Lepley v. Lycoming County Court of Common Pleas

• Decision Date: 05 October 1978
• Citation: 393 A.2d 306,481 Pa. 565
• Parties: George E. LEPLEY, Esquire, Petitioner, v. LYCOMING COUNTY COURT OF COMMON PLEAS.
• Court: Pennsylvania Supreme Court

Page 306

393 A.2d 306

481 Pa. 565

George E. LEPLEY, Esquire, Petitioner, v. LYCOMING COUNTY COURT OF COMMON PLEAS.

Supreme Court of Pennsylvania.

Argued April 20, 1978.

Decided Oct. 5, 1978.

[481 Pa. 568] George E. Lepley, Jr., Asst. Public Defender, pro se.

William S. Kieser, Dist. Atty., Kenneth D. Brown, Asst. Dist. Atty., Williamsport, Robert F. Banks, Asst. Dist. Atty., Mercer, for appellee.

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

OPINION OF THE COURT

ROBERTS, Justice.

This case presents the question whether the trial court's order directing petitioner, George E. Lepley, Jr., Esquire, to make available to the Commonwealth the tape he made of his client's preliminary hearing deprives his client of his Sixth Amendment right to counsel and Fifth Amendment privilege against self-incrimination. We hold that it does not and deny petitioner's request for Writ of Prohibition.

Petitioner, an assistant public defender of Lycoming County, was appointed counsel for Robert C. Walker who is charged with conspiring with John Alonzo Basey to commit arson. On November 2, 1977, Basey, who earlier had pled guilty to similar charges, testified at Walker's preliminary hearing as the Commonwealth's chief witness. Petitioner, to prepare Robert Walker's case, used his own tape recorder to make a recording of the preliminary hearing, including the testimony of Basey. ¹ On December 22, 1977, Basey received a sentence of imprisonment inconsistent with his plea agreement with the Commonwealth. ² This inconsistency prompted Basey, when interviewed by an assistant district attorney before Walker's trial set for January, 1978, to declare that, although subpoenaed, he would assert his Fifth Amendment privilege against self-incrimination at Walker's trial. Basey's attorney reaffirmed several times subsequently that he felt Basey would incriminate himself if he testified and thus would claim his Fifth Amendment privilege.

On January 27, 1978, the Commonwealth, asserting that Basey was legally unavailable to testify at Walker's trial, petitioned the Court of Common Pleas of Lycoming County to order petitioner to "turn over the tape recording of the preliminary hearing to the Commonwealth or the Court, or, in the alternative, to turn such tape over to the Court for an in camera review of such so the Court may fairly decide the issue as to production of such tape recording pursuant to Commonwealth's subpoena." On January 30, 1978, the court ordered petitioner to turn the tape over to the court for in camera review, but set no date for compliance. Thereafter, the court issued the following order:

"AND NOW, February 24, 1978, on motion of the Commonwealth's petition for order directing that the defense attorney deliver to the attorney for the Commonwealth a tape recording of the preliminary hearing testimony of John Basey and it appearing to the Court that John Basey will be 'unavailable' as a witness at trial in this case and that the tape recording in question is the only record (other than the recollection of spectators) of the preliminary hearing testimony, the Court concludes that the tape recording is in the nature of real evidence relevant to the issue of innocence or guilt and that the Commonwealth has a right of access to the same for possible use at trial. Accordingly, it is ORDERED and DIRECTED that the tape recording or a complete and accurate copy thereof be forthwith delivered by the defendant to the attorney for the Commonwealth."

That same day, petitioner countered with a petition for review in this Court, to which the Commonwealth, as an interested party, filed an answer. On February 28, 1978, petitioner filed in the court of common pleas an Application for Dismissal of Order or in the Alternative Stay of Enforcement of Order. On March 13, 1978, the court issued an order staying all proceedings below pending this Court's resolution of petitioner's petition for review. On April 5, 1978, this Court granted the petition for review, set a date for oral argument on the request for writ of prohibition and stayed proceedings in the matter. ³

It is well established that prior testimony from a preliminary hearing of an unavailable witness is admissible at trial, provided the person against whom the testimony is offered had counsel and a full opportunity to cross-examine the witness during the earlier proceeding. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); accord, Commonwealth v. Clarkson, 438 Pa. 523, 265 A.2d 802 (1970). ⁴ Walker had a complete and adequate opportunity at the preliminary hearing to cross-examine Basey, whose testimony was on issues not substantially different from those which will arise at trial. Therefore, assuming the tape of the former testimony is properly authenticated and proven accurate and reliable, see Commonwealth v. Johnson, 450 Pa. 575, 301 A.2d 632 (1973); Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464 (1955), and that the trial court properly concludes Basey is indeed "unavailable," no violation of Walker's constitutional right of confrontation will be involved. See Commonwealth v. DiPietro, Mass., 367 N.E.2d 811 (1977); Shifflett v. Commonwealth, 218 Va. 25, 235 S.E.2d 316 (1977). The remaining issue is thus whether Walker, through petitioner, his attorney, can be compelled to produce the tape of the preliminary hearing for the Commonwealth to use in its case in chief at Walker's trial.

Any procedural system must conform to requirements of fundamental fairness and due process. The prevalence of changes in federal and state rules of criminal procedure, however, reflect the growing concern that gamesmanship too often may govern the conduct of criminal proceedings, resulting in a general obfuscation of issues. As the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Discovery and Procedure Before Trial observes:

"In spite of its obvious entertainment qualities, trial gamesmanship by way of obfuscatory tactics is generally offensive to the dignity of the court as an institution and destructive of respect for legal processes. Where life, liberty and protection of communities from crime are the stakes, gamesmanship is out of place. This does not mean that the adversary system is to be in any way discounted, except perhaps in its excesses."

Id., Comment to § 1.1 at page 31.

Mr. Chief Justice Burger, writing for a unanimous Court in United States v. Nixon, 418 U.S. 683, 708, 709-10, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974), further explained:

"We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To 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 by the defense.

Only recently the Court restated the ancient proposition of law, albeit in the context of a grand jury inquiry rather than a trial,

'that "the public . . . has a right to every man's evidence," except for those persons protected by a constitutional, common-law, or statutory privilege, United States v. Bryan, 339 U.S. (323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1949)); Blackmer v. United States, 284 U.S. 421, 438 (52 S.Ct. 252, 76 L.Ed. 375) (1932). . . .' Branzburg v. Hayes, United States, 408 U.S. 665, 688 (92 S.Ct. 2646, 33 L.Ed.2d 626) (1972).

The privileges referred to by the Court are designed to protect weighty and legitimate competing interests. Thus, the Fifth Amendment to the Constitution provides that no man 'shall be compelled in any criminal case to be a witness against himself.' And, generally, an attorney or a priest may not be required to disclose what has been revealed in professional confidence. These and other interests are recognized in law by privileges against forced disclosure, established in the Constitution, by statute, or at common law. Whatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth." (footnote omitted.)

We conclude that the evidence sought to be produced is not protected against compelled disclosure by a Constitutional, statutory or common-law privilege, and therefore must, as ordered, be made available to the prosecution "to ensure that justice is done."

First, we reject any argument that petitioner's recording of the preliminary hearing is a privileged "work-product" within the principles declared in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). As the United States Supreme Court stated in United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1975):

"At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system."

Indeed, even in announcing the "work-product" rule, the Hickman Court recognized that work-product notions may be insufficient to prevent discovery of evidentiary material.

"We do not mean to say that all written materials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney's file and where production of those facts is...