Com. v. Gee

• Decision Date: 07 April 1976
• Citation: 467 Pa. 123,354 A.2d 875
• Parties: COMMONWEALTH of Pennsylvania v. Gregory L. GEE, Appellant.
• Court: Pennsylvania Supreme Court

Page 875

354 A.2d 875

467 Pa. 123

COMMONWEALTH of Pennsylvania v. Gregory L. GEE, Appellant.

Supreme Court of Pennsylvania.

Argued Jan. 20, 1975.

Decided April 7, 1976.

[467 Pa. 129] James J. Binns, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah Glass, Philadelphia, for appellee.

Before EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

EAGEN, Justice.

The appellant, Gregory Gee, was convicted by a jury of murder in the second degree. Following the denial of post-trial motions, a prison sentence of five to fifteen years was imposed. This direct appeal followed.

The prosecution emanated from the fatal stabbing of Glenn Cook, seventeen years of age, outside Overbrook High School in Philadelphia in an atmosphere of hostility between two rival youth gangs, the Moon Gang, most of whose members attended Overbrook, and the June Street Gang, most of whose members attended University High School. Cook, a former student at Overbrook, was on his lunch hour and had accompanied his sixteen-year-old cousin, Tyrone Cook, a student at Overbrook, to the school.

Shortly after the stabbing, Gee, a member of and an officer in the June Street Gang, was taken into police custody and during the questioning that followed admitted he stabbed Cook. However, he explained that when he visited Overbrook that day--it was his day off from work--he heard from friends that 'something had kicked with the Moon.' At this point, Gee said, about forty members of the Moon Gang came out of the school, and Glenn Cook, whom he knew to be a member of the Moon, swung at him three times with a cane but missed each time, and in defense he stabbed Cook once with a knife and then ran. ¹ He further indicated he carried the knife for self-protection because he himself had once been stabbed. Evidence of Gee's custodial statements was admitted into evidence at trial.

The only eyewitness to the occurrence who testified at trial for the Commonwealth was one Steven Lambert, then a student at Overbrook. He stated he was fifteen feet away from Cook and that Cook was standing alone, unarmed and leaning against the front wall of the school building when he was attacked by Gee. He said Gee ran down the front steps of the building, threw his coat onto an automobile upon which other members of the June Street Gang were sitting, approached Cook, shouted 'Yeah, You from the Moon Gang' and stabbed him in the chest near the heart. Lambert said Cook then grabbed his chest and tried to run, and Gee followed him still swinging his knife. ²

Much of this appeal is based on statements made by various eyewitnesses to the incident which appellant contends he was improperly precluded from making adequate use of at his trial and which he describes broadly as 'exculpatory.' He cites Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196--97, 10 L.Ed.2d 215 (1963) for the proposition that 'the 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.' The proposition is undoubtedly correct, though we note that the record reveals no specific request for such evidence other than for materials relating to his polygraph examination. Nevertheless, we think that, even 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. ³ Brady suggests that such evidence would be 'material either to guilt or to punishment.' Exculpatory evidence has also been defined as 'evidence which extrinsically tends to establish defendant's innocence of the crimes charged, as differentiated from that which, although favorable, is merely collateral or impeaching.' People v. Bottom, 76 Misc.2d 525, 351 N.Y.S.2d 328, 334--35 (1974). Cf. People v. Fraiser, 75 Misc.2d 756, 348 N.Y.S.2d 529 (1973). A piece of evidence in the possession of the prosecutor, therefore, cannot be considered exculpatory merely because the defendant chooses to call it so.

Gee argues that a detective testified both at the suppression hearing and later at trial that exculpatory statements existed which would support his claim of self-defense, but a careful reading of the record discloses only that he indicated there were statements, and that these statements were not exculpatory, but accusatory. The record does suggest the existence of statements indicating that at this scene of gang hostility other members of appellant's own gang were observed with drawn knives--one of which may even have had blood on it--and that someone had a cane. But in view of Gee's own repeated, uncontroverted, and independently corroborated admission that he had stabbed Glenn Cook, the finding of the pathologist that either wound sustained by Cook in itself would have been fatal, and the absence of any statement other than Gee's own placing a cane or any other weapon in the hands of the decedent, these statements would seem neither to have supported Gee's claim of self-defense nor to have suggested the provocation needed to reduce murder to manslaughter.

On the day of his arrest, Gee was given a polygraph examination, and he now argues that, apart from the question of the admissibility of the polygraph results themselves which will be discussed subsequently, the Commonwealth's failure to turn over to defense counsel 'every test, every result, every interview sheet that was taken in connection with that polygraph test' was a violation of its duty to turn over exculpatory evidence. This evidence was exculpatory in the sense that it certainly contained exculpatory statements by appellant, but not in the sense that its denial precluded him from any additional evidence; it did not 'extrinsically' tend to establish innocence or to mitigate guilt. The record of the suppression hearing makes it clear that the results of the examination were inconclusive, and that in the course of this examination appellant merely gave the same version of the stabbing he gave in his prior informal statement and his subsequent formal statement. Both of these statements were admitted into evidence, and any additional probative value of evidence that he remained firm and consistent in his version of events at an intermediate time would clearly be minimal in light of the consistency already shown and should not be allowed to outweigh the danger of improper inferences arising from references to the polygraph examination. Cf. Commonwealth v. Johnson, 441 Pa. 237, 272 A.2d 467 (1971).

As for pre-trial discovery in general, the law in Pennsylvania is clear that, absent 'proof by the defendant, after hearing, of exceptional circumstances and compelling reasons' he may be permitted only 'to inspect and copy or photograph any written confessions and written statements' made by him, and that he is not entitled to 'pretrial discovery or inspection of written statements of witnesses in the possession of the Commonwealth.' Pa.R.Crim.P. 310. See also Commonwealth ex rel. Specter v. Shiomos, 457 Pa. 104, 320 A.2d 134 (1974); Commonwealth v. Stafford, 450 Pa. 252, 299 A.2d 590 (1973), cert. denied, 412 U.S. 943, 93 S.Ct. 2775, 37 L.Ed.2d 404 (1973); Commonwealth v. Turra, 442 Pa. 192, 275 A.2d 96 (1971). Here appellant made no pretrial showing of 'exceptional circumstances and compelling reasons' that would entitle him to pretrial discovery beyond that of his own statements, nor was the notice-of-alibi rule, which would have entitled him to reciprocal discovery, enforced against him. Cf. Commonwealth v. Jackson, 457 Pa. 79, 319 A.2d 161 (1974). The Commonwealth did make available during presentation of its own case-in-chief all relevant statements in its possession and not merely those of witnesses it ultimately called to the stand, and the record does not support appellant's claim that he was denied effective access to the statements during the trial. Cf. Commonwealth v. Kontos, 442 Pa. 343, 276 A.2d 830 (1971).

At the trial the Commonwealth called only one eyewitness to the killing, Steven Lambert, and indicated to the defense that it was not going to call a number of others who had given statements to the police because they had changed aspects of their stories and were not thought to be reliable witnesses. The changes, however, were not exculpatory in nature and appeared rather to strengthen the evidence of guilt. Appellant nevertheless now argues that in not calling these witnesses the Commonwealth failed in its obligation not to withhold testimony favorable to the accused, apparently on the theory that it thereby precluded him from cross-examining these witnesses about the inconsistencies with their prior statements. The law is clear, however, that the Commonwealth is not required to call to the stand all available witnesses, particularly if it regards them as unreliable, as long as it makes their names and whereabouts available to the defense. See Commonwealth v. Jones, 452 Pa. 569, 308 A.2d 598 (1973); Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967); Commonwealth v. Horn, 395 Pa. 585, 150 A.2d 872 (1959). The Commonwealth here made all such witnesses available to the defense, and indeed procured them for the defense to call at trial if it chose to do so. Hence, it was also not error, as appellant argues, for the court to refuse to charge the jury that it could draw an unfavorable inference from the Commonwealth's failure to call additional witnesses. Cf. Commonwealth v. Carter, supra.

Because of what it continued to regard as exculpatory evidence in these witnesses' prior statements, the defense determined to call them on its own behalf. Since it appeared that these witnesses might have been involved with one side or the other in the gang hostility that accompanied the killing, a hearing was held in the...