The opinion of the court was delivered by: FULLAM
On January 7, 1967, the petitioner was sentenced to concurrent terms of imprisonment aggregating not less than five years nor more than twenty years, following his conviction, in a non-jury trial, of rape, robbery, aggravated assault and battery and attempted sodomy. He appealed, but the conviction was upheld per curiam, without opinion, Commonwealth v. Williams, 209 Pa.Super. 772, 231 A.2d 187 (1967), and allocatur was subsequently denied by the Pennsylvania Supreme Court.
The prosecution's evidence at trial disclosed a particularly outrageous massrape, beating, and near-murder of a middle-aged school-crossing guard, mother of four children, during a six-hour period on October 23, 1965. The victim was forcibly abducted and assaulted in a school yard by a group of five youths, who later transferred her to a vacant house and repeatedly assaulted and beat her; eight other youths also participated during the latter stages of the crime. Both the victim and a co-defendant, Joseph Charles, positively identified the petitioner as one of the original five participants and one of the ringleaders of the entire episode.
The constitutional validity of petitioner's conviction is now challenged on two grounds: (1) refusal to disclose to defense counsel written memoranda of verbal statements made by the victim to the police shortly after the crime; and (2) refusal to permit cross-examination of the co-defendant as to whether he had been promised leniency for testifying against the petitioner. It is claimed that the rulings complained of amounted to a denial of the petitioner's Sixth Amendment rights of confrontation of witnesses, Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965), and rendered petitioner's trial so unfair as to amount to a denial of due process of law.
With respect to the alleged verbal statements by the victim to the police, it is sufficient to note that the record does not establish the existence of any written memoranda of these statements. Petitioner's claim on this point assumes that when, pursuant to normal police routine, the victim was interviewed by police officers shortly after the alleged crime, one or more of these officers must have included a summary of her statements in some written memorandum or report. It is not suggested that the prosecutrix signed or approved any such memorandum, or that any substantially verbatim transcript of her alleged oral statements was made; in short, it is clear that any memoranda which may be in existence would not fall within the provisions of the "Jencks Act", 18 U.S.C.A. § 3500(e). Compare Palermo v. United States, 360 U.S. 343, 79 S. Ct. 1217, 3 L. Ed. 2d 1287 (1959); United States v. Hoffa, 349 F.2d 20 (6th Cir. 1964). Since the record does not affirmatively establish the existence of any such memoranda, let alone the contents thereof, there is no basis for assuming that the supposed memoranda would have been of any material assistance in cross-examination of the prosecutrix. Compare Giles v. Maryland, 386 U.S. 66, 87 S. Ct. 793, 17 L. Ed. 2d 737 (1967). Moreover, counsel had the benefit of the prosecutrix's testimony at the preliminary hearing and at the trials of other co-defendants, as well as his own cross-examination of the prosecutrix on these other occasions; and he had access to the "history" given when the victim was taken to the hospital shortly after the crime. It seems extremely unlikely that police memoranda made at about the same time from the same sources would have contained significantly discrepant information.
Be all this as it may, in the absence of any showing of the existence or contents of the alleged memoranda, the petitioner has obviously failed to sustain his burden of proof.
The remaining point presents more serious problems. A co-defendant, Joseph William Charles, entered a plea of guilty to his participation in the crimes alleged. The plea was entered about two months before the petitioner's trial, but Charles had not been sentenced at the time of the petitioner's trial. In the course of the entry of the guilty plea, Charles had been admonished at considerable length by the sentencing judge
as to the desirability of his being willing to testify against his co-defendants. In that proceeding, the Commonwealth was represented by the same Assistant District Attorney who conducted the trial of the petitioner. The record of Charles' guilty-plea hearing includes the following:
"MR. SPRAGUE [the Assistant District Attorney]: * * * I have been advised that since this proceeding started, as Your Honor heard, no offer, no deal, or commitment of any sort was offered to this defendant, and the Commonwealth was ready to proceed to trial at this time.
"I have been advised that the defendant now desires to cooperate with the Commonwealth and to testify for the Commonwealth, at the same time reiterating that he will have no deal or commitment. And I would ask at this time that sentence be deferred.
"THE COURT: I would like to ask has he named or have you been able to ascertain the identities of the other young men in this?
"MR. SPRAGUE: May I say that other persons are under arrest and are awaiting trial. I have told counsel and the defendant if the court sees fit to defer sentence, I am going to have Mr. Alessandroni and Detective Winchester speak with the defendant and find out the extent of his testimony and his availability to the Commonwealth.
"THE COURT: * * * I am acceding to the District Attorney's request to defer sentence * * * you will have an opportunity to reduce some of this. No promise has been made to you by anyone up to now and no promise by this Court, but a suggestion to you that ...