220 Pa. Super. 235 | Pa. Super. Ct. | 1971
Dissenting Opinion
Dissenting Opinion by
Appellant was charged with burglary, larceny, armed robbery, and prison breach. He pled guilty to
It has been the law in Pennsylvania that a sentencing judge may allow disclosure of a presentence report at his discretion. Commonwealth ex rel. Lockhart v. Myers, 193 Pa. Superior Ct. 531, 165 A. 2d 400 (1960).
More significantly, new sentencing legislation now pending in the Pennsylvania Legislature would require that “[b]efore imposing sentence, the court shall afford counsel for the prosecution and the defense a reasonable opportunity to read but only in the discretion of the court to copy the presentence report.” Senate Bill No. 440, Session of 1971.
I wholeheartedly support this concept of disclosure and believe that it is dictated by both fundamental fairness and the constitutional requirement of effective counsel at sentencing. “It is indeed difficult to see how there can be meaningful representation at sentencing time when there is no disclosure to [counsel] of the
In 1968 the American Bar Association House of Delegates adopted the following formulation concerning disclosure: “Fundamental fairness to the defendant requires that the substance of all derogatory information which adversely affects his interests and which has not otherwise been disclosed in open court should be called to the attention of the defendant, his attorney, and others who are acting on his behalf.” After a careful review of the issue, the Advisory Committee on Sentencing and Review concluded that traditional arguments against disclosure were of little merit when compared to the potential prejudice to the defendant.
First, the fear that confidential sources of information would “dry up” if the defendant knows who the informer is “must be weighed against the interest of the defendant and of society that he not be sentenced on the basis of vengeful slanders or mere rumors which he cannot rebut because he is not told of them.” 81 Harv. L. Rev., supra, at 838. In addition, those jurisdictions which regularly practice disclosure have not experienced additional problems in gathering information. See, Thomsen, “Confidentiality of the Presentence Report: A Middle Position,” 28 Fed. Prob. 8 (1964).
Secondly, the Committee concluded that any delay created by disclosure was no excuse for a denial of fundamental fairness, and probably could be avoided by use of presentence conferences. There was also an indication that relieving defense counsel of the obligation to conduct his own investigation might actually speed sentencing proceedings. Finally, the fear that disclosure of certain medical information might harm a defendant’s
Disclosure of the contents of the presentenee report to defense counsel is necessary in order that he may effectively question the facts and criticize the conclusions upon which the sentencing judge will rely. One of the basic values underlying our system of criminal justice is that the defendant is entitled to know the details of the charges against him and an opportunity to respond to them. Clearly this value is subverted by a system which does not require disclosure of the information contained in the presentence report.
I would remand the case to the lower court for a resentencing hearing at which appellant’s counsel has the opportunity to read the presentence report.
The relevant statute does not mention disclosure. Act of December 22, 1965, P. D. 1187, §1, amending Act of March 31, 1860, P. L. 427, §73.1, 19 P.S. §890.
Lead Opinion
Opinion
Judgment of sentence affirmed.