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Commonwealth v. Boczkowski3/23/2004
wealth v. Wilson, 672 A.2d 293 (Pa. 1996). We find no abuse of discretion.
Detective Cvetic testified that he did not submit the hot tub water sample to the crime lab in this case because he learned after taking it that appellant had drained and cleaned the hot tub between the time of Maryann's death and the time the sample was taken. N.T. 4/20/99 at 611, 614. The evidence which appellant sought to elicit on cross-examination was that a judge dismissed a 1996 homicide case due to inconsistencies in Detective Cvetic's response to being ordered to disclose the identities of confidential informants. Specifically, when the detective was ordered to disclose the identity of two informants, he disclosed one informant's identity and then stated that the two informants were actually only one person.
The Commonwealth maintains that the issue in the previous case was not one of dishonesty on Detective Cvetic's part but rather confusion regarding two separate reports recounting information received from confidential informants. Moreover, the Commonwealth notes that a police practice or policy concerning confidential informants says little about a practice of handling or testing physical evidence, much less does it prove that a police officer routinely mishandles investigations. The trial court did not abuse its discretion in ruling that appellant's attenuated theory did not alter the fact that the evidence he offered was collateral and irrelevant.
Next, appellant contends that the trial court abused its discretion by denying a motion to strike the testimony of Randy Erwin, appellant's fellow inmate at the Allegheny County Jail. Erwin testified that he kept notes of conversations he had with appellant about the deaths of both of appellant's wives during a three-week period when both were incarcerated at the Allegheny County Jail. At one point, according to Erwin's testimony, he asked appellant why appellant killed both of his wives the same way, to which appellant responded, "I don't know. That was stupid, wasn't it." N.T. 4/26/99 at 1228. Appellant complains that he was never provided with the notes Erwin took in jail, despite the fact that Erwin testified during cross-examination that he had turned the notes over to detectives and in the face of repeated requests to the prosecution that any such notes be disclosed. Appellant claims that Erwin's testimony should have been stricken as a remedy for the Commonwealth's discovery violation.
At sidebar, the prosecutor informed the trial court that he was unaware that Erwin had provided any notes to the detectives. The detectives' written report of Erwin's interview indicates that Erwin took notes but not that he provided them to the detectives. Even if it is assumed that Erwin's testimony proves that his notes in fact were turned over to detectives, we see no error in the denial of the motion to strike. This Court has held that the Commonwealth does not violate disclosure rules when it fails to turn over evidence it does not possess and of which it is unaware. Commonwealth v. Gribble, 703 A.2d 426 (Pa. 1997). The trial court did not abuse its discretion in finding that the Commonwealth either did not possess the notes or was unaware that they existed and that, consistently with Gribble, the Commonwealth did not violate rules of disclosure.
Appellant's final evidentiary claim is that the trial court abused its discretion by permitting Randy Erwin to give opinion testimony as to appellant's demeanor when he stated that it was stupid to kill both of his wives in the same manner. Erwin testified that appellant was "serious" when making that statement. Without citing to any authority, appellant now contends that this testimony co
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