Appeal from order of Superior Court, Oct. T., 1970, No. 237, affirming judgment of sentence of Court of Common Pleas of Bradford County, Jan. T., 1969, No. 25, in case of Commonwealth of Pennsylvania v. Michael Wayne Morris.
Michael J. Dowd, Assistant Defender, for appellant.
Maurice L. Epstein, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Justice Jones.
Appellant was found guilty by a jury of forcible rape. Following disposition of post-trial motions, he was sentenced to a term of five to fifteen years. That judgment of sentence was unanimously affirmed per curiam by the Superior Court. Com. v. Morris, 217 Pa. Superior Ct. 762, 268 A.2d 185 (1970). We granted allocatur to consider one narrow issue: whether the trial court erred by not allowing appellant to examine
at trial, for purposes of cross-examination, certain verbatim notes relative to the crime made by a State Trooper while in conference with the victim.
One day after the commission of the crime, the victim was interviewed by a state trooper. Defense counsel's request to inspect these notes, made at the beginning of cross-examination of the victim was denied by the trial judge for the reason that there was no "statement", only notes by the trooper. Although the victim neither signed nor read the trooper's notes, she did testify, "[h]e took down every word I said." Perhaps due to this ruling, the trooper was not cross-examined about his report.
If we conclude that this report constitutes a statement by the victim, Com. v. Kontos, 442 Pa. 343, 276 A.2d 830 (1971), mandates a reversal. Notwithstanding Pa. R. Crim. P. 310, we unequivocally held in Kontos that relevant, pre-trial statements of witnesses in the possession of the Commonwealth must be made available to the accused, upon request, during the trial. The pivotal question, in our view, is whether the verbatim notes made by the trooper should have been made available for defense inspection during the trial. As in Kontos, we have no occasion to consider the related question whether such notes should be discoverable prior to trial since no request was made.
Relying on our decision in Com. v. Smith, 417 Pa. 321, 208 A.2d 219 (1965), the Superior Court in Com. v. Kubacki, 208 Pa. Superior Ct. 523, 224 A.2d 80 (1966), concluded that a transcript of a tape-recorded interview between a witness and police investigators should have been made available for defense inspection. Further, the Superior Court ruled in Com. v. Swierczewski, 215 Pa. Superior Ct. 130, 257 A.2d 336 (1969), that it was error to deny inspection of a police report prepared in the course of duty by an investigating police officer from statements made by other police
officers. See, also, Com. v. Jainlett, 217 Pa. Superior Ct. 406, 407-410, 271 A.2d 886, ...