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decided: April 28, 1977.



Melvin Brookman, Shein & Brookman, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., James J. Wilson, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, C. J., concurs in the result. Nix, J., files a concurring opinion. Roberts, J., files a dissenting opinion in which Manderino, J., joins. Manderino, J., files a dissenting opinion.

Author: O'brien

[ 472 Pa. Page 583]


Appellant, Robert J. Royster, was tried by a judge sitting with a jury and was adjudged guilty of murder in the first degree for the shooting death of Charlotte Jamison. Post-verdict motions were denied and appellant was sentenced to life imprisonment. This appeal followed.

The facts surrounding this appeal are as follows. On October 31, 1973, appellant entered Sonny's Lounge,

[ 472 Pa. Page 584]

Philadelphia, and began to argue with the barmaid, Mildred Cerdan. During this argument the decedent, Charlotte Jamison, joined Mrs. Cerdan in arguing with appellant. Appellant made some violent threats and brandished a revolver during the argument. Appellant then walked toward the door, turned and fired the gun, the bullet fatally striking the decedent, Charlotte Jamison.

Appellant first argues that the court below erred in failing to compel production of the complete police investigative file pursuant to a subpoena duces tecum. We do not agree. Appellant bases his argument on the United States Supreme Court decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which dealt with the suppression of evidence favorable to the defense.

In the instant case, defense counsel subpoenaed Detective Twyman, the chief investigating police officer for this case.*fn1 The subpoena duces tecum requested the investigative file concerning the Jamison homicide.

At a sidebar conference defense counsel stated "that the defendant is entitled to those statements and [the case cited by defense counsel] implies in the cases behind it that . . . the information will tend to bear on his guilt or punishment . . ." The district attorney responded that he had complied with the mandates of Brady, supra, by furnishing to defense counsel all the exculpatory evidence in the district attorney's file.

The United States Supreme Court in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 392 (filed June 24, 1976), in discussing the scope of discovery mandated by Brady, stated:

"The Court of Appeals appears to have assumed that the prosecutor has a constitutional obligation to disclose any information that might affect the jury's

[ 472 Pa. Page 585]

    verdict. That statement of a constitutional standard of materiality approaches the 'sporting theory of justice' which the Court expressly rejected in Brady. For a jury's appraisal of a case 'might' be affected by an improper or trivial consideration as well as by evidence giving rise to a legitimate doubt on the issue of guilt. If everything that might influence a jury must be disclosed, the only way a prosecutor could discharge his constitutional duty would be to allow complete discovery of his files as a matter of routine practice.

"Whether or not procedural rules authorizing such broad discovery might be desirable, the Constitution surely does not demand that much. While expressing the opinion that representatives of the State may not 'suppress substantial material evidence,' former Chief Justice Traynor of the California Supreme Court has pointed out that 'they are under no duty to report sua sponte to the defendant all that they learn about the case and about their witnesses.' In re Imbler, 60 Cal.2d 554, 35 Cal.Rptr. 293, 301, 387 P.2d 6, 14 (1963). And this Court recently noted that there is 'no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on the case.' Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706. The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." (Emphasis supplied.)

Moreover, this Court in Commonwealth v. Martin, 465 Pa. 134, 165, 348 A.2d 391, 407 (1975) (a plurality opinion by Mr. Justice Pomeroy joined by former Mr. Chief Justice Jones and Mr. Justice O'Brien), in discussing the duty of the trial court to ...

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