UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: February 28, 1972.
UNITED STATES OF AMERICA
ALPHONSO R. RANDOLPH ET AL. APPEAL OF A. C. WALLER, IN NO. 71-1231. APPEAL OF JAMES WEATHERS, IN NO. 71-1232
Van Dusen and James Rosen, Circuit Judges, and Becker, District Judge.
Opinion OF THE COURT
JAMES ROSEN, Circuit Judge.
This is a bank robbery case. Appellants, A. C. Waller and James Weathers, were arrested along with co-defendants Alphonso Randolph and Keith Johnson for the April 28, 1970 armed robbery of the Century Federal Savings and Loan Association, Shadyside office, Pittsburgh. The grand jury returned a two count indictment against all four charging them with robbing a federally insured savings & loan association, and putting lives in jeopardy during that robbery, in violation of 18 U.S.C. § 2113(a, d), and 18 U.S.C. § 2.*fn1
After they were indicted, the appellants escaped from custody*fn2 and were not reapprehended until after the two codefendants, Randolph and Johnson, had pleaded guilty and been sentenced. When they were returned, Waller and Weathers were tried jointly and, on February 5, 1971, were convicted.*fn3
Waller and Weathers contend*fn4 that there was insufficient evidence to warrant submitting their cases to the jury because the government did not establish their guilt beyond a reasonable doubt. Waller also argues that the trial judge committed reversible error in denying his Rule 16(b) motion for discovery.*fn5
Ronald Wheeler, who was employed by the Savings and Loan Association, observed three unmasked Negro males walk into the institution on April 28, 1970 and place either ski masks or scarves over their faces. Once inside, one of the three men approached Wheeler, put a loaded gun to his head and directed him to the teller's cage where the other men were in the process of taking the sum of $1,013.58 from a teller. As the three men left, they removed their masks. Wheeler chased them to their intended get-a-way car. Their automobile did not start, so they abandoned it and fled on foot along with a fourth person who had been waiting for them in the automobile. Weathers was identified by Wheeler at a line-up and in court as being one of the robbers.
Kim Morris witnessed the robbery from a store window immediately adjacent to the Savings & Loan building. He followed the robbers to a white Chevrolet. When the car would not start the robbers fled from the vehicle and split up.
Waller and Weathers were seen shortly after the robbery by two local residents. Mrs. Claire Lehman testified that just after she had returned home from shopping, she observed three men run across her lawn to the get-a-way car which was parked in front of her house. She saw them unmasked and was so close to them that one actually bumped her on the way to the car. Several days after the robbery Mrs. Lehman identified Waller and Weathers at a live line-up and again identified both of them in court as being two of the men she saw running past the car on the day of the robbery. Peter Gray, a professor at the University of Pittsburgh, testified that, while sitting in his backyard shortly after the robbery, he saw the four unmasked robbers run across his lawn.*fn6 Professor Gray identified Waller in a live line-up held the day of the robbery and identified Waller and Weathers in the court.*fn7 Weathers was arrested by a police officer shortly after the robbery in the general vicinity of the Savings & Loan Association. At that time, Weathers was sweating profusely and on his person was a bag in which there was found $1,013.58, the same amount taken in the robbery. Taken from this bag was a money band which was traced to the Savings & Loan Association. Waller was apprehended several blocks from the Savings & Loan building immediately after the robbery and he also was sweating profusely at that time.
Appellant's contention that there is insufficient evidence to support the jury's verdict of guilty is without substance.
Waller testified in his own behalf. The gist of his defense was to the effect that he was high on drugs (heroin) and was hitchhiking when picked up by Johnson and Randolph. He claims he fell asleep in the car; did not participate "no way" in a robbery. Waller admitted that there was "another fellow" in the back of the car whom he did not know. He also said that when the three men returned to the car he awakened, became aware that something was wrong and ran with the rest of them.*fn8
Appellant Weathers also testified in his own behalf. He denied knowledge of or participation in the robbery. He said he was in the vicinity to seek employment and, as he was walking, a woman behind him was bumped by three men who were running, and one of the men dropped a blue bag. Weathers allegedly picked up the bag, heard coins "jingle,"*fn9 but was apprehended before he had an opportunity to look into it.
Testimony to be believed must not only proceed from the mouth of a credible witness but must be credible in itself. It must be such as the common experience and observation of mankind can approve as probable in the circumstances.*fn10 This was a case of positive identification as against testimony tending to prove alibi. The jury accepted the positive identification rather than the alibi. Their conclusion is justified by the evidence. As we said in United States v. Chaney, 446 F.2d 571 (3 Cir., 1971) "An examination of all the evidence, including that recounted above, leads us to the conclusion that the evidence against the [defendants] * * made out a strong enough case to permit a jury to find the [defendants] guilty."
Waller's second contention is that he was wrongfully denied discovery which he was entitled to as a matter of right pursuant to Rule 16(b). More specifically, he claims that the trial judge was required to grant his motion for discovery of any pretrial statements that Johnson and Randolph had made to police and to do so before they were examined on direct as defense witnesses.
As previously mentioned the appellants were indicted along with codefendants Johnson and Randolph, but Johnson and Randolph were tried and sentenced before appellants' trial began. Waller intended to call Johnson and Randolph as defense witnesses because they had "indicated" that Waller was not involved in the robbery and they did not make any prior written or oral statements to the contrary. These representations were apparently not of sufficient assurance to Waller's counsel. He thereupon applied under Rule 16(b) for any prior statements which were made by Johnson and Randolph in the possession of the government. The trial judge denied the application.*fn11 Despite this ruling Johnson and Randolph were called as defense witnesses. They testified on direct examination that Waller had not participated in the robbery and corroborated Waller's explanation of how he happened to be in the car with the three other defendants. Johnson did not give any statement to the authorities. However, during the cross-examination of Randolph the prosecution did use for impeachment purposes a signed statement Randolph had given to the Pittsburgh police which implicated Waller, Johnson and himself in the robbery. The statement also disclosed that it was Waller who had carried the stolen money out of the bank.
It is argued that if the 16(b) motion had been granted Waller would have uncovered the prior statement and would not have used Randolph as a defense witness. The thesis continues to the effect that if this impeachment statement had not been revealed to the jury Waller "might" have been cleared by Johnson's testimony. This is pure speculation. The evidence against Waller was substantial and the jury verdict reflects their acceptance of the government's factual presentation.
Rule 16 as adopted by the United States Supreme Court in 1946 was a rather limited rule of discovery. In 1966 the Rule was rewritten and the scope of discovery was expanded. At the same time provisions were made to guard against possible abuses.*fn12 There are certain basic principles governing the scope of discovery which have been recognized by this court. In United States v. Fioravanti, 412 F.2d 407 (3 Cir., 1969) cert. denied, sub nom. Panaccione v. United States, 396 U.S. 837, 90 S. Ct. 97, 24 L. Ed. 2d 88 (1969) we held that "an application for relief under the discovery rules is a matter within the sound discretion of the district court and its ruling will be disturbed only for abuse of discretion." Judge Aldisert observed that appellate courts have been increasingly reluctant to find that a denial of a particular discovery motion was an abuse of discretion in the absence of a showing that the defendant was prejudiced by such denial. He also noted that Rule 16 does not require the prosecution to disclose "all the minutia of its evidence, to reveal its trial strategy, and to delineate with total specificity the case it intends to present."
The trial judge in the case at bar was not faced with a situation where an accused requested a copy of his own statement. The application was for an order directing the Government to search its file for assurance that a prospective defense witness could withstand an attack on his credibility when cross-examined by the Government. The extent to which discovery should be permitted in federal criminal cases is admittedly "a complex and controversial question," Fioravanti, supra, 412 F.2d p. 410, but Rule 16(b) was never intended to be a vehicle by which a defendant can obtain a guarantee or insurance of the unimpeachability of a defense witness.*fn13
We do not have the factual picture presented in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The critical issue in Brady was that the evidence suppressed by the government was exculpatory:
"A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice . . ." pp. 87, 88, 83 S. Ct. p. 1197.
Here no exculpatory evidence was kept from Waller. Randolph's prior statement to the police directly implicated Waller as a participant in the hold-up and named him as the person who carried the stolen money from the bank. The Government did not suppress evidence "favorable to the accused." There is nothing in Brady which requires the prosecution to spare the defense the risk of impeachment of its witnesses. The trial judge exercised sound judgment in denying Waller's application.
Lastly, Waller's contention that the denial of his application for discovery reached constitutional dimensions, violating due process and preventing the effective assistance of counsel, is specious. Limiting of pretrial discovery in criminal cases is not constitutionally impermissible. DeVita v. Sills, 422 F.2d 1172, 1181 (3d Cir. 1970).
We have examined the complete record and are satisfied that the defendants received a fair and impartial trial.