Hastie, Chief Judge, and Biggs, Kalodner, Freedman, Seitz, Van Dusen, Aldisert and Stahl, Circuit Judges. Biggs, Circuit Judge (dissenting). Seitz, Circuit Judge (dissenting).
Opinion ON ARGUMENT EN BANC
The relator Felton was sentenced by a Pennsylvania Court in March, 1966 to serve a ten to twenty year prison term following a jury trial in which he was found guilty of aggravated robbery.*fn1 The relator is now incarcerated in a Pennsylvania prison for violation of parole. Service of the ten to twenty year sentence imposed in March, 1966 is to commence at the expiration of his current parole violation sentence.
The relator's conviction was affirmed by the Superior Court of Pennsylvania, Commonwealth v. Felton, 208 Pa.Super. 737, 221 A.2d 575 (1966) and his petition for allocatur was denied by the Supreme Court of Pennsylvania in February, 1967. He filed a petition for a writ of habeas corpus in April, 1967, in the court below which was denied on June 2, 1967. Following denial of rehearing several weeks later he appealed to this Court.
The appeal was submitted to a panel of this Court on the relator's pro se brief and a brief filed by the District Attorney of Philadelphia County, Pennsylvania, in behalf of the respondent Rundle.
The panel reversed the lower court's denial of relator's petition for a writ of habeas corpus and remanded with directions to grant it. In its Opinion it stated that "The only substantial issue before this court is whether due process requires that a state prosecutor permit a defendant upon request during trial to inspect a police report containing a detective's written narration of a witness' oral statements."
The District Attorney thereafter filed a petition for court en banc rehearing which was granted. We appointed counsel for the relator and granted the parties leave to file supplemental briefs and present oral argument.
The hard core of the state's position is that (1) the trial record establishes that the relator neither requested, nor was denied, inspection of the police report, by it or the trial court; (2) the report contained only "summaries" of interviews with witnesses and as such was not admissible as evidence; and (3) the report did "not meet the required standards of materiality" and thus the relator is not entitled to relief under any due process concept.
The sum of the relator's contention is that he requested inspection of the report and that it was refused by the state prosecutor, and that refusal to permit a defendant "the right to inspect a police report containing a detective's written narrative of a witness' oral statement" violates due process rights under the Fourteenth Amendment.
Critical to our consideration are these facts adduced by the trial record and the record below:
On January 29, 1965, about 7:30 P.M., three men entered the grocery store of Rubin Selikson. One of the men stated, "This is a hold-up", while another grabbed Selikson. His son Sheldon ordered the man to release his father, and subsequently forced him to do so. Thereupon another of the men attacked Sheldon with a knife. Sheldon seized a boning knife from behind a counter to protect himself and his assailant twice impaled himself upon it. At the same time the third of the trio attacked Tyrone Moore, an employee of the Seliksons. Moore grappled with his assailant who was armed with a knife and they wrestled to the floor. Moore's assailant then broke loose and rushed out of the store along with the man who had attacked Rubin. The injured man followed them.
Police who arrived a few minutes later questioned the two Seliksons and Moore, and were told in substance the facts above recited. The trial record, and that below, does not disclose the identity of the police who questioned the Seliksons and Moore. The questioning took place at the grocery store between 8:05 P.M. and 8:15 P.M. A summary police report was written the following day -- January 30, 1965. It discloses that Detective Finkelstein was the investigator assigned to the case. It does not contain specific questions or answers thereto by the Seliksons or Moore, but only their substance. It contains a summary report of information gleaned from Rosetta Sellers, a friend of the relator, who was questioned by unidentified police at the police station, some four and a half hours after the hold-up. The sum of the information gathered, as disclosed by the report, is that the relator came to Rosetta's apartment between 7:30 P.M. and 8:00 P.M. January 29, 1965; his clothes were bloodstained; he told her he had been in a fight; and she took him to a hospital after he changed his clothes.
The report also discloses that Detective Finkelstein, in the course of his investigation, traced the relator to the Hahnemann Hospital, in Philadelphia; he was there found to be suffering stab wounds in his chest; that the relator, in response to Finkelstein's questioning, denied implication in any robbery and claimed he had been stabbed in a fight following a crap (dice) game. The report further recites that Sheldon Selikson arrived at the hospital about 10:45 P.M. the night of the hold-up, and identified the relator as the man who had attacked him and who had been stabbed with his boning knife, and that the relator continued to insist that he had nothing to do with any robbery.
What has been said brings us to the relator's contention that he had been denied, at his trial, his request for an inspection of the police report, and that the denial violated his due process rights.
Relator's contention is based on the following excerpted cross-examination by his trial counsel, Austin L. Hogan, Jr., of the Commonwealth's first witness, Rubin Selikson:
"Q. So that you reported this to the policemen?
"Q. And did you at that time, sir, give the policemen a description of the men who had robbed you?
"Q. Could you give the police any information, sir, about the man's facial makeup?
"Q. Now, sir, have you at a later time made a statement to detectives about this case?
"Q. Was this taken down in writing in your presence by ...