of this case, relator's trial counsel had ample opportunity to ascertain the existence or non-existence of the form "75-48". In addition, the form "75-48" was not the only means to gain knowledge of the identity of the police who took relator to the hospital. This Court believes that the two year period before destruction of form "75-48" is not unreasonable and does not amount to a suppression of evidence by the Commonwealth.
In those cases which have dealt with the suppression or withholding of evidence or facts favorable to the defense, by the prosecution, there has never been, to the Court's knowledge, any question about the existence of the evidence or facts in point. See e.g. Giles v. Maryland, 386 U.S. 66, 87 S. Ct. 793, 17 L. Ed. 2d 737 (1967); Brady v. Maryland, supra; Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959); United States ex rel. Felton v. Rundle, (3rd Cir., July 11, 1968; reargued en banc November 26, 1968); United States ex rel. Butler v. Maroney, 319 F.2d 622 (3rd Cir. 1963).
In view of this Court's decision that the existence of the form "75-48" is crucial and was not sufficiently proven, other difficult questions need not be reached. The forthcoming decision in Felton, supra, concerning whether the requested evidence must be first shown to be admissible into evidence cannot be controlling since the existence of the form "75-48" is in doubt in this case. Besides, in Felton, the police report is sought to be used to impeach the credibility of a witness through a prior inconsistent statement. In the instant case no statements of witnesses were recorded on the form "75-48". The form "75-48" is sought in order to gain the identity of two policemen who presumably would help establish the relator's alibi and contradict witnesses for the prosecution as far as the time during which the relator was present on the scene. Whether the form "75-48" is within the area of production is left unanswered by the Supreme Court's decision in Brady and Giles, supra, since both of these cases dealt with statements by co-conspirator and witnesses respectively.
The form "75-48" might be considered to be merely cumulative and immaterial since the hospital records which were introduced into evidence placed the relator at the hospital between 12:05 and 3:15 A.M. on the morning of August 29, 1964. Their effect on the jury was not great. Indeed, if the policemen on the form "75-48" were to testify as the relator says they would, their testimony would also contradict the testimony of Cecil Moore, Esq., the relator's witness, because he stated he saw relator on the scene at 7:30 or 8:00 A.M. on August 29, 1964. Relator claims he was in police custody until 9:00 A.M. on that date.
The relator asserts that his trial counsel was incompetent because he failed to call or subpoena a number of favorable witnesses for the defense. The fact is, however, that defense counsel did call three witnesses for the defense. The relator himself testified. The relator did not make any offer of proof as to what the prospective witnesses would have testified. There is no showing that they would have had anything but a cumulative effect on the evidence introduced at trial by defense counsel.
Defense counsel exercised his discretion in conducting the trial. There is nothing to suggest incompetence. United States ex rel. Corbin v. Banmiller, 184 F. Supp. 141 (E.D.Pa.1960) Had no witnesses been called or subpoenaed this Court would be presented with a different situation.
Accordingly, this fourteenth day of February 1969, it is ordered that the petition of Shaykh Muhammad Ali Hasan, also known as Abyssinia Hayes, for a writ of habeas corpus be and the same is denied. There is no probable cause for appeal.