Appeal from the Judgment of Sentence in the Court of Common Pleas of Erie County, Criminal Division, No. 1441 of 1985.
Carmela R. Presogna, Assistant Public Defender, Erie, for appellant.
Tim Lucas, Assistant District Attorney, Erie, for Com., appellee.
Cirillo, President Judge, and Montemuro and Tamilia, JJ. Cirillo, President Judge, filed a concurring and dissenting statement.
[ 368 Pa. Super. Page 102]
This is an appeal from a judgment of sentence entered by the Court of Common Pleas of Erie County. After a jury trial, appellant Deboe Pickering was found guilty of five counts of delivery of marijuana and five counts of possession of marijuana. The court sentenced him to five consecutive terms of six to twelve months, finding that the other counts merged for sentencing purposes. We affirm.
The evidence presented indicates Pickering sold nickel bags of marijuana to an undercover police officer on five different occasions. At trial, the police officer testified she had destroyed her original notes in which she had recorded the transactions between herself and the defendant. She stated she used the notes to prepare her written reports which were made available to defense counsel.
Appellant presents two issues for our review: (1) whether the Commonwealth's failure to produce the police officer's original notes constituted a denial of the constitutional right to confrontation; and (2) whether the trial court abused its discretion in imposing an allegedly excessive sentence of two and one-half to five years confinement.
Appellant urges us to adopt a rule requiring the police to preserve original informal notes which are relevant to a criminal investigation. He argues that effective cross-examination
[ 368 Pa. Super. Page 103]
is impossible without access to the notes and such a denial violates his right to confrontation. See U.S. Const. Sixth Amend.; Pa. Const., Art. I, § 9; Pennsylvania v. Ritchie, U.S. , 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). Appellant points out that some federal circuit courts have adopted this prophylactic rule. See, e.g., United States v. Vella, 562 F.2d 275 (3d Cir.1977); United States v. Harrison, 524 F.2d 421 (D.C.Cir.1975). See also Davis, An Approach to Legal Control of the Police, 52 Tex.L.Rev. 703, 712 (1974).
However, the federal cases are controlled by Federal Rule of Criminal Procedure 16 and the Jencks Act, 18 U.S.C. § 3500. These rules control the suppression and destruction of potential evidence in federal criminal prosecutions. In Pennsylvania, our rules have no such provision so the situation is controlled by Commonwealth v. York, 319 Pa. Super. 13, 465 A.2d 1028 (1983), and its progeny.
As a panel of this Court recently explained:
[I]n order for the destruction of [a police officer's] notes to be a violation meriting a mistrial, proof is required of the following: suppression of evidence by the prosecution after a request by the defense, the favorable character of the ...