Appeal from order of Court of Common Pleas of Beaver County, Aug. T., 1965, No. 14, in case of Commonwealth of Pennsylvania v. Johnny Lee Ellis.
Richard E. Davis, Assistant Public Defender, for appellant.
Robert C. Reed, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Barbieri.
In 1965 appellant was tried before a jury, found guilty of second degree murder, and was sentenced to serve a term of 10 to 20 years in prison. No appeal was taken, but appellant later filed a petition under the Post Conviction Hearing Act (PCHA),*fn1 where he alleged, inter alia, that he had not been advised of his right to appeal the sentence. After a hearing the court found the allegation to be true and hence vacated the sentence and granted appellant the right to file post-trial motions nunc pro tunc. After appellant's motion for a new trial was denied he was re-sentenced to a term of 5 to 20 years imprisonment. Appeal was then erroneously taken to the Superior Court which certified the case to this Court.
Appellant raises three questions, and these will be described and disposed of in order. First, he argues that the Commonwealth violated his privilege against
self-incrimination and his right to counsel at a critical stage when he was fingerprinted after indictment on August 18, 1965, for a second time*fn2 and in the absence of counsel. We find this two-pronged contention to be without merit. Courts which have dealt with this question have consistently refused to find fingerprinting to be of a testimonial nature or a critical stage which would invoke either the Fifth or Sixth Amendment, and we decline to do so today. E.g., United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967); Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826 (1966); Pearson v. United States, 389 F. 2d 684 (5th Cir. 1968); and cf. Commonwealth v. Marino, 435 Pa. 245, 255 A.2d 911, cert. denied, 397 U.S. 1077 (1969).
Appellant's second contention is that he is entitled to a new trial because the Commonwealth failed to produce evidence that was favorable to the defense. This claim is based upon the fact that at the trial when defendant was contending that the death was caused by him in self-defense, the Commonwealth offered certain fingerprint evidence but failed to offer evidence of the fingerprints taken on July 10, 1965, which he argues would have corroborated his defense. This contention at the trial and at the PCHA hearing was that this fingerprinting, sandwiched between earlier ones going back to 1958 and the subsequent one taken on August 18, 1965 would have shown an additional scar not shown on the others. This he claims would have been evidence that he was cut by the victim while defending himself. He raises this under his third contention also which is that he was afforded constitutionally ineffective assistance of counsel because counsel failed to subpoena this fingerprint evidence taken on July 10, 1965. The futility of this argument concerning
the fingerprints is clearly delineated in the testimony of defendant's trial counsel at the PCHA hearing. Counsel there testified that he had examined appellant's right thumb prior to the trial and found only the one scar (and only one appears in all the fingerprints from 1958 on down to prints taken on August 18, 1965, just prior to the trial), whereupon he advised the defendant it would be unwise to base his self-defense contentions on a scar which obviously would not appear on the July 10 prints if they were presented. Apparently, contrary to counsel's advice, appellant raised this question nevertheless at the trial by pointing to a fresh scar on his right thumb.
In any event, we agree with the court below that: "The Commonwealth is not required to offer as part of its own case all evidence in its possession. Where the defendant's attorney is aware that the Commonwealth has the questioned evidence and chooses not to require its production as a part of the defendant's case, the Commonwealth's failure to use it is not error and ...