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COMMONWEALTH v. PHELPS (03/16/73)

decided: March 16, 1973.

COMMONWEALTH
v.
PHELPS, APPELLANT



Appeal from order of Superior Court, Oct. T., 1970, Nos. 1572 to 1576, inclusive, affirming judgment of sentence of Court of Common Pleas of Chester County, May T., 1968, Nos. 354A, 354B, 354C, 354D, and May T., 1970, No. 116, in case of Commonwealth of Pennsylvania v. Larry James Phelps.

COUNSEL

D. Benjamin VanSteenburgh, III, Assistant Public Defender, and John R. Merrick, Public Defender, for appellant.

W. Robert Landis, Assistant District Attorney, and William H. Lamb, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones concurs in the result.

Author: Roberts

[ 450 Pa. Page 598]

On July 13, 1970, appellant, Larry James Phelps, pleaded guilty to robbery, burglary, larceny, armed robbery, prison breach and violation of the Uniform Firearms

[ 450 Pa. Page 599]

Act. Subsequently, he was sentenced to undergo imprisonment for 2 1/2 to 10 years and pay a fine of $10.00 plus the costs of prosecution. The judgment of sentence was affirmed by the Superior Court, Commonwealth v. Phelps, 220 Pa. Superior Ct. 235, 281 A.2d 769 (1971) (Judge Hoffman filed a dissenting opinion in which Judge Montgomery joined) and we granted allocatur.

On this direct appeal, appellant contends that he was denied due process of law when the trial court denied his timely motion to examine the presentence investigation report at the sentencing stage of the proceedings. We need not reach the constitutional issue*fn1 for we hold, pursuant to our constitutionally authorized supervisory powers,*fn2 that the efficient and just administration of criminal justice is best served by the appropriate disclosure of relevant portions of that report, not secured on a promise of confidentiality. Such disclosure, prior to the imposition of sentence, is in harmony with the ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures § 4.4 (Approved Draft, 1968). That section, which we today adopt, states:

"Presentence report: disclosure; parties.

"(a) Fundamental fairness to the defendant requires that the substance of all derogatory information

[ 450 Pa. Page 600]

    which adversely affects his interests and which has not otherwise been disclosed in open court should be called to the attention of the defendant, his attorney, and others who are acting on his behalf.

"(b) This principle should be implemented by requiring that the sentencing court permit the defendant's attorney, or the defendant himself if he has no attorney, to inspect the report. The prosecution should also be shown the report if it is shown to the defense. In extraordinary cases, the court should be permitted to except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, or sources of information which has been obtained on a promise of confidentiality. In all cases where parts of the report are not disclosed under such authority, the court should be required to state for the record the reasons for its action and to inform the defendant and his attorney that information has not been disclosed. The action of the court in excepting information from disclosure should be subject to appellate review."*fn3

The preparation and submission of presentence reports is authorized in Pennsylvania by the Act of March 31, 1860, P. L. 427, § 73.1, as amended, 19 P.S. § 890 (Supp. 1972), which provides:

"(a) In all cases where the statutory maximum sentence is for two years or more, the probation service shall make a pre-sentence investigation and report to the court before the imposition of sentence or the ...


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