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08/01/97 COMMONWEALTH PENNSYLVANIA v. ELIEZER PEREZ

August 1, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
ELIEZER PEREZ, APPELLANT



Appeal from the JUDGMENT OF SENTENCE February 28, 1996 In the Court of Common Pleas, Criminal Division Berks County, No. 1538/95. Before SPRECHER, J.

Before: Cavanaugh, Hudock And Hester, JJ. Opinion BY Cavanaugh, J.

The opinion of the court was delivered by: Cavanaugh

OPINION BY CAVANAUGH, J.:

FILED AUG 01 1997

Appellant, Eliezer Perez, was tried before the Honorable Jeffrey K. Sprecher and a jury and found guilty of first degree murder, two counts of aggravated assault, possessing a criminal instrument, and carrying a firearm without a license. On February 28, 1996, appellant was sentenced to life imprisonment for first degree murder as well as consecutive terms of six to twenty-three months for possessing an instrument of crime and nine to twenty-three months for carrying a firearm without a license, to run following his life sentence.

There was evidence to support the following:

On March 29, 1995, around 10:00 p.m., Amildo Toro, Jr., the victim, was in the parking lot of Vaccaro's Six Pack Outlet in Reading, Pennsylvania. Toro entered the store and purchased a bottle of beer. While Toro was in the store appellant drove into the parking lot of the store. A bystander asked appellant if he was looking for someone and appellant replied that he was not and drove away only to return moments later as Toro exited the store. Appellant called Toro over to his car and the two engaged in a conversation. Appellant was sitting inside his vehicle and Toro was standing outside the driver's side window. Approximately thirty seconds later, witnesses heard a single gunshot and saw a flash emanating from appellant's vehicle. Toro fell to the ground and was taken to the hospital where he died from a fatal gunshot wound to his neck.

Appellant raises three issues for our review:

I. Whether the trial court erred by compelling production by the defense of a pretrial statement by defense witness, Jose Rodriguez.

II. Whether the Commonwealth failed to establish beyond a reasonable doubt that the killing was willful, deliberate and premeditated, when the evidence of self-defense was overwhelming and unrefuted.

III. Whether the trial court erred by failing to suppress appellant's statement to police while in custody, without Miranda warnings.

Appellant first argues that the trial court erred in compelling him to turn over a pretrial statement of a defense witness. He claims that the Pennsylvania Rules of Criminal procedure do not require a defendant to disclose defense statements which are unrelated to an alibi or mental insanity defense. Appellant argues that Rule 305 of the Rules of Criminal Procedure does not entitle the Commonwealth to such a request for reciprocal discovery and it was error for the court to compel discovery of the statement.

The motion to compel discovery was made by the Commonwealth at the close of its case. The Commonwealth requested the disclosure of any and all written statements from defense witnesses who were expected to testify at trial. This included any signed statements from witnesses, as well as any memoranda prepared which contained substantially verbatim versions of those statements. The Commonwealth's motion to compel the disclosure of defense statements was based on the Pennsylvania Supreme Court's decision in Commonwealth v. Brinkley, 505 Pa. 442, 480 A.2d 980 (1984).

Following brief argument on the motion to compel, the trial court reviewed, in camera, the statements and memoranda of the defense witnesses expected to testify. The trial court concluded that Brinkley required disclosure of statements that were "signed, adopted or otherwise shown to be substantially, verbatim statements" of the witnesses. As such, the court compelled the defense to disclose the statement of Jose Rodriguez finding that it was the only statement that met the requirements set forth in Brinkley. This statement was ...


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