No. 181 March Term, 1977, Appeal from the Judgment of Sentence imposed on September 17, 1975, by the Court of Common Pleas of York County, Criminal Division, at No. 149 January sessions, 1975.
John H. Chronister, Public Defender, York, for appellant.
Richard H. Horn, Assistant District Attorney, and Donald L. Reihart, District Attorney, York, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 406]
Following a jury trial, appellant was found guilty of robbery.*fn1 Post-trial motions were refused and appellant was sentenced. An appeal was filed with this court, but the case was remanded so that the lower court could receive testimony, hear argument and determine whether the district attorney had failed to disclose an exculpatory statement in his possession, thereby violating appellant's constitutional rights and entitling him to a new trial. On May 28, 1976, the lower court, after considering this new ground, again denied the motion for a new trial. On July 15, 1976, this court allowed this appeal nunc pro tunc. For the reasons set forth herein, we affirm.
Viewing the evidence in the light most favorable to the verdict winner, the Commonwealth, Commonwealth v. Dandar, 249 Pa. Super. 327, 378 A.2d 319 (1977), the following was adduced at trial. On January 29, 1975, a York drug store was robbed at gun point. Appellant, along with the driver, remained in the escape car during the robbery. Appellant's participation in the robbery was established through testimony that appellant gave directions to the pharmacy, and recommended that the theft be carried out in the daytime rather than after store hours, as one of the others had suggested. In addition, when the robbers exited the store and got into the waiting car, they returned appellant's gun, used in the robbery. These men then went to appellant's apartment to divide the booty, however, no evidence
[ 253 Pa. Super. Page 407]
was produced to show that appellant received any of the loot. Both appellant and his alibi witness testified that he did not leave his apartment the day of the robbery.
Appellant's first contention is that the Commonwealth failed to make exculpatory evidence available to him, thereby depriving him of a fair trial in accord with the dictates of due process. At trial, appellant's counsel indicated to Commonwealth counsel that he intended to call Deardorf, one of the men who entered the store, to corroborate appellant's testimony that he remained at home the day of the robbery. The prosecutor then said that he would cross-examine the witness using a statement in which Deardorf told police that appellant had been in the car. Defense counsel decided, therefore, not to call the witness.
At the hearing conducted after our remand to consider whether the Commonwealth had wrongfully withheld evidence, appellant's counsel testified that he saw the statement at trial.
"I looked at the statement and in fact it did say that. I talked to Deardorf and Deardorf said, 'If you call me to the stand by [sic] testimony will be that White was in fact there.' I, therefore, did not call Mr. Deardorf as a witness because his testimony would have been contrary to that of Mr. White and in my opinion would have been harmful to him, therefore, I did not call him.
At a later time, in reviewing the entire statement made by Mr. Deardorf, it came to my attention that while the statement placed Mr. White at the scene it went on to say that Mr. White was not involved in the matter, that he had not helped to plan it or gotten any of the money. He had not ...