Appeals from order of Court of Common Pleas of Delaware County, March T., 1970, Nos. 380, 383 and 384, in case of Commonwealth of Pennsylvania v. Otis Jones.
Vram Nedurian, Jr., Assistant District Attorney, with him Ralph B. D'Iorio, Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellant.
G. Guy Smith, with him McCurdy and Smith, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino.
This is an appeal by the prosecution from an order granting the appellee, Otis Jones, a new trial following
his convictions involving murder in the first degree, robbery and conspiracy. A court en banc granted the new trial because the trial court failed to give points for charge requested by the appellee, Otis Jones. "The law is well settled that the grant or denial of a motion for a new trial will not be reversed by this Court, unless [the order of the court en banc] was a clear abuse of discretion or an error of law [citations omitted]." Commonwealth v. English, 446 Pa. 161, 163, 279 A.2d 4, 5 (1971). See also Commonwealth v. Hartman, 383 Pa. 461, 119 A.2d 211 (1956).
One of the reasons for the grant of a new trial was the refusal of the trial court to charge the jury that an adverse inference might be drawn against the prosecution because of its failure to call as a witness, Dr. Bernard Finneson. The charge requested by the defense was: "In producing evidence in support of its contentions, the Commonwealth did not call Doctor Bernard Finneson who allegedly is in possession of facts material to the Commonwealth's position. Where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, an inference may be drawn that the evidence if produced would be unfavorable."
The court en banc held that the above charge should have been given because (1) Dr. Finneson was listed as a prosecution witness on the bill of indictment, (2) his testimony went to a crucial matter and (3) the prosecution did not give proper notice to defense counsel that Dr. Finneson would not be called as a witness by the prosecution.
In Commonwealth v. Schmidt, 437 Pa. 563, 567, 263 A.2d 382, 384 (1970), we said the following concerning the prosecuting attorney's duty to call witnesses listed on the bill of indictment: "In Commonwealth v. Horn, 395 Pa. 585, 150 A.2d 872, the Court pertinently said (page 589, 150 A.2d page 874): 'There is no duty
on the Commonwealth to call witnesses whose names appear on a bill of indictment or even eyewitnesses, if it believes after examination or investigation that their testimony is unreliable, or unworthy of belief, or surplusage or irrelevant. The law in such a case merely requires a District Attorney to notify the Court and defense counsel that he does not intend to call certain persons whose names appear on the bill of indictment as Commonwealth witnesses: Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540; Commonwealth v. Deitrick, 221 Pa. 7, ...