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decided: October 6, 1977.


No. 1895 October Term, 1975, Appeal from Order of the Court of Common Pleas, Criminal Division of Berks County, Pennsylvania, at No. 83-83A September Term, 1967.


Louis R. Rizzuto, Assistant Public Defender, Reading, for appellant.

Charles M. Guthrie, Jr., Assistant District Attorney, and Grant E. Wesner, Deputy District Attorney, Reading, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Hoffman, J., joins.

Author: Van Der Voort

[ 251 Pa. Super. Page 19]

The appellant, Joseph Jude Oliver, filed the instant appeal following the denial by the lower court, after a hearing of his petition for relief under the Post Conviction Hearing Act. (Act of January 25, 1966, P.L. 1580, 19 P.S. ยง 1180-1 et seq. The record shows that on May 29, 1969, the appellant was sentenced to ten to twenty years in prison following his conviction on rape charges. On appellant's subsequent direct appeal we affirmed the judgment of sentence. Commonwealth v. Oliver, 216 Pa. Super. 744, 258 A.2d 337 (1969). Thereafter the Pennsylvania Supreme Court denied appellant's petition for allowance of appeal. The instant Post Conviction Hearing Act effort was initiated by appellant in September, 1974.

The appellant's initial contention is that his conviction should be reversed because of his compliance, despite his objection, with the mandates of former Rule 312 of the Pennsylvania Rules of Criminal Procedure. That Rule required

[ 251 Pa. Super. Page 20]

    a criminal defendant to provide the Commonwealth with a notice prior to trial of his intent to raise an alibi defense, together with the names of proposed alibi witnesses and the location where he planned to prove he was at the time of the crime charged. In Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), the United States Supreme Court held a very similar alibi disclosure rule unconstitutional, in that it afforded the criminal defendant no reciprocal discovery rights of the prosecution's evidence and witness list prior to trial. In Commonwealth v. Contakos, 455 Pa. 136, 314 A.2d 259 (1974), our own Rule 312 was declared unconstitutional on the Wardius rationale. The appellant as well as our dissenting brethren on this court would have us declare Wardius to have retroactive application to appellant's case. We find it highly inappropriate to do so.

In deciding any question of retrospective application of a case holding to prior convictions, it is initially pertinent to quote the Supreme Court of the United States, in commenting on the philosophic and decision making process in cases involving such questions: "We . . . stress that the choice between retroactivity and non-retroactivity in no way turns on the value of the Constitutional guarantee involved." Johnson v. New Jersey, 384 U.S. 719, 728, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882, 889 (1966). In each such case, we are guided in our deliberations by consideration of the following factors:

(a) The purpose to be served by the newly enunciated standards;

(b) The reliance which may have been placed upon prior decisions by authorities; and

(c) The effect on the administration of justice of a retroactive application of the new standards.

See Linkletter v. Walker, 381 U.S. 618, 636, 85 S.Ct. 1731, 1741, 14 L.Ed.2d 601, 612 (1965); Tehan v. Shott, 382 U.S. 406, 413, 86 S.Ct. 459, 463, 15 L.Ed.2d 453, 458 (1966). With respect to the second factor above, it cannot be contested that there was a strong reliance by authorities on the former

[ 251 Pa. Super. Page 21]

    practice dictated by former Rule 312. Commonwealth v. Phoenix, 217 Pa. Super. 121, 268 A.2d 460 (1970); Commonwealth v. Vecchiolli, 208 Pa. Super. 483, 224 A.2d 96 (1966). This "reliance" factor, in our consideration, militates strongly in favor of prospective application only of the Wardius holding. We also believe a realistic appraisal of the remaining two factors dictates the conclusion that there should be no retrospective application of the Wardius rationale.

The purposes to be served by the new standards must be carefully reviewed. It is abundantly clear from Wardius that the United States Supreme Court has not condemned the practice, as a violation of due process standards, or any other constitutional safeguard, of requiring a criminal defendant to reveal his alibi defense prior to trial. Rather, the Court held that if such revelations are required of a defendant, state procedures must provide reciprocal discovery rights to an accused. Thus, the holding of the Supreme Court in Wardius was akin to prior and subsequent cases involving exclusionary or prophylactic evidentiary rulings, in which no retrospective application was made. See Johnson v. New Jersey, supra (in which the rules of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), both involving use of confessions at trial, were denied other than prospective application); Linkletter v. Walker, supra (in which the court held prospective only the rule involving the exclusion of improperly seized evidence at trial as enunciated in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (which held prospective only the holding of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), concerning exclusion at trial of identification evidence procured through impermissibly suggestive pretrial confrontations between the witness and the accused). While these cases are highly instructive to us as guidance in the instant circumstances, we find the Supreme Court's decision in Tehan v. Shott, supra, to be highly analogous and particularly appropriate

[ 251 Pa. Super. Page 22]

    for comparison with the issue presented in the instant case. In Tehan, the Supreme Court denied retroactive application of the rule enunciated in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), that prohibited adverse comment by a prosecuting attorney or judge on a defendant's failure to testify. Such a refusal, of course, would rest upon the Fifth Amendment privilege against compulsory self-incrimination. Our dissenting colleagues have determined that the Wardius rule is one that is concerned with ". . . the very integrity of the fact-finding process." See Linkletter v. Walker, supra. We must disagree. The Wardius holding, prohibiting compulsory alibi disclosure only in the absence of reciprocal discovery rights on the part of the accused, cannot be said to be more important to the "integrity of the fact-finding process" than a newly enunciated holding prohibiting adverse inferences to be suggested to a jury because a defendant exercises his Fifth Amendment rights to remain silent at trial. In our view, the purposes to be served by the Wardius rule are no more important to the fact finding process than the rules established in Miranda, Escobedo, Mapp, or Wade. Thus, our analysis of the purposes to be served by the newly enunciated rule, especially when compared with the other decisions above, does not compel the conclusion that Wardius should be retroactively applied.

We must also consider the factor of the effects on the administration of justice of the retroactive application of Wardius in this Commonwealth. We find the following discussion by the United States Supreme Court, in Tehan v. Shott, supra, to be particularly appropriate in the instant case:

Empirical statistics are not available, but experience suggests that California is not indulging in hyperbole when in its amicus curiae brief in this case it tells us that "Prior to this Court's decision in Griffin, literally thousands of cases were tried in California in which comment was made upon the failure of the accused to take the stand. Those reaping the greatest benefit from a rule

[ 251 Pa. Super. Page 23]

    compelling retroactive application of Griffin would be [those] under lengthy sentences imposed many years before Griffin. Their cases would offer the least likelihood of a successful retrial since in many, if not most, instances, witnesses and evidence are no longer available." There is nothing to suggest that what would be true in California would not also be true in [other States]. To require all of those States now to void the conviction of every person who did not testify at his trial would have an impact upon the administration of their criminal law so devastating as to need no elaboration. 382 U.S. at 418 and 419, 86 S.Ct. at 467.

Likewise, we believe it certain that former Rule 312 was followed in hundreds or even thousands of cases which resulted in convictions in our Commonwealth prior to Wardius and Commonwealth v. Contakos, supra. The results of a retrospective application of Wardius would virtually flood our courts with new appeals by defendants, otherwise properly convicted and whose appeals have been exhausted, seeking new trials. Many resulting new trials would certainly end up in acquittals or probable inability by prosecutors to proceed because of missing or deceased witnesses, lost recollections, and destroyed or irretrievably lost evidence. Such likely dire consequences cannot and should not be ignored or understated.

For all of the above reasons, we believe it clearly mandated that Wardius not be given retrospective application. With respect to the instant appeal however, we note that even if we held Wardius to be deserving of retroactive application, we would find that there was both harmless error and the realistic existence of reciprocal discovery in the lower court.

With respect to our conclusion that there was an absence of harmful error, we need only briefly state that the evidence offered by Commonwealth witnesses was clear in establishing sufficient evidence that the appellant was one of two men who abducted and sexually attacked a fifteen year old girl. The jury obviously believed such evidence and

[ 251 Pa. Super. Page 24]

    not the evidence offered by alibi witnesses who placed the defendants at another scene at the time of the crime. Appellant claimed, during trial and also at the post-trial motion stage, that prosecutors and police had engaged in interrogation and harassment of alibi witnesses as a result of their identities being disclosed prior to trial pursuant to Rule 312. The lower court took great pains to determine the truth of such allegations and the effects of all such contacts with alibi witnesses. The lower court after such investigation, including hearings, rejected all claims of prejudice raised by appellants. We find no error in such rulings. Thus it is apparent that even if Wardius were applied, the doctrine of harmless error would compel a finding that the disclosure of alibi information by appellant did not create reversible error.

Finally, we can conclude that effective reciprocal discovery was present in the instant circumstances. The Commonwealth presented the defense with the names of all of its witnesses, prior to trial, except for some called only on rebuttal. Thus, the main and principal witnesses for the prosecution were known to the defense. It would be impossible for the Commonwealth, even if there existed rules for reciprocal discovery, to provide the defense with a complete list of every possible witness who might be called in rebuttal, since plans for such rebuttal obviously cannot be finalized until the defense is presented. Moreover, the defendants in the instant case were permitted to present an alibi witness who had not been disclosed to the prosecution prior to trial, despite the existence of Rule 312. In light of all of these factors, effective reciprocity was accomplished in the instant case.

On this appeal, the appellant also argues that his trial counsel was ineffective for complying with Rule 312. This claim has no merit. Counsel not only had no choice in the matter, but demonstrated extreme effectiveness in preserving a constitutional challenge to Rule 312, ...

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