Com. v. Wallace

• Decision Date: 03 February 1983
• Citation: 455 A.2d 1187,500 Pa. 270
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. William WALLACE, Jr., Appellant.
• Court: Pennsylvania Supreme Court

Page 1187

455 A.2d 1187

500 Pa. 270

COMMONWEALTH of Pennsylvania, Appellee, v. William WALLACE, Jr., Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 25, 1982.

Decided Feb. 3, 1983.

[500 Pa. 272] Thomas O. Vreeland, Washington (court-appointed), for appellant.

Herman J. Bigi, Dist. Atty., Daniel L. Chunko, First Asst. Dist. Atty., Washington, for appellee.

Before O'BRIEN, C.J., and ROBERTS, NIX, LARSEN, FLAHERTY, McDERMOTT and HUTCHINSON, JJ.

OPINION OF THE COURT

LARSEN, Justice.

In this appeal, we must determine whether the district attorney's failure to correct certain false testimony rendered by the chief witness for the Commonwealth and failure to provide defense counsel with that witness' complete criminal background and record upon request has deprived appellant of his right to a fair trial. We answer in the affirmative and grant appellant a new trial.

On August 17, 1979, at approximately 5:20 p.m., two men were seen running from Carl's Cleaners in Canonsburg, Washington County, holding handguns. Moments later, Carl Luisi, Sr., the owner of Carl's Cleaners, and fifteen year old Tina Spalla, an employee of Mr. Luisi, were found lying on the floor of the store. Each had been shot. Carl Luisi was pronounced dead at the scene. Tina Spalla, unconscious but still alive, was fatally wounded and died a short while later. The cash register was ajar, and, it was later determined, $227.00 had been taken from it. Appellant was apprehended on August 20, 1979, in Wheeling, West Virginia, by members of that city's police department. Appellant's co-defendant Henry Brown was subsequently arrested.

A jury trial commenced on December 3, 1980, before the Honorable John F. Bell in the Court of Common Pleas of Washington County, but resulted in a mistrial due to the inability of the jury to reach a verdict. Because of the extensive publicity which was generated by this trial, a jury was selected in Erie County by order of this Court and brought to Washington County for the second trial which began on February 2, 1981.

Appellant was convicted of murder of the first degree for the death of Tina Spalla, murder of the second degree for the death of Carl Luisi, Sr., robbery and criminal conspiracy. The Commonwealth sought the death penalty and a sentencing proceeding was held before the same jury on February 7, pursuant to the procedures established by section 9711 of the Sentencing Code, 42 Pa.C.S.A. § 9711. The jury found that the aggravating circumstance--the killing was committed while in the perpetration of a felony, 42 Pa.C.S.A. § 9711(d)(6)--outweighed any mitigating circumstances, and returned a sentencing verdict of death, as mandated, upon such a finding, by the Sentencing Code. 42 Pa.C.S.A. § 9711(c)(1)(iv).

On September 13, 1981, a motion for an evidentiary hearing and a new trial based upon after discovered evidence was filed. Following an evidentiary hearing, Judge Bell denied the motion. On February 11, 1982, a court en banc issued an opinion and order, per Judge Bell, denying appellant's post-verdict motions. On February 25, appellant was sentenced to death. This appeal was then automatically docketed in this Court pursuant to JARA, 42 Pa.C.S.A. § 722, and the Sentencing Code, § 9711(h).

While appellant does not specifically raise the issue of sufficiency of the evidence to sustain the convictions, this Court will conduct an independent review of the record for sufficiency in capital punishment cases. Commonwealth v. Zettlemoyer, --- Pa. ---, at ---, n. 3, 454 A.2d 937 at 942, n. 3 (1982). The evidence adduced at appellant's second trial, together with all reasonable inferences in the Commonwealth's favor, Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976), discloses the following. The victims had been shot with a .32 caliber weapon. ¹ The day's receipts ($227.00) had been stolen from the open cash register. Two men, one of whom matched appellant's general physical characteristics and wore a beige trench coat, were observed fleeing Carl's Cleaners carrying handguns and driving away in what was determined to have been Henry Brown's car. Brown's fingerprint was "lifted" from the cash register in Carl's.

Appellant and Henry Brown had been seen driving in Wheeling, West Virginia in the latter's car at about 1:00 p.m. on the day of the homicides. Appellant had been wearing a beige trench coat and carrying a .32 caliber weapon. A beige trench coat belonging to appellant, which looked like the one worn by one of the men who had run from Carl's Cleaners, had been obtained from the Spic & Span Cleaners in Wheeling, where it had been delivered on August 23, 1979 (apparently by appellant's girlfriend).

The most critical testimony was given by Olen Clay Gorby, undoubtedly the Commonwealth's key witness. Gorby testified that he had been an inmate at the Washington County Jail when appellant, who he had known for seven years, had been moved to Gorby's section of the jail on July 12, 1980. Appellant had, according to Gorby, related to him his involvement with the robbery/homicide at Carl's Cleaners, bragging that he and Henry Brown had robbed Carl's Cleaners and that appellant had shot the "old man" twice when he lunged at appellant and shot the girl to prevent her from identifying them. Gorby also stated appellant had mentioned owning a .32 caliber gun that he had hidden, and that appellant spoke about killing Henry Brown since he "was the only real evidence against appellant". N.T. Second Trial at 214-19.

From the foregoing, we conclude that the evidence, and all reasonable inferences in favor of the Commonwealth, are sufficient to sustain the convictions for murder of the first degree, murder of the second degree, robbery and conspiracy.

Appellant argues that the district attorney and his staff suppressed exculpatory evidence relating to the chief witness, Gorby, and failed to correct certain false material testimony rendered by that witness. We agree. ²

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 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." See ABA Standards for Criminal Justice § 3-3.11. The prosecutor, whose duty of course is to seek justice, not merely to convict, ABA Standards for Criminal Justice § 3-1.1(c), has an affirmative and continuing duty to disclose exculpatory information to the defendant and to correct false testimony of a witness. See Commonwealth v. Hallowell, 477 Pa. 232, 237, 383 A.2d 909 (1978); Pa.R.Crim.Pro. 305 D, Continuing Duty to Disclose; ABA Standards for Criminal Justice § 3-3.11. Further, the prosecutor's office is an entity and the knowledge of one member of the office must be attributed to the office of the district attorney as an entity. Commonwealth v. Hallowell, supra at 237-38, 383 A.2d 909 and Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).

The rule of Brady applies in three different situations, United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976), two of which are present in the instant case. ³ The first situation obtains when the prosecution achieves a conviction through the use of materially false or perjured testimony. Id. at 103-04, 96 S.Ct. at 2397-2398. See e.g., Commonwealth v. Hallowell, supra 477 Pa. at 236, 383 A.2d 909; Commonwealth v. Carpenter, 472 Pa. 510, 372 A.2d 806 (1977); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). "When the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within this general rule." Giglio v. United States, supra 405 U.S. at 153, 92 S.Ct. at 765 citing Napue v. Illinois, supra 360 U.S. at 269, 79 S.Ct. at 1177. See Commonwealth v. Cain, 471 Pa. 140, 369 A.2d 1234, 1240 (1977). Moreover, the good faith, or lack thereof, by the prosecutor is not determinative because the concern is not punishment of society for misdeeds of the prosecutor, but avoidance of an unfair trial to the accused--it is the effect on the right to a fair trial, not the prosecutor's state of mind, that constitutes reversible error. Commonwealth v. Hallowell, 477 Pa. 232, 237-38, 383 A.2d 909 (1978), citing Brady v. Maryland, supra, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Commonwealth v. Jenkins, 476 Pa. 467, 383 A.2d 195 (1978).

In this situation, a strict standard of "materiality" is applied, United States v. Agurs, supra 427 U.S. at 104, 96 S.Ct. at 2397; that is, the false testimony is material--and a new trial is required--if it could "in any reasonable likelihood have affected the judgment of the jury." Giglio v. United States, supra 405 U.S. at 154, 92 S.Ct. at 766, quoting Napue v. Illinois, supra 360 U.S. at 271, 79 S.Ct. at 1178.

In the instant case, District Attorney Herman Bigi elicited certain testimony from Olen Clay Gorby which the district attorney knew, or should have known, was false, as subsequent events have disclosed. At trial, Gorby testified that he had been in prison continually since his arrest on November 30, 1979 for charges stemming from an incident at the Village Green golf course in Washington County. In fact he had not been in jail that entire period because he had been released from January to March 20, 1980 while working as an undercover agent for the Federal Bureau of Alcohol, Tobacco and Firearms. Trooper William Cunningham, prosecuting officer in appellant's case as well as in all of Gorby's cases, knew of this release. ⁴

Gorby also testified that he had pled guilty to "everything he had ever done" when, in fact, he had not. When Gorby was rearrested on March 20, 1980, he was charged with eleven counts of burglary at criminal actions ...