Appeal from Order of the Court of Common Pleas, Criminal Division, of Alleghency County, Nos. CC 8107645A, 8107646A.
Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
Joseph E. Vogrin, III, Pittsburgh, for appellee (at No. 493).
Raymond J. Seals, Pittsburgh, for appellee (at No. 515).
Wieand, Cirillo and Johnson, JJ.
[ 344 Pa. Super. Page 489]
Arthur P. Smith, III, was charged with an attempt to commit the theft of an automobile; and Daniel L. Woodell, Jr., was charged with firearms and prohibited weapons offenses. Immediately prior to trial, the court heard omnibus pre-trial motions which had been filed by both defendants. At that pre-trial hearing, during cross-examination of police officers, it became apparent that a "prosecution report" had been prepared by police and contained discoverable information not previously disclosed by the Commonwealth. The court found the failure to disclose the information in the report to be a violation of Pa.R.Crim.P. 305 and, in response to an oral defense motion, dismissed the several prosecutions with prejudice. The Commonwealth appealed. We conclude that the trial court's decision was an abuse of discretion and, therefore, reverse.
The information not disclosed by the District Attorney included (1) names and addresses of Commonwealth witnesses; (2) a list of the events and the times when they had occurred on the date of arrest; and (3) a personal
[ 344 Pa. Super. Page 490]
property inventory which included a "door opener" as an item found in Woodell's car.
This information, it will be observed, was not exculpatory. "Exculpatory evidence" has been defined as "evidence which extrinsically tends to establish defendant's innocence of the crimes charged, as differentiated from that which, although favorable, is merely collateral or impeaching." Commonwealth v. Gee, 467 Pa. 123, 131, 354 A.2d 875, 878 (1976), quoting People v. Bottom, 76 Misc.2d 525, 351 N.Y.S.2d 328, 334-335 (1974). It may have been helpful for the defense in this case to know about the information tardily disclosed by the Commonwealth, but that information did not establish defendants' innocence. Similarly, most of the information was not subject to mandatory disclosure under Pa.R.Crim.P. 305 B. Neither a list of the names and addresses of witnesses nor a chronological list of events and times of occurrence is subject to mandatory discovery under the Supreme Court Rule.
The second observation to be made is that the defendants did not make a formal, specific demand for discovery. There was only an informal, general request. "[W]here no request is made or where only a general request is made, the Commonwealth has the burden of providing the defense with evidence that is material . . . . 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.'" Commonwealth v. Rose, 483 Pa. 382, 396, 396 A.2d 1221, 1228 (1979). In the instant case, the trial court found that undisclosed witnesses " might very well be favorable to [the] defense" and that the sequence of events on the day of arrest " could be vital to the defense." The inventory reference to the "door opener" found ...