Appeal from the Order of the Court of Common Pleas, Criminal Division, of Northumberland County at No. CR-84-565.
Anthony J. Rosini, Assistant District Attorney, Shamokin, for Com., appellant.
Vincent V. Rovito, Jr., Shamokin, for appellee.
Wickersham, Brosky and Roberts, JJ. Roberts, J., files a dissenting opinion.
[ 348 Pa. Super. Page 299]
On September 9, 1984, Elwood Lamar Yost was charged by the Shamokin Police Department, in a criminal complaint,*fn1 of disorderly conduct, resisting arrest and underage consumption of alcohol. A reckless driving charge was also involved.
A motion to compel discovery pursuant to Pa.R.Crim.P. No. 305 A was granted by court order dated November 21, 1984. On January 29, 1985 the court, by the Honorable Peter Krehel, President Judge, issued the following Order:
AND NOW, this 29th day of January, 1985, upon finding that the Commonwealth has not complied with this Court's Order of 21 November 1984 compelling discovery, and upon finding that the lapse of (10) weeks is unexplainable by the Commonwealth, the Defendant's Motion for Sanctions is GRANTED and the charges filed to the above-captioned Information are DISMISSED with prejudice.
The Commonwealth filed the instant appeal from the January 29, 1985 order dismissing the charges.
Judge Krehel, in an opinion dated February 5, 1983, explained his action in this manner:
On January 1985, the Commonwealth called this case for trial. At that time, Defendant made a Motion for Sanctions against the Commonwealth, alleging that the Commonwealth had failed to comply with this Court's Discovery Order of 21 November 1984 and requesting that the Commonwealth not be permitted to introduce at trial any evidence which was subject to the Discovery Order.
Pa.R.Crim.P. 305 E. provides,
If at any time during the course of the proceedings it is brought to the attention of the Court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant
[ 348 Pa. Super. Page 300]
a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances. (Emphasis added)
In this case, the Commonwealth had called this case for trial. It indicated that a jury panel was available and that it was ready to proceed to trial. The Commonwealth had been served with the Discovery Order more than ten (10) weeks previously, yet it had not yet responded to the request.
The Defendant's Discovery Request did not ask the Commonwealth to disclose anything extraordinary. The request covered the items required by Brady v. Maryland. (Citation omitted).
Defendant's Motion for Sanctions was properly granted, because to allow the Commonwealth to introduce the evidence encompassed by the Discovery Order would have been a significant infringement of Defendant's constitutional right to a fair trial. Rule 305 E. provides that in such circumstances, the Court may prohibit the Commonwealth from introducing the evidence not disclosed.
After granting the Motion for Sanctions, this Court then looked to what remained of the Commonwealth's case. It was clear that by excluding the evidence covered by the Discovery Order, the Commonwealth would not be able to introduce statements by the Defendant (See: the Affidavit of Probable Cause). In addition, the Commonwealth would not be able to introduce ...