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filed: September 9, 1983.


No. 2288 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Criminal Division, of Bucks County, No. 3422 of 1980.


Stephen B. Harris, First Assistant District Attorney, Doylestown, for Commonwealth, appellant.

Nancy Larkin, Assistant Public Defender, Doylestown, for appellee.

Rowley, Wieand and Beck, JJ.

Author: Wieand

[ 318 Pa. Super. Page 522]

The trial court dismissed burglary, theft and conspiracy charges against William Edward Molan because an assistant district attorney had recommended that an accomplice, who was also a Commonwealth witness, not discuss his testimony privately with Molan's counsel without first consulting

[ 318 Pa. Super. Page 523]

    his own counsel. The Commonwealth appealed. We reverse.

Molan and Thomas H. Stuart had been arrested and charged with burglary, theft and conspiracy in connection with the taking of Hummel figurines, valued at Ten Thousand Dollars ($10,000.00), from the Carriage Stop in Richboro, Bucks County. Stuart, while represented by private counsel, confessed his role in committing the crime, agreed to testify against Molan, and entered a negotiated plea of guilty. Immediately prior to commencement of trial on the instant charges, Molan's counsel, in the presence of the assistant district attorney, asked if Stuart would meet with counsel to discuss the facts of the case. Stuart was told by the prosecuting attorney that he was not required to submit to an interview by defense counsel but agreed nevertheless to do so. When it became apparent that defense counsel intended to confer privately with Stuart, the assistant district attorney told Stuart that he should speak with his attorney before submitting to interrogation by defense counsel. He said that although he could not tell Stuart what to do, defense counsel was not Stuart's friend and suggested a second time that Stuart call his attorney and speak with him. Thereafter, Stuart declined to be interviewed by defense counsel. These facts were shown in an evidentiary hearing held in response to a defense motion to dismiss because of alleged prosecutorial misconduct.

Molan's motion to dismiss relied upon the decision of the Supreme Court in Lewis v. Court of Common Pleas of Lebanon County, 436 Pa. 296, 260 A.2d 184 (1969). This reliance was misplaced. In Lewis, the defense had attempted to conduct a pre-trial interview with an F.B.I. agent who was a key prosecution witness. F.B.I. policy prohibited such an interview without the consent of the district attorney. The trial court, over the district attorney's objection, granted a defense application requesting that such an interview be ordered. The district attorney, although conceding that he did not have the power to prevent such an interview, continued to express an opinion that the F.B.I. should not

[ 318 Pa. Super. Page 524]

    permit the interview. Finally, the court advised the prosecutor that if the agent did not meet with defense counsel, the agent would be barred from giving testimony during trial. The Commonwealth then petitioned the Supreme Court for a writ of prohibition to prevent enforcement of the court's order. The Supreme Court refused a writ of prohibition, holding that "in the absence of an affirmative and convincing showing of exceptional circumstances or compelling reasons, a district attorney may not interfere with the pretrial interrogation by a defense counsel of persons who may be called upon as witnesses in the case." Id., 436 Pa. at 303, 260 A.2d at 188-189 (emphasis omitted).

Subsequent decisions have refined and limited the Court's language in Lewis and are determinative of the instant appeal. In Commonwealth v. Sistrunk, 460 Pa. 655, 334 A.2d 280 (1975), a potential witness told defense counsel that "the district attorney did not want him to discuss the case with anyone unless the district attorney was present." The Supreme Court observed, inter alia, that a pre-trial application for relief had never been made and that a subpoena for the witness had not been issued. Moreover, the potential witness had not been called by either party. Id., 460 Pa. at 658, 334 A.2d at 281. A judgment of sentence following a jury verdict of guilty, therefore, was affirmed.

In Commonwealth v. Allen, 501 Pa. 525, 462 A.2d 624 (1983), the Supreme Court held that there was no prosecutorial misconduct where the prosecutor had informed the trial court of a witness' suspected complicity in the crime for which the defendant was to be tried and suggested that counsel be appointed to advise the witness before he testified. Similarly, in Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975), it was held that it was not improper for a prosecutor to advise an eyewitness of the Fifth Amendment right not to testify where the evidence known to the prosecutor suggested possible complicity of the witness in the commission of the crime. See also:

[ 318 Pa. Super. Page 525]

Moreover, even where a district attorney has obstructed defense counsel's access to a witness, the remedy is not dismissal of the criminal charges. Rather, a defendant should, at least in the first instance, seek from the court an order which will enable him to achieve the desired access. If this had been done in the instant case the court could have fashioned an order calculated to insure that the witness would have been made available for the interview defense counsel wished to conduct. See: Commonwealth v. Sistrunk, supra; Lewis v. Court of Common Pleas of Lebanon County, supra. Dismissal of the charges, however, was an extreme and unwarranted remedy.*fn1

Reversed and remanded for trial. Jurisdiction is not retained.

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