Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1972, Nos. 752 and 753, in case of Commonwealth of Pennsylvania v. Robert Hicks.
Edward Jay Weiss, for appellant.
John H. Isom, Assistant District Attorney, with him David Richman, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Watkins, P. J. Dissenting Opinion by Hoffman, J. Spaeth, J., joins in this dissenting opinion.
[ 228 Pa. Super. Page 78]
This is an appeal from the judgment of sentence of the Court of Common Pleas, Trial Division, of Philadelphia, by the defendant-appellant, Robert Hicks, after conviction of aggravated robbery and assault and battery before the court without a jury.
The basis of this appeal is that the appellant was denied due process of law because the Commonwealth failed to disclose its knowledge that a prosecution witness would change his testimony, as given at a preliminary hearing, at the time of trial.
At the preliminary hearing the witness testified that Jackson attacked him, grabbed him around the neck and demanded money while the appellant stood guard. At the time of the trial, he changed this testimony to make Jackson the guard or look-out while the appellant was the assailant. He explained his change in testimony on the theory that he had been threatened and was afraid to involve Hicks at the preliminary hearing. The change in testimony was not favorable to the appellant so that its only benefit to him was the change itself as it affected the credibility of the witness.
[ 228 Pa. Super. Page 79]
The appellant relies on Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), which held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."
However, in this case, there was no request for information concerning the Wildman testimony and the Commonwealth did not suppress the evidence. The transcript was available to the appellant and could be compared to his testimony at trial for purposes of cross-examination. In Brady, supra, on the other hand, the state did not turn over to the defense a co-felon's confession which the defendant had requested. The defense only became aware of the existence of this confession when it was revealed at the co-felon's subsequent trial. In the instant case, there was full disclosure so that the information could be used before cross-examination of the witness and prior to the closing of the Commonwealth's case.
And further, the change in its substance was not favorable to the appellant. All it did was change the role of the appellant from that of one who stood guard or look-out to that of one who assaulted the victim. The role of accessorial liability makes this distinction irrelevant in determining guilt or innocence and the only effect of the change was to cast the appellant in a less favorable light at sentencing. Both were given the same sentences. In this case the change, of course, could tend to decrease the credibility of the witness.
The appellant also relies on Napue v. Illinois, 360 U.S. 264 (1959), which held it be a violation of due process for the prosecutors to sit idly by and obtain a conviction on testimony they knew to be perjured. Here there is no contention of perjury ...