decided: May 2, 1974.
Appeal from order of Superior Court, April T., 1970, No. 125, affirming 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, with him Wherry & Ketler, for appellant.
Robert F. Banks, First Assistant District Attorney, with him Joseph J. Nelson, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones joins in this dissenting opinion. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Jones joins in this dissenting opinion.
[ 457 Pa. Page 80]
Floyd Jackson was convicted of armed robbery and sentenced to one to four years imprisonment. Pursuant to rule 312 of the Pennsylvania Rules of Criminal Procedure,*fn1 appellant notified the Commonwealth pretrial
[ 457 Pa. Page 81]
of the names and addresses of the witnesses he intended to call to establish an alibi. His request for the names and addresses of those witnesses the Commonwealth planned to produce to place him at the scene of the crime was refused. The Superior Court on April 12, 1973, affirmed. Commonwealth v. Jackson, 224 Pa. Superior Ct. 280, 303 A.2d 519 (1973).
On June 11, 1973, the United States Supreme Court delivered its opinion in Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208 (1973). There, the Supreme Court held that "the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants." Id. at 472, 93 S. Ct. at 2211. Jackson's petition for allowance of appeal raised the question whether the failure to afford appellant reciprocal discovery violated his right to due process of law.*fn2 We granted the petition*fn3 and now reverse.
[ 457 Pa. Page 82]
of his own case." Here, too, appellant was subjected "to the hazard of surprise." Because appellant was not granted reciprocal discovery, even after his express request, the enforcement of rule 312 violated appellant's right to due process of law. It was constitutional error to require appellant to supply the names of his alibi witnesses, without directing the Commonwealth to afford appellant reciprocal discovery rights.*fn7
We cannot say that this error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967); Commonwealth v. Davis, 452 Pa. 171, 305 A.2d 715 (1973); Commonwealth v. Padgett, 428 Pa. 229, 237 A.2d 209 (1968). Appellant's alibi witnesses testified that appellant was at their home at the time the robbery was committed, and that they saw no gun in his possession. Two witnesses, whose names appellant sought to discover pretrial, directly contradicted the testimony of appellant's alibi witnesses. One identified appellant as a person who fled from the scene of the crime; the other testified
[ 457 Pa. Page 84]
that shortly after the robbery he saw appellant handle a revolver.
The failure of the Commonwealth to afford appellant reciprocal discovery rights made it impossible for appellant either to investigate the two witnesses whom the Commonwealth called to refute his alibi, or to explore the weaknesses in their stories. By placing appellant at the scene of the crime and by placing a pistol in his hand, the testimony of these two witnesses (whose names the Commonwealth refused to disclose) refuted appellant's alibi. These witnesses were essential to the Commonwealth's case; their credibility indispensable. Had appellant been afforded reciprocal discovery, he would have had the opportunity to be better prepared for cross-examination, and he may have had a better chance to impeach the Commonwealth's witnesses.
Constitutional error was committed when appellant was required to divulge the details of his case and was not afforded reciprocal discovery rights. The Commonwealth simply has not shown that the error complained of was harmless beyond a reasonable doubt. Because Floyd Jackson's right to due process of law was violated by the enforcement of rule 312, he, like the appellants in Wardius,*fn8 Commonwealth v. Williams,*fn9 Commonwealth v. Contakos,*fn10 and Commonwealth v. Diana,*fn11 is entitled to a new trial.*fn12
The judgment of sentence is reversed and a new trial granted.
Judgment of sentence reversed and new trial granted.
[ 457 Pa. Page 85]
Dissenting Opinion by Mr. Justice Eagen:
I agree with the majority that the Due Process Clause of the Fourteenth Amendment forbids enforcement of a notice-of-alibi rule, unless reciprocal discovery rights are given to the criminal defendant. However, contrary to the majority, I am convinced the failure to afford the instant appellant such rights was harmless error.
In Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893 (1970) (cited with approval in Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208 (1973)), the Court ruled that where a defendant, acting in accordance with the requirements of a notice-of-alibi rule, discloses to the State the witnesses he proposes to call at trial to establish an alibi defense, due process requires that the State in turn disclose to the defendant the witnesses it proposes " to offer in rebuttal to that defense." [Emphasis supplied.] 399 U.S. at 80, 90 S. Ct. at 1895. Instantly, the prosecution did not introduce any witnesses in rebuttal to the alibi defense offered by the appellant. In view of this, the failure of the Commonwealth to notify the appellant pre-trial of the witnesses it would offer in rebuttal to his defense was clearly harmless error.
Dissenting Opinion by Mr. Justice Pomeroy:
Believing that the grant of a new trial awarded by the Court is bottomed on a misconstruction of the holding of the U.S. Supreme Court in Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208 (1973), I must respectfully dissent.
Only if the enforcement of Rule 312 could have resulted in prejudice to appellant would a new trial be warranted. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). The majority takes
[ 457 Pa. Page 86]
the view that "[o]nce appellant, under compulsion of Rule 312, disclosed his alibi witnesses to the Commonwealth, the Commonwealth was constitutionally bound to afford appellant reciprocal discovery",*fn1 and asserts that appellant was, in fact, prejudiced because the testimony of the Commonwealth witnesses whose names he had requested was "essential to the Commonwealth's case". I do not read Wardius so broadly.
The Supreme Court held in Wardius that, absent a provision for reciprocal discovery by the defense, a notice of alibi rule may not constitutionally be enforced against a defendant. Oregon's notice of alibi statute
[ 457 Pa. Page 87]
had been enforced in that case by the trial court's exclusion of defendant's alibi evidence for failure to comply with the rule. The Supreme Court there held that on retrial Wardius would be entitled to present his alibi defense without giving pre-trial notice to the State; it did not hold that on retrial Wardius could obtain discovery of "the names and addresses of all witnesses who [would] be called to refute [his] alibi, regardless of whether the witnesses [would] be called in rebuttal or in the Commonwealth's case in chief" merely by complying with the notice requirement.*fn2
Wardius does not hold that the Commonwealth's refusal to grant reciprocal discovery must result in exclusion of any evidence which might be introduced through the witnesses whose names had been unsuccessfully
[ 457 Pa. Page 88]
sought by the defendant. Nor does Wardius guarantee reciprocal discovery to the defendant who complies with the notice of alibi rule.*fn3 Rather, the holding of that case may be summarized as follows: A notice of alibi rule which does not provide for reciprocal discovery is constitutionally infirm; "enforcement" of such a rule is constitutional error.
I agree that such a rule is "enforced" not only by excluding alibi evidence of a defendant who fails to give notice, but also by obtaining discovery from a defendant under the threat of such a sanction. The constitutional error lies in the enforcement of the rule, however, and the prejudice to the defendant in the instant case must, therefore, arise from the Commonwealth's knowledge in advance of trial of information about the defendant's case derived from the notice of alibi. Where, as here, the information which the defendant is compelled to reveal is already known to the Commonwealth, such error is harmless beyond a reasonable doubt.
My review of the record satisfies me that appellant was not prejudiced by the Commonwealth's receipt of the information he was compelled to provide by Rule 312, nor has appellant argued to the contrary. The robbery had occurred at about 6:30 p.m. on May 26, 1967.
[ 457 Pa. Page 89]
At the pre-trial conference held on September 21, 1967, appellant gave notice of his intent to assert at trial that on the day of the robbery he was in the home of the Reverend Mr. Thomas A. Evans and in the constant presence of Mr. Evans from about 5:30 p.m. until about 8:00 p.m.; also, that he intended to call Mr. Evans and his daughter Emma Jane Evans to testify in support of his alibi.*fn4 Mr. Evans, however, had already been questioned by the police on May 28, 1967, had identified appellant from a line-up conducted June 1, 1967 as one of three men who had come to his home on the evening in question, and had given the police a written statement on June 7, 1967. The record is devoid of any indication that the information contained in the notice of alibi aided the Commonwealth in prosecuting the case, including cross-examination or impeachment of the alibi witnesses or rebuttal of their testimony.*fn5
Since the prosecution gained no advantage from appellant's notice of alibi, appellant suffered no prejudice as a result of his having given it. Under the circumstances of this case, therefore, the error arising from the enforcement of Rule 312 was harmless beyond a reasonable doubt, since, unlike Wardius, there is here no "substantial possibility that this error may have infected the verdict". 412 U.S. at 479, 37 L. Ed. 2d at 90.
"[T]he Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded, but . . . it does speak to the balance of forces between the accused and his accuser". Wardius v. Oregon,
[ 457 Pa. Page 90412]
U.S. at 474, 37 L. Ed. 2d at 87. In the instant case, that balance of forces was not disturbed by the enforcement of Rule 312. In my view, it is the majority who would disturb the balance.