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filed: July 16, 1982.


Nos. 598 Pittsburgh, 1980, 845 Pittsburgh, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Cambria County, Criminal Division, at No. C-608 A B 1979


William G. Barbin, Assistant Public Defender, Ebensburg, for appellant.

Raymond A. Zadzilko, Assistant District Attorney, Ebensburg, for Commonwealth, appellee.

Cercone, President Judge, and Brosky and Hoffman, JJ.

Author: Brosky

[ 302 Pa. Super. Page 59]

On December 12, 1979, appellant, John Harold Dobson, was convicted by a jury of burglary and simple assault. Post-verdict motions were filed and subsequently dismissed. Dobson was sentenced to serve a term of imprisonment of two to four years for burglary and one to two years for simple assault. The sentences were to be served concurrently. Dobson then filed a petition to modify his sentence which was granted. Dobson was credited for time he had already served. This appeal followed.

Dobson complains that: (1) he should receive a new trial because he was wrongfully deprived of favorable tangible exculpatory evidence, (2) that there was insufficient evidence to convict him of simple assault,*fn1 (3) that a new trial should be ordered because of the existence of after-discovered exculpatory evidence. We are not persuaded that any of the complained errors require a reversal of the decision of the trial court.*fn2

[ 302 Pa. Super. Page 60]

On September 1, 1979, Dobson was arrested and charged with the crimes of burglary and aggravated assault. Those charges arose out of a criminal incident at the McKees Market, a General Store, in Fallen Timber, Cambria County. Early that morning, at about 1 a. m., Robert McKee was awakened when he heard sounds in his store. Mr. McKee frequently slept in a backroom at the store though he and his family resided elsewhere. Mr. McKee ventured from his room into the store area, carrying a pistol with him. Mr. McKee then saw several persons in his store one of whom, Dobson, was approaching him. Apparently, Mr. McKee told Dobson not to come any closer to him and when Dobson failed to stop moving, McKee shot him. Mr. McKee testified that Dobson had a screwdriver in his hand as he approached him. Dobson claims he never had a screwdriver in his hands as he approached Mr. McKee and that what Mr. McKee probably though was a screwdriver was merely the reflection off Dobson's watchband. It is clear from the record that there was poor lighting in the store at the time of the encounter.

After the preliminary hearing and arraignment, Dobson's counsel filed a request pursuant to Pennsylvania Rule of Criminal Procedure 305 for production and or disclosure of favorable tangible evidence. The Commonwealth returned the request indicating it had no such evidence. The record indicates that the Commonwealth possessed Dobson's watch

[ 302 Pa. Super. Page 61]

    throughout the trial and did not at any time produce it for use by Dobson.

Rule 305(A) provides for informal pre-trial discovery in criminal proceedings. Dobson's counsel requested that the Commonwealth produce all tangible exculpatory evidence pursuant to 305(B)(1)(a), which indicates that it is mandatory that the Commonwealth present to the defendant any "evidence favorable to the accused which is material either to guilt or to punishment, . . ."; and 305(B)(1)(f), which requires the Commonwealth to produce for the defendant "any tangible objects . . . or other tangible evidence; . . ." provided that evidence is material to the defendant's case.*fn3

We note that the initial request made by Dobson's counsel under Rule 305 was a general one seeking all exculpatory evidence. In Commonwealth v. Rose, 483 Pa. 382, 396-397, 396 A.2d 1221, 1228 (1979), our Supreme Court said:

Agurs, dealt with a third situation -- where a general request for " Brady materials" is made. After stating that such a general request puts the prosecutor on no better notice than had no request been made at all, the Court went on to state: "If there is a duty to respond to a general request . . ., it must arise from the obvious exculpatory character of certain evidence in the hands of the prosecutor." Agurs, supra [427 U.S.] at 107, 96 S.Ct. at 2399. Thus, where no request is made or where only a general request is made, the Commonwealth has the burden of providing the defense with evidence which is material. This burden arises because of the obviously exculpatory nature of the evidence. See United States ex rel. Marzeno v. Gengler, 574 F.2d 730 (3d Cir. 1978). However, "[t]he 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." Agurs, supra, 427 U.S. at 110-1, 96 S.Ct. at 2400.

[ 302 Pa. Super. Page 62]

In cases where a general request or no request is made,

"[t]he proper standard or materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been ...

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