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January 19, 1972

UNITED STATES of America ex rel. John MOORE
Eugene A. POWELL, Superintendent

Masterson, District Judge.

The opinion of the court was delivered by: MASTERSON

MASTERSON, District Judge.

 Relator, John Moore, has filed a petition for writ of habeas corpus. Relator was charged with possession of narcotic drugs and aggravated assault and battery as of July Sessions, 1968, Nos. 674-5, in Philadelphia. He was tried before a jury and found guilty of simple assault. On October 8, 1969 he was sentenced to one to two years imprisonment. *fn1"

 The petition raises a narrow question, but one which raises important constitutional considerations having an impact in the day to day criminal trials in the Philadelphia Court of Common Pleas. The sole issue we must decide is whether relator's specific request to inspect a police detective's report summarizing the statement taken from a key Commonwealth witness who had already testified at his trial should have been granted.

 The relator relies on Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), in arguing that his conviction cannot stand where the prosecutor failed to disclose material under his control "which was potentially helpful to the defense." Relator takes the position that he is entitled to inspect the police detective's report upon request, no prior determination of "favorableness to the defendant" being made. The Commonwealth takes the position that its duty to disclose information in its files is limited to that which is favorable to the defendant, and it is solely in the prosecutor's discretion to make that determination.

 In United States ex rel. Felton v. Rundle, 410 F.2d 1300 (3rd Cir. 1969), this same issue was presented to our Court of Appeals. Initially, a panel reversed the District Court's denial of the petition for a writ of habeas corpus and remanded with directions to grant it. In its Opinion the panel 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." 410 F.2d at 1301. However, the Court later granted the Commonwealth's petition for a rehearing en banc. After argument the Opinion of the Court was that the important due process question could not be decided because counsel had effectively waived whatever right the defendant might have had to inspect the police report by not objecting to the trial judge's ruling when the statement was first mentioned, and "at no other point during the trial did the relator's counsel make any request to inspect the police report." 410 F.2d at 1302. Further, "the state prosecuting attorney did not challenge the relator's right to inspect the report." 410 F.2d at 1304.

 We hold that relator in the present case has effectively raised and preserved the constitutional issue. Unlike Felton, trial counsel emphatically stated that he had a right to read the police report at that stage of the proceedings, the Assistant District Attorney opposed the request, the trial court heard argument at side bar and denied the request, and defense counsel made a second request to inspect the report after learning that the witness had looked at it two days before testifying (N.T. 38-44). The trial court then denied the request to inspect after hearing the prosecutor's objection. (N.T. 45). Therefore, we are not persuaded by the Commonwealth's argument that the present case is controlled by the narrow procedural holding of Felton.

 Since we are asked to decide whether relator was denied due process by the denial of his request to inspect the police report, we have examined the actual report in question. Interestingly, both sides argued that our inspection of the report was unnecessary to decide the constitutional issue. We do not agree.

 On the other hand, we find no authority for relator's position that he was entitled to inspect the report upon request to determine whether it contained anything favorable. Clearly, this broad disclosure would render the favorableness qualification of Brady meaningless. As one would expect, the reviewing courts have uniformly given careful scrutiny to the evidence requested by and denied access to the defendant in light of the testimony at trial to determine whether its suppression was a denial of due process.

 The analysis of the Court of Appeals in Felton is consistent with this type of inquiry. In addition to the procedural issue described above the majority opinion points out:

"Nor were the discrepancies between the police report and the testimony of the prosecution of such a nature that the failure of the prosecution to give the report to the defense was per se a denial of due process regardless of other circumstances." 410 F.2d at 1304.

 On the other hand, Judges Biggs and Seitz dissented on the ground that the summary of the witness' statement in the police report was "substantially different" from the witness' testimony at the trial, and, therefore, "the usefulness of the contents of the report as a basis for cross-examination of Moore on the issue of the identity of the robber can scarcely be doubted." 410 F.2d at 1306.

 After carefully examining the police reports in question and the notes of testimony, we have concluded that there is not the slightest amount of information which can be said to be favorable or helpful to the defendant. The testimony can be briefly summarized as follows: On June 11, 1968, police officer John W. Taylor was directed to 1704 West Master Street at approximately 4:45 A.M. (N.T. 17). Upon arriving at that address, he observed an unidentified Negro female lying on the pavement, and a broken window directly above her (N.T. 18). He also observed relator standing in the doorway with a lug wrench in his hand (N.T. 18). As he got out of the police car, the defendant backed into the building and Officer Taylor heard a metal object drop to the ground (N.T. 20). He then apprehended the defendant and placed him in the police car. ...

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