Appeal from the Order of Common Pleas Court of Chester County, Criminal Division, dated May 9, 1986 at No. 1570-85, Petition for Permission to Seek Review of Order Denying Motion for Disclosure of Grand Jury Testimony and Motion to Exclude Evidence.
Joseph P. Green, Jr., Norristown, for appellant.
Joseph W. Carroll, III, West Chester, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ.
On April 26, 1985 police seized cocaine after executing a search warrant at the home of one Brian Hoskins in Chester County. Hoskins identified his supplier as Jeff Lang, the appellant herein. As a result of this information, a complaint and affidavit were filed against Lang, charging him with possession, possession with intent to deliver, and delivery of cocaine. Lang was then arrested, and at the preliminary hearing, Hoskins testified against Lang, identifying him as the person who sold him cocaine. Lang was held for trial on all charges.
Prior to trial, on January 16, 1986, Lang filed a motion for the disclosure of testimony before the Chester County Investigating Grand Jury. The motion states:
AND NOW, comes the defendant, by his attorneys, Duffy & Duffy, pursuant to Rule 263(b), Pa.R.Crim.P., and respectfully requests that this Honorable Court enter an Order directing the disclosure of certain testimony rendered before the Chester County Investigating Grand Jury, and in support thereof he avers as follows:
1. He is defendant in the above-captioned matter, charged with violating the Controlled Substance, Drug Device and Cosmetic Act.
2. Defendant believes, and therefore avers, that various persons who will be called to testify against him at trial have testified concerning violations of the Controlled Substance, Drug Device and Cosmetic Act before the Chester County Investigating Grand Jury.
3. Defendant believes, and therefore avers, that there may have been testimony given before the Chester County Investigating Grand Jury by prospective witnesses concerning the subject matter of the charges pending against him.
4. Defendant believes, and therefore avers, that certain testimony given by said witnesses before the Chester
County Investigating Grand Jury may prove exculpatory to him.
5. Defendant believes, and therefore avers, that testimony given before the Chester County Investigating Grand Jury by prospective witnesses will contain information of assistance to defendant during cross examination, and relevant to impeachment, of witnesses against him at trial.
6. WHEREFORE, defendant respectfully requests that this Honorable Court enter an Order (1) directing the transcription of the testimony of any prospective witness against him at trial, pursuant to Rule 260, Pa.R.Crim.P., and (2) after review of the said transcripts, Order disclosure of all transcribed testimony concerning violations of the Controlled Substance, Drug Device and Cosmetic Act by witnesses against the defendant, and the disclosure of any testimony given before the Investigating Grand Jury exculpatory to defendant, particularly including evidence which would assist defendant in cross examination and impeachment of Commonwealth witnesses at trial.
Argument on the motion was heard by the Supervising Judge of the Chester County Investigating Grand Jury, and the court entered an order granting the motion in part and denying it in part.
The trial court, pursuant to Pa.R.Crim.P. 260, granted Lang's request that the grand jury testimony of the prospective witness against Lang be transcribed. However, because the court did not agree that Lang is entitled to disclosure of all transcribed testimony concerning a violation of the Controlled Substance, Drug Device, and Cosmetic Act, which might be used against any defendant, as relevant to charges against Lang concerning his alleged drug violations, the court declined to make available to Lang all testimony before the grand jury concerning drug offenses. Under the court's order, the district attorney must make available at the conclusion of direct examination the grand jury testimony of any witness who appears at Lang's trial.
In response to Lang's request that the court examine the transcripts for Brady material, i.e., witnesses which the Commonwealth would not be calling, but which would provide evidence exculpatory to Lang, the court certified that Lang's name appears nowhere in the transcript except in the testimony of Hoskins. Further, the court stated that the prosecution has an affirmative duty to disclose Brady material, and declined to open the whole of the grand jury transcripts to Lang for his examination. The Commonwealth also represents that there is no exculpatory evidence with respect to Lang in the Grand Jury testimony; and, additionally, the Commonwealth acknowledges ...