Commonwealth v. Santiago

POPOVICH, Judge,

dissenting:

I dissent to the result reached by the Majority.

First, to the extent that the Majority implies that Min-nick v. Mississippi, — U.S. -, 111 S.Ct. 486 , 112 L.Ed.2d 489 (1990), is the cornerstone upon which an accused’s right to the presence of counsel during questioning following his request for representation rests, I disagree.

Minnick does no more than update and endorse the principle enunciated in Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981), that once an accused asserts his right to counsel, the interrogation must cease *108 until an attorney is present, and no further questioning may be initiated by the authorities in the absence of counsel. See Concurring and Dissenting Opinion by Popovich, J., in Commonwealth v. Santiago, 376 Pa.Super. 54 , 545 A.2d 316 (1988).

However, albeit the action of the police in questioning the Defendant was improper, the information elicited does not, when viewed in the context of the trial as a whole, warrant the grant of a new trial.

I find it difficult to infer from the inconsistencies present in the Defendant’s first three statements and the fifth statement about owning and/or possessing a gun prior in time would have been the linch-pin causing the jury to make a leap of logic to conclude, beyond a reasonable doubt, that the Defendant committed the murder. The evidence must be viewed as a whole and not in a vacuum. 1

The varying versions of the bicycle owned by Eduardo and supposedly sold, traded or loaned to the Defendant for a weapon similar in caliber to that used in the murder lacks that semblance of inculpation making its admission prejudicial so as to warrant the award of a new trial.

In all other regards, the Defendant maintained steadfastly, in his five statements to the police, that he was not involved in or responsible for the shooting death of Officer Thomas Trench. The inclusion of information at trial that the Defendant had obtained the bicycle from someone other than whom he had stated initially had “no real impact on the ultimate disposition” of the case. See Delaware v. Van Arsdall, 475 U.S. 673 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986). The more devastating evidence was the account of several witnesses that he had been in possession of a gun on the evening in question. In particular, Rosario testified that he saw the Defendant on the morning of the shooting drop a *109 gun and stop to pick it up as he rode a bicycle in the area of the shooting.

The volume of evidence, although circumstantial, was sufficient to sustain the Defendant’s conviction and judgment of sentence. If there were any error in the admission of the Defendant’s statements, it was harmless. See Commonwealth v. Bricker, 525 Pa. 362 , 581 A.2d 147 (1990).

The due process argument put forth by the accused enlists the language of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), requiring the prosecution to disclose exculpatory evidence (favorable evidence to be assessed by the trier of fact). It is a proper vehicle through which a jurist in possession of exculpatory evidence is to disclose such information to permit justice to be exonerated and truth to be the beacon that directs our trek through the criminal justice system.

A defendant is entitled to a fair trial, not a perfect one. To that end, where materially exculpatory evidence is possessed by a member of the prosecution team, as well as a jurist hearing the case, it is to be disclosed without the need of asking for such a disclosure by the defense. Cf. United States v. Bagley, 473 U.S. 667 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985); Brady v. Maryland, supra.

As for the materiality of the in camera testimony not disclosed (in particular, that the witness-Rosario did not fear the Defendant), the defendant’s counsel had ample opportunity to impeach the credibility of the witness premised upon his previous recorded statements to the contrary. See Majority Opinion at 105, n. 37. Thus, I find the excluded remarks of Rosario to have been merely a point on a continuum reflective of his credibility subject to attack by means other than the use of the in camera questioning engaged in by the trial court.

The jury was presented with sufficient evidence, unmarred by procedural, due process or substantive violations of the type demanding a reversal.

*110 Because the Majority holds to the contrary, I respectfully dissent.

. The falsus in uno fdlsus in omnibus axiom is not mandatory but it is up to the trier of fact’s discretion to apply it to all of an accused’s testimony. I find no evidence that the substance of the Defendant’s fifth statement to police could have been detrimental to him when viewing the case in toto.