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decided: April 12, 1973.


Appeal from judgment of Court of Common Pleas of Mercer County, Sept. T., 1967, No. 31, in case of Commonwealth of Pennsylvania v. Floyd Jackson.


Michael J. Wherry, for appellant.

Robert F. Banks, Assistant District Attorney, with him Joseph J. Nelson, District Attorney, for Commonwealth, appellee.

Wright, P. J., Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. (Watkins, J., absent.) Opinion by Hoffman, J.

Author: Hoffman

[ 224 Pa. Super. Page 281]

Appellant contends that the lower court erred in refusing his request for pretrial disclosure of the names of the Commonwealth witnesses who were to testify against him.

The appellant and four other men were charged with the May 26, 1967 armed robbery of a state liquor store located in Farrell, Mercer County. Prior to trial, the appellant pursuant to Rule 312(a)*fn1 presented the Commonwealth with a list of his alibi witnesses. Defense

[ 224 Pa. Super. Page 282]

    counsel then requested that the Court compel the Commonwealth to present the defense with a list of prosecution witnesses. The defense alleged that justice demanded such disclosure as it had to inform the prosecution of the names of its alibi witnesses.

The American Bar Association Project on Minimum Standards for Criminal Justice Standards Relating to Discovery and Procedure Before Trial impose the following duties upon the prosecution: "2.1 Prosecutor's obligations.

"(a) Except as is otherwise provided as to matters not subject to disclosure (section 2.6) and protective orders (section 4.4), the prosecuting attorney shall disclose to defense counsel the following material and information within his possession or control:

"(i) the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial, together with their relevant written or recorded statements;

"Not intended to be included within the classification designated ('persons whom the prosecuting attorney intends to call as witnesses at a hearing or trial') are rebuttal witnesses, i.e., those whom the prosecutor holds in readiness to rebut evidence which he anticipates the accused will present. However, the prosecuting attorney should not be tempted to use this mechanism to avoid disclosing a witness whose testimony is actually and realistically a part of his case in chief." (Citations omitted.) ABA Standards at pp. 52, 58.

The courts in Pennsylvania have long held that the defendant's right to know the names of his accusers requires that the names of those who appeared before the grand jury be endorsed on the indictment. "The term 'accusers' is not necessarily synonymous with 'witnesses' appearing in behalf of the prosecution. Notice

[ 224 Pa. Super. Page 283]

    of the nature and cause of the accusation does not include notice of the nature of the evidence to be produced." Commonwealth v. Emmel, 194 Pa. Superior Ct. 441, 447, 168 A.2d 609 (1961). When, however, the prosecution does not call an eyewitness to the stand during trial, the Commonwealth "must apprise the defense of the witness's name and whereabouts at trial, unless the defense is able or should have been able to procure the witness unaided."*fn2 Commonwealth v. Carter, 427 Pa. 53, 55, 233 A.2d 284 (1967); Commonwealth v. Gray, 441 Pa. 91, 100, 271 A.2d 486 (1970); Commonwealth v. Danz, 211 Pa. 507, 60 A. 1070 (1905).*fn3

[ 224 Pa. Super. Page 284]

If the Court makes the names and addresses of witnesses available to defense counsel, it would facilitate plea bargaining. Moreover, the defense counsel's ability to effectively cross-examine the prosecution witnesses and test their credibility would be enhanced. ABA Standards at p. 56. One may not, however, lose sight of the basic precepts of the criminal justice system which differ from the foundations of the civil law where free and open discovery is an essential element of the proceedings. In Commonwealth v. Caplan, 411 Pa. 563, 566-67, 192 A.2d 894 (1963), former Chief Justice Bell explained: "A criminal trial is as different from a civil trial as day is from night. In civil trials there is pretrial discovery and a mutual exchange of evidence. In a criminal trial there is no mutual exchange of evidence. . . .

"If we descend from ethereal theorism to the world of reality, we know that if Courts require the Commonwealth to inform each defendant of or permit him to examine its evidence, it will enable a person who commits a murder or a felony to invent, fabricate or manufacture his defense before trial -- alibi, 'blackout', insanity, self-defense, coercion, or perpetration of the crime by someone else -- and determine whether he should take the witness stand or introduce any evidence and if so, what kind. . . . Defendants, District Attorneys and Courts should remember that Justice is not a one way street -- Justice means fairness and protection for all, and Justice to Society, as well as Justice for and the protection of the basic rights of an accused."

[ 224 Pa. Super. Page 285]

(footnote omitted). In light of the fact that a defendant is presumed to be innocent until proven guilty, we should not assume that the accused will perjure himself or fabricate alibis. Nonetheless, Chief Justice Bell focused upon the crucial issue -- mutual discovery. Only a system of mutual discovery can guarantee fairness for society as well as for the defendant. Mutual discovery, however, may clash with the defendant's right against self-incrimination and his right to put the Commonwealth to the test of proving his guilt. Unilateral discovery could overly handicap the prosecution.

While the concept of free and open criminal discovery has much merit, the issue does not lend itself to simple resolution. Presently, the Pennsylvania Rules of Criminal Procedure do not require that the Commonwealth disclose the names of its witnesses to the defense. Until the Pennsylvania Rules of Criminal Procedure are amended, the defense has no right to the names of prosecution witnesses prior to trial.

Accordingly, we affirm the judgment of the lower court.


Judgment affirmed.

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