James J. Binns, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah Glass, Philadelphia, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy and Nix, JJ., concur in the result. Roberts, J., filed a dissenting opinion in which Manderino, J., joined. Jones, C. J., did not participate in the consideration or decision of this case.
The appellant, Gregory Gee, was convicted by a jury of murder in the second degree. Following the denial of post-trial motions, a prison sentence of five to fifteen years was imposed. This direct appeal followed.
The prosecution emanated from the fatal stabbing of Glenn Cook, seventeen years of age, outside Overbrook High School in Philadelphia in an atmosphere of hostility between two rival youth gangs, the Moon Gang, most of whose members attended Overbrook, and the June Street Gang, most of whose members attended University High School. Cook, a former student at Overbrook, was on his lunch hour and had accompanied his sixteen-year-old cousin, Tyrone Cook, a student at Overbrook, to the school.
Shortly after the stabbing, Gee, a member of and an officer in the June Street Gang, was taken into police custody and during the questioning that followed admitted he stabbed Cook. However, he explained that when he visited Overbrook that day -- it was his day off from work -- he heard from friends that "something had kicked with the Moon." At his point, Gee said, about
forty members of the Moon Gang came out of the school, and Glenn Cook, whom he knew to be a member of the Moon, swung at him three times with a cane but missed each time, and in defense he stabbed Cook once with a knife and then ran.*fn1 He further indicated he carried the knife for self-protection because he himself had once been stabbed. Evidence of Gee's custodial statements was admitted into evidence at trial.
The only eyewitness to the occurrence who testified at trial for the Commonwealth was one Steven Lambert, then a student at Overbrook. He stated he was fifteen feet away from Cook and that Cook was standing alone, unarmed and leaning against the front wall of the school building when he was attacked by Gee. He said Gee ran down the front steps of the building, threw his coat onto an automobile upon which other members of the June Street Gang were sitting, approached Cook, shouted "Yeah, You from the Moon Gang" and stabbed him in the chest near the heart. Lambert said Cook then grabbed his chest and tried to run, and Gee followed him still swinging his knife.*fn2
Much of this appeal is based on statements made by various eyewitnesses to the incident which appellant contends he was improperly precluded from making adequate use of at his trial and which he describes broadly as "exculpatory." He cites Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963) for the proposition that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." The proposition is undoubtedly correct, though we note that the record reveals no specific request for such evidence other than for materials relating to his polygraph examination. Nevertheless, we think that, even absent such a specific request, a prosecutor has the duty to make available to the defense evidence that is truly exculpatory, rather than merely favorable.*fn3 Brady suggests that such evidence would be "material either to guilt or to punishment." Exculpatory evidence has also been defined as "evidence which extrinsically tends to establish defendant's innocence of the crimes charged, as differentiated from that which although favorable, is merely collateral or impeaching." People v. Bottom, 76 Misc.2d 525, 351 N.Y.S.2d 328, 334-35 (1974). Cf. People v. Fraiser, 75 Misc.2d 756, 348 N.Y.S.2d 529 (1973). A piece of evidence in the possession of the prosecutor, therefore, cannot be considered exculpatory merely because the defendant chooses to call it so.
Gee argues that a detective testified both at the suppression hearing and later at trial that exculpatory statements existed which would support his claim of self-defense, but a careful reading of the record discloses only that he indicated there were statements, and that these statements were not exculpatory, but accusatory. The record does suggest the existence of statements indicating that at this scene of gang hostility other members of appellant's own gang were observed with drawn knives -- one of which may even have had blood on it -- and that someone had a cane. But in view of Gee's own repeated, uncontroverted, and independently corroborated admission that he had stabbed Glenn Cook, the finding of the pathologist that either wound sustained by
Cook in itself would have been fatal, and the absence of any statement other than Gee's own placing a cane or any other weapon in the hands of the decedent, these statements would seem neither to have supported Gee's claim of self-defense nor to have suggested the provocation needed to reduce murder to manslaughter.
On the day of his arrest, Gee was given a polygraph examination, and he now argues that, apart from the question of the admissibility of the polygraph results themselves which will be discussed subsequently, the Commonwealth's failure to turn over to defense counsel "every test, every result, every interview sheet that was taken in connection with that polygraph test" was a violation of its duty to turn over exculpatory evidence. This evidence was exculpatory in the sense that it certainly contained exculpatory statements by appellant, but not in the sense that its denial precluded him from any additional evidence; it did not "extrinsically" tend to establish innocence or to mitigate guilt. The record of the suppression hearing makes it clear that the results of the examination were inconclusive, and that in the course of this examination appellant merely gave the same version of the stabbing he gave in his prior informal statement and his subsequent formal statement. Both of these statements were admitted into evidence, and any additional probative value of evidence that he remained firm and consistent in his version of events at an intermediate time would clearly be minimal in light of the consistency already shown and should not be allowed to outweigh the danger of improper inferences arising from references to the polygraph examination. Cf. Commonwealth v. Johnson, 441 Pa. 237, 272 A.2d 467 (1971).
As for pre-trial discovery in general, the law in Pennsylvania is clear that, absent "proof by the defendant, after hearing, of exceptional circumstances and compelling ...