*1 FLAHERTY, ROBERTS, C.J., NIX, LARSEN, Before ZAPPALA, JJ. McDERMOTT, HUTCHINSON and ORDER PER CURIAM.
Order affirmed. Pennsylvania, Appellee,
COMMONWEALTH WALLACE, Jr., Appellant. William Pennsylvania. Supreme Court Argued Oct. 3, 1983.
Decided Feb. *2 Vreeland, Thomas O. Washington (court-appointed), appellant.
. Chunko, Herman J. Dist. Daniel L. First Bigi, Asst. Atty., Dist. Atty., Washington, appellee. O’BRIEN, NIX, C.J., ROBERTS, LARSEN,
Before FLAHERTY, HUTCHINSON, JJ. McDERMOTT THE
OPINION OF COURT LARSEN, Justice.
In this we appeal, must determine whether failure to correct false attorney’s certain rendered the chief witness for by the Commonwealth and failure to provide defense counsel with witness’ criminal complete and record background requеst has upon deprived appellant of to a fair trial. We answer in the affirmative right and grant appellant a new trial. 17, 1979,
On 5:20 two men August approximately p.m., were seen from running Carl’s Cleaners in Canonsburg, later, Moments Washington County, holding handguns. Sr., Carl Luisi, Cleaners, owner of fifteen year Carl’s and old Luisi, Tina an of Mr. found Spalla, employee lying on the floor of the store. Each been shot. Carl Luisi was dead pronounced at the scene. Tina unconscious Spalla, alive, but still was wounded and died short while fatally and, later. The cash register ajar, was it was later deter- mined, had been taken from it. was Appellant $227.00 1979, on apprehended 20, West August Wheeling, Virgin- ia, by members that city’s police department. Appellant’s co-defendant Brown was arrested. Henry subsequently 1980,
A trial commenced on December before the jury Honorable John F. Bell in the Court of Common Pleas of mistrial due to the but resulted in а Washington County, to reach Because a verdict. inability jury this generated jury extensive was publicity was selected in Erie order of County by for the second trial which brought Washington County on 1981. began February of the first degree convicted of murder
Appellant was death of the second degree Tina murder of Spalla, Sr., Luisi, the death and criminal conspiracy. Carl robbery The and a sentenc- sought penalty death was held before the same ing jury February proceeding section 9711 of the to the established pursuant procedures Code, found that Sentencing jury 42 Pa.C.S.A. § was committed killing circumstance —the aggravating while in of a Pa.C.S.A. perpetration felony, circumstances, and 9711(d)(6) outweighed any mitigating § — death, mandated, returned a verdict as upon sentencing such a Code. Pa.C.S.A. finding, by Sentencing 9711(c)(l)(iv). § 1981, a for an hear- September 13, evidentiary
On motion upon and a based after discovered evidence ing new trial Bell hearing, Judge was filed. Following evidentiary 11, 1982, a court en banc denied the motion. On February Bell, order, opinion per Judge denying appel- issued an was appellant motions. On February lant’s post-verdict This then appeal automatically sentenced to death. JARA, 42 Pa.C.S.A. pursuant docketed this Court Sentencing Code, 9711(h). and the § § *4 raise the issue does not specifically
While appellant convictions, this evidence to of the sustain sufficiency review of recоrd independent Court will conduct an Commonwealth v. in cases. sufficiency capital punishment 3, 942, A.2d n. 937 at Zettlemoyer, appellant’s adduced at second n. 3 The evidence in inferences the Com all reasonable together with Kichline, favor, monwealth’s The had victims following. discloses the (1976), been shot with caliber a .32 weapon.1 day’s receipts ($227.00) had been stolen from the cash Two open register. men, one of whom matched aрpellant’s general physical wore a coat, characteristics and trench beige observed Carl’s fleeing Cleaners carrying handguns driving away in what was determined to have been Brown’s car. Henry Brown’s was “lifted” from the cash in fingerprint register Carl’s.
Appellant and Brown had seen Henry been driving Wheeling, West in the car at Virginia latter’s about 1:00 on the p.m. homicides. day Appellant had been a wearing trench coat and beige carrying .32 caliber A weapon. trench coat beige which belonging appellant, looked like worn the one one of men who had run from Cleaners, Carl’s had been obtained from & the Spic Span Cleaners in where it been Wheeling, had delivered on August 1979 (apparently by appellant’s girlfriend). The most critical given by Olen Clay Gorby, undoubtedly Commonwealth’s witness. key testi- was, however, dispute 1. There some issue as Doctor Ernest Abernathy, on pathologist pеrformed autopsies, Spalla’s body, who had noted report slug that the removed from Tina “08”, slug. he had marked with notation was a .38 caliber Dr. Abernathy slugs also marked two that were removed from Luisi, body the doctor, of Carl one with “08” and the other with “A”. The ballistics, trial, however, training who had some testified at slugs Testimony that the have been could .32 caliber. Notes of (N.T.), Trial, February Abernathy Second 1981 at 67. Dr. gave slugs Trooper Paul Bivens who observed the doctor scratch the on the notations base of the N.T. bullets. Second Trial at Trooper Daryl Mayfield, expert Pennsylvania a ballistics with the Police, discharged given State three examined bullets that had been Bivens, by Trooper him and testified that these bullets were .32 gun. caliber and had fired been the same Since the murder found, weapon Trooper Mayfield gun had not been had no with Mayfield which to match the testified bullets. further on cross-ex- slugs aminatiоn that he had not seen the “08” on notation comparison, compound which he with microscope. had examined N.T. Second Trial at 244-46. Appellant asserts there was an insufficient foundation for through Trooper Mayfield. admission of the bullets introduced at trial however, disposition appeal, Given our of this there is no need to address this issue.
275 County Washington he an at the fied that had been inmate had when he known for seven appellаnt, years, Jail who had moved to section the jail July been Gorby’s his in- had, related to him to Appellant according Gorby, Cleaners, at Carl’s robbery/homicide volvement with the Clean- that had robbed Carl’s bragging he and Brown Henry when he shot “old man” twice ers and that appellant to her from prevent and shot the lunged appellant girl had men- also appellant them. stated identifying Gorby that hidden, he had and owning gun tioned a .32 caliber that he “was Brown sincе spoke killing about appellant Henry Trial real N.T. against evidence Second only appellant”. 214-19. evidence, From the we conclude that foregoing, Commonwealth, are reasonable all inferences favor of first to for murder of the sufficient sustain convictions robbery conspir- murder of the second degree, degree, acy. and his the district
Appellant argues
attorney
relating to the chief
suppressed exculpatory
staff
evidence
to
material
witness,
and failed
correct certain false
Gorby,
agree.2
that witness. We
rendered
83, 87,
v.
83
U.S.
S.Ct.
Brady Maryland,
(1963),
Supreme
L.Ed.2d 215
the United States
held
of evi
suppression
prosecutor
“that
due
request
dence favorable to an accused
violates
upon
either
or to
where the evidence material
process
guilt
of the
faith or the bad faith
punishment, irrespective
good
ABA
for
Jus
Criminal
prosecution.” See
Standards
tice
3-3.11. The
whose
course is
prosecutor,
duty
§
convict,
justice,
seek
ABA Standards
merely
course, any
Clay
concerning
2. Of
errors that have occurred
Olen
exculpatory
and the
infor-
failure to disclose
Commonwealth’s
sufficiency
mation do not
review of
affect our
the evidence
regard
must be
on the entire
record without
for the
evaluated
trial
rulings,
correctness
trial court’s
even as to matters of constitu-
Cohen,
v.
Pa.
dimension. Commonwealth
tional
Hoskins,
(1980);
Criminal Justice
3-l.l(c), has
affirmative and continu
§
*6
to
ing
the
duty
exculpatory
disclose
information to
defend
false,
ant and to correct
of a
testimony
witness. See Com
Hallowell,
232, 237,
monwealth v.
Pa.
477
(1978);
D,
Disclose;
Pa.R.Crim.Pro. 305
to
Continuing Duty
ABA
Further,
Standards for Criminal Justice
3-3.11.
§
prosecutor’s office is an
and the
entity
knowledge of one
member of the office must
attributed to
office
be
of the
Hallowell,
as an
v.
attornеy
entity. Commonwealth
supra,
237-38,
477 Pa. at
A.2d
v.
383
909
United
Giglio
States,
150, 154,
763,
405
766,
U.S.
92 S.Ct.
The
tions,
2392,
United
v. Agurs,
97, 103,
States
427
96
U.S.
S.Ct.
2397,
(1976),
277 v. 373 (1978), A.2d 909 U.S. citing Brady Maryland, supra, 83, (1963) 10 215 and Commonwealth L.Ed.2d S.Ct. Jenkins, v. is situation, “materiality”
In this a strict standard of v. at United U.S. applied, Agurs, supra States 2397; is, the false material —and testimony S.Ct. likeli new trial is it could “in reasonable required —if v. Giglio hood affected the judgment jury.” have States, quoting United U.S. S.Ct. at supra 271, 79 at 1178. Illinois, 360 U.S. at Napue supra S.Ct. case, Bigi instant District Herman elicited Attorney certain from Olen which the district Clay Gorby known, knew, false, should have as subse- or attorney *7 that trial, disclosed. At testified quent Gorby events have his on Novem- prison he had been in since arrest continually at ber from an incident chаrges stemming In fact he course in Village golf Washington County. Green in he had been had not been that entire because jail period as from to March 1980 while working released January Alcohol, Federal Bureau of undercover agent pros- and Firearms. William Trooper Cunningham, Tobacco in officer in case as well as all of appellant’s Gorby’s ecuting cases, knew of this release.4 pled “everything also testified that he had guilty
Gоrby when, fact, he he not. Gorby had ever done” in had When was he was with charged rearrested on March of criminal actions 390-91 burglary eleven counts at and 785 of 1980. did not until March Gorby plead guilty 1981, more than one month after trial. appellant’s hearing worthy pre-trial It of that before the second note at Gorby’s attempting in to discover the full scenario of Olen cooperation prosecution, with asked First Assistant court Attorney Gorby law-enfоrce- District Daniel Chunko whether was a presence Trooper Cunning- agent. replied, ment in the Chunko ham, been, agent your not has “He is a law-enforcement and never operating appellant’s he Honor.” Then the court asked if was case Pennsylvania for the State Police. At the after discovered evidence hearing, Trooper Cunningham why “jump up” he not was asked did court, Cunningham explained thought and correct and he quеstions pertained only prosecution. Judge had to the Wallace Bell explanation. chose to believe the Commonwealth’s further testified he shots
Gorby fired at the Village Green course incident wherein he was golf homicide, charged with attempted recklessly endangering person, another theft conspiracy, robbery, burglary unlawful when in fact he had his deception, discharged gun at least twice the owner course his golf son.
Finаlly, testified that a Gorby plea recommenda- bargain tion five ten has on the years imprisonment been made charges when, from the Green stemming Village incident fact, the assistant district attorney, Gorby’s guilty plea 21,1980, had also discussed the hearing May possibility a four to eight year actuality, only term. received a ten term of on these which ran year probation charges, with another ten term of on the concurrently year probation “assorted burglary” charges.5 on several
Clearly, Gorby’s items concerning criminal and background false, record and was allowed to go uncorrected attorney.
Moreover, the Commonwealth concealed evi- exculpatory witness, dence their concerning “star” namely, substantial portions of and, his criminal at the first record trial and pretrial proceedings, existence and Gorby’s very identity. This of failure to type disclose information presents situation, second i.e., defense counsel Brady requests specific evidence and the exculpatory prosecution is totally *8 unresponsive and behaves as if this evidence does not exist. falsity Gorby’s testimony 5. The of trial the was discovered at after hearings discovered evidence in of 1981. October and November The alleged motion for a new trial based on after discovered evidence Gorby perjured acquiescence himself with the of the District Attorney (it charged story was had fabricated the entire against appellant) paid testimony by and had been for his the vic- Bell), (Judge finding allegations tims’ families. The lower court these motion, essentially credibility, to be a of matter dismissed the choos- ing Debra, Gorby, to believe the of his wife the district attorney members, trooper, and his staff and a state all of whom allegations. findings credibility denied the Because these on are supported record, by liberty is at to disturb them. Sullivan, 129, 145, v. at at United U.S. S.Ct. Agurs, supra States id. at 106: Agurs, 2397-2399. The Court stated It Brady request specific. gave prosecu- Although tor notice of what defense desired. exactly is, course, of defense counsel with provide there no to duty of known everything by prosecu- unlimited discovery material, is or tor, if the matter of such a subject request ex- if a for claiming materiality indeed substantial basis to ists, rеspond it is to require prosecutor reasonable information or furnishing by submitting either When the receives problem prosecutor the trial judge. the failure to make request, a and relevant specific any seldom, ever, (Emphasis added). is if excusable. response information is material —and the undisclosed, requested a new trial —where the requires suppressed non-disclosure of have affected the outcome the trial. Id. might evidenсe U.S. 96 S.Ct. at Defense counsel made repeatedly specific requests office. were the district ignored by attorney’s repeatedly of a “jailhouse counsel existence Initially, suspected had been jailhouse present- confession” because confession ed in the co-de- appellant’s without notice prosecution counsel’s fendant, Request Brown. Accordingly, Henry Pa.R.Crim.P. Rule and Disclosure Discovery pursuant motion, oral on the discovery and his requests argument if toward such state- discovering directed specifically the lan- # 2 of the tracked Request ment existed. Item Rule defend- B(l)(b) requiring, request by guage or written confession ant, the disclosure mandatory “any statement, confes- or the substance oral inculpatory statement, and the identity person sion or inculpatory made, statement was to whom the or inculpatory confession for the or control of the attorney which is the possession Commonwealth.” right to discover challenge appellant’s
Rather than information Pa.R.Crim.P. (as requested required chose, instead, A), unilaterally Rule 305 the Commonwealth for the court to determine It is trial request. ignore *9 whether a defendant is entitled to infor- specific requested mation, not prosecutor. the
Moreover, defense counsel in his specifically requested, Request the criminal records of witnesses. Discovery, disclosed, Since the existence of Olen was not Clay Gorby there was obviously pre-trial stage no resolution of appellant’s right Gorby’s criminal record. At complete only charges arising from the inci- Village Green counsel; dent were disclosed to defense the eleven assorted burglaries were not pending again, revealed. Once without attorney, chállenging appellant’s request court, dеtermined the unilaterally arrests the assorted burglaries have been non-discoverable by defense. was, This unilateral again, determination errone- manifestly ous. Where a Commonwealth witness has criminal charges him, pending against the defendant entitled to know of such charges since bear they upon possible witness’ and, hence, motivation for testifying veracity. Application of and its to the Brady progeny instant case mandates the reversal of convictions and the appellant’s award of a trial. major new focus of the defense was upon witness, credibility the Commonwealth’s “star” Olen Clay (Indeed, no other defense was Gorby. offered.) Had the been jury completely apprised coopera- Gorby’s tion and undercover activities with agen- law-enforcement cies, his three month release from the Washington County Jail while as an working agent undercover thе federal authorities, the fact he had shot at that the owner and his son at course, Green fact he Village golf that pled eleven guilty burglary counts head, record, over his and his entire criminal hanging jury could have easily legitimately inferred Mr. was less truth or by motivated altruistic motives of truth and for the homicide victims than sympathy a sincere do desire to “whatever-it-takes” to secure early release and lenient sentences for his nefariоus and numerous crimes. There is an reasonable likelihood the eminently judgment and the outcome of the jury trial would *10 Mr. Olen have the truth about by knowing been affected Clay Gorby. him on double discharge this to
Appellant requests as, asserts, he the conduct of the jeopardy grounds intentional, misrep- to bad-faith office amounted attorney’s resentations, overreaching.” or Common- “prosecutorial and United Starks, (1980) wealth A.2d Dinitz, 600, 96 47 L.Ed.2d States v. 424 U.S. S.Ct. would be remеdy We believe that such drastic time, of new trial is and that the award premature Cohen, Commonwealth v. sufficient.
1066 (1980). on found, adequate support lower court with and no Olen record, Gorby that there was perjury by was result of as sloppiness prosecutor conduct effort to mislead the intentional, to an bad-faith opposed however, no as to finding, court and The court made jury. office at the attorney’s of the district the intentions/motives on the first and trial. At those pre-trial proceedings, relying B, Rule 305 of Pa.R.Crim.P. interpretation erroneous revealed to of Olen not Clay Gorby existence/identity con- counsel, requests “jailhouse defense despite specific informed trial, Bigi At first District Attorney fessions”. aware not know how his office became court that he did it a month ago”. of Olen but that had been Gorby “probably Mr. Assistant Bigi, is suspect This because representation Chunko, and a sеcre- Cunningham Trooper District Attorney and Gorby office to spoke from the district tary attorney’s five months his some July transcribed statement did address the issue of before the first trial. The court because, in its opinion, on this point misconduct prosecutorial of a mistrial was rendered moot declaration by issue therefore, the second because, hung due to a and jury his were well aware counsel appellant a ruling statement. written Such witness Bigi’s representations valid if District might Attorney be or in bad faith. not intentional mistaken and simply have case, the error would been by In that harm caused true, cured However, second trial. if the converse is the taint of have “prosecutorial would not overreaching” been dissipated our prosecution. subsequent Accordingly, grant a new trial is without prejudice appellant’s right petition lower court for on double discharge jeopardy grounds (this issue has been these preserved throughout proceedings) time prior if at which reprosecution, any, that issue be would considered in of all of light the evidence adduced at the after-discovered evidence hearing.
Judgments of sentence reversed new grant- and a trial is *11 ed.
Former C.J. O’BRIEN did in the participate decision of this case.
NIX, J., filed a opinion. concurring J., McDERMOTT, concurred in the result.
NIX, Justice, concurring.
I agree with the conclusion that the majority’s judgment of sentence must be and a reversed new trial in this awarded I However, case. cannot accept the that double suggestion concerns jeopardy may preclude appellant’s further prosecu tion these offenses. Here that the majority concedes Commonwealth did in fact present sufficient evidence to sustain in convictions murder the first in case degree of Tina in and murder Spalla second of Carl degree Luisi, Sr. To that the error in trial imply require this might insulating forever from appellant liability highlights my objections to the mistaken frequent scope view protection double v. provided by jeopardy. Commonwealth Hoskins, 600, 601, 149, 150-151 (Nix, 494 Pa. 432 A.2d (1981) J., Opinion In v. Support Affirmance); Commonwealth Starks, 336, 344, 498, J., Pa. 416 A.2d 502 (1980) (Nix, v, dissenting Lee, 346, opinion); J., 505-506 (1980) (Nix, concurring opinion); Potter, Commonwealth v. (1978) (Nix, J.,
A.2d Opinion Support of Rever sal). 667, 102 S.Ct. 456 U.S. v.
Further, Oregon Kennedy, of the United (1982) Supreme L.Ed.2d 416 held: States moves succеssfully who
.. . that a criminal defendant misconduct or judicial a mistrial because of prosecutorial clause of the double jeopardy not invoke the bar of may a second against Fourteenth Amendments the Fifth and or in which the prosecutorial in those cases trial except motion for a rise to the successful conduct judicial giving into the defendant mov- intended to provoke mistrial was for a mistrial. ing standard, referred to by overrеaching”
The “prosecutorial to the “mani- 1193), exception the majority (p. previously rule when to the exception general fest necessity” retrial is the defendant’s objection, mistrial is declared over constitutional standard barred, was disavowed as federal no such standard And there is supra. Oregon Kennedy, con- jeopardy Thus the double majority’s under state law. do not further considera- require cerns are unwarranted and tion. *12 Pennsylvania
COMMONWEALTH COADES, Appellant. David Pennsylvania. Supreme Court Argued Jan. 3, 1983.
Decided Feb.