No. 80-3-406, Appeal from the Judgments of Sentence imposed by the Court of Common Pleas of Philadelphia at Nos. 115 and 118 June Term, 1978
Stanford Shmukler, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Paul S. Diamond, Asst. Dist. Attys., Alan Sacks, Philadelphia, for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts, C.j., and Larsen, J., concur in the result. O'Brien, Former C.j., did not participate in the decision of this case.
This is an appeal from the judgments of sentence imposed upon appellant, Samuel Bonacurso, by the Honorable Edwin
S. Malmed of the Court of Common Pleas of Philadelphia County.
Following a non-jury trial on December 12, 1978, appellant was convicted of first degree murder and possession of an instrument of crime. Judge Malmed sentenced appellant to life imprisonment on the murder conviction and imposed a concurrent term of two and a half to five years imprisonment on the weapons offense. Appellant's trial counsel filed post-verdict motions, then withdrew in favor of appellant's present counsel, who filed additional allegations of error, including claims of ineffective assistance of counsel. All post-trial claims were denied by the trial court on May 21, 1980. This appeal followed and we now affirm.*fn1
Appellant contends that despite appropriate and timely requests he was denied the name and identity of a witness, James Melino, in violation of Pa.R.Crim.P. 305 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).*fn2 From this he claims numerous injuries culminating in a denial of his right to a fair trial. It will serve no purpose to pursue in detail the perjoratives that would follow the intentional violation of Rule 305 because in the instant matter the prosecutor's actions were neither deliberate nor injurious. The simple truth is that the witness' identity, was in fact provided by the prosecutor, and he was called to testify as a witness for the appellant. All that he could say was put before the learned trial judge with every opportunity that an unhurried and careful bench trial provides. Melino testified that he was working at a service station, attending a car that was a block and a half from the
scene. He heard what he described as "firecrackers" and about a minute and a half later observed a slow moving car with two occupants, the one on the passenger side having facial hair. Other Commonwealth witnesses, described appellant as clean shaven at all relevant times and occupying the front passenger side of a maroon Pacer. Hence, the appellant not only was provided a defense witness but, he used Melino's testimony to his advantage in contradicting other Commonwealth witnesses. Thus, appellant fails to demonstrate that his defense was prejudiced by the Commonwealth's alleged withholding of Melino's identity. This ...