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decided: October 7, 1977.



Fred T. Cadmus, III, Ronald C. Nagle, Westchester, for appellant.

William H. Lamb, Dist. Atty., for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Manderino, J., joins in this Opinion of the Court and joins in the concurring opinion of Nix, J. Nix, J., filed a concurring opinion in which Manderino, J., joins. Eagen, C. J., concurs in the result.

Author: Roberts

[ 474 Pa. Page 490]


On November 20, 1972, appellant Ancell Eugene Hamm was arrested and charged with the murder of two police officers. On March 30, 1973, appellant's pre-trial motion for a change of venue from Chester County was granted. A jury trial was held on March 11 to 25, 1974 in Dauphin County. Appellant was convicted of murder of the first degree and received two consecutive sentences of life imprisonment. This appeal followed.*fn1 We vacate judgment of

[ 474 Pa. Page 491]

    sentence and remand the case to the trial court for proceedings consistent with this opinion.


Appellant asserts that the Commonwealth's evidence was insufficient to support appellant's conviction.*fn2 We do not agree.

The Commonwealth's evidence established that at approximately 2:00 a. m. on November 15, 1972, Officers Davis and Posey, two uniformed police officers of the Kennett Square Police Department, were shot to death in front of the Kennett Square police station. During the initial investigation on November 15, the police found a spent shell casing across the street from the police station, approximately sixty yards away. On November 19, 1972, the state police, assisted by about one hundred volunteer firemen, conducted a search of the field on the northern edge of Kennett Square. The search party discovered a .308 caliber rifle at a location between the police station and appellant's home, approximately a sixteen minute walk from the station and a three minute walk from appellant's home. The barrel of the rifle was bent. A sight cover and bolt were also found in the general vicinity of the rifle. On November 21, 1972, the police found a sling in the field. The sling fit the .308 rifle.

Two Commonwealth ballistic experts expressed the opinion that the bullet which struck Officer Davis was fired from the .308 rifle. The bullet fragments recovered from Officer Posey's body were too badly damaged to determine whether they were fired from the .308 rifle, but one expert was able to determine that these fragments were fired from a rifle "having the same class characteristics" as the .308 rifle. The other expert testified that the shell casing found across the street from the police station had been discharged by the bolt found near the .308 rifle. The ballistics experts

[ 474 Pa. Page 492]

    also testified that the spent shell casing had been "reloaded" several times.*fn3

The Commonwealth introduced evidence linking appellant to the murders. On January 23, 1970, almost three years before the killings, the police, pursuant to another investigation, seized four weapons from appellant's home, including the .308 rifle which was used in the sniper attack on Officers Davis and Posey. The four weapons were returned to appellant's mother in May 1972. When the police searched appellant's home and the house trailer of his brother James Hamm, which is located on the same property as appellant's home, they discovered three of the four weapons. The missing weapon was the .308 rifle, later found in the field near appellant's house. Thus, the evidence permitted the jury to conclude that appellant was the owner of the murder weapon. In addition, appellant was a skilled marksman and had been seen practicing with the .308 rifle prior to the killings. Appellant was proficient in reloading his own shells and possessed the necessary equipment for doing so. Approximately one month before the murder, appellant attempted to purchase a human silhouette target from a sporting goods store; such targets are normally sold only to police departments.

The Commonwealth's evidence also suggested a motive for the murder. Officer Davis had filed criminal charges against appellant on several occasions. Appellant believed that Davis was harassing him. The most recent charges arose out of an incident which took place on September 21, 1972, less than one month before the murders. On that date, Davis stopped appellant's car. After appellant refused to display his operator's license and vehicle registration, appellant and Davis became involved in a physical confrontation. Appellant was arrested and taken to the police station where he and Davis continued to argue with each other. At one point, appellant stated, "Davis, I'm not scared of you," and "I'll get even with you." Appellant was

[ 474 Pa. Page 493]

    charged with resisting arrest and assault and battery. These charges made by Officer Davis were scheduled for grand jury proceedings commencing November 27, 1972.

The Commonwealth introduced the testimony of Frazer Culbreath, who was an inmate at the Chester County Prison Farms while appellant was held there awaiting trial. Culbreath testified that appellant told Culbreath that "he wish[ed] he had never attained the knowledge on firearms and rifles and individual handguns and reloading procedures, and above all he wish[ed] his mother could have been spared the degree of embarrassment she had endured due to his rash, but justifiable actions." Culbreath testified that appellant said he had a good excuse as to why the weapons were found where "I put . . . ." Culbreath said that appellant stopped short and did not complete his sentence after using the expression "I put." Culbreath further testified that appellant told him that he intended to write a "treatise on the art of snipering," after gaining his freedom.

The defense introduced a substantial amount of evidence to refute the key elements in the Commonwealth's theory of the case.*fn4 However, in passing upon the sufficiency of the evidence, this Court considers the evidence in the light most favorable to the Commonwealth. E. g., Commonwealth v. Brown, 467 Pa. 388, 357 A.2d 147 (1976); Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975); Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573, cert. denied, 423

[ 474 Pa. Page 494]

U.S. 934, 96 S.Ct. 290, 46 L.Ed.2d 265 (1975). The test of sufficiency of the evidence is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which, if believed, the factfinder could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. E. g., Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976); Commonwealth v. Johnson, 458 Pa. 23, 326 A.2d 315 (1974).

We conclude that there was sufficient evidence for the jury to find that appellant was guilty of the murder charges against him.


Next, appellant challenges the trial court's refusal to compel the Commonwealth to provide the defense with all prior statements of each Commonwealth witness after the witness testified at trial.

Traditionally, the right of a criminal defendant to discovery of prosecution evidence has been restricted. See, e. g., Commonwealth v. Caplan, 411 Pa. 563, 192 A.2d 894 (1963). See generally ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Discovery and Procedure Before Trial § 1.2 and Commentary, at 34-42 (Approved Draft, 1970) [hereinafter ABA Standards]; Annot., 7 A.L.R.3d 8 (1966). In recent years, however, there has been a "growing realization that disclosure rather than suppression of relevant materials ordinarily promotes the proper administration of criminal justice." Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 1849, 16 L.Ed.2d 973 (1966), quoted in Lewis v. Court of Common Pleas, 436 Pa. 296, 304 n. 4, 260 A.2d 184, 189 n. 4 (1969); see, e. g., Commonwealth ex rel. Specter v. Shiomos, 457 Pa. 104, 110, 320 A.2d 134, 137 (1974); id. 457 Pa. at 110-11, 320 A.2d at 137 (concurring opinion of Pomeroy, J.); id. 457 Pa. at 112, 320 A.2d at 138 (concurring opinion of Nix, J.). See generally ABA Standards §§ 1.1, 1.2, 2.1; Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149 (1960).

[ 474 Pa. Page 495]

Presently, pre-trial discovery in criminal cases is governed by Pa.R.Crim.P. 310,*fn5 which permits the defense to discover only "written confessions or written statements made by the defendant," unless the defense can establish the existence of "exceptional circumstances." Rule 310 further states: "In no event, however, shall the court order pre-trial discovery or inspection of written statements in the possession of the Commonwealth."

This Court has held that the limitations on discovery imposed by Pa.R.Crim.P. 310 are inapplicable to defense requests at trial for inspection of prior statements of Commonwealth witnesses who have already testified. In Commonwealth v. Kontos, 442 Pa. 343, 349, 276 A.2d 830, 832-33 (1971), we stated:

". . . Rule 310 must be strictly interpreted. Cf. Lewis v. Lebanon County Court of Common Pleas, 436 Pa. 296, 260 A.2d 184 (1969). . . .

"[T]he traditional rationales for limiting or prohibiting pretrial discovery in criminal cases do not extend to the at-trial situation. Foremost of these rationales has been the fear that more liberalized pretrial discovery would enable the criminal defendant to construct a perjured defense. . . . The traditional opposition to criminal discovery has also expressed a concern that such advance disclosure might in some cases lead to the attempted intimidation or killing of witnesses for the prosecution. . . . Even assuming for the moment that these fears have any substantial basis whatsoever, a view which is open to much doubt, it is clear that they have no place in the context of the disclosure at trial of the prior statements of Commonwealth witnesses. Once the Commonwealth's witnesses have appeared at trial, their personal safety and freedom from potential intimidation are in no way enhanced by denying to the defendant access to their pretrial statements. Nor would granting of such access to

[ 474 Pa. Page 496]

    the defendant heighten his opportunity for successful perjury."

Thus, in Pennsylvania, a defendant is entitled, upon request at trial, to examine prior statements of Commonwealth witnesses which the Commonwealth has in its possession. Commonwealth v. Grayson, 466 Pa. 427, 353 A.2d 428 (1976); Commonwealth v. Johnson, 457 Pa. 554, 327 A.2d 632 (1974) (dictum); Commonwealth v. Morris, 444 Pa. 364, 281 A.2d 851 (1971); Commonwealth v. Kontos, supra. Examination of these statements provides the defense "a fair opportunity to cross-examine the witnesses."*fn6 Commonwealth v. Grayson, 466 Pa. at 429, 353 A.2d at 429; accord, Jencks v. United States, 353 U.S. 657, 667, 77 S.Ct. 1007, 1012-13, 1 L.Ed.2d 1103, 1111 (1957).

In this case, after each Commonwealth witness testified at trial, appellant requested that the Commonwealth furnish to the defense all prior statements made by the witness which the Commonwealth had in its possession. During the course of the trial, the Commonwealth provided the defense with the prior statements for all but two of its witnesses. With respect to these witnesses, Ellen Roten and James Hamm, the Commonwealth asserted that it had no duty to produce the prior statements because the statements did not relate to matters raised on direct examination.*fn7 For each of these

[ 474 Pa. Page 497]

    witnesses, the trial court ordered the Commonwealth to submit the witness' statements to the court for its inspection. After examining the statements, the court concluded that the statements had no relation to the matters covered in the witness' direct testimony and denied appellant access to the statements.

The trial court based its ruling on the Superior Court's decision in Commonwealth v. Swierczewski, 215 Pa. Super. 130, 257 A.2d 336 (1969). In Swierczewski, the Superior Court stated:

"[D]efense access [to prior statements of Commonwealth witnesses] is subject to the control of the trial court, which must review the requested documents and may permit access only to those portions relevant to matters raised in direct examination."

215 Pa. Super. at 134-35, 257 A.2d at 339 (dictum); accord, Commonwealth v. Kubacki, 208 Pa. Super. 523, 224 A.2d 80 (1966). Appellant asserts that a defendant's right to examine at trial the prior statements of Commonwealth witnesses "should encompass the full and complete statement of the witness."*fn8

[ 474 Pa. Page 498]

Heretofore, this Court has not reviewed the propriety of the procedure set forth in Swierczewski for administering a defendant's right to examine prior statements of Commonwealth witnesses. We conclude that in camera review of the prior statements of Commonwealth witnesses by the trial court does not adequately protect the interests served by permitting the defense access to prior statements of Commonwealth witnesses.

The primary purpose of granting the defense access to prior statements of Commonwealth witnesses is to enable the defense to effectively cross-examine the witnesses. The basic flaw in the Swierczewski procedure is that it presupposes that a judge is in a position to make a reliable determination as to what material will aid the defense in cross-examination without the benefit of defense counsel's "well-informed advocacy."*fn9 However, "[i]n our adversary system it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate." Dennis v. United States, 384 U.S. 855, 875, 86 S.Ct. 1840, 1851, 16 L.Ed.2d 973

[ 474 Pa. Page 499]

(1966) (footnote omitted); accord, Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Jencks v. United States, supra.

We believe that defense counsel can better evaluate whether the prior statements relate to the subject matter of a witness' direct testimony. Statements which on their face do not appear to bear upon the direct testimony may actually be relevant once defense counsel brings to the court's attention other information counsel has developed through his investigation and preparation of the defense. We recognize that the trial court has the ultimate responsibility to determine whether the prior statements may be used in cross-examining the witness or are otherwise admissible. However, like other evidentiary rulings, these determinations are properly made in an adversary context. We do not believe that the trial court can determine the value that prior statements may have to the defense without hearing defense argument after inspection. See Jencks v. United States, 353 U.S. at 669 & n. 14, 77 S.Ct. at 1013-14 & n. 14.*fn10

[ 474 Pa. Page 500]

As the United States Supreme Court observed in Alderman v. United States, 394 U.S. at 182, 89 S.Ct. at 971:

"An apparently innocent phrase, a chance remark, a reference to what appears to be a neutral person or event . . may have special significance to one who knows the more intimate facts of an accused's life. And yet that information may be wholly colorless and devoid of meaning to one less well acquainted with all relevant circumstances. . . [T]he task is too complex, and the margin for error too great, to rely wholly on the in camera judgment of the trial court . . . ."

An equally important defect in the Swierczewski procedure is that a prior statement of a Commonwealth witness which does not relate to the direct testimony may still enable the defense to effectively cross-examine the witness. A witness may be impeached by cross-examination tending to show the witness' bias, dishonest character, or defects in the witness' capacity to observe, remember or recount the matters about which he has testified.*fn11 See generally 2 G. Henry, Pennsylvania Evidence § 815 (1953); 4 B. Jones, Evidence §§ 26:1 et seq. (6th ed. 1972); J. McCormick, Evidence §§ 33 et seq. (2d ed. 1972); 2 Wharton's Criminal Evidence §§ 430 et seq. (13th ed. 1972). These "lines of attack"*fn12 have the potential of completely discrediting a Commonwealth witness, yet may not relate to matters

[ 474 Pa. Page 501]

    about which a witness has testified on direct examination.

Thus, prior statements may, by themselves or in conjunction with other information known by the defense, open up valuable lines of cross-examination for the defense, even though the statements involve matters not directly relating to a witness' direct testimony. Accordingly, a standard which would permit the defense to examine only those prior statements in the possession of the Commonwealth which relate to a witness' direct testimony does not truly grant the defense access to all the prior statements which might properly be employed in cross-examination. Again, only the defense can determine whether the statements are helpful; trial court review of the statements is inadequate. As this Court stated in Commonwealth v. Grayson, 466 Pa. at 429, 353 A.2d at 429:

"Whether the statements of the prosecution's witnesses would have been helpful to the defense is not a question to be determined by the prosecution or by the trial court. They would not be reading the statements with the eyes of a trial advocate engaged in defending a client. Matters contained in a witness's statement may appear innocuous to some, but have great significance to counsel viewing the statements from the perspective of an advocate for the accused about to cross-examine a witness."

We hold that upon request at trial, the defense is entitled to examine in their entirety the prior statements of Commonwealth witnesses which the Commonwealth has in its possession. We recognize that there may be situations in which defense access to prior statements should be restricted by the trial court, but the availability of protective orders should be adequate in such situations. Upon a showing of good cause by the Commonwealth, the trial court may issue a protective order limiting the defense right to examine the statements of Commonwealth witnesses. See generally Commonwealth v. Kontos, 442 Pa. at 350 n. 6, 276 A.2d at 833 n. 6; Lewis v. Court of Common Pleas, supra; ABA Standards §§ 2.5(b), 2.6, 4.4.

[ 474 Pa. Page 502]

In the instant case, this Court has no way of evaluating whether the trial court's denial of appellant's request to examine the prior statements of Ellen Roten and James Hamm prejudiced his defense. The trial court did not seal the statements and make them part of the appellate record. Nor do we have the benefit of the argument of counsel on the issue of prejudice. We therefore remand the case to the trial court for a determination whether the Commonwealth's failure to produce the prior statements was harmless error. Upon remand, the court should make the statements available to appellant's counsel, and, if appropriate, take evidence and make findings of fact. If the Commonwealth fails to establish beyond a reasonable doubt that the error was harmless, the court should grant appellant a new trial. See Commonwealth v. Davis, 455 Pa. 466, 317 A.2d 218 (1974). If the court concludes that the error was harmless it should reinstate the judgment of sentence. Following the court's ruling, a new appeal may be taken to this Court.*fn13

Judgment of sentence is vacated and the case remanded to the trial court for proceedings consistent with this opinion.

NIX, Justice, concurring.

In my judgment, the trial court erred in refusing to permit appellant to examine at trial the complete prior statements of the witnesses called on behalf of the Commonwealth.

[ 474 Pa. Page 503]

The court, in attempting to exclude irrelevant material that may have been contained in these documents, conducted its own review of the statements and made a unilateral determination of relevancy. This procedure was not in accordance with the views expressed in our recent opinion of Commonwealth v. Grayson, 466 Pa. 427, 353 A.2d 428 (1976).*fn1

While I recognize the problems referred to by the Superior Court in Commonwealth v. Swierczewski, 215 Pa. Super. 130, 134-135, 257 A.2d 336, 338-339 (1969), I do not believe that these considerations justify excluding defense counsel from participation in the decision as to what is relevant for purposes of his cross-examination. Admittedly, irrelevant and immaterial testimony should not be introduced at the trial; however, this problem can be met by a direction of the court, after that court has had the benefit of counsel's arguments as to the matters he believes are relevant for this purpose.*fn2 To implicitly assume that defense counsel, a member of the bar and an officer of the court, would deliberately ignore a court order that certain materials not be disclosed, unjustly impugns the integrity of the defense bar of this Commonwealth.

I concur in the majority's mandate.

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