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filed: January 19, 1982.


No. 122 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, entered December 12, 1979, on Bills of Information 1636, 1639, 1641, 1643 of September Term, 1978.


George H. Newman, Philadelphia, for appellant.

Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, McEwen and Wieand, JJ.

Author: Mcewen

[ 294 Pa. Super. Page 450]

Appellant, Wayne Parente, was tried before a jury and found guilty of rape, involuntary deviate sexual intercourse, simple assault, and possession of an instrument of crime. He appeals, alleging prejudicial error in a number of judicial decisions and prosecutorial actions during the trial in the lower court. We will consider his allegations seriatim.

Appellant contends first that it was error for the lower court to refuse to strike the victim's testimony because her statement to the police had been lost by the police officer and was not available to defense counsel. Under Pa.R.Crim.P. 305(B)(2)(b), the recorded or substantially verbatim statements of eyewitnesses that the Commonwealth intends to call at trial must be available to defense counsel upon a motion for pre-trial discovery. Here, defense counsel properly requested statements made by prosecution witnesses as much as six months before trial. Attorneys for the Commonwealth advised defense counsel that if such notes existed, copies would be made available to him. The prosecutor who was assigned to the case for trial was told of this agreement and she repeatedly attempted to contact Officer Upchurch, the policewoman who had made the notes in question. Having received no response from the police officer by the time jury selection commenced, the prosecutor subpoenaed Officer Upchurch to appear in court the following day. The officer appeared with the notes requested and showed them to the prosecutor who was in the midst of jury selection. The prosecutor requested Officer Upchurch to wait outside the Court Room for a break in the proceedings during which the notes would be copied. However, apparently misunderstanding the instructions, Officer Upchurch left City Hall and returned to police headquarters. When she arrived there, she realized that she had left a manila envelope containing the notes on her seat on the subway. The next morning, the prosecutor was informed of the loss and she attempted to determine if the envelope could be

[ 294 Pa. Super. Page 451]

    recovered. However, her efforts proved fruitless. The trial court and defense counsel were told of the loss and a hearing was held out of the presence of the jury.

It must be noted that by this time, the prosecutor's direct examination of the victim had begun and defense counsel had been provided with the police investigative report and the handwritten notes of another police officer, which notes, although short, were taken at the same time as the missing notes. Further, Officer Upchurch had read over her notes on the day that she had lost them, and she testified as to their contents at the hearing.

As a result of this hearing, the trial court denied defendant's Motion to Strike the victim's testimony, but offered to grant defense counsel a continuance. This offer was refused. Nevertheless, the court recessed early to allow defense counsel a better opportunity to prepare a defense in light of the unexpected loss of the notes. The trial court also allowed defense counsel to explore the loss of the statement before the jury through an examination of both the police officers and the victim. The record shows that defense counsel did in fact present the circumstances of the missing notes and argue their import to the jury. Finally, the trial court instructed the jury that if they determined that the officer intentionally made the notes unavailable, they could infer that the notes would have been unfavorable to the prosecution.

Under Section (E) of Pa.R.Crim.P. 305, when it becomes apparent that a party has failed to comply with the provisions of the Rule, the trial court has broad discretion in choosing an appropriate remedy. It may order the party to permit discovery or inspection or, if, as here, this is not feasible, it may either grant a continuance, prohibit such party from introducing evidence not disclosed, or enter any other order that it deems just. Here, the trial court offered the defendant a ...

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