Com. v. Bonacurso

• Court: United States State Supreme Court of Pennsylvania
• Citation: 500 Pa. 247,455 A.2d 1175
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Samuel BONACURSO, Appellant.
• Decision Date: 28 January 1983

Page 1175

455 A.2d 1175 500 Pa. 247 COMMONWEALTH of Pennsylvania, Appellee,
v.
Samuel BONACURSO, Appellant. Supreme Court of Pennsylvania. Argued Oct. 26, 1982.
Decided Jan. 28, 1983.

Page 1176

[500 Pa. 249] Stanford Shmukler, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Paul S. Diamond, Asst. Dist. Attys., Alan Sacks, Philadelphia, for appellee.

Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY, McDERMOTT and HUTCHINSON, JJ.

OPINION

McDERMOTT, Justice.

This is an appeal from the judgments of sentence imposed upon appellant, Samuel Bonacurso, by the Honorable Edwin [500 Pa. 250] S.

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Malmed of the Court of Common Pleas of Philadelphia County.

Following a non-jury trial on December 12, 1978, appellant was convicted of first degree murder and possession of an instrument of crime. Judge Malmed sentenced appellant to life imprisonment on the murder conviction and imposed a concurrent term of two and a half to five years imprisonment on the weapons offense. Appellant's trial counsel filed post-verdict motions, then withdrew in favor of appellant's present counsel, who filed additional allegations of error, including claims of ineffective assistance of counsel. All post-trial claims were denied by the trial court on May 21, 1980. This appeal followed and we now affirm. ¹

Appellant contends that despite appropriate and timely requests he was denied the name and identity of a witness, James Melino, in violation of Pa.R.Crim.P. 305 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). ² From this he claims numerous injuries culminating in a denial of his right to a fair trial. It will serve no purpose to pursue in detail the perjoratives that would follow the intentional violation of Rule 305 because in the instant matter the prosecutor's actions were neither deliberate nor injurious. The simple truth is that the witness' identity, was in fact provided by the prosecutor, and he was called to testify as a witness for the appellant. All that he could say was put before the learned trial judge with every opportunity that an unhurried and careful bench trial provides. Melino testified that he was working at a service station, attending a car that was a block and a half from the [500 Pa. 251] scene. He heard what he described as "firecrackers" and about a minute and a half later observed a slow moving car with two occupants, the one on the passenger side having facial hair. Other Commonwealth witnesses, described appellant as clean shaven at all relevant times and occupying the front passenger side of a maroon Pacer. Hence, the appellant not only was provided a defense witness but, he used Melino's testimony to his advantage in contradicting other Commonwealth witnesses. Thus, appellant fails to demonstrate that his defense was prejudiced by the Commonwealth's alleged withholding of Melino's identity. This is fatal to his claim of error under Brady. See Commonwealth v. Stetler, 494 Pa. 551, 431 A.2d 992 (1981); Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977).

Appellant in a similar vein contends he was likewise denied the name and identity of a Commonwealth eye-witness, Andre Waddell. Although the prosecution did in fact withhold the name and identity of Waddell, a 14 year old boy, unlike Melino, whose name was not so much withheld as misplaced in a file handling, ³ the Commonwealth

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was attempting to protect its youthful witness. The Commonwealth maintained that it refused to reveal the identity, but not the existence of Waddell because the youth was reluctant to testify and both he and his mother were fearful of [500 Pa. 252] repercussions; a concern apparently not unfounded in the history of this case. ⁴

Appellant's reliance on Rule 305(D) in support of his challenge to Waddell's testimony is misplaced. This rule (providing that either party in a criminal proceeding has a continuing duty to disclose additionally discovered evidence, including the identity of witnesses) does not mandate discovery of a witness' identity in all cases. Orders compelling such discovery are left to the discretion of the trial court. See Pa.R.Crim.P. 305(B). Moreover, the scope of discovery under the rule must be consistent with the "protection of persons". See Pa.R.Crim.P. 305, comment. Under these circumstances, the trial court's decision allowing Waddell to testify was not inconsistent with the applicable rule of discovery.

The hard edges of the question, however, are resolved in the case at hand because the careful trial judge obviated any injury by offering full continuance to appellant to prepare for or investigate any difficulty caused by the late disclosure. The offer was refused, the witness extensively examined, and no request for delay or mistrial was made. See Notes of Testimony 12/1/78, at 1.91-1.202. Under these circumstances, i.e., where the identity of a witness unfavorable to the accused is withheld from the defense until trial, no reversible error occurs if the defense is given ample opportunity by the trial court to ask for a continuance, cross-examine the witness, or take whatever remedial steps are necessary and reasonable under the circumstances. See Stetler; Hamm; 474 Pa. 487, 378 A.2d 1219 (1981); Commonwealth [500 Pa. 253] v. Layman, 290 Pa.Super. 244, 434 A.2d 735 (1981). ⁵ Thus, the learned trial judge offered every advantage to cure any possible injury resulting from the alleged non-disclosure. For this and other reasons set forth above, appellant's challenge to the admission of Waddell's testimony must fail. ⁶

Appellant's contention that he received ineffective assistance of counsel because no motions were made during pre-trial discovery to compel disclosure of the identity and statements of Waddell and Melino must fail. As pointed out above, the arguments upon which appellant would rely to compel discovery concerning these witnesses are meritless. Failure of counsel to undertake useless tasks cannot be regarded as ineffective assistance. Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979); Commonwealth v. Roach, 479 Pa. 528, 388 A.2d 1056 (1978).

Defense counsel's decisions to cross-examine Waddell and call Melino as a defense witness rather than ask for a continuance upon discovering that the Commonwealth would produce these witnesses are also no basis for a claim of ineffective assistance. There is no indication by appellant that these courses of action were unreasonable or prejudicial to appellant's defense.

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See Commonwealth v. Roman, 494 Pa. 440, 431 A.2d 936 (1981); Commonwealth v. McIntyre, 492 Pa. 306, 424 A.2d 874 (1981).

Appellant's remaining allegations of ineffective assistance suffer from the same infirmity. They include counsel's failure to argue for a lower degree of murder and his failure to move for suppression of the in-court identification of the accused by Waddell. Because each of these claims [500...