Com. v. Montgomery

• Decision Date: 27 May 1993
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Harry MONTGOMERY, Appellant.
• Court: Pennsylvania Supreme Court

Page 109

626 A.2d 109

533 Pa. 491

COMMONWEALTH of Pennsylvania, Appellee, v. Harry MONTGOMERY, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 22, 1992.

Decided May 27, 1993.

[533 Pa. 493] Joel I. Fishbein, Philadelphia, for appellant.

Ronald Eisenberg, Deputy Dist. Atty., Catherine Marshall, Chief, Appeals Div., George Leone, Philadelphia, for appellee.

Before NIX, C.J., and ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

PAPADAKOS, Justice.

Harry Montgomery (Appellant) was convicted of attempted rape, terroristic threats and indecent assault following a jury trial before the Honorable Francis A. Biunno in the Court of Common Pleas of Philadelphia County. Appellant received a sentence of five (5) to ten (10) years imprisonment. On appeal to the Superior Court, his judgment of sentence was affirmed. Commonwealth v. Montgomery, 400 Pa.Superior Ct. 621, 576 A.2d 1136 (1990).

On the morning of October 3, 1988, Jeanette Phillips, the victim, went to Appellant's home to invite the children in the residence to a birthday party for her one-year old son. When the victim arrived at the house, Appellant answered the door. Although Appellant and the victim had never met, he invited her into the home and told her that his wife was upstairs. As the unsuspecting victim went up the stairs to meet the wife, she heard the door lock behind her. Subsequently, Appellant followed the victim and told her that his wife was not at home. Appellant then became physically abusive and refused to allow the victim to leave the house. To prevent her departure, he grabbed her by the neck and pulled her up the stairs. During the violence which ensued, Appellant forced the victim down on the stair landing and threatened to slit her throat if she did not keep quiet.

Appellant then dragged the victim, with his one arm around her neck, to a bedroom. The victim struggled with Appellant as she tried to escape but was forced onto a bed. Appellant managed to pull the victim's sweatpants down and force his finger into her vagina. Because the victim resisted unceasingly, Appellant's attempts at intercourse were unsuccessful. Rather, Appellant rubbed his penis on the victim's stomach until he ejaculated. The victim then used a blanket on the bed to clean herself of Appellant's ejaculate. Eventually, the victim escaped through the back door when Appellant was distracted by the cries of an infant.

The victim immediately contacted police with a description of Appellant and other information relating to the incident. The police went to the residence and found Appellant, the clothes described by the victim, and the blanket which had been on the bed. Appellant was arrested after he was identified by the victim.

On October 17, 1988, the blanket which was on the bed was sent to the criminalistics lab to be analyzed for the presence of semen. Pieces of material were cut from the blanket and placed in acid. The test results for the presence of semen were negative. This chemical report was given to Appellant's counsel during discovery.

On the first day of trial, March 22, 1989, the district attorney had further tests performed on the blanket during the lunch recess. The head chemist at the criminalistics lab examined the blanket and found a dried stain on one corner which had not been analyzed. This material tested positive for seminal fluid.

Immediately following the lunch recess, the prosecutor informed the court and Appellant's counsel of the second test results. Appellant's counsel sought to have this evidence suppressed on several grounds. Counsel argued that the findings and report were not done in a timely manner, and that the evidence would suggest to the jury that Appellant's counsel had lied during his opening statement.

The trial court refused Appellant's request to exclude the results of the second test from admission into evidence. Instead, the trial court offered Appellant a five day continuance in order to prepare a new strategy. Appellant declined the continuance and decided to proceed with the trial. The prosecutor also offered to tell the jury that Appellant's counsel had not attempted to mislead them and that his opening statement was consistent with the only available test results at the time. Judge Biunno agreed to this procedure to satisfy Appellant's concerns that the jury was prejudiced against his client by what had occurred.

Appellant disagreed that the prosecutor's gratuitous comments would dispel the prejudice resulting from the disclosure of this evidence and requested that a mistrial be declared. That motion was denied by the trial court, the evidence was admitted at trial and Appellant was ultimately convicted and the judgment of sentence was affirmed. Commonwealth v. Montgomery, 400 Pa.Superior Ct. 621, 576 A.2d 1136 (1990).

We accepted allocatur review in this case to address the question of whether a trial court commits reversible error in denying an Appellant's motion for a mistrial when the Commonwealth introduces evidence obtained during trial which a defendant claims would be prejudicial to his defense.

In support of this view, Appellant argues that the Commonwealth violated our rules of pre-trial discovery in the manner in which the Commonwealth procured the test results and should have been penalized by having the test results suppressed. Pa.R.Crim.P. 305 B(1)(e) is cited as the controlling rule and provides:

Rule 305. Pretrial Discovery and Inspection.

B) Disclosure by the Commonwealth

(1) Mandatory: In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant's attorney all of the following requested items or information, provided they are material to the instant case....

(e) results or reports of scientific tests, expert opinions, ... which are within the possession or control of the attorney for the Commonwealth. (Emphasis Added).

Additionally, the pre-trial rules of discovery place upon both parties a continuing duty to disclose newly discovered evidence. Pa.R.Crim.P. 305(E) establishes:

Rule 305 E. Continuing Duty to Disclose

If, prior to or during trial, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material or witness. (Emphasis added)

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held "that the suppression by the prosecutor 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 the bad faith of the prosecution." Our rule has been promulgated in response to this basic concern for fairness and there is little question but that the prosecutor has an affirmative and continuing duty to disclose exculpatory information to the defendant as it is discovered.

Appellant, however, asserts that even though the test results at issue here were made available to him, the timing of the retesting of the blanket was prejudicial to his defense since the negative results of the first test were mentioned by trial counsel in his opening statement to the jury.

Technically speaking, Appellant is mistaken when he argues that the Commonwealth violated Pa.R.Crim.P. 305(B)(1)(e) under the circumstances of this case, because, he, in fact, was given the results of the test as soon as they were available and nowhere does the rule indicate that the Commonwealth is estopped from gathering additional evidence once the trial begins. Our cases uniformly hold that the prosecution does not violate discovery rules when it fails to provide the defense with evidence that it does not possess and of which it is unaware during pre-trial discovery, as when the evidence is in police custody. Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985) cert. denied 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986); Commonwealth v. Bonacurso, 500 Pa. 247, 455 A.2d 1175 (1983), cert. denied 462 U.S. 1120, 103 S.Ct. 3090, 77 L.Ed.2d 1350 (1983).

Stated in another way, it is only when the prosecutor deliberately withholds the results of a test before or during trial that one can argue that a violation of the rule has occurred or inferentially that the Commonwealth has engaged in bad faith tactics. Here, as soon as the prosecuting attorney received the results of the second test, he immediately informed the court and Appellant's counsel and made those results available as required by Pa.R.Crim.P. 305 E. Accordingly, Appellant's argument that he was entitled to the remedial relief of a mistrial pursuant to a...