Barry W. Kerchner, Pottstown, for appellant.
William T. Nicholas, Dist. Atty., Ross Weiss, 1st Asst. Dist. Atty., Eric J. Cox, Asst. Dist. Atty., Chief, Appellate Div., Bert M. Goodman, James A. Cunningham, Asst. Dist. Attys., for appellee.
Eagen, O'Brien, Roberts, Pomeroy, and Manderino, JJ. Jones, former C. J., and Nix, J., did not participate in the consideration or decision of this case.
Appellant, James William Jenkins, was tried before a judge and jury and found guilty of murder in the third degree. Post-verdict motions were denied, and appellant was sentenced to imprisonment of not less than eight nor more than twenty years. This appeal followed.
Appellant contends that the trial court committed reversible error in permitting the prosecution, over objection, to use a written report prepared by a police officer to impeach appellant's credibility when the prosecution had previously denied the existence of such a report.
Appellant, an inmate at Graterford Prison, was charged with the fatal stabbing of another inmate on May 7, 1974. Prior to trial, defense counsel filed a bill of particulars, requesting "a copy of any statements or confessions made by [appellant], either orally or in a written form, or reduced to writing in a report by an agent of the Commonwealth and attributed to [appellant], made at any time since the inception of this matter." At a pretrial conference and again at trial, the trial judge ordered all such statements turned over to appellant. It is undisputed that appellant gave an oral statement to investigating officers, and that the investigating officer took notes on appellant's statement which were
included in a written report. It is also undisputed that the prosecution had possession of this report at all relevant times. Despite the presence of this report in the prosecution's files, the assistant district attorney handling the case consistently denied its existence, repeatedly assuring the court and defense counsel that no such statements existed.
During the trial, after the appellant had testified in his own behalf that he did not know the victim and had never spoken to him, the prosecution was permitted, over the objection of defense counsel, to use a police officer's report of an oral statement given by the appellant. In substance the report stated that appellant had told the officer that appellant, in his capacity as manager of the prison kitchen had spoken to the victim the morning of the stabbing incident. The appellant's oral statement, reduced to writing by the police officer in his report, was contrary to appellant's trial testimony.
In its opinion denying post-verdict motions, the trial court concluded that the prosecution should not have been permitted to use the report at trial because the prosecution had violated the trial court's order. The trial court characterized the prosecution's conduct as "inexcusable."
Notwithstanding this error, the court refused to grant a new trial concluding that the error was not reversible error because "[d]espite the prosecutor's misconduct in this case, this Court is not persuaded the claimed prejudice to the defendant has been demonstrated." According to the trial court, since the misconduct went "solely to the issue of defendant's credibility," the prejudicial impact of the prosecution's "deliberate or ...