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COMMONWEALTH PENNSYLVANIA v. DAVID ROBERT MILLER (06/13/89)

decided: June 13, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID ROBERT MILLER, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Wayne County, Criminal Division, at No. 221-1987.

COUNSEL

Anthony J. Martino, Bangor, for appellant.

William J. Parker, Assistant District Attorney, Honesdale, for Com., appellee.

Brosky, McEwen and Olszewski, JJ. McEwen, J. files a dissenting statement.

Author: Brosky

[ 385 Pa. Super. Page 189]

This is an appeal from the judgment of sentence following appellant's jury conviction for default in required appearance.

Appellant raises five issues: The first one challenges the admission at trial of evidence of voice identification without compliance with the discovery rule (Pa.R.Crim.P. 305 B). The second and third issues relate to the trial court's refusal to grant appellant's demurrer on the basis of failure to make an in-court identification of appellant and because the charge for which he stood trial was de minimis. Appellant's fourth contention concerns the denial of his Motion for a directed verdict of acquittal because the Commonwealth did not offer any evidence to rebut appellant's affirmative defense of mistake of fact. Finally, it is alleged that the trial court improperly instructed the jury that appellant could be found guilty of the crime charged if the evidence showed that he acted recklessly. We affirm.

The instant charge arises from appellant's failure to appear at a preliminary hearing on an underlying charge.

As his initial issue, appellant avers that he was not given access to evidence of voice identification in violation of Pa.R.Crim.P. 305 B(1), the mandatory discovery rule. On this basis, he charges, the trial court erred in permitting the Commonwealth to introduce evidence of his voice identification via the testimony of Trooper Todd, the prosecuting

[ 385 Pa. Super. Page 190]

State Police Trooper, or, alternatively, that his counsel should have been given the opportunity to prepare to respond to this evidence.

During direct examination of Trooper Todd, counsel for appellant protested the Trooper's affirmative response to the query, "Would you know his [appellant's] voice if you heard it?" N.T., 1-21-88, 22. Counsel for appellant took the position that because the item which he requested -- the results of any identification of appellant by voice -- is considered mandatory discovery material (see Pa.R.Crim.P. 305 B(1)(d)), it should have been automatically provided to him by the Commonwealth. We disagree. It is clear from the wording of Pa.R.Crim.P. 305 B(1) that a defendant must first request the item(s) of information deemed mandatory under the Rule. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Counsel conceded that he had received a host of discovery material from appellant's prior counsel pursuant to the conduct of informal discovery between prior counsel and the District Attorney. See Pa.R.Crim.P. 305 A. Hence, present counsel was aware that noticeably absent from among the discovery materials obtained pursuant to informal discovery was this alleged result of voice identification.

Appellant's trial counsel made no informal request to the District Attorney for this information as provided by Pa.R.Crim.P. 305 A, nor did counsel file a Motion with the court pursuant to the Rule demanding this item of information. Appellant's concern over the absence of the voice identification material first surfaced at trial during direct examination of Trooper Todd despite trial counsel having entered his appearance on behalf of appellant in excess of two months before the commencement of trial. The Commonwealth stated at trial that it had given prior counsel material which was contained in its files. As stated above, appellant's counsel admitted that he had received discovery material from former counsel as a result of informal discovery procedures.

[ 385 Pa. Super. Page 191]

The following exchange ensued between the court and appellant's counsel with regard to the latter's complaint of the allegedly ...


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