No. 80-3-379, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia, as of May Sessions, 1978, Nos. 138, 139 and 144.
Suzanne McGettigan, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Marianne Cox, Asst. Dist. Attys., Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., filed a Concurring Opinion. Hutchinson, J., concurred in the result.
Appellant, Kevin Brinkley, was tried before a jury in the Court of Common Pleas of Philadelphia and convicted of murder of the second degree, criminal conspiracy and robbery. Post verdict motions were filed and denied and, on December 17, 1979, the trial court sentenced appellant to a term of life imprisonment on the murder of the second degree conviction, and to concurrent sentences of five to ten years and ten to twenty years imprisonment for conspiracy and robbery, respectively. This direct appeal of appellant's judgments of sentence was filed on January 4, 1980.*fn1
The record discloses the following. On or about 1:00 p.m. on December 22, 1977, Richard Brooke and Charles Haag were making door-to-door Christmas deliveries of fresh poultry and eggs in the Strawberry Mansion section of Philadelphia. As Mr. Haag was about to enter the truck following a delivery, appellant and his accomplice, June O'Bryant, accosted Haag from behind, each wielding a .38 caliber revolver. June O'Bryant went into the truck where he forced Mr. Brooke to turn over the day's proceeds, while outside the truck, appellant fired a single shot into Mr. Haag's chest. Mr. Haag started to run but collapsed on his back in the gutter. Appellant then turned Mr. Haag face down in a puddle, knelt on his neck and back, and rifled his pockets. Appellant and O'Bryant then fled.*fn2 Mr. Haag died as a result of this gunshot wound.
Appellant's actions were observed by two eyewitnesses who identified appellant as Haag's shooter and testified that they had known appellant for several years. It was also established that Mr. Haag had been killed by an unusual .38 caliber copper-coated bullet. An identical .38 caliber copper-coated bullet was recovered from appellant's residence during the execution of a search warrant.
Appellant's alibi defense was that he was asleep at his aunt's house at the time of the murder. Appellant also sought to establish that his fourteen-year-old brother, Ronald, had committed the murder and that the eyewitnesses had mistakenly identified Ronald as appellant. The jury disbelieved appellant's version of the robbery and homicide and returned the aforementioned convictions. We now affirm the judgments of sentence imposed upon those convictions.
Appellant first argues that the trial court erred in ordering defense counsel to disclose to the Commonwealth certain defense memoranda containing statements of four defense
witnesses. At trial, seven witnesses were called for the defense. As the prosecutor began to cross-examine these witnesses, he asked each if they had previously given any statements to defense counsel. Four witnesses answered affirmatively and the prosecutor requested that he be allowed to see the statements that defense counsel had taken which were in counsel's possession.*fn3 Counsel objected to disclosure of the statements, arguing that they were protected against disclosure by the "work product" privilege and that the statements in his possession were actually notes of his recollections, not verbatim or substantially verbatim statements of the witnesses. The court overruled the objections and ordered counsel to allow the prosecutor to examine the statements. However, the court limited the disclosure order, ruling that only the actual statements taken from the witnesses, and nothing else, need be disclosed.*fn4 On cross-examination, the Commonwealth referred to the prior statements of two of the witnesses, Romona Brinkley (appellant's sister) and Loretta Davis (appellant's mother), in questioning them as to relatively minor discrepancies between the statements and their testimony at trial.*fn5
Appellant contends that the court erred in ordering disclosure of these statements over his objections. We disagree.
While an attorney's work product is privileged against disclosure, the privilege is a qualified one. Lepley v. Lycoming County Court of Common Pleas, 481 Pa. 565, 573, 393 A.2d 306, 310 (1978). The "protective cloak" of the qualified work product privilege "does not extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation." Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947).
It is well established that where the Commonwealth has in its possession pretrial statements of its witnesses which have been reduced to writing and relate to the witness' testimony at trial, it must, if requested, furnish copies of these statements to the defense. Commonwealth v. Gartner, 475 Pa. 512, 381 A.2d 114 (1977). So too, where the defense attorney possesses pretrial statements of witnesses, the needs of the criminal justice system require disclosure.
As this Court recently stated:
It must be remembered, however, that our system of criminal justice is a search for truth. As the Supreme Court of the United States observed, "disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice." (Citations omitted). So too, the American Bar Association Project on Minimum Standards for Criminal Justice states: "Where life, liberty and protection of communities from crime are the stakes, gamesmanship is out of place." Standards Relating to Discovery and Procedure Before Trial § 1.1 Comment at p. 31 (Approved Draft 1970). (emphasis added)
In the Matter of Pittsburgh Action Against Rape, 494 Pa. 15, 24, 428 A.2d 126, 130 (1981) (Larsen, J., dissenting on the grounds that the need for disclosure in that case was outweighed by the need for a rape counselor-rape victim
privilege, a privilege which has since been legislatively created. 42 Pa.C.S.A. § 5945.1). And, as Chief Justice Burger stated in United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974):
The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for production of evidence needed either by the prosecution or the defense. (emphasis added)
From the foregoing, it is clear that the statements of the witnesses in defense counsel's possession were not protected against disclosure by the work product privilege, especially in light of the trial court's narrowly drawn disclosure order. Appellant also asserts that the trial court should not have ordered disclosure because it was not demonstrated that the memoranda in defense counsel's possession were actually the witnesses' statements. It is true that statements made by a witness prior to trial are subject to disclosure only when they are signed, adopted or otherwise shown to be substantially verbatim statements of that witness. Commonwealth v. Cain, 471 Pa. 140, 369 A.2d 1234 (1977); Commonwealth v. Wade, 480 Pa. 160, 389 A.2d 560 (1978). It is clear from the record that the material subject to the court's disclosure order was, in fact, the substantially verbatim statements of the witnesses. N.T. July 10, 1978 at 538, 559-61, 607-610, 766-771.
Appellant's next assignment of error stems from several gratuitous references made by a defense witness to a polygraph examination that had been taken by appellant's brother, Ronald Brinkley. During the prosecution's cross-examination of Loretta Davis regarding Ronald's confession, the following colloquy took place:
Q. Did Ronald Brinkley, on page 9, [of his statement to the police], the last question that Detective Grady asked him when Grady said, "Why are you confessing to a
crime that you did not commit," did your son Ronald say, "Yes, I didn't do ...