Commonwealth v. Bradshaw

Concurring and Dissenting Opinion by

Cercone, J.:

I agree with Parts I and III of the majority opinion; however, I agree with the result reached by the Concurring and Dissenting Opinion of Judge Spaeth, in Part II, concerning the obligation of the Commonwealth to produce the name and whereabouts of an informant. In any event, I also believe that some refinement in the procedural aspect of this problem is necessary.

Rule 310 of the Pennsylvania Rules of Criminal Procedure 1 provides a vehicle for discovery by the defendant *35 of the names and whereabouts of material witnesses. By requiring a hearing wherein the defendant may demonstrate his need to know the name and whereabouts of an informant, the rule establishes an appropriate forum “for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Roviaro v. United States, 353 U.S. 53 (1957); Commonwealth v. Carter, 427 Pa. 53 (1967).

At the preliminary hearing appellant must have learned that Officer Davis’ testimony concerning the alleged drug sales was going to be at variance with his own. There remained only one other witness, Richardson, the informant, who might resolve this conflict. Therefore, if Richardson’s recollection of the events would corroborate appellant’s, Richardson’s whereabouts would be vital to the preparation of appellant’s defense. Hence, one would expect that appellant’s counsel would want to question Richardson prior to trial to ascertain the testimony he might provide. It is not severe, therefore, to require that the accused employ Rule 310 to discover the names and whereabouts of material witnesses, or waive the right to complain about their non-production thereafter.

Consider the alternative, especially in the context of a jury trial. Upon appellant’s request for disclosure at trial, the court must recess and conduct a “hearing” on the question of whether the accused’s need to know outweighs the public interest in protecting the flow of information. If the accused makes out such a case for himself, the trial must be interrupted and the jury held over while the accused seeks out the witness, determines whether to call him at trial and has him brought before *36 the court to testify. This disruptive and wasteful procedure is unnecessary in light of Rule 310; and, we should not countenance its use in the future.

I would reach the merits of the question in the instant case only because we have not heretofore suggested that the accused employ Rule 310 to discover the name and whereabouts of a material witness. However, henceforth such an application under Rule 310 must be made or the issue will be waived.

. “Rule 310. Pretrial Discovery and Inspection. All applications of a defendant for pretrial discovery and inspection shall be made not less than five days prior to the scheduled date of trial. The court may order the attorney for the Commonwealth to permit the defendant or his attorney, and such persons as are necessary to assist him, to inspect and copy or photograph any written confessions and written statements made by the defendant. No other discovery or inspection shall be ordered except upon proof by the defendant, after hearing, of exceptional circumstances and compelling reasons. The order shall specify the time, place and manner *35 of making discovery or inspection and may prescribe such terms and conditions as are necessary and proper. In no event, however, shall the court order pretrial discovery or inspection of written statements of witnesses in the possession of the Commonwealth.” [Emphasis added.]