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COMMONWEALTH PENNSYLVANIA v. NORBERTO GARCIA (12/22/78)

decided: December 22, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
NORBERTO GARCIA, APPELLANT



No. 668 October Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal, Northampton County, at No. 376 October Term, 1975.

COUNSEL

Margaret H. Poswistilo, Easton, for appellant.

Michael E. Riskin, Assistant District Attorney, Bethlehem, submitted a brief for Com. appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a Dissenting Opinion. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Van Der Voort

[ 261 Pa. Super. Page 299]

Appeal is taken from judgment of sentence rendered following jury trial and verdict of guilty to charges of armed robbery and criminal conspiracy. "Crimes Code", Act of 1972, Dec. 6, No. 334, 18 Pa.C.S. §§ 3701 and 903. Post trial motions were made and denied. Appellant's arguments on appeal are preserved for our consideration by their having been raised below.

Factually, on November 5, 1975, at approximately 5:30 P.M., an armed robbery occurred at a beer distributorship in Bethlehem, Pa. The proprietor testified that she and her son were working at their place of business serving one customer when another entered the office section of the garage-type structure from which the business operated. The second "customer" was identified as Robert Pagan, co-defendant of appellant below. After ordering a quantity of beer, Pagan produced a revolver and informed the proprietor that he wanted the money. Another man, identified as appellant, thereupon entered and emptied the cash register. Yet a third man also entered and ransacked the drawers in the office when told there was no more money. A fourth man, brandishing a shot gun, appeared at the office door with the son of the proprietor, whereupon the owner, her son, and the customer were secured to each other, back to back, with handcuffs, and were silenced with tape placed over their mouths. The intruders then left in the car in which they had come, apparently with a fifth man whom the proprietor had noticed in said vehicle when she had approached them upon their arrival in the parking lot to request them to park in a certain manner. Thus the owner of the business had two opportunities -- in the parking lot and in the well-lit office -- to observe these men, of whom appellant and Pagan were charged and tried before a jury below, Judge Carleton Woodring, presiding.

Appellant and his co-defendant below were apprehended based upon "John Doe" warrants promulgated on the basis of information supplied to an officer of the Bethlehem police department by an unidentified informant. By

[ 261 Pa. Super. Page 300]

    way of a bill of particulars and motion for disclosure filed in the lower court, appellant sought the name of this informant. A hearing on this and other motions was held pre-trial, on February 4, 1976. Disclosure of the identity of the informant was not granted. It was the theory of the defense, in the lower court as well as on appeal, that the identity of this individual was necessary so that he could be called to testify in the hope that he had mistakenly identified Garcia and had incorrectly placed him as a conspirator in the crime. If such testimony were elicited, then the testimony of an alibi witness, who stated that appellant had been in New York City on the day of the robbery, would be corroborated. It is argued that it was error to let this identity go unrevealed.

Based upon the testimony, we do not share appellant's view as to the essential nature of the eyewitness' possible testimony. Our Supreme Court in Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972), pointed out the importance of balancing the need to protect the secrecy of informer's identities for effective law enforcement and the obligation to allow to an accused a full and fair defense. Where, for instance, an informer is the sole eyewitness, then his identity must be made known. See Commonwealth v. Washington, 463 Pa. 206, 344 A.2d 496 (1975). We do not find compelling urgency for disclosure in the instant case. The informer was not an eyewitness. Two victims of the crime provided unimpeached identifications of the defendants below. The information supplied by the informer led the police to them, but further investigation and questioning led to statements of an incriminating nature.*fn1 Commonwealth v. Culberson, 467 Pa. 424, 358 A.2d 416 (1976). Scrutinizing the testimony, we cannot find that the informer's testimony would have materially aided appellant. The mere allegation by appellant to the contrary is not sufficient to shift the balance to his favor. Commonwealth v. Bradshaw,

[ 261 Pa. Super. Page 301238]

Pa. Super. 22, 364 A.2d 702 (1975). We find no error in the lower court's maintaining the informer's secrecy.

Appellant challenges the constitutionality, presumably, although not stated, under principles of due process, of Pa.R.Crim.P. Rule 310. It was under this rule that he moved for disclosure of the informer's identity and was denied. At the time of trial, the rule read as follows:

All applications of a defendant for pretrial discovery and inspection shall be made not less than five days prior to the scheduled date of trial. The court may order the attorney for the Commonwealth to permit the defendant or his attorney, and such persons as are necessary to assist him, to inspect and copy or photograph any written confessions and written statements made by the defendant. No other discovery or inspection shall be ordered except upon proof by the defendant, after hearing, of exceptional circumstances and compelling reasons. The order shall specify the time, place and manner of making discovery or inspection and may prescribe such terms and conditions as are necessary and proper. In no event, however, shall the court order pretrial discovery or inspection of written statements of witnesses in the possession of the Commonwealth.

Appellant argues that there is no standard provided by the rule for the lower court's guidance in finding an exceptional circumstance. It is alleged there is no procedure established by which a defendant may challenge the refusal of his requested discovery. These arguments ignore the function of the lower court in hearing testimony and assessing the circumstances of each case, as well as the appellate function of finding error in the discretion exercised below. Rules provide guidance for conduct at the bar; interpretation of them is left for courts. It is meritless to argue that a rule per se does not provide for all contingencies which might occur. It is likewise pointless to read any rule without consideration of the cases which discuss it and delineate practice under it. We do not accept appellant's argument as

[ 261 Pa. Super. Page 302]

    to the unconstitutionality of Pa.R.Crim.P. 310.*fn2 See Commonwealth v. Taylor, 259 Pa. Super. 484, 393 A.2d 929 (1978).

As stated, in addition to making a formal motion for disclosure of the witness' name and address, appellant had applied for a bill of particulars requesting this name and address. No answer was forthcoming within two days, as required by the then-applicable Pa.R.Crim.P. Rule 221.*fn3 This rule further states that relief shall be sought by defendant within ten days of his service of the bill if the Commonwealth fails to respond. The docket entries show that defense counsel moved for and was granted a rule to show cause why the defendant should not be discharged for the Commonwealth's failure to answer. Hearing on this as well as the motion for disclosure, discussed above, and other motions, was held pre-trial, all motions being consolidated. After a full hearing, relief was denied and the application for bill of particulars refused. We find no abuse of discretion below in not granting the request for the bill for the reason above-stated that the defense was not entitled to know the name of the informer. Appellant's argument to the contrary is without merit.

Further appellant argues that it was error below not to have discharged appellant for errors alleged to have existed in the arrest procedures. Appellant relates that at the preliminary hearing he requested discharge because the "John Doe" warrants were not produced or the obtaining of them explained. The request for discharge was reiterated and made a part of a motion to quash indictments at the suppression hearing, supra. To clarify the matter, the hearing judge reopened that which was the subject of the preliminary hearing and permitted examination of the arresting officers. Testimony was heard that an informer had given information that the robbery was going to take place. On the day of the occurrence, shortly thereafter, the informer

[ 261 Pa. Super. Page 303]

    stated that the robbery had been completed and gave identification and location information as to the perpetrators. The city police officers filed informations and obtained "John Doe" arrest warrants, names of the accuseds being then unknown. Those described by the informer were apprehended, their names ascertained, and they were interrogated and arraigned. During custody and prior to the preliminary hearing, the criminal complaints were amended or rewritten to include the proper names of appellant and the ...


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