Com. v. Burke, 6 W.D.2000.

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: CASTILLE, Justice.
• Citation: 566 Pa. 402,781 A.2d 1136
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Donald Scott BURKE, Appellant.
• Docket Number: No. 6 W.D.2000.,6 W.D.2000.
• Decision Date: 17 October 2001

781 A.2d 1136
566 Pa. 402

COMMONWEALTH of Pennsylvania, Appellee,
v.
Donald Scott BURKE, Appellant

No. 6 W.D.2000.

Supreme Court of Pennsylvania.

Argued September 12, 2000.

Decided October 17, 2001.

781 A.2d 1137

Kevin G. Sasinoski, Mitchell A. Kaufman, M. Susan Ruffner, Pittsburgh, for Donald Scott Burke

Michael W. Streily, Pittsburgh, for Commonwealth of Pennsylvania.

Before FLAHERTY, C.J., ZAPPALA, CAPPY, CASTILLE, NIGRO, and SAYLOR, JJ.

OPINION OF THE COURT

CASTILLE, Justice.

The issue in the instant appeal is whether a dismissal of criminal charges is an appropriate sanction for the Commonwealth's failure to disclose certain evidence to the defense prior to trial. For the following reasons, we hold that the sanction of dismissal by the trial court was improper and, accordingly, we affirm the order of the Superior Court.

On March 27, 1996, appellant Donald Scott Burke was working as an assistant manager at the Mardi Gras Restaurant in Ohio Township. Richard Graham, who was seventeen years old at the time, was also working at the restaurant on that day as a busboy. The Commonwealth charged that, at approximately 6:00 p.m. that evening, appellant approached Graham and asked him to participate in a sham robbery. Graham agreed. At approximately 11:30 p.m., Graham met appellant on the second floor of the restaurant and appellant gave Graham money from the restaurant's cash registers. Graham bound appellant's hands and feet and hid the stolen money outside. Graham then reentered the restaurant and threw a rack of glasses down the steps leading to the second floor. When one of the restaurant's owners, John Connolly, and other employees responded to the commotion, Graham told them that two men had run down the stairs and knocked him over. Connolly subsequently discovered appellant on the second floor of the restaurant with tape on his hands and feet, his legs tied, and a napkin stuffed in his mouth.

Ohio Township police were the first to arrive at the scene. Appellant and Graham each gave an oral statement to township officers that two men had robbed the

781 A.2d 1138

restaurant at gunpoint and then escaped through the restaurant's side door. These statements were reflected in an Ohio Township Police Incident Report. In addition, appellant and Graham provided Ohio Township police with handwritten statements which were consistent with their oral statements. Later that night, the Ohio Township police requested the assistance of the Allegheny County police, who thereafter assumed jurisdiction over the investigation

On March 29, 1996, Melodie Manojlovich, a friend of Graham's, provided a handwritten statement to the Ohio Township police in which she reported that Graham had admitted to her that he and appellant had fabricated the Mardi Gras robbery. Based on this statement, Graham was charged as a juvenile with various offenses relating to the incident. On the day of Graham's hearing in Juvenile Court on these charges, he entered into an agreement with the Commonwealth by which these charges, as well as an unrelated drug charge, would be dismissed in exchange for his testimony against appellant.

On July 18, 1996, appellant was charged with theft by unlawful taking,¹ false reports to law enforcement authorities² and criminal conspiracy.³ On August 2, 1996, appellant made an informal request for pre-trial discovery and inspection. Almost three months later, on October 24, 1996, appellant filed a Motion to Compel Discovery and Inspection, in which he specifically requested that the Commonwealth disclose a variety of items, including material evidence favorable to the accused; written, oral or recorded confessions or inculpatory statements; and Graham's prior criminal record and information regarding any charges pending against him. Thereafter, the Commonwealth represented to the trial court that it had complied with the discovery requests.

Appellant waived his right to a jury and proceeded to a bench trial before the Honorable Jeffrey A. Manning. During the defense's cross-examination, Graham testified that he had provided the police with a handwritten statement on the night of the incident. The following exchange then took place:

[Trial Defense Counsel]: Your Honor, we have not been supplied with that. I never knew there was a statement he gave....

[The Prosecutor]: He never gave a written statement to the Allegheny County police. Judge, to our police officer's recollection, there was never a written statement from this guy.

The Court: The question is does he have a written statement in his file or in his possession?

[The Prosecutor]: No, we do not. We do not have one.

The Court: That answers that one.

T.T. at 39.

Later in the proceedings, the defense asked for a copy of the handwritten statement appellant had given to the police on the night of the robbery. The prosecutor initially represented that she did not have this statement either. Shortly after this exchange, however, the prosecutor produced appellant's handwritten statement. Defense counsel again expressed concern that the Commonwealth also had Graham's statement in its possession but had failed to turn it over. The trial court then ordered the Commonwealth to conduct a thorough search for Graham's statement

781 A.2d 1139

and adjourned the proceedings to the following afternoon

The next day, the prosecutor informed the trial court that she had found Graham's handwritten statement. In addition, the prosecutor reported that she had found four other items responsive to appellant's pre-trial discovery request which had not previously been furnished to the defense: an Incident Report, Supplementary Investigation Report and Complaint Record completed by the Ohio Township Police Department and the handwritten statement of Melodie Manojlovich.

The prosecutor attempted to explain the failure to deliver these materials sooner as an unintentional oversight resulting from the fact that two police "jurisdictions"— Ohio Township and Allegheny County— were involved in the case and had failed to adequately communicate with each other on the matter. The prosecutor noted that she had repeatedly asked the Allegheny County police for the documents, and had been told that they did not have them. After the documents were found, she further noted, the Allegheny County police officer she spoke to could not explain why they had not appeared in the pre-trial discovery.

With respect to whether this circumstance amounted to a discovery violation, the prosecutor cited two cases, Commonwealth v. Bonacurso, 500 Pa. 247, 455 A.2d 1175 (1983), and Commonwealth v. Piole, 431 Pa.Super. 391, 636 A.2d 1143 (1994), for the proposition that the prosecution does not violate discovery rules when it fails to provide the defense with evidence it does not possess and of which it is unaware, even if the evidence is in police custody. The trial court responded by stating that, for discovery purposes, "[t]he Commonwealth includes the district attorney and all police agencies involved in the prosecution of the case." For this reason, the trial court found that the Commonwealth had violated its discovery obligation.

On the question of the appropriate remedy, the prosecutor requested a continuance to allow the defense an opportunity to review the materials. Appellant, on the other hand, moved for a judgment of acquittal "on the basis of the misconduct of the prosecution." T.T. at 111. The trial court considered the acquittal motion as a motion to dismiss based upon prosecutorial misconduct and granted the motion, dismissing all charges against appellant. The trial court specifically found that the prosecutor's failure to discover the evidence sooner was not intentional; in the court's view, however, the prosecution had been "grossly negligent." The court then held that the tardy disclosure violated the Commonwealth's due process obligation to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, as well as its obligations under Rule 305⁴ of the Pennsylvania Rules of Criminal Procedure. The trial court further concluded that dismissal of the charges was the only appropriate remedy. In its opinion, the trial court explained why it believed dismissal was required:

The witness whose statements had been withheld [Graham] had already testified, been cross-examined and was released from his subpoena. The defendant was deprived of the right and opportunity to effectively cross-examine the Commonwealth witnesses, particularly his alleged accomplice. Because this defendant was deprived of that important right through the failure of the prosecution to abide their solemn obligation, the only appropriate remedy was the dismissal of the charges. If the non-disclosure

781 A.2d 1140

had truly been something beyond the control of counsel, then perhaps the declaration of a mistrial or some lesser remedy would have been appropriate. Here, however, the prosecution's conduct in failing to exercise the minimal level of due diligence necessary to insure that its obligations were carried out, was so egregious, dismissal was the only appropriate remedy.

Trial Court Op. at 14-15.

On the Commonwealth's appeal, the Superior Court reversed. The Superior Court disagreed with the trial court's finding that the prosecutor's failure to secure the evidence at issue was the product of "gross negligence." In the Superior Court's view, the record revealed "no lack of diligence by the prosecution in obtaining and disclosing evidence" because the prosecutor's initial investigation failed to uncover these statements and, when specific inquiries were made of police, the response had been that these items did not exist. Citing this Court's decision in Commonwealth v. Montgomery, 533 Pa. 491, 626 A.2d 109 (1993), the Superior Court noted that the prosecution cannot be deemed to have violated discovery rules when, despite reasonable inquiry, it...