*1 they “judicially cognizable having no have interest” appellees Liquor do Code enforced. I would hold standing decide have in this case and would therefore appeal, appeal. their of that Consideration of merits however, appellees have failed tome conclude leads showing, ac- their a mandamus sustain burden tion, they requested, right remedy had a clear agency acted to show that had because failed Liquor I manner not law. authorized believe Board, contrary Control Common- order, Court, authority modify wealth has the an therefore, I the or- done reverse case. would judgment der of the Commonwealth enter Court appellants. A.2d Pennsylvania
COMMONWEALTH of ROYSTER, Appellant. Robert J. Pennsylvania. Supreme Argued March 1976. April
Decided 1977. *3 Melvin Brookman, Brookman, Philadelphia, Shein & appellant. for
F. Fitzpatrick, Atty., Dist. Emmett Steven H. Gold- blatt, Atty., Philadelphia, for Wilson, Asst. Dist. James J. appellee. JONES, J., EAGEN, O’BRIEN,
Before C. and ROB- ERTS, POMEROY, MANDERINO, NIX and JJ. THE
OPINION OF COURT O’BRIEN, Justice.
Appellant, Royster, by judge Robert tried a J. was sit- ting jury adjudged guilty with and was murder in degree shooting the first for the death of Jami- Charlotte appellant son. motions denied Postverdict were and imprisonment. appeal sentenced to life This followed. surrounding appeal The facts this are as follows. On 31, 1973, appellant Sonny’s Lounge, entered October began Philadelphia, argue barmaid, and with the During argument decedent, Mildred Cerdan. this joined Jamison, arguing Charlotte Mrs. with Cerdan appellant. Appellant made some violent threats (cid:127) during argument. Appellant brandished revolver gun, then walked door, toward the turned and fired the fatally striking the bullet Charlotte Jami- decedent, son.
Appellant argues first that the erred court below failing compel production complete police in vestigative pursuant subpoena file duces tecum. We agree. Appellant argument do not bases his on Unit Maryland, Supreme Brady ed States Court decision (1963), 373 U.S. 10 L.Ed.2d S.Ct. suppression dealt with the of evidence favorable defense. case, subpoenaed Detec-
In the instant counsel defense investigating police Twyman, officer tive the chief in- subpoena tecum case.1 The duces vestigative concerning homicide. file the Jamison “that
At conference counsel stated a sidebar defense and [the those statements defendant entitled to implies behind cases case cited defense counsel] on will tend bear . . the information . ” guilt attor- punishment . . his . district complied the mandates ney responded with that he had Brady, by furnishing supra, to defense counsel attorney’s file. in the district *4 Supreme States in United Court United States (filed 2392, 392 97, 49 L.Ed.2d Agurs, 427 96 U.S. S.Ct. discovery man- scope 24, 1976), discussing the June by Brady, stated: dated assumed Appeals appears to have
“The Court obligation prosecutor has constitutional that jury’s might any affect disclose information Twyman received Detective as to whether The record is unclear 1. need file we with the subpoena. he was in court Since question. decide that factual
585 standard constitutional of a statement verdict. That justice’ theory of ‘sporting materiality approaches Brady. For a rejected expressly the Court by im- ‘might’ an affected be jury’s appraisal of a case by well as proper trivial consideration or guilt. legitimate the issue of giving doubt on rise to a jury must be dis- might everything influence If discharge his closed, only way prosecutor could complete discov- duty be to allow constitutional would practice. ery of his files matter of routine as a authorizing such procedural rules or not “Whether desirable, discovery might the Constitution broad expressing surely that much. While does not demand may not representatives State evidence,’ former Chief ‘suppress substantial material Supreme Court Traynor of the California Justice report duty sua ‘they pointed under no out that are about the sponte learn to the defendant all that Imbler, In re 60 Cal. their witnesses.’ case and about (1963). 293, 6, 554, Cal.Rptr. 301, P.2d 2d recently constitu- that there is ‘no And this noted Court requirement make a com- tional po- accounting plete and detailed defense of Illinois, investigatory on the case.’ Moore v. lice work 786, 795, 2562, 33 L.Ed.2d 706. 2568, U.S. S.Ct. in- possibility item of undisclosed The mere that an might helped defense, might have formation trial, not estab- the outcome of the does have affected (Em- ‘materiality’ sense.” constitutional lish phasis supplied.) Martin,
Moreover, in Commonwealth v. (1975) (a opin- plurality joined Pomeroy ion Mr. Justice former Chief Mr. discussing O’Brien), Jones and Mr. Justice Justice duty of the in camera trial court to conduct an files, inspection of the stated: Commonwealth’s agreed “In the case at bar the supply appellant any evidence of an na- *5 supra. n.
ture. See No such material was forth- coming, however, prosecution represented for the to Court, in it court, as it does fact possession that would tend to in its no evidence had exculpate it Martin contends that should Martin. prosecution, judgment, the court’s of importance. in a of such The trial controls matter inspection of to an camera court declined conduct investigation prosecution’s in order the results of the independent appraisal its make own obligation As the agree no so to do. had We put Appeals it, for the Fourth Circuit upon Brady rule of not make it incumbent ‘does through rummage behalf of trial the file on ” (Citations omitted.) the defendant.’ appellant sought complete case, In the disclo- instant police investigative sure file. are of We relating pre- Brady that neither nor Pa.R.Crim.P. 310 discovery required trial such disclosure.
Appellant argues below erred next that the court permitting gun his into introduction weapon in when it could not be established that the agree. volved in the instant homicide. We do not surrounding The facts are: Novem- above issue On appellant’s 14, 1973, shooting, ber two weeks after the at preliminary hearing promised to defense counsel deliver questioned weapon attorney. Al- district weapon though the dur- offer to surrender was made ing bail, a discussion the record does of the amount of upon any stipulation not indicate or limitation Com- subsequent monwealth’s of the use Com- revolver. performed monwealth ballistics tests but because actually Jamison, failure to find the killed no bullets comparison weapon. with could be made Yount,
In Commonwealth v. 455 Pa. relevancy (1974), discussing admissibility person, not con- pen but knife found on the defendant’s *6 weapon slaying, this clusively used in the to be the shown stated: court
“ weapon had a or ‘The that the accused . . fact . of crime implement the commission the suitable to always proper charged, a knife ... such as prosecution.’ ingredient the for the Whar- of case (13th ed. at 289-90 C. Criminal ton’s Evidence § 1972). Torcia As clearly
“This was admissible. relevant evidence Ford, 451 recently this Court held Commonwealth (1973): testi- Pa. ‘[Positive actually mur- mony the question was that the knife weapon prior into required introduction der is not the proper ad- . . If a foundation . laid, here, then ad- of has been as the evidence mission permissible. The . . . evidence is mission into positively af- identified that the knife not be fact could evidence, not weight of but admissi- fects the such its bility. . . A. 653, 331 Bederka,
See also Commonwealth v. (1975) (dealing 2d with the admission into evidence weapon shotgun proven the used in of a not to be the homicide). Twyman
On direct identified examination Detective weapon the the one surrendered Twyman by fur- defense The Commonwealth counsel. testimony through ther the the established of barmaid- eyewitness weapon shooting of the that was type night appellant shoot- that on the fatal had ing. Twyman, by de- Detective on cross-examination not counsel, fense could testified the Commonwealth gun weapon. establish the murder err We are of the that the court did not below admitting appellant’s revolver, into since weapon’s inability of the establish this Commonwealth to weight, admissi- goes not the homicide use in the bility, the evidence. did argues the court below
Appellant next had bur charge jury not every element proof beyond doubt of a reasonable den of agree. of the crime. We do following ex- charge reveals Our review cerpts: reaching jury must consider verdict, the
“In guilt the innocence to determine the evidence burden defendant, the Commonwealth since guilt the de- throughout establish jury will beyond reasonable doubt. *7 fendant light burden weigh thé of that the evidence reaching a verdict. presumed the Court
“Every the of man comes to bar the charges against him and the to be innocent of proving the de- that the burden Commonwealth has . of charged beyond guilty a rea- is the crime as fendant obligation under no is sonable doubt. defendant innocence to establish his
[*] [*] # “ innocent, presumed to . The defendant . . the bur- every court and like defendant in a criminal guilt his and to establish on the Commonwealth den is against charged every the crime essential element of sup- (Emphasis beyond doubt.” him reasonable plied.) charge to elements
The court then continued involuntary voluntary degrees and of murder and the court manslaughter. does not reveal that Our review “beyond charge a reasonable below from its omitted proof. doubt” standard of argues erred
Appellant that the court below next charging jury two of Common- not seques- allegedly wealth’s violated the court’s witnesses tration further that one of the two witnesses order and per j ury. agree. committed We do beginning appellant’s trial, At the the court below imposed sequestration order, part prohibited of which testimony discussing their the case or witnesses from day anyone. During trial, appel- with first information lant’s informed the court that he had counsel investigating Twyman, officer that Detective the chief case, eyewitness Cerdan, this on and Mildred shooting, talking the courtroom. Im- were seen outside mediately hearing during which an in camera was held Twyman both Detective and Mrs. Cerdan testified during but that did fact talk the luncheon recess generalities and conversation was centered around testimony. did not either the case or other’s concern explanation The trial with was satisfied sequestration order. accordingly no of his found violation Appellant have now court below should contends that the charged jury did occur and a violation perjury fact witnesses.2 was committed one appellant’s claim be- We do not reach the merits of specif- charge request or to cause of the failure to such ically object during charge to its omission. the court’s *8 appellate preserved Therefore, been issue has not 709, 337 McNeil, Pa. See Commonwealth v. review. (1975). A.2d 840
Judgment affirmed. of sentence EAGEN, J., the result. concurs in C. concurring opinion.
NIX, J., files a as unclear were both Twyman Cerdan and Mrs. 2. Detective frag- conversation one conversations were two whether there of con- number parts. This confusion into two mented perjury. appellant is contends is what versations ROBERTS, dissenting J., files a J., joins. MANDERINO,
MANDERINO, J., dissenting opinion. files a concurring. NIX, Justice, plurality opinion accept I the result reached reject position of the dis- Mr. Justice O’BRIEN any basis for be- I there was sent because do not believe exculpato- lieving contained that the materials ry evidence. dissenting. Justice,
ROBERTS, appellant case, During trial of this I dissent. possession in the sought materials disclosure of certain ex- prosecution he contained of the believed because accepted judge the Com- culpatory The trial contained no the materials monwealth’s assertion appellant’s re- denied such on basis evidence and repre- rely solely judge may on such a quest. A trial re- any believing there is basis for sentation. If evidence, a trial quested material contains in camera before those materials should examine ruling request. on the 1194, Brady Maryland, S.Ct. U.S.
In v. Supreme that: (1967), held 1196-97 prosecution favorable by the of evidence “suppression process where due upon request violates to an accused punish- guilt or either to is material the evidence good faith or bad ment, irrespective faith prosecution.” duty produce evi- Brady,
Under E. the accused. materially favorable dence which 1968); see (5th Cir. Dutton, F.2d 797 g., v. Williams A.2d 295 126, 295 Powell, 449 Pa. Pleas, (1972); Common Lewis v. Court of (1969). *9 prosecution’s acceptance by court of the Blanket a trial possesses it no evidence does ade- assertion that such Judge quately protect rights As of accused. Frankel has observed: in this course is that unfortunate defect
“[t]he (the powerful) more of adver- leaves with one period control that must saries of a critical unilateral unacceptable convic- toll of unfair . exact an tions.” (S.D.N. F.Supp. Gleason,
United States v. right Y.1967). pro- A constitutional defendant’s upon depend exculpatory duction of “cannot Dutton, prosecutor.” v. benevolence of the Williams omitted). Accord, (footnote States United F.2d at 800 Deutsch, F.Supp. (S.D.N.Y.1974). recently presented a
This with case Court has been which the to disclose Commonwealth failed 223, 369 Topa, 471 In Commonwealth v. sought to a (1977), use A.2d voiceprint comparison appellant with mur- connect a to sample claiming attorney, der. The to have no district ap- appellant’s compelling voice, sought a court order pellant exemplar comparison with provide a voice po- tape recording telephone the state call made lice. The court make an exem- ordered accused plar, tape using the of the tele- same found on the words phone proceed- Throughout subsequent call. this ings, existence to disclose the Commonwealth failed recording he was first when voice made questioned Only police. the exis- the state at trial did tape” tence of this “secret known when Com- become expert he had exam- monwealth’s witness indicated that tape. com- testified that a ined This witness further parison incriminating tele- tape” the “secret with phone fail- call was inconclusive. The Commonwealth’s tape’s deprived existence ure inform the defense opinion). (concurring theAs him of a fair trial. Id. *10 592
Topa illustrates, case the Commonwealth make mis- can takes or become its efforts overzealous in to secure a con- viction. majority quota-
The dismisses claim with a 108-09, tion Agurs, 97, from States United 427 U.S. 2399-400, 96 2392, (1976). 342 S.Ct. 49 L.Ed.2d majority completely has misunderstood the issue Agurs. The Court’s was to establish purpose a standard evaluating for Brady claims been after a defendant has specific holding Agurs convicted. The is that in the request exculpatory absence a focused evidence for defense, high the materiality a be met standard of must the prosecution’s before failure to disclose vio- process requires Agurs lates due and a sim- new trial.1 ply proposition does not stand for the determi- prosecution whether the nation must disclose evidence Brady the defense under is unfettered discre- left prosecutor. Indeed, tion of the the Court noted that materiality “. . . if claiming a substantial basis for exists, prosecutor require to re- reasonable spond by furnishing either submit- information ting problem judge.” 106, to the trial at U.S. S.Ct. at 2399.
Appellant
sought
here
materials he
contained
believed
exculpatory
necessarily
request was
evidence.2 His
1.
the omitted evidence creates
reasonable doubt
did
“[I]f
exist,
not
constitutional
error has
otherwise
been committed.”
112,
n.12,
n.12,
77 S.Ct.
could he
obtained these materials
of evidence held
tial debate
the Commonwealth. There has been substan-
concerning
scope
pre-trial
propriety
and
discov-
Israel,
Kamisar,
LaFave,
ery in
J.
criminal cases. See Y.
W.
and
However,
(4th
1974).
Modern Criminal Procedure 1207-16
ed.
appellant sought only
prosecution
here
which the
evidence
produce,
investigative
duty
had a constitutional
to
not the entire
file,
majority
as the
asserts.
certainly
3. Defense counsel is
evaluate whether the
better able to
requested
exculpatory.
United
evidence is
See Alderman v.
States,
165,
961,
(1969);
394 U.S.
89 S.Ct.
Dennis
L.Ed.2d 176
22
States,
855,
1840,
v. United
U.S.
86 S.Ct.
MANDERINO, J., joins dissenting opinion. in this MANDERINO, dissenting. Justice, join I dissenting of Mr. Justice Roberts. agree I only not the can make a final determination as to what materials however, defense is add, entitled to see, I like should prosecution’s if the any file contains statements prosecution witnesses, defense counsel must be allowed see such statements. As we said in Commonwealth *12 Grayson, 427, 429, 428, 429 (1976): 466 Pa. prosecution’s
“whether the statements of the witnesses helpful ques- would have been to the defense is not a tion to be determined They reading
court. would the statements with eyes engaged defending of a advocate trial client. Matters witness’s statement in a contained may appear great some, signifi- innocuous to but have viewing cance to counsel from statements perspective of an advocate for the accused about cross-examine a witness.” items, specific prosecu-
4.
the defense
When
requires
“might
tion’s failure to disclose
reversal
if the evidence
Agurs,
have affected the
trial.”
outcome
United States