decided: March 27, 1973.
Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1970, No. 466, in case of Commonwealth of Pennsylvania v. Albert Doberstein.
A. Charles Peruto and Lorch, Ryan, Peruto & Vitullo, for appellant.
Arthur R. Makadon and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Jacobs, J.
[ 223 Pa. Super. Page 556]
Defendant, a policeman, was convicted of forcible rape. On appeal he presses numerous assignments of error, only one of which requires extended discussion and none of which warrants reversal.
The principal assignment of error involves a police report on the background of the prosecuting witness. Early in the trial defendant became aware of the existence of this report, which was said to contain the statement that the prosecuting witness "has a reputation for not liking policemen." Deeming this statement relevant to the defense, defendant's counsel first requested the names of the policemen who made the investigation. Later he changed his request to the names of the persons who made the statement. After hearing arguments and examining the report, the court below denied the request but gave to defendant's counsel the names of three small communities in New Jersey where the investigation was conducted.
Defendant argues that the report that prosecutrix dislikes policemen goes to her motive in bringing the prosecution, and that not giving him the names of the persons so stating is withholding evidence favorable to the accused.
In Lewis v. Lebanon Court of Common Pleas, 436 Pa. 296, 301, 260 A.2d 184, 188 (1969), it was said: "A district attorney may not suppress evidence or secrete witnesses; indeed, such conduct may constitute a denial of due process under the United States Constitution." "[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). The prosecution's conduct must be considered in the light of the elements important to the
[ 223 Pa. Super. Page 557]
Petition, 394 Pa. 19, 145 A.2d 187 (1958). The lower court did not abuse its discretion.
All the other assignments of error raised by the appellant were either not raised below or were satisfactorily answered by the lower court. The points raised for the first time involve the trial judge's recapitulation of the prosecutrix's testimony in his charge and a ruling on the cross-examination of the appellant at trial. Neither objection involves fundamental error and we will not hear them for the first time on appeal. Commonwealth v. Hinson, 445 Pa. 356, 284 A.2d 720 (1971); see Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968).
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