Com. v. Perez

• Decision Date: 01 August 1997
• Citation: 698 A.2d 640
• Parties: COMMONWEALTH of Pennsylvania v. Eliezer PEREZ, Appellant.
• Court: Pennsylvania Superior Court

Page 640

698 A.2d 640

COMMONWEALTH of Pennsylvania v. Eliezer PEREZ, Appellant.

Superior Court of Pennsylvania.

Argued March 17, 1997.

Filed Aug. 1, 1997.

David J. Long, Assistant Public Defender, Reading, for appellant.

Eric S. Slaton, Assistant District Attorney, Worcester, for Commonwealth, appellee.

Before CAVANAUGH, HUDOCK and HESTER, JJ.

CAVANAUGH, Judge.

Appellant, Eliezer Perez, was tried before the Honorable Jeffrey K. Sprecher and a jury and found guilty of first degree murder, two counts of aggravated assault, possessing a criminal instrument, and carrying a firearm without a license. On February 28, 1996, appellant was sentenced to life imprisonment for first degree murder as well as consecutive terms of six to twenty-three months for possessing an instrument of crime and nine to twenty-three months for carrying a firearm without a license, to run following his life sentence.

There was evidence to support the following:

On March 29, 1995, around 10:00 p.m., Amildo Toro, Jr., the victim, was in the parking lot of Vaccaro's Six Pack Outlet in Reading, Pennsylvania. Toro entered the store and purchased a bottle of beer. While Toro was in the store appellant drove into the parking lot of the store. A bystander asked appellant if he was looking for someone and appellant replied that he was not and drove away only to return moments later as Toro exited the store. Appellant called Toro over to his car and the two engaged in a conversation. Appellant was sitting inside his vehicle and Toro was standing outside the driver's side window. Approximately thirty seconds later, witnesses heard a single gunshot and saw a flash emanating from appellant's vehicle. Toro fell to the ground and was taken to the hospital where he died from a fatal gunshot wound to his neck.

Appellant raises three issues for our review:

I. Whether the trial court erred by compelling production by the defense of a pretrial statement by defense witness, Jose Rodriguez.

II. Whether the Commonwealth failed to establish beyond a reasonable doubt that the killing was willful, deliberate and premeditated, when the evidence of self-defense was overwhelming and unrefuted.

III. Whether the trial court erred by failing to suppress appellant's statement to police while in custody, without Miranda warnings.

Appellant first argues that the trial court erred in compelling him to turn over a pretrial statement of a defense witness. He claims that the Pennsylvania Rules of Criminal Procedure do not require a defendant to disclose defense statements which are unrelated to an alibi or mental insanity defense. Appellant argues that Rule 305 of the Rules of Criminal Procedure does not entitle the Commonwealth to such a request for reciprocal discovery and it was error for the court to compel discovery of the statement.

The motion to compel discovery was made by the Commonwealth at the close of its case. The Commonwealth requested the disclosure of any and all written statements from defense witnesses who were expected to testify at trial. This included any signed statements from witnesses, as well as any memoranda prepared which contained substantially verbatim versions of those statements. The Commonwealth's motion to compel the disclosure of defense statements was based on the Pennsylvania Supreme Court's decision in Commonwealth v. Brinkley, 505 Pa. 442, 480 A.2d 980 (1984).

Following brief argument on the motion to compel, the trial court reviewed, in camera, the statements and memoranda of the defense witnesses expected to testify. The trial court concluded that Brinkley required disclosure of statements that were "signed, adopted or otherwise shown to be substantially, verbatim statements" of the witnesses. As such, the court compelled the defense to disclose the statement of Jose Rodriguez finding that it was the only statement that met the requirements set forth in Brinkley. This statement was signed by Rodriguez and notarized. The Commonwealth then used the statement to impeach the testimony of Rodriguez on cross-examination.

Initially, we note that the request at issue here is distinguishable from a request for the disclosure of a testifying witness' statement after he has affirmed that he gave a statement to a defense investigator. Presently, the request is a blanket discovery request for all witness statements.

In compelling disclosure the trial court relied upon Brinkley, wherein former Justice Larsen, writing for the majority, held that the attorney work product doctrine did not preclude disclosure of witness statements in defense counsel's possession. However, in reaching this result the court wrote that:

It is well established that where the Commonwealth has in its possession pretrial statements of its witnesses which have been reduced to writing and relate to the witness' testimony at trial, it must, if requested, furnish copies of these statements to the defense. Commonwealth v. Gartner, 475 Pa. 512, 381 A.2d 114 (1977). So too, where the defense attorney possesses pretrial statements of witnesses, the needs of the criminal justice system require disclosure.

Brinkley, 505 Pa. at 449, 480 A.2d at 984(emphasis added). Thus, in reaching the conclusion that the work product doctrine did not bar disclosure, the court stated that the defense was obligated to turn over any statements from their witnesses. The only authority the court cited for this proposition was In the Matter of Pittsburgh Action Against Rape, 494 Pa. 15, 428 A.2d 126 (1981), where the court had noted the benefits of liberal discovery rules. In that case, the court commented that generally our criminal justice system is a search for the truth and disclosure over suppression of evidence promotes that purpose. Id. at 25, 428 A.2d at 130.

The court in Brinkley quoted the United States Supreme Court in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), wherein it was stated "[t]o ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or the defense." Brinkley, supra at 450, 480 A.2d at 984 (emphasis in original) (quoting Nixon, supra at 709, 94 S.Ct. at 3108). Without any further discussion, the court in Brinkley concluded that "the statements of the witnesses in defense counsel's possession were not protected against disclosure by the work product privilege especially in light of the trial court's narrowly drawn disclosure order." Id. ¹

We do not find Brinkley to be carte blanche authority for mutual discovery. Brinkley simply concluded that the work product doctrine did not bar disclosure of witness statements and never addressed whether such a discovery right was permitted under the discovery rules. The comments by the court which are read to create such discovery rights are dicta and therefore, not controlling over the present issue. Commonwealth v. Ayers, 363 Pa.Super. 232, 235 n. 1, 525 A.2d 804, 805 n. 1 (1987)(dicta is not binding as precedent). We find contemporaneous support for this conclusion in the comments of Chief Justice Nix in his concurring opinion in Brinkley. He also concluded that any such notion that the majority's opinion "implies that the Commonwealth should be entitled to reciprocal discovery in criminal prosecutions" was dicta. Brinkley, supra at 460, 480 A.2d at 990 (Nix, C.J., concurring). Further support is found in the fact that our supreme court has not amended the Rules of Criminal Procedure to allow for such broad discovery.

Brinkley is also distinguishable from the case at bar. There, the court only addressed a limited discovery request. The Commonwealth there requested the disclosure of witness statements after a witness during cross-examination admitted to having given a statement to a defense investigator. The defense objected and argued that the requests were protected by the work product doctrine. The trial court overruled the objection and ordered the defense to disclose the statements. In the case at bar the Commonwealth made a blanket discovery request for any statements of defense witnesses. Specifically, they requested "the copies of all statements written or tape recorded or otherwise substantially verbatim statements of any witness that the defendant ... intends to call at trial in his case in chief." This request of course for discovery is much broader than that in Brinkley.

Brinkley cites to U.S. v. Nixon for the suggestion that discovery rights must be more liberal to promote the "search for the truth." However, the more liberal the discovery rules become, the greater the advantage the Commonwealth has in prosecuting its case. Chief Justice Nix took note of this problem when he observed that the United States Supreme Court has recognized that the state has a distinct advantage in its ability to investigate and prosecute a case, and if the discovery process should favor any side it should be in defendant's favor. Brinkley, supra at 462, 480 A.2d at 991 (Nix, C.J., concurring)(citing Wardius v. Oregon, 412 U.S. 470, 475, n. 9, 93 S.Ct. 2208, 2212, n. 9 37 L.Ed.2d 82 (1973) and Murphy v. Waterfront Comm., 378 U.S. 52, 55, 84 S.Ct. 1594, 1596-97, 12 L.Ed.2d 678 (1964)). Chief Justice Nix closed his concurring opinion in Brinkley by noting that any notion of reciprocal discovery rights pertaining to statements in the possession of the defense "would impermissibly tip the balance of advantage even more heavily in the prosecution's favor." Brinkley, supra at 462, 480 A.2d at 991 (Nix, C.J., concurring). We agree.

It is also important to note that Brinkley has not been affirmatively cited for the privilege of reciprocal discovery in any subsequent case. The only case to mention this decision for the proposition at hand was Commonwealth v. LaCava, 542 Pa. 160, 666 A.2d 221 (1995), where our supreme court addressed a question of prosecutorial misconduct. In LaCava, the...