Com. v. Robinson

Citation229 Pa.Super. 131,324 A.2d 441
PartiesCOMMONWEALTH of Pennsylvania v. Francis J. ROBINSON, Appellant.
Decision Date21 June 1974
CourtSuperior Court of Pennsylvania

SPAETH, Judge:

Appellant was convicted by a jury of assaulting a person making an arrest without a warrant, 1 assault and battery, 2 and operating a motor vehicle while under the influence of intoxicating liquor. 3 On this appeal he raises three issues. None warrants reversal of his convictions.

The facts surrounding the charges may be summarized as follows. Around 11:15 p.m. on the night of June 29, 1971, Officer Richard Nestor of the Radnor Township Police Department was making a routine patrol of the grounds of the Overbrook Country Club when he observed appellant in the parking lot, staggering, with his shirt out and his fly open. 4 The officer drove to the clubhouse where he tried to find someone who could drive appellant home. He was unsuccessful and had returned to his patrolling when a car driven by appellant passed him at a high rate of speed. The officer followed, stopped the car, and placed appellant under arrest for drunken driving. Another officer arrived at the scene, and appellant was transported to the police station. There he was asked to submit to a breathalyzer test (referred to in the transcript as the 'Mobat Test') 5 but he refused. When Officer Nestor attempted to remove appellant's tie before placing him in a cell, appellant struck the officer.

I.

Appellant's first contention is that the trial judge erred in refusing defense counsel's request (made during recross-examination) that the Commonwealth be directed to produce a police report prepared by Officer Nestor so that counsel might use it in questioning the officer. The judge gave three reasons for his ruling: 1) that it had not been conclusively established that the report existed; 2) that the request should have been made earlier (even before trial); and 3) that the report would be of little use to counsel since recross-examination was limited to the matters touched on during redirect examination.

The first of these reasons is not sound. The officer's testimony was equivocal, if not evasive, regarding the existence of the report. Nor does it appear that the district attorney used 'diligent good faith efforts' in determining whether the report was part of the police files. See, ABA Project on Standards for Criminal Justice, Discovery and Procedure Before Trial § 2.4 (1970).

The second and third reasons may be considered together, as they overlap.

Pa.R.Crim.P. 310, 19 P.S. Appendix, states that '(i)n no event . . . shall (a) court order pretrial discovery or inspection of written statements of witnesses in the possession of the Commonwealth.' Appellant's counsel thus could not have obtained the report before trial as the trial judge suggested.

There is no bar, however, to requesting discovery of a witness's written statements during trial. Commonwealth v. Kontos, 442 Pa. 343, 276 A.2d 830 (1971). In fact, 'relevant pre-trial statements of witnesses in the possession of the Commonwealth must be made available to the accused, upon request, during the trial.' Commonwealth v. Morris, 444 Pa. 364, 366, 281 A.2d 851 (1971). See also Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This rule extends to reports made by police officers who testify as witnesses. Commonwealth v. Swierczewski, 215 Pa.Super. 130, 257 A.2d 336 (1969). The request must be timely, and come preferably before cross-examination of the witness begins. Commonwealth v. Kubacki, 208 Pa.Super. 523, 224 A.2d 80 (1966). Upon timely request the trial judge should review the evidence and permit access to those portions that are relevant to matters raised on direct examination. Commonwealth v. Swierczewski, Supra 215 Pa.Super. at 135, 257 A.2d 339.

The report in question here was one of three. The defense had access to two of the reports prepared by the officer. The possibility that there was a third report appeared during cross-examination, and also from the officer's testimony as a pretrial hearing. Appellant's counsel, however, did not request production of the third report until recross-examination, and it was within the trial judge's discretion to consider the request as made too late. Appellant's counsel could have requested production of the report before beginning cross-examination of the officer, and at the very latest should have requested it following the officer's answers to questions on cross-examination concerning the existence of the report. See Commonwealth v. Collins, 440 Pa. 368, 269 A.2d 882 (1970). The importance of timely requests for discovery should not be minimized. There is an inherent possibility that interruptions and continuances will result while the court determines if discoverable materials actually exist and then reviews them for relevancy. Finally, redirect examination was narrowly limited, and the request for the report on recross-examination had something of the appearance of afterthought.

II.

Appellant's second contention is that the trial judge erred in permitting the impeachment of a witness called by appellant.

Bernard White, appellant's friend and a fellow attorney, went to the Radnor police station in the early morning hours (between 1:45 and 2:00 a.m.) to confer with appellant and arrange for his release. On direct examination Mr. White testified that when he met appellant, 'there was no indication . . . that he was under the influence or had been even been (sic) drinking. He was quite clear in what he said to me. He seemed to be thinking very clearly as to what he should do or should not do. His face was not flushed. I detected no smell of alcohol. He stood erect.' In rebuttal, the Commonwealth recalled to the stand Officer William M. Zimmerman, who testified that on the night of the incident, after learning the information on the arrest report, Mr. White had said, 'Yes, I can see what kind of condition Mr. Robinson is in.' Appellant's counsel objected to the introduction of this evidence and moved for a mistrial. The motion was denied. Counsel then recalled Mr. White, who denied making any statements indicating that he 'believed there was any substance or merit of any kind to the charge of drunken driving.'

It was once held that in order to impeach the credibility of a witness by proof of statements contradictory to his trial testimony, it was first necessary to lay grounds for the admission of the impeaching testimony by calling the witness's attention to the contradictory statements and inquiring if he had made such.' Commonwealth v. Dennison, 441 Pa. 334, 338, 272 A.2d 180, 181 (1971). The reasons for this requirement were '(1) to avoid unfair surprise to the adversary, (2) to save time, as an admission by the witness may make the extrinsic proof unnecessary, and (3) to give the witness, in fairness to him, a chance to explain the discrepancy.' McCormick, Handbook on the Law of Evid. § 37, at 72 (2d ed. 1972). 'However, it has been established for some years in Pennsylvania that such procedure is not mandatory and is now a matter within the sound discretion of the trial judge, subject to reversal if the discretion is abused. Commonwealth v. Powell, 303 Pa. 104, 154 A. 287 (1931), and Commonwealth v. Dilsworth, 289 Pa. 498, 137 A. 683 (1927). See also, 2 Henry Pa. Evidence § 803 (4th ed. 1953), and 3 Wigmore, Evidence § 1028 (3d ed. 1940).' Commonwealth v. Dennison, Supra 441 Pa. at 338, 272 A.2d 181--182.

There was no abuse of discretion here. Appellant was permitted to recall Mr. White and question him about any statements he might have made while at the police station. Although appellant argues that he was prejudiced by having to recall Mr. White, it is not apparent how he was prejudiced in a way he would not have been had Mr. White been confronted with the statement on cross-examination. Moreover, as the trial judge notes in his opinion, appellant's counsel 'used the same technique in attempting to impeach the credibility of the Commonwealth's witnesses.'

III.

Appellant's third contention concerns the admissibility of evidence that he refused to take a breathalyzer test. This contention presents issues both difficult and important.

As has been stated, following his arrest and while he was confined at the police station, appellant was asked, but refused, to take a breathalyzer test. Before trial, appellant filed a motion to suppress evidence of this refusal, stating as one ground that such evidence was obtained in violation of his privilege against self-incrimination. The motion was denied.

At trial, Officer Nestor testified that he asked appellant to take a breathalyzer test and explained that it could be administered by a person of appellant's choice, but appellant refused. The officer then began to testify concerning how the test is administered, how the apparatus works, and the significance of the test results. At this point the trial judge interrupted and addressed the jury:

Let me tell you quite strongly at this point that the refusal to take the test is no evidence of guilt or innocence in this case. Please remember that . . .. It is here for a limited purpose which I shall explain to you later.

The officer then completed his explanation. Appellant took the stand and testified that he refused to take the breathalyzer test because he knew that such tests could be fixed and feared that the data from any test he took would not find its way to the laboratory but would be replaced by data from some other source that would indicate intoxication. On cross-examination, appellant admitted that as an attorney he was familiar with the evidentiary concept of 'chain of custody,' 6 but stated that the police officers who would have handled his test results would have perjured themselves to establish the chain.

In his charge to the jury, the trial judge stated:

You have had frequent...

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