Commonwealth v. SheltonCommonwealth v. Shelton
- Reporters:
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- Before:
- Zappala
OPINION
ZAPPALA, Justice.
Wе granted allocatur to determine whether the Commonwealth violated
On August 29,1989, Officer Cunningham bought drugs from an unidentified “black man in his late twenties” at a susрected “drug house” located at 207 E. Penn Street, Philadelphia, Pennsylvania. On the basis of this controlled buy as well as
After the police discovered the bag under the cushion, Appellant was arrested and charged with possession and possession with the intent to deliver a controlled substance, possession of prohibited offensive weapons and possession of drug paraphernalia. No charges were brought against Appеllant regarding the August 29, 1989 sale of drugs to Officer Cunningham.
Following a jury trial on March 7, 1991, before the Honorable Angelo A. Guarino of the Court of Common Pleas of Philadelphia County, Appellant was convicted of possession with intent to deliver a controlled substance, possession of a prohibited offensive weapon and possession of drug paraphernalia. Post-trial motions were argued and denied. Appellant was sentenced to two and one half to seven years imprisonment and to pay a fine of five thousand dollars plus costs.
On appeal, the Superior Court (Cirillo, Cercone, JJ. and McEwen, J. dissenting) affirmed the judgment of sentence. 422 Pa.Super. 635, 613 A.2d 1264. The majority of the Superior Court panel found no violation of
Appellant argues that the Commonwealth violated
The Commonwealth argues that the prosecutor complied with
(1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain undеr this rule, the Commonwealthshall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendаnt’s attorney to inspect and copy or photograph such items.
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(d) the circumstances and results of any identification of the defendant by voice, photograph, or in-person identification;
Additionally, the pre-trial rules of discovеry place upon both parties a continuing duty to disclose newly discovered evidence.
D. Continuing Duty to Disclose. If, prior to or during trial, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material or witness. (Emphasis added.)
On the day of trial, aftеr the jury had been selected, the trial court took a lunch break prior to hearing pre-trial motions. During this lunch break, the prosecutor and Officer Cunningham conferred. It was during this lunch time discussion with the prosecutor that Officer Cunningham for the first time clаimed that Appellant was the person who had sold him drugs in the August 29, 1989 “controlled buy.”
When court resumed, the prosecutor did not inform either defense counsel or the court that Officer Cunningham was prepared to testify that Appellant had committed a prior uncharged crime and that Officer Cunningham would identify Appellant as a drug seller. The trial court proceeded, as planned, to conduct a hearing on Appellant’s pre-trial motions. At no time during this hearing did the prosecutor inform defense counsel of the allegations despite the fact that much of defense counsel’s strategy during this hearing was designed to show that no one had associated Appellant with any previous drug sales at the house. In fact, as the fоllowing exchange illustrates, the prosecutor blocked defense counsel’s attempt
BY Mr. Bank [DEFENSE COUNSEL]: Officer, at any time did any of the informants or other person mention my client’s name as an individual—
BY Mr. Costanzo [THE PROSECUTOR]: Objection.
THE COURT: Sustained.
BY Mr. Bank [DEFENSE COUNSEL]: I have nothing further, your Honor. May [sic] have an offer of proof of whether this officer can testify at all?
THE COURT: No. The only issue I’m resolving now is the issue you presented in the form that you presented it. BY Mr. Bank [DEFENSE COUNSEL]: I have no further questions of this officer.
BY Mr. Costanzo [THE PROSECUTOR]: I have no cross. (N.T. 3/7/91, 159-160) (emphasis added).
It was not until his opening statement that the prosecutor mentioned that Officer Cunningham would testify that Appellant had sold drugs to Officer Cunningham on August 29, 1989. Defensе counsel sought a mistrial or, in the alternative, a continuance. The trial court denied these motions. Defense counsel then asked for a recess until the next day to allow him time to investigate a possible alibi for the new date. This requеst was also denied. The trial continued, and Officer Cunningham testified that Appellant was the man who had sold him drugs on August 29, 1989. Defense counsel renewed his motions for a mistrial, a continuance or a recess until the next day. These requests were denied. Defense counsel renewed his mistrial motion on two more occasions, specifically citing
It is well established in this Commonwealth that the purpose of the discovery rules is to permit the parties in a criminal matter to be prepared for trial. Trial by ambush is contrary to the spirit and letter of those rules and cannot be
In the case
sub judice,
it is undisputed that the prosecutor learned during the lunch break on the day of trial that Officer Cunningham was prepared to testify that Appellant was the person who had sold him drugs in the August 29,1989 “controlled buy.” Nevertheless, when court resumed to conduct a hearing on Appellant’s pre-trial motions after the lunch break, the prosecutor failed to inform either defense counsel or the trial court that Officer Cunningham was prepared to testify as to appellant’s identification. In fact, the prosecutor blocked defense counsel’s attempt to ascertain such information during the hearing when the prosecutor objected to a question defense counsel posed to Officer Mangapit. It was not until the prosecutor’s opening statement that this new information was disclosed to defense counsel and the court. The Commonwealth’s failure to promрtly inform defense counsel and the court of this new information and the manner in which the disclosure was made was a deliberate and willful violation of
E. Remedy. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court mayorder such party to permit discovery or inspection, may grant a continuance, or may prohibit suсh party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.
In this case, the trial judge did not apply
The record does not support the trial court’s and the Superior Court’s conclusions. The affidavit of probable cause underlying the search warrant revealed only that an unidentified “black male in his late twenties” sold Officer Cunningham drugs on August 29, 1989. Furthermore, none of the police paperwork gеnerated either before or after Appellant’s arrest alleged that the police or anyone had ever seen Appellant selling drugs at any time. The trial court’s and the Superior Court’s conclusions are also undercut by the Cоmmonwealth’s contention that it did not know of Officer Cunningham’s testimony until the day of trial.
We find, therefore, that the trial court erred in refusing to grant Appellant a remedy as set forth in
The Order of the Superior Court is reversed and the judgment of sentence оf the Court of Common Pleas of Philadelphia County is vacated. This case is remanded to the Court of Common Pleas of Philadelphia County for a new trial.
Mr. Justice LARSEN did not participate in the consideration or decision of this case.