Commonwealth v. Hicks , 228 Pa. Super. 76 ( 1974 )

Opinion by

Watkins, P. J.,

This is an appeal from the judgment of sentence of the Court of Common Pleas, Trial Division, of Philadelphia, by the defendant-appellant, Bobert Hicks, after conviction of aggravated robbery and assault and battery before the court without a jury.

The basis of this appeal is that the appellant was denied due process of law because the Commonwealth failed to disclose its knowledge that a prosecution witness would change his testimony, as given at a preliminary hearing, at the time of trial.

At the preliminary hearing the witness testified that Jackson attacked him, grabbed him around, the neck and demanded money while the appellant stood guard. At the time of the trial, he changed this testimony to make Jackson the guard or look-out while the appellant was the assailant. He explained his change in testimony on the theory that he had been threatened and was afraid to involve Hicks at the preliminary hearing. The change in testimony was not favorable to the appellant so that its only benefit to him was the change itself as it affected the credibility of the witness.

The appellant relies on Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), which held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

However, in this case, there was no request for information concerning the Wildman testimony and the Commonwealth did not suppress the evidence. The transcript was available to the appellant and could be compared to his testimony at trial for purposes of cross-examination. In Brady, supra, on the other hand, the state did not turn over to the defense a co-felon’s confession which the defendant had requested. The defense only became aware of the existence of this confession when it was revealed at the co-felon’s subsequent trial. In the instant case, there was full disclosure so that the information could be used before cross-examination of the witness and prior to the closing of the Commonwealth’s case.

And further, the change in its substance was not favorable to the appellant. All it did was change the role of the appellant from that of one who stood guard or look-out to that of one who assaulted the victim. The role of accessorial liability makes this distinction irrelevant in determining guilt or innocence and the only effect of the change was to cast the appellant in a less favorable light at sentencing. Both were given the same sentences. In this case the change, of course, could tend to decrease the credibility of the witness.

The appellant also relies on Napue v. Illinois, 360 U.S. 264 (1959), which held it be a violation of due process for the prosecutors to sit idly by and obtain a conviction on testimony they knew to be perjured. Here there is no contention of perjury and the Commonwealth did not sit idly by and allow discrepancies in the witness’s testimony to go by without comment and the appellant had plenty of opportunity to cross-examine in detail.

The appellant also relies on Commonwealth v. Smith, 417 Pa. 321, 208 A. 2d 219 (1965) and Lewis v. Lebanon County Count of Common Pleas, 436 Pa. 296, 260 A. 2d 184 (1969). In Smith, supra, the court held that it was reversible error to refuse the defendant’s request for preliminary statements of witnesses for use at trial where the federal government was agreeable to turning over the statements which were in its possession. It has no application to the instant case.

In Lewis v. Lebanon County Count of Common Pleas, supra, the court ruled that the prosecution may not interfere with the right of a defendant to interview prosecution witnesses in advance of trial. If anything, Lewis, supra, lends support to the position that the appellant was not prejudiced by any action of the prosecution since by diligent investigation he could quite possibly have learned of the Wildman change in testimony.

As the court below aptly stated: “These cases are clearly inapposite for the reason that the change in Mr. Wildman’s testimony would not exculpate or reduce the penalty of defendant Hicks. Defendant Hicks was not deprived of his Constitutional Rights because of the ‘Co-Conspirator’s Rule’ which asserts where two or more persons engage in a criminal purpose, any act done by any of them which is reasonably calculated to accomplish that purpose is treated as the act of each and every one of the participants in such common purpose. Thus, all are in the eyes of the law, equally guilty. Commonwealth v. De Moss, 401 Pa. 395 (1960). May it also be noted that both the defendant and the co-defendent were given the same sentence.”

As Mr. Justice Stern said in Commonwealth v. Wable, 382 Pa. 80, 86, 114 A. 2d 334 (1955): “‘The general rule is that the accused has no right to the inspection or disclosure before trial of evidence in the possession of the prosecution’: 2 Wharton’s Criminal Evidence, 1311, 1312, 1354 (citing cases from many jurisdictions).” “At the very least, a defendant should be required to present exceptional circumstances and compelling reasons such as were present in DiJoseph’s Petition, 394 Pa. 19, 145 A. 2d 187, to justify an exception to the general rule. How otherwise can law abiding communities be adequately and justly protected against the appalling crime wave which is sweeping and alarming our Country. Defendants, District Attorneys and Courts should remember that Justice is not a one way street — Justice means fairness and protection for, and Justice to Society, as well as Justice for and the protection of the basic rights of an accused.” See also Commonwealth v. Caplan, 411 Pa. 563, 567, 192 A. 2d 894 (1963).

In United States v. Randolph, 456 F. 2d 132 (C.A. 3, 1972), cert. denied, 408 U.S. 926 (1972), it was held that in not permitting a defendant to discover the contents oí! a confession of a co-felon prior to the time the co-felon testified as a defense witness did not deprive him of due process of law. The prosecution in that case used a signed confession to impeach the co-felon witness for the defense. It was held that although it would have been helpful to the defense in devising trial strategy to have a copy of the confession, it did not come within the Brady, supra, rule because the contents were not favorable to the defendant.

Judgment of sentence affirmed.