Commonwealth v. Contakos

OPINION

O’BRIEN, Chief Justice.

Appellant, Samuel C. Contakos, was convicted by a jury of murder of the first degree and criminal conspiracy. Post-verdict motions were denied and appellant was sentenced to life imprisonment for the murder conviction and a consecutive prison term of five-to-ten years for the conspiracy conviction. This direct appeal followed. We vacate judgment of sentence and remand the case to the trial court for proceedings consistent with this Opinion.

The facts are as follows. The principal Commonwealth witness at. trial was Thomas Harry Colvin, who had previously pled guilty to killing the victim in the instant case, Charles Jacob Lowry. Colvin testified that he and appellant had agreed with two other individuals to kill Lowry for $1,500 each. Colvin stated that he and appellant had, on October 3, 1977, traveled to Johnstown but were unable to find Lowry. They made the same trip three days later and upon locating the victim, the pair shot and killed him. Colvin testified that he had used a .25 caliber gun while appellant had used a .357 magnum. While there were no other eyewitnesses to the shooting, various other witnesses were able to place appellant and Colvin in the area on both October 3 and October 6. The Commonwealth also presented medical testimony that the victim had been shot nine times. Seven of the wounds had been caused by .25 caliber bullets while the other two wounds were caused by bullets of an undeterminable origin.

Two of appellant’s claims, if meritorious, would entitle him to a discharge.¹ He first argues that the evidence presented at trial was insufficient to sustain either of his convictions. As we have oft stated:

“The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the eleménts of the crime had been established beyond a reasonable doubt . .. Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced . .. The factfinder is free to believe all, part or none of the evidence.” Commonwealth v. Rose, 463 Pa. 264, 276-68, 344 A.2d 824, 825-26 (1975) (Citations omitted).

In the instant case, the testimony of Colvin alone is sufficient to establish all of the elements of both murder of the first degree and criminal conspiracy.

Appellant’s second assertion that would entitle him to a discharge is that the trial court did not have jurisdiction in the case and the charges should have been dismissed because neither of the informations had been personally signed by the district attorney. Both informations were rubber stamped with the district attorney’s signature. Each, however, is also marked “Approved 12-20-78 R.C.W.” The Commonwealth asserts that “R.C.W.” is Assistant District Attorney Ralph C. Warman.

The Judicial Code provides:

“(d) Duties of prosecuting attorneys. — Whenever a transcript of proceedings, complaint and all related papers in a criminal proceeding where the defendant has been held for court have been transmitted to the clerk of court or the officer designated by the court, such officer, after recording the same, shall immediately transmit the documents or a copy thereof to the district attorney. The district attorney or his designee shall have the duty to inquire into and make full examination of all the facts and circumstances connected with each such case to determine if the facts and circumstances warrant the filing of an information or informations premised upon the transcript. No information shall be filed by the district attorney concerning alleged criminal violations where a preliminary hearing has not been held or properly waived except as prescribed by general rules.

“(e) Disposition of cases. — The district attorney shall sign all informations. The information shall be filed in the form prescribed by general rules.

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“(i) Definition. — As used in this section ‘district attorney’ includes a special attorney appointed by the Attorney General in the manner provided by statute, an acting district attorney and any assistant district attorney whose authority to act for the district attorney under this section is evidenced by a written designation executed by the district attorney or acting district attorney and filed with the clerk of the courts.” Act of July 9,1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 8931.

Furthermore, our rules provide:

“The information shall be signed by the attorney for the Commonwealth.... ” Pa.R.Crim.P. 225(b).

In Commonwealth v. Belcher, 258 Pa.Super. 153, 392 A.2d 730 (1978), the court was presented with a question concerning informations which contained no signature whatsoever. The court held that an unsigned information was void ab initio as opposed to merely voidable, and stated:

“A bill of indictment presented by a grand jury has indicia of reliability not bound in a bill of information. The grand jury has made an independent determination of the sufficiency of the evidence which need merely be ratified by the district attorney. In the case of a bill of information, however, it is the prosecutor alone who must decide whether to bring the defendant to trial. When the vehicle for initiating a criminal list (i. e., the information) is unsigned, it is not at all apparent that a reasoned evaluation of the advisability of instituting a criminal trial has been made. The signature on the information is, therefore, a vital ingredient which guarantees the authenticity and reliability of the document. The requirement of Rule 225(b) that the information be signed by the attorney for the Commonwealth must, as a result, be deemed mandatory rather than merely directory.” Id. 258 Pa. Super. at 156, 392 A.2d at 731.

We believe that the approval and initialing of the information by an assistant district attorney, along with the stamped signature of the district attorney, complies with our rules, the Judicial Code and the concerns enunciated in Belcher, as Warman had been designated to act in the district attorney’s stead in the manner called for in the Judicial Code. Appellant’s argument is thus without merit.

Appellant next argues that the trial court erred in refusing his repeated requests for production and disclosure by the Commonwealth of any statements, reports, notes or written records concerning interviews of Commonwealth witnesses who subsequently testified at trial. The Commonwealth does not deny the existence of that which is sought by appellant; rather, the Commonwealth argues that appellant is not entitled to what they classify as “investigatory notes and incomplete summaries” of the interviews.

In Commonwealth v. Wade, 480 Pa. 160, 169, 389 A.2d 560, 564 (1978) (plurality opinion), we stated:

“In the past we have required production only of those pre-trial statements which are verbatim notes of a witness’ statements, [footnote omitted] See Commonwealth v. Morris, 444 Pa. 364, 281 A.2d 851 (1971). We have declined to extend this rule to a situation... which involves the notes of the [individual taking the statement], subject as they are to that [person’s] ‘selection, interpretation and recollection.’ Commonwealth v. Cain, 471 Pa. 140, 154, 369 A.2d 1234, 1241 (1977) (opinion in support of affirmance). See also Commonwealth v. Collins, 440 Pa. 368, 269 A.2d 882 (1970).”

We believe that the above-quoted standard of Wade requires a minor clarification concerning precisely» what must be disclosed following the Commonwealth witness’ testimony on direct examination.

As we stated in Commonwealth v. Grayson, 466 Pa. 427, 429, 353 A.2d 428, 429 (1976), when discussing the reasons why such statements must be disclosed:

“The defense was entitled to examine the statement of the witnesses in order to have a fair opportunity to cross-examine the witnesses. Whether the statements of the prosecution’s witnesses would have been helpful to the defense is not a question to be determined by the prosecution or by the trial court. They would not be reading the statements with the eyes of a trial advocate engaged in defending a client. Matters contained in a witness’s statement may appear innocuous to some, but have great significance to counsel viewing the statements from the perspective of an advocate for the accused about to cross-examine a witness.”

While a defendant may be seeking only notes of interviews with a Commonwealth witness, those portions of the notes which contain either verbatim, or substantially verbatim, statements which are relevant to the matter being tried should be available to the defendant for the reasons enunciated in Grayson.

We thus believe a defendant is entitled to review any notes, reports or written records relating to interviews with witnesses who subsequently testify at trial. Recognizing that questions will arise concerning which portions of the notes are, in fact, either verbatim or substantially verbatim factual accounts, we feel a hearing, outside the jury’s presence, could initially resolve those disputes. The transcript from such a hearing would provide an adequate record for meaningful appellate review. As we stated in Commonwealth v. Hamm, 474 Pa. 487, 499, 378 A.2d 1219, 1225 (1977):

“We recognize that the trial court has the ultimate responsibility to determine whether the prior statements may be used in cross examination of the witness or are otherwise admissible.. However, like other evidentiary rulings, these determinations are properly made in an adversary context. We do not believe that the trial court can determine the value that prior statements may have to the defense without hearing defense argument after inspection.”

In the instant case, appellant never had an opportunity to review the notes and present argument to show which notes contained statements which could have been used by appellant. Thus we remand the case to the trial court. After appellant reviews the notes in question, the hearing court should determine if the Commonwealth’s failure to produce the notes was harmless error. If the Commonwealth fails to establish beyond a reasonable doubt that the error was harmless, the court should grant appellant a new trial. Commonwealth v. Hamm, supra, citing, Commonwealth v. Davis, 455 Pa. 466, 317 A.2d 218 (1974). If the court determines the error was harmless, it should reinstate the judgment of sentence. Following the court’s ruling, a new appeal to this Court may be taken.²

Judgment of sentence is vacated and the case is remanded to the trial court for proceedings consistent with this opinion.

LARSEN, J., files a concurring opinion in which KAUFFMAN, J., joins. ROBERTS, J., files a dissenting opinion.

1 . Appellant’s other claims, if successful, would only entitle him to a new trial. We therefore address his assertions that the evidence was insufficient to sustain his convictions and that the court lacked jurisdiction in this case and the charges should have been dismissed.

2 . We need not address appellant’s remaining allegations of error because of our disposition of this appeal. “These claims may be raised again if an appeal is taken from the trial court’s ruling on remand.” Commonwealth v. Hamm, supra, 474 Pa. at 502, n.13, 378 A.2d at 1227, n.13.