*1 Appellant. v. Walak, 1974. Before April Argued Watkins, Ja- J., Van der cobs, Hoffman, Cercone, Price, Voort, JJ. Spaeth, *2 Bell, B. Assistant Public with him Defender,
Alfred Gaudio, Albert C. Assistant Public Defender, and Dan te Bertani, G. Public for Defender, appellant.
Patrick H. Mahady, Assistant District Attorney, with him Albert Nichols, M. for District Com- Attorney, appellee. monwealth,
Opinion J., June Hoffman, 1974: 21, The instant appeal drag conviction raises two questions discussion: worthy court (1) erred when refused to compel produce alleged crime; and, (2) Commonwealth, violation failed Kurtz,1 to communicate to the Court informant had received on leniency paid pending charges as a result with the cooperation authorities appre appellant. hending 18, 1973,
On September appellant was tried by found guilty and violations of The De- Drug, Act. The and Cosmetic testimony may vice be sum- 1, A. as Steven. Todoric testified marized follows: Officer to appellant introduced 1972, December the Bureau for informant Sam, Todoric’s car The three men entered Control. Drug containing Todoric a bag sold whereupon January 5, for of marijuana pound $100.00. the Bureau for agent Ernest Fullerton, Fuller- met introduced Sam who Control, Drug to the agent’s ton to the two accompanied Walak, in ex- then the appellant car. Fullerton gave $350.00 marijuana. a bag containing change a bill of defense counsel filed 10, 1973, On April and ad- the names asking particulars specifically to the alleged of any agents any participants dresses Office Attorney’s replied criminal action. The District B. which permits with a referral to Pa. Crim. written confessions “any the pretrial *3 the defendant . . but .”, written statements ... ex- which “other or precludes inspection of after ex- defendant, hearing, the upon proof cept reasons.” Prior compelling circumstances ceptional of on the date of jury trial, to the the counsel selection oral motion that request through asking renewed his furnish the of George whereabouts that Sam George in the have Sam,2 alternative, in the trial. Defendant’s motion Court present untimely.3 as being was denied page transcript, 4 of trial are made aware of de knowledge identity of fense counsel’s informant. Under provides pretrial applica “[a] R. Crim. P. which requests writing”, in oral for relief shall be be tions would in a technically improper Although pro form. determination yet begun, selected, and a had not as been had cess trial was, begun, opinion, motion made at in and a such time our a matter, inapplicable. Rule 304 trial argues defense was not entitled to alleged eyewitnesses subject to the pre of crimes as a the names wit- was not called as a Commonwealth Sam George to both the fact that ness, despite the only and would have offered transactions, alleged the cross-ex- at trial.4 “impartial” testimony During amination narcotics revealed agent Eause, testimony “Q. (Defense whereabouts Sam: probable : Do counsel) today? know where Sam you Q. I con- A. don’t. Do you know how (Pause). No, I I him? A. If to contact would tact attempted him, to contact him at the home of his mother attempt Pa.” defense obtained this Herminie, Having lead, nor any counsel did not ask is there continuance, indication brief or the record that appellant’s demonstrates an the defense to locate Mr. attempt by Sam. contends that the lower court erred his the whereabouts
denying
application
key
discovery.
trial,
Pa. R. Crim. P. 310. Five months
request.
defense counsel had made a similar
If the district attor
ney’s
opposing appellant’s
day
reason for
motion on the
of trial was
timeliness, i.e.,
pretrial application
“no
because
be
shall
days
(Pa.
considered if made less than ten
before trial’
Crim.
R.
position
305),
recognized
Commonwealth's
should have been
as con
tradictory
previous response.
to its
Supreme
case,
In a
United
Roviaro v. United
(1957), Majority
Upon
counsel had the oppor
defense
motion,
his previous
Had such
for a continuance.
a request
ask
tunity
be inclined to reverse
made and denied
would
been
how
record,
the state
conviction.5
appellant’s
guided by
emphasizing
are
discussion
Roviaro
We
testimony given by
highly
an in
material and relevant nature
petitioner
formant-eyewitness.
“Unless
waived his constitutional
defense,
right
the stand
his own
John
not to take
Doe was his
opportunity
Petitioner’s
material witness.
cross-examine
Bryson
Agent
and Federal Narcotics
Officer
Durham was
Police
opportunity
hardly
for an
to examine
a substitute
the man who had
part
and took
to him
nearest
transaction. Doe
been
up
played
helped
prominent
criminal
to set
occurrence and had
*5
counsel’s fail
are
to determine whether
ever, we
unable
justi
prompted
ure to ask for a continuance was
strategic
fiable tactical or
reason. Such
determina
subject
properly
proceeding.
tion
of a collateral
is
Brierley,
e.g.,
F.
United
ex rel. Jones v.
See,
Supp.
(1967);
Commonwealth v.
Allen,
requested
Appellant’s second contention is that Common- wealth committed what has become the “Kurtz known as Through error”. examination a Westmoreland Coun- ty detective Donald defense counsel was able Raneri, February to discover that inform- charges had had ant, against Sam, criminal Independent investigation
him. disclosed that charges prossed following coopera- were nolle his agents ap- tion with the state their contacts with the pellant. supra,
In Commonwealth v. Kurtz,
our Court held
duty
bring
that the Commonwealth was under a
to
attention
the trier-of-fact the existence of a
part
testimony might
entrapment.
in it. His
have
disclosed
He
might
upon petitioner’s identity
have thrown doubt
or on the iden
tity
package.
might
He was the
witness who
have tes
petitioner’s possible
lack of
tified
of the contents of
package.
desirability
calling
. . . The
witness,
John Doe as a
interviewing
preparation
trial,
or at least
him in
was a matter
rather
than the
for the accused
Government
to decide.” 353 U.S.
may
at 64. While the trial court
be said to have broad discretion
deciding
propriety
procuring
of a continuance for
a material
case, e.g.,
Gross,
to a
witness
Commonwealth v.
(1831) ;
1 Ashm. 281
Philadelphia Rapid
Co.,
Parkin v.
Transit
promise leniency accomplice agreement for tbe whenever the defense testifying prosecution, into the matter. a co- inquires Kurtz, witness, had testified This defendant, against appellant. said rested its the fact that because holding witness jury was entitled know testified, “[t]he *6 or [promise agreement as leniency] affecting [their] credibility.” 219 Ct. at 3.
In the instant not a co-de- Sam was case, George fendant. He was for the admittedly as acting agent and could be considered ac- police, not, therefore, Sam did not complice. addition, testify against and his de- appellant, credibility was not at issue. Our in Kurts cision is not applicable instant and not on this appellant may prevail ground. we affirm the of sentence.6
Accordingly,
judgment
6
particular
proceedings.
this
We add
footnote to the instant
Procedure,
the state of the Rules of Criminal
it is evident that the
pretrial discovery
defendant was
entitled to
on the
or
eyewitnesses.
310, except
whereabouts of
Pa. R. Crim. P. 310. Rule
upon
showing
“exceptional circumstances”,
limits such dis
covery
by
to statements or confessions made
the defendant. There
significant movement, however, permitting
parties
is a
to a
mystery
prior
criminal case to unravel the
and secrets of a case
Supreme
trial. A number of United States
Court cases have made
policy denying any discovery
inroads into this
of Commonwealth’s
grounds.
early
1959,
case
constitutional
As
as
the United States
Supreme
suggested
right
to advance notice of wit
against
prior
may
required
nesses
their
by
statements
be
process.
the Sixth Amendment and
States,
due
Palermo v. United
(1959).
require by
360 U.S.
362-366
A number of states
statute
prior
or
rule
the accused be notified
to trial of the witnesses
against him, usually by
to be called
endorsement on the indictment
E.g.,
§906.29;
or information.
Fla. Stat. Ann.
Mitchell,
State v.
310
(Kan. 1957).
growing
jurisdictions
A
P. 2d 1063
require
number of
that a witness’
statements be made available to defense coun
possible
sel at the time or after the
impeach
witness testifies for
purposes. Annot.,
(1966).
ment
7 A.L.R.
181
Act”,
“Jenck’s
18
Brady Maryland,
U.S.C.
v.
§3500.
U.S.
87-88
estab
requirement
prosecution
the constitutional
lished
disclose
in the result.
concurs
J.,
Jacobs,
exculpate
available,
[the ac-
“which,
would tend
if
evidence
recently,
Finally,
penalty.
Unit-
most
or
. . .”
cused]
reduce
Supreme
alibi notice rules
unconstitutional
Court held
ed States
rights
reciprocal
deny
to receive notice
which
the accused
statutes
Oregon,
412 U.S.
S. Ct.
of rebuttal witnesses. Wardius
doing,
the restrictive nature
Court attacked
In so
saying
jurisdictions,
discovery
2211-2212:
of most
rules in state
large
growing
rules,
number of
now in use
“Notice of alibi
justice
proposition
be
that the ends of
will
are based on the
discovery
gives
system
par-
both
of liberal
which
best served
possible
information with which to
ties the maximum
amount of
possibility
surprise
prepare
thereby
their cases and
reduces the
(Citations omitted.)
growth
The
of such
at trial.
devices
by increasing
salutary development which,
is a
evidence avail-
adversary system.
parties,
the fairness
able to both
enhances
nothing
recognized Williams,
(1970)],
[399
U.S.
As we
sys-
precluded
experimenting
Due Process Clause
with
discovery designed
goals.
tems of
these
broad
achieve
‘The ad-
versary
hardly
system
itself;
yet
of trial
an end
it is not
poker game
enjoy
players
right always
in which
an absolute
to con-
played.
ample
system,
ceal their cards until
We find
room in that
*7
process”
concerned,
rule],
[a
at least as far as “due
which is
designed
to enhance the search for truth in the criminal trial
insuring
ample opportunity
both the
the State
defendant and
to in-
vestigate
certain facts crucial to the
determination
or in-
(footnote omitted),
nocence.’
Dissenting Opinion :J. Spaeth, could have been given to trial information Commonwealth had on the where informant who was an abouts eyewitness to the crime with which was charged. Footnote of6 In is incorrect. majority’s opinion Commonwealth Pritchett, A. 2d held that Rule this court 310 does not bar pre of the name of an trial disclosure informant who was ato crime. an eyewitness should have latest, appellant
At the been given the of trial. The start error information that arose from the refusal Commonwealth’s turn over in- formation at least cannot be by then characterized as harmless. The was so agent’s qualified answer and gen- eral that to describe it as “lead” is somewhat gen- erous; any event, hardly “revealed probable informant. whereabouts” consider- addition, the court’s earlier ing rulings regarding disclosure the informant’s whereabouts, counsel little reason continuance suppose request would have been granted. v. Harrison, Appellant.