*1 that an employe with the Board of our spite agreement in order to information must have access to confidential the Board findings by employe, as a confidential qualify clerk falls payroll are not to decide whether adequate The Board employe exception. within the confidential the information to which the found that “the bulk” available to the public. access was also clerk had payroll for us to determine imprecise That far too finding is The is likewise of clerk. record payroll status of the legal extent, if any, payroll to what determining little help information, for the issue to confidential clerk had access of the information availability nonavailability or public directly access was neither to which the clerk had payroll hearing. at the Board explored nor adequately addressed must be remanded to circumstances, the matter Undеr these consideration, opinion, consistent with this the Board for clerk. the status of the payroll and the order of Court order of the Commonwealth the four Pleas is reversed as to the Court of Common the Board is reinstated. The secretaries the order of Court, the Court of Common order of the Commonwealth as to the clerk are vacated Pleas, payroll and the Board consist- proceedings Board matter remanded to. оpinion. ent with this J., in the result.
NIX, concurred
Argued April 1977. July Decided *6 Defender, J. Richard Merrick, Kevin Ryan, John R. Public Defenders, for Moose, appellant. E. Public Asst. Chester, Joan Zumbano, Atty., Asst. Dist. George C. West appellee. D. Lasensky, Berwyn, O’BRIEN, ROBERTS, EAGEN, J., POM- C. and Before MANDERINO, JJ. EROY, NIX and
OPINION POMEROY, Justice. Jr., a Wade, by jury was convicted C. Alton
Appellant,
were denied
Post-trial motions
manslaughter.
voluntary
to a term of imprison-
was thereafter sentenced
and Wade
followed,1
This direct
years.
appeal
ment of five to ten
to require
several trial errors deemed
which
raises
appellant
hereafter,
a
we
new trial. For the reasons stated
believe
are without merit. On
record before
these arguments
further
us,
appellant’s
we are unable to resolve
to effec-
right
constitutional
that he was denied his
charge
we
trial. Accordingly,
a
at
representation
lawyer
tive
by
for the
holding
case
the triаl court
will remand the
this
of the case.
hearing
aspect
evidentiary
Appellate
pursuant
Court Jurisdiction
appeal
this
We hear
211.202(1).
31, 1970,
July
17 P.S. §
Act of
Act of
P.L.
of a two-year
the death
stems from
conviction
Appellant’s
of abusive
the victim
David was
child,
Strong.
David
old
mother,
Strong,
Regina
the child’s
Wade
treatment
against
case
lived. The Commonwealth’s
Wade
with whom
Strong.
She
testimony
on the
depended primarily
Wade
children moved
and her three
after she
shortly
testified
suggestion, began
at Wade’s
home,
couple,
Wade’s
into
and a
restraining
leash
use of
David by
“discipline”
introduced
photographs
testimony
Medical
whip.
horse
body
over the child’s
markings
extensive
at trial indicated
death, according
The cause of
of this punishment.
result
was an intestinal
testimony,
medical
to the Commonwealth’s
Strong
Ms.
injury.
force
a blunt
the result of
rupture,
*7
had
appellant
death
before the child’s
that shortly
testified
Taking
foot.
with his bare
David’s stomach
“stomped”
charge.
this
behalf, Wade denied
in his own
the stand
witnesses
prosecution
his
of
lawyer
Cross-examination
fall sustained by
of death was a
that the cause
suggested
death,
Wade testified that
his
and
David on the
day
mother,
told him of such a
had
the child’s
Regina Strong,
who assumed
Strong
that it was
fall. Wade also testified
children, including
of the
the disciplining
responsibility
ver-
believe the Commonwealth’s
David. The
chose to
jury
verdict of guilty.
аnd returned a
sion of
death
evidence was
that
first contends
Appellant
a reasonable doubt.
guilt beyond
to establish
insufficient
Strong
so,
testimony Regina
because the
This is
allegedly,
Having re
unbelievable.
inherently
was self-serving
of the
record,
totality
satisfied that the
viewed the
we are
infer
evidence,
with all reasonable
along
Commonwealth’s
a
therefrom,
present
sufficient to
legally
ences
was
arising
Hubbard, 472
See,
v.
e.
Commonwealth
questiоn.
g.,
jury
Dawson,
v.
464
259,
(1977);
Pa.
to convict. Commonwealth v. 19, Bradley, 449 295 Pa. Commonwealth (1975); A.2d 671 Bruno, v. 394, 175 Commonwealth (1972); A.2d 842 (1934). A. 518 inten that the Commonwealth
Appellant asserts
See,
e. g.,
from him.
material
exculpatory
withheld
tionally
States, 405
150,
763,
Giglio v. United
92 S.Ct.
31 L.Ed.2d
U.S.
Maryland,
v.
373
83
10
104
U.S.
S.Ct.
(1972); Brady
a
regard
is with
to
statement
(1963).
215
The claim-
L.Ed.2d
witness, one Charlotte
prosecution
to the
a
given
police by
admission by
The
made
to an
statement
reference
Hyatt.2
her children.
only
disciplined
she
Regina Strong
however,
requested
testimony,3
earlier
light
Strong’s
of such
nature as
and not
only
was cumulative
statement
Accordingly,
issues at trial.
materially any
to affect
bring
to
prosecution
on the
duty
part
there arose no
v,
Agurs,
427
Cf. United States
light.4
to
U.S.
statement
2392, 49
(1976).
L.Ed.2d 342
S.Ct.
copy
prоsecution
furnish a
note
did in fact
We
Hyatt
at the time Ms.
was called
statement
the defense
Kontos,
prosecution
343,
Compare
Pa.
witness.
appellant,
asserts that
A.2d 830
prior
production
Brady, supra, requires
to trial.
of such evidence
produce
exculpa-
a failure
We know of no such rule. Whether
tory
constitute re-
trial has commenced would
evidence until after
circumstances,
necessarily depend
in-
on the
versible error would
prejudice
cluding
delay
and the resultant
the reason for the
*8
defense.
clearly
Regina Strong
testimony
had
established that
3.
The earlier
following
she had assumed sole
for
responsibility
injuries
a
David’s death
almost month
disciplining
for the
of the children and
for the earlier
Hyatt
no more
did
to David. The statement
Charlotte
this
admission.
than corroborate
uncontradicted
trial, specifi-
Indeed,
310,
as
existed at the time
it
Pa.R.Crim.P.
cally provided:
howevеr,
discovery
event,
pretrial
or
shall the court order
“In no
possession
inspection
of witnesses in the
of written statements
the Commonwealth.”
Branham,
605,
See
v.
467 Pa.
“Q. you currently are it, is that correct? stand A. That is right. somewhere wife
Q. your present You from separated around June of 1973? Yes,
A. sir. wife has your Is And is it correct that Q. that correct? is that correct? you, filed an action in divorce against object entirely I to this. It MR. CADMUS: immaterial. Yes, will be sus- objection
THE COURT: tained. only question. was jury,
Members it.” Therefore, you disregard not evidence. But will (N.T. 857-858). appellant, contends question, seriously prejudi- last objection that defense counsel’s note,
cial. We and therefore the never was jury was sustained question been or what the brought suit in divorce had told whether a Moreover, a might cautionary have been. basis action ignore to the given jury was immediately instruction was, anything, if The action of the trial court question. defense, examination on direct favorable since overly
171
marital
into Wade’s
status
probed
his
had
lawyer
of Wade
to the сross-examination.
the door
and thus opened
in
the trial court erred
that
alleged
(3) It is also
testimony by
to adduce rebuttal
the
allowing
prosecution
to trial
prior
testified that
Thornton
Thornton.
Joseph
one
to fabricate
him an intention
had confided
appellant
shortly
from a fence
victim’s fall
the
regarding
testimony
of
the possibility
that since
argues
Wade
before his death.
the cross-examina
during
first elicited
an accident was
such
nоt
witness,
may
it
Regina Strong,
of a prosecution
tion
and
defendant’s case
as
of the
part
be characterized
properly
been admitted.
should not have
testimony
hence rebuttal
427,
A.2d 564
Hickman, 453 Pa.
309
v.
Commonwealth
See
had
Strong
Wade,
Regina
did
that
testify
(1973).
Addi
the fence.
suffered a fall from
him that David
told
the Commonwealth’s
cross-examined
lawyer
Wade’s
tionally,
that
the
possibility
the
victim’s
concerning
medical expert
and introduced into
such fall
wеre consistent with
injuries
It
is clear that
the
fence.
pictures
evidence two
an alternative
as
theory
to establish
attempting
defense was
in
of discretion
we find no abuse
to the cause of death
of that
source
possible
testimony
allowing rebuttal
581,
Tervalon, 463 Pa.
v.
See, e.
Commonwealth
g.,
theory.
Hickman, supra.
v.
(1975); Commonwealth
178 a remand Such evidentiary hearing. for an trial court is clear from record when it necessary, ineffec- claimed constitute actions or non-actions that the the realm of or within of were tiveness are devoid merit Turner, 469 Pa. v. trial Commonwealth strategy. to the present this standard
A.2d (1976). Applying it that most of ineffectiveness, we think clear of allegations were now challenged actions which are the trial counsel’s of sound the realm or were within unexceptionable either strategy.8 trial of ineffectiveness involves charges
One witness, Sterly, an alibi Sam produce failure to counsel’s elsewhere to appellant’s presence who could have testified as occurred. beating allegedly the fatal during the time when of the case was fact the outcome In view version credibility appellant’s on the dependent primarily Strong, we must against Regina of the incident over that of witness could conclude that the such alibi testimony lending support importance have been great howevеr, wheth appear, It does not position of defense. the result the witness was deliberate er failure to call Twiggs, choice or of oversight. See *12 find it neces (1975). Accordingly, 440 we Pa. 331 A.2d an the lower court for evidentia to remand the case to sary the basis of trial counsel’s omission to determine ry hearing Hubbard, v. supra.9 in regard. this See counsel, alleges the of have met standard that trial to 8. Wade suppress representation, (1) pre-triаl to should have moved effective items; (2) evidentiary the the close demurred to evidence at certain objections pre- and and raised various case Commonwealth’s (3) appeal; requested unspecified a mistrial and served issues for alleged improprieties part prosecutor following the certain produce involving improper questioning to certain and the failure given police by prosecution We have ex- witnesses. statements allegations to be without merit. amined the and find these record post-trial following Appellant properly in motions 9. raised this issue by appointment the trial The claim was denied the of new counsel. was insufficient court that record because that court concluded evidentiary hearing so in order to do to resolve the claim and that necessary. efficiency better have been would be Judicial would 174 is and case is vacated
The of sentence judgment hearing evidentiary for an to the trial court remanded call Sam trial counsel’s failure to determine the basis of the trial court for Wade. as an alibi witness Should Sterly counsel, a of to ineffectiveness conclude that this was due have been if counsel is deemed to granted; new trial shall be reinstated, be of sentence shall effective, judgment so as to commence of the sentеnce subject to recalculation on the present incarcerated of the time was appellant Thereafter, party appeal. either charges.10 may NIX, JJ., concur in the result. ROBERTS MANDERINO, J., dissenting opinion. filed a MANDERINO, Justice, dissenting. in this case that
I The concludes majority dissent. It inflammatory. evidence were not introduced into pictures do of this Court published opinions is unfortunate that the when reproduction photographs not contain an accurate inflammatory. are whether the photographs issue is of our Without the readers and critics reproduction, such is whether deciding justice are opinions handicapped citizens hand or whether some being with an even dispensed protection are law. equal being deprived passed upon the such a hearing served the trial court held had merits of the claim at that time. petition corpus presently filed We for habeas have before us challenged. appellant propriety of his in which sentence appellant’s sentence basis of the claim arises out of fact manslaughter years, served was to be five to consecutively on the conviction ten thirty-six prior eighteen to months to a sentence charge receiving imposed imprisonment stolen stolen on an unrelated receiving appeal, property. conviction On discharged. property See Common- was vacated and Wade Wade, appellant A.2d Since wealth Pa. charge on the on December was arrested and incarcerated murder *13 period the of confinement served entitled to he is credit judgment Accordingly, be after reinstated, should the of sentence that date. appellant’s manslaughter is effective sentence the date Wade’s on to be recalculatеd as of the time incarceration commenced charge. this I opinions, reproduced not in our are pictures the Since the content verbally describe past the attempted have in Sullivan, us. pictures before See dissenting (1977) (concurring 371 A.2d Pa. Roberts, J.). Manderino, J., Although joined by opinion must in is I inadequate, again method description the verbal photographs one of the which this to describe attempt case inflammatory. is not the mаjority says not reader, person ever known a who would Have the you, it a restaurant because is known order fish at for dinner staring from eye up fish its lidless that the is served with for most of the readers of the I sure the answer am plate? of the pictures in affirmative. One this will be the opinion in a child, depicts the child case, in the this deceased state; limp in a the obviously the prone body with position stare eyes and the child’s open child are dead eyelids most is one of the The picture at the observer. vacantly this sitting since I have observed inflammatory pictures Yet, is not inflammato- says picture the majority Court. simply which the should majority This is another case in ry. picture rule inflammatory state it abolishing is is not picture that a by stating rather than affirm decision is no basis in reason for that inflammatory when there conclusion.
I of this have Court in joined majority concluding not though other cases is even picture inflammatory that a so, however, I have done person. is a dead picture it viewing picture, in those from a only cases where is I dead. person depicted cannot be determined that is not the face of the individual joined have also when from be known cases, may it although visible. these picture in the person depicted other evidence that viewing dead, picture that fact can be determined alone. sensitivity рossessed no degree
There is
doubt that
subject
as to the
of death.
by jurors
considerably
varies
*14
affected in
emotionally
any
are
who
There are persons
in whatever state. On
body
a dead
way by viewing
occasions when
are all aware of
hand, I am certain we
other
avoid a room or
people
causes
body
of a dead
presence
vary greatly,
sensitivities
Because
body.
viewing
when it
an even hand
with
justice
сannot dispense
a Court
on the sensitivities
issue based
a picture
decides
the law
For this reason
that Court.
members of
individual
cases,
clearest of
not,
in the
except
would
many years
depicted
the picture
when
noninflammatory
deem a picture
from the
that fact could be determined
person
a dead
be said to be inflam-
that could
Any picture
itself.
picture
it had “essential
unless
was not
to be admitted
matory
added.) Commonwеalth
value.”
(Emphasis
evidentiary
Scaramuzzino,
317 A.2d
pictures
whether the
addressing
without
today,
The majority
case,
their admis-
upholds
were
to the prosecution’s
essential
years,
in the last several
Slowly
I
dissent.
sibility.
must
rule which
the picture
effect nullified
the Court has in
so,
unfair
it allows
doing
years.
worked well for many
rational process
on the
waves to cast doubt
emotional
man guilty beyond
prove
justice
which our system
a reasonable doubt.
notes
district
“selection,
and recollection.” Com
interpretation
lawyer’s
140, 154,
Cain, 471
369 A.2d
monwealth v.
Pa.
also
affirmance).
See
Common
(1977)(opinion support
Collins,
v.