the prosecution. This disparity in pre-triаl discovery, the Court held, made enforcement of the statute unconstitutional as a denial of due process:
It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State. 412 U.S. at 476, 93 S.Ct. at 2212.
Accordingly, the Court said:
We hold that the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants. 412 U.S. at 472, 93 S.Ct. at 2211.
witnesses the Commonwealth will use to rebut the alibi. See discussion infra.
The conclusion cannot be escaped that the present case is within the rule of Wardius.5 Appellant was obliged by Rule 312 “to divulge the details of his own case,” without any reciprocal obligation of disclosure being imposed on the Commonwealth, with the result that appellant was “subject[ed] . . . to the hazard of surprise concerning rеfutation of the very pieces of evidence which he disclosed to the State.”
The Commonwealth contends that this case is distinguishable from Wardius in that here, appellant complied with the requirement of the alibi notice rule and was therefore permitted to present his alibi defense, whereas in Wardius, the defendant was precluded from offering an alibi defense because the alibi notice statute had not been complied with. Rather than being distinguishing, this difference makes Wardius especially applicable. After holding the Oregon statute violative of due process because it did not provide reciprocal discovery, the Court in Wardius had to decide whether the defendant had been prejudiced by the statute since he had not complied with it. The Court summarily dismissed the argument that the defendant might have been granted reciprocal discovery, even though not provided in
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The failure to comply with Wardius
The majority stresses the fact that appellant was informed of the witnesses that the Commonwealth would present in its case in chief, since the names of those witnesses had been listed on the indictment. Thus, the majority argues, there was de facto reciprocal discovery. However, there was not. Several rebuttal witnesses were сalled by the Commonwealth whose names were not listed on the indictment. (PCHA Hearing, N.T. 26) “Reciprocity . . . is the key to Wardius.” Commonwealth v. Jackson, supra 457 Pa. at 82, 319 A.2d at 163. When one side says, “I will prove Fact A by calling Witness X,” the other side must reply, “I will counter, and disprove Fact A, by calling Witness Y.” Without such a reply there is no reciprocity:
Due process requires that if an accused is compelled to comply with a notice of alibi rule, then the Commonwealth must reciprocate and provide the names and addresses of all witnesses who will be called to refute an accused‘s alibi, regardless of whether the witnesses will be called in rebuttal or in the Commonwealth‘s case in chief. See 412 U.S. at 474-76, 93 S.Ct. at 2212-13 [Wardius]. Commonwealth v. Jackson, supra 457 Pa. at 82, n. 4, 319 A.2d at 163, n. 4 (emphasis added).
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Retrospective Application of Wardius
Appellate courts are often required to decide whether and how a new rule of constitutional dimensions is to be applied to cases that arose before the announcement of the rule. In its purest form the question of retrospective application arises in the context of a case wherе the defendant has been convicted and has exhausted all appellate remedies before the announcement of the rule.6 This is such a case.
The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by the law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. 388 U.S. at 297, 87 S.Ct. at 1970.
Foremost among these factors is the purpose to be served by the new rule. Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). I believe that the purpose to be served by the rule of Wardius requires retrospective application.
It is true that before Wardius this court had held that Rule 312 was constitutional. Commonwealth v. Phoenix, 217 Pa.Super. 121, 268 A.2d 460 (1970); Commonwealth v. Vecchiolli, 208 Pa.Super. 483, 224 A.2d 96 (1966). Here the Commonwealth may well have relied on those decisions in seeking strict enforcement of the rule, and in refusing to give reciprocal discovery. While we cannot fault the Commonwealth for failing to anticipate the decision in Wardius when we also failed to anticipate it, that fact is of no consequence when a defendant has been deprived of duе process of law.
In considering whether retrospective application is required, it is important to note the nature of the new rule in question.
When the rule is an exclusionary or prophylactic rule the United States Supreme Court has held that retrospective application is not required. In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Court
conviction that has become final is apparently of first impression in the Commonwealth.
Our own Supreme Court has likewise denied retrospective application of a prophylactic rule. In Commonwealth v. Godfrey, 434 Pa. 532, 254 A.2d 923 (1969), the Court held that the rule of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), requiring an on-the-record colloquy to ensure a voluntary and intelligent guilty plea, is prospective only.
If the new rule in question is not an exclusionary or prophylactic rule but a rule required to ensure the integrity of the fact-finding process, retrospective application is required. The United States Supreme Court recognized this distinction in Linkletter v. Walker, supra:
Finally, in each of the three areas in which we have applied our rule retrospectively the principle we applied went to the fairness of the trial—the very integrity of the fact-finding process. [Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (due process requires that an indigent criminal defendant be furnished transcripts of his trial in order to prepare his appeal); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)
(counsel must be appointed for indigents charged with felonies); and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) (a hearing must be held before a judge to determine the voluntariness of a confession bеfore evidence of the confession can be heard by a jury)]. Here, as we have pointed out, the fairness of the trial is not under attack. All that petitioner attacks is the admissibility of evidence, the reliability and relevancy of which is not questioned, and which may well have no effect on the outcome. 381 U.S. at 639, 85 S.Ct. at 1743.
The majority characterizes the rule announced in Wardius as prophylactic only and therefore not requiring retrospective application. Majority Opinion at 311. This ignores the reason the rule was formulated, which was that it was required to ensure “the very integrity of the fact-finding process.” This is the plain meaning of the Court‘s statеment, already quoted above, in explanation of the rule:
It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State. 412 U.S. at 476, 93 S.Ct. at 2212.
Here, the nature of appellant‘s trial was fundamentally different by virtue of Rule 312 than would otherwise have been the case. The rule permitted the Commonwealth to “insist that [appellant‘s trial] be run as a ‘search for truth’ as far as defense witnesses are concerned, while maintaining ‘poker game’ secrecy for its own witnesses.” Wardius v. Oregon, supra, 412 U.S. at 475, 93 S.Ct. at 2212. Thus appellant was deprived of the opportunity to bring before the jury any evidence to impeach or otherwise discredit the Commonwealth‘s witnesses—evidence he might have discovered had he known before trial who the witnesses were.
At least one federal district court has held that because the rule of Wardius is to ensure the very integrity of the fact-finding process, Wardius should be given retrospective
The conclusion that Wardius must be retrospectively applied may have a significant effect on the administration of justice, for a number of new trials may have to be held. This possibility, however, is not a sufficient reason to deny retrospective application:
Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function . . . , the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances. Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971) (footnote omitted).
The Court has recently re-affirmed this principle:
. . . we have never deviated from the rule stated in Ivan [v. City of New York, 407 U.S. 203, 204, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1973)], that “[w]here the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the
accuracy of guilty verdicts in past trials, the new rule [is] given complete retroaсtive effect.‘” Hankerson v. North Carolina, 432 U.S. 233, 243, 97 S.Ct. 2339, 2345, 53 L.Ed.2d 306 (filed June 17, 1977) (emphasis in original).
In discussing the effect on the administration of justice of retrospective application of Wardius, the majority makes the familiar argument that such application would open the floodgates, i. e., would vacate the sentence of every defendant tried under Rule 312. I do not believe that such an alarmist position is warranted. Retrospective application of the rule of Wardius would be limited in the same way that prospective application is. A new trial is required only when the defendant was prejudiced by enforcement of Rule 312. Where enfоrcement represented only harmless error the judgment of sentence will not be reversed. Commonwealth v. Jackson, supra; Commonwealth v. Jones, supra. This might be the case, for example, where the Commonwealth offered no witnesses to rebut a defendant‘s alibi, or where the Commonwealth‘s rebuttal witnesses were the same as its witnesses in chief. In such situations the defendant might not have been prejudiced by a failure to receive reciprocal discovery, although the burden will be on the Commonwealth to prove that enforcement of Rule 312 was harmless beyond a reasonable doubt. Chapman v. California, supra.
Finally, the majority argues that as a practiсal matter effective pre-trial discovery of alibi rebuttal witnesses “would be impossible for the Commonwealth.” Majority Opinion at 313. Evidently our Supreme Court disagrees, for it has recently promulgated new rules of criminal procedure that require such discovery.
I would reverse and remand for a new trial consistent with the new Rules.
HOFFMAN, J., joins in this opinion.