Commonwealth v. White

385 A.2d 402, 253 Pa. Super. 405, 1978 Pa. Super. LEXIS 2661
CourtSuperior Court of Pennsylvania
DecidedApril 13, 1978
DocketNo. 181
StatusPublished

This text of 385 A.2d 402 (Commonwealth v. White) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. White, 385 A.2d 402, 253 Pa. Super. 405, 1978 Pa. Super. LEXIS 2661 (Pa. Ct. App. 1978).

Opinion

PRICE, Judge:

Following a jury trial, appellant was found guilty of robbery.1 Post-trial motions were refused and appellant was sentenced. An appeal was filed with this court, but the case was remanded so that the lower court could receive testimony, hear argument and determine whether the district attorney had failed to disclose an exculpatory statement in his possession, thereby violating appellant’s constitutional rights and entitling him to a new trial. On May 28,1976, the lower court, after considering this new ground, again denied the motion for a new trial. On July 15, 1976, this court allowed this appeal nunc pro tunc. For the reasons set forth herein, we affirm.

Viewing the evidence in the light most favorable to the verdict winner, the Commonwealth, Commonwealth v. Dandar, 249 Pa.Super. 327, 378 A.2d 319 (1977), the following was adduced at trial. On January 29, 1975, a York drug store was robbed at gun point. Appellant, along with the driver, remained in the escape car during the robbery. Appellant’s participation in the robbery was established through testimony that appellant gave directions to the pharmacy, and recommended that the theft be carried out in the daytime rather than after store hours, as one of the others had suggested. In addition, when the robbers exited the store and got into the waiting car, they returned appellant’s gun, used in the robbery. These men then went to appellant’s apartment to divide the booty, however, no evi[407]*407dence was produced to show that appellant received any of the loot. Both appellant and his alibi witness testified that he did not leave his apartment the day of the robbery.

Appellant’s first contention is that the Commonwealth failed to make exculpatory evidence available to him, thereby depriving him of a fair trial in accord with the dictates of due process. At trial, appellant’s counsel indicated to Commonwealth counsel that he intended to call Deardorf, one of the men who entered the store, to corroborate appellant’s testimony that he remained at home the day of the robbery. The prosecutor then said that he would cross-examine the witness using a statement in which Deardorf told police that appellant had been in the car. Defense counsel decided, therefore, not to call the witness.

At the hearing conducted after our remand to consider whether the Commonwealth had wrongfully withheld evidence, appellant’s counsel testified that he saw the statement at trial.

“I looked at the statement and in fact it did say that. I talked to Deardorf and Deardorf said, ‘If you call me to the stand by [sic] testimony will be that White was in fact there.’ I, therefore, did not call Mr. Deardorf as a witness because his testimony would have been contrary to that of Mr. White and in my opinion would have been harmful to him, therefore, I did not call him.
At a later time, in reviewing the entire statement made by Mr. Deardorf, it came to my attention that while the statement placed Mr. White at the scene it went on to say that Mr. White was not involved in the matter, that he had not helped to plan it or gotten any of the money. He had not gotten anything other than merely being present. . ” (Brady Hearing 15-16)

Appellant cites Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for the proposition that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. [408]*408at 87, 83 S.Ct. at 1197. We certainly do not take issue with the validity of this proposition. We have difficulty, however, in comprehending appellant’s argument that in this case the lower court sanctioned a violation of the Brady holding.

In judging the merit of appellant’s Brady contention, we are guided by three considerations articulated by the United States Supreme Court in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). Those considerations are: (a) was there suppression by the prosecution after a request by the defense? (b) would the evidence be favorable to the defense? (c) was the evidence material?

Turning to the first consideration, we find that there was no suppression by the Commonwealth. We note that at no time did the appellant make a specific request for Deardorf’s statement. In Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976), however, the supreme court said:

“[E]ven absent such a specific request, a prosecutor has the duty to make available to the defense evidence that is truly exculpatory, rather than merely favorable.” Id., 467 Pa. at 131, 354 A.2d at 878 (footnote omitted).

Here, appellant made no specific request, yet the prosecutor made the statement available. At the hearing to determine the validity of appellant’s Brady argument, appellant’s counsel admitted that during trial the prosecuting attorney showed him Deardorf’s statement. Counsel testified that later, “in reviewing the entire statement,” he discovered the allegedly exculpatory portion of it. It is unfortunate that counsel failed to read the statement in its entirety when it was first presented to him. Under the circumstances, however, it is impossible to say that the prosecutor’s office suppressed the statement. We note, in addition, that Detective Wolfhope, who was involved in the robbery investigation and took Deardorf’s statement, testified at the hearing that:

“A. At the [preliminary] hearing I had the statement there and I know there was, I believe, three attorneys for the four Defendants at that time, and I know several of them looked at all the statements I had.
[409]*409Q. In other words, at the preliminary hearing you made this statement available to the various Defense Counsel?
A. That’s correct.”

(Brady Hearing 6)

Wolf hope testified that appellant was at the preliminary hearing with counsel, an assertion which was not contradicted by appellant. It is thus abundantly clear that the Commonwealth did not suppress Deardorf’s statement.2

Turning to the second consideration, it is obvious that the statement was not favorable to appellant in any event. The statement places appellant at the scene of the robbery, contrary to his alibi testimony. The theory of the prosecution was that White participated in the robbery as an accomplice. His knowing presence in the car would do nothing to refute the assertion that White was an accomplice, but would simply corroborate Myer’s testimony that White was indeed present.

Appellant’s counsel was asked at the Brady hearing what he would have done with the evidence had it been available to him. Counsel indicated that it may have refreshed appellant’s memory as to his whereabouts. He continued:

“I think a stronger possibility is that I would have advised Mr. White not to testify at all.

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Related

Brady v. Maryland
373 U.S. 83 (Supreme Court, 1963)
Moore v. Illinois
408 U.S. 786 (Supreme Court, 1972)
Commonwealth v. Gee
354 A.2d 875 (Supreme Court of Pennsylvania, 1976)
Commonwealth v. White
275 A.2d 75 (Supreme Court of Pennsylvania, 1971)
Commonwealth v. Dickerson
176 A.2d 421 (Supreme Court of Pennsylvania, 1962)
Commonwealth v. Revty
295 A.2d 300 (Supreme Court of Pennsylvania, 1972)
Commonwealth v. Dandar
378 A.2d 319 (Superior Court of Pennsylvania, 1977)
Commonwealth v. Crittenton
191 A. 858 (Supreme Court of Pennsylvania, 1937)
Commonwealth v. Doberstein
302 A.2d 513 (Superior Court of Pennsylvania, 1973)

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Bluebook (online)
385 A.2d 402, 253 Pa. Super. 405, 1978 Pa. Super. LEXIS 2661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-white-pasuperct-1978.