Commonwealth v. Shephard

Pinola, P. J., Defendant stands indicted for the murder of Joseph Wildes on August 2, 1964. On September 15th, court-appointed counsel filed a petition asking the right to see many exhibits in possession of the Commonwealth, including statements given by three witnesses, Michael Bonk, Ruth Moharter and Jane Dougher. The district attorney has agreed to comply with the request in all respects, except the inspection of the statements. Counsel do not, in their petition, give any reason for their request, but at argument they insisted that [654] inspection was necessary for proper preparation of the defense. We agree that such inspection would be helpful to defendant, but we also agree with Chief Justice Bell who said, in Commonwealth v. Caplan, 411 Pa. 563, 566: “If we descend from ethereal theorism to the world of reality, we know that if Courts require the Commonwealth to inform each defendant of or permit him to examine its evidence, it will enable a person who commits a murder or a felony to invent, fabricate or manufacture his defense before trial — alibi, ‘blackout’, insanity, self-defense, coercion, or perpetration of the crime by someone else — and determine whether he should take the witness stand or introduce any evidence, and if so, what kind.” At the outset, we must bear in mind that there is a difference between the handling of statements of witnesses and the handling of statements of defendants. This is evident from their separate treatment in Criminal Law, 23 C. J. S. 806, §955(4), which reads as follows: “Statements of prospective witnesses. Accused in a criminal case is not entitled to pre-trial inspection of transcripts of statements of prospective prosecution witnesses under some state statutes authorizing discovery of specifically enumerated documents and things, or under rules providing for the production of documentary evidence and of objects, or where the rule of procedure expressly bars the relief sought. “Statements of defendant or codefendants. Under some state statutes or rules of practice relating to discovery and inspection, it is held that an accused is not entitled before the trial to inspect statements, declarations, or confessions in the possession of the government made by him pertaining to the case; and a written confession of accused is not a ‘tangible’ thing required to be produced under a statute providing for [655] the production and discovery of such things. Defendant may, however, be permitted to inspect such statements and confessions where the rule of practice gives the court discretionary power to afford that relief, although the rule does not give an unqualified right of inspection.” (Italics supplied.) Defendant’s counsel argue that under the decision in Di Joseph Petition, 394 Pa. 19, the right of inspection is a matter for the exercise of the court’s discretion and that a defendant has a right to insist upon court action. In that decision, the lower court had granted all requests with reference to physical objects and the right of defendant to have “photographs of fingerprints, if any”, apparently on the revolver. The Supreme Court reversed and denied this right, because defendant knew whether she had handled that revolver or not. In our case, defendant was accompanied by two men, and he, no doubt, has the benefit of their testimony. Chief Justice Bell argued strenuously in his dissenting opinion in Di Joseph Petition, supra, against the grant of inspection. Singularly, six years later, in Commonwealth v. Caplan, supra, he wrote the opinion, and there is no dissent whatsoever. He declared, page 567: “As recently as 1955, this Court in Commonwealth v. Wable, 382 Pa. 80, 86, 114 A. 2d 334, speaking through Chief Justice Stern, said: ‘The General rule is that the accused has no right to the inspection or disclosure before trial of evidence in the possession of the prosecution: 2 Wharton’s Criminal Evidence, 1311, 1312, 1354, (citing cases from many jurisdictions).’ At the very least, a defendant should be required to present exceptional circumstances and compelling reasons such as were present in Di Joseph’s [656] Petition, 394 Pa. 19, 145 A. 2d 187, to justify an exception to the general rule.” He concluded that the record was barren of exceptional circumstances and compelling reasons to justify the grant of defendant’s petition to require the district attorney to set forth facts with more particularity and to furnish him with copies of statements of all witnesses listed upon the bills of indictment. He added: “The mere allegation that the numerous indictments did not set forth facts with sufficient particularity is not a sound basis on which to grant unlimited discovery. The lower Court before granting any discovery should at the very least have conducted a preliminary hearing in order to determine the necessity for discovery and the extent of the discovery, if any, which should be granted.” It is to be noted that he made no mention of defendant’s request for copies of statements of witnesses. It was the decision in that case which led to the adoption of Rule 310 of the Rules of Criminal Procedure. It reads as follows: “All applications of a defendant for pretrial discovery and inspection shall be made not less than five days prior to the scheduled date of trial. The court may order the attorney for the Commonwealth to permit the defendant or his attorney, and such persons as are necessary to assist him, to inspect and copy or photograph any written confessions and written statements made by the defendant. No other discovery or inspection shall be ordered except upon proof by the defendant, after hearing, of exceptional circumstances and compelling reasons. The order shall specify the time, place and manner of making discovery or inspection and may prescribe such terms and conditions as are necessary and proper. In no event, however, shall the court order pretrial dis [657] covery or inspection of written statements of witnesses in the possession of the Commonwealth.” (Italics supplied.) The comment by the committee which prepared the rules states: “Pennsylvania has no statutory provisions dealing with pretrial discovery and inspection in criminal cases. The extensive use of pretrial discovery in civil cases could not be extended to criminal cases. The rule therefore permits the discretionary grant of discovery to the defendant in the narrow area of the defendant’s own confession or written statements.” (Italics supplied.) Defendant’s counsel argue that rule 310 does not apply, because the petition was filed before the rule went into effect. In this argument, they lose sight of the fact that the rule simply expresses the law as laid down by the Supreme Court in Commonwealth v. Caplan, supra. Lower courts had expressed the same views. In Commonwealth v. Stepper, 54 Lack. Jur. 205, Judge Hoban permitted defendant to examine his own statement. In Commonwealth v. Sheeran, 48 Luz. 93, our court refused to give copies of the interrogation of defendant. And in Commonwealth v. Kotch, 22 D. & C. 2d 105, it refused to give to defendant copies of the written statements of Commonwealth witnesses. For other courts agreeing with our conclusions, see Commonwealth v. McQuiston, 56 D. & C. 533, and Commonwealth v. Smith, 67 D. & C. 598. To repeat, rule 310 simply embodies the law as it existed before January 1st and, therefore, there is no basis to the objection that the rule was adopted after the petition was filed. Bound as we are by the last sentence of rule 310, we enter the following April 5, 1965. Order Now, March 31, 1965, at 11 a.m., the rule to show cause why the district attorney should not permit inspection of the written statements of the three named witnesses of the Commonwealth is discharged.