(dissenting).
It is my desire to bring certain facts in this case sharply into focus. At the trial, during the cross-examination of Rubin Selikson, Felton’s counsel, an assistant public defender, brought out the fact that Rubin Selikson had made an oral state*1305ment to the police which was contained in a police “Investigation Report”. This report contains a summary of statements very relevant to Felton’s identification as the robber by Tyrone Moore, Rubin Selikson’s employee, made by Moore to Detective Herman Finkelstein — statements which were substantially different from Moore’s testimony at the trial as appears hereinafter. Felton’s counsel immediately requested the court to make the report “available” to Felton. The court refused this request.1 Such a request fulfills the requirement of Commonwealth procedures. Henry v. Mississippi, 379 U.S. 443, 447-448, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), Commonwealth v. Vivian, 426 Pa. 192, 196, 231 A.2d 301, 303 (1967).2
The majority seems to take the position that there must be more than one request for examination of a pertinent document; in fact, that the accused must go on knocking at the door until the trial judge sees fit in his own good time to open it. In my opinion one request is enough, for a constitutional right is neither aided nor injured by constant reassertion or reiteration. The majority seemingly asserts the position that an accused must find an exact combination of words and keep repeating them at artful times in order to maintain a constitutional right. I cannot agree with such a view. It seems to turn a criminal trial into a game of skill, one in which the accused must vie with the trial judge to attain an adequate locus standi and the trial judge can. balk him at his whim. Nor do I deem it necessary that Felton must cause the report to be introduced into evidence in some fashion before he can have the advantage of the information contained thereon. Felton asserts that he was denied due process because of the trial court’s refusal to honor his original request that the report be made available to him. I agree with his position.
Moore’s testimony at Felton’s trial, in pertinent part, was as follows: “Q. Now, had you ever seen this man, David Felton around the store prior to this date?
“A. Yes, I have.
“Q. You had?
“A. Yes.
“Q. On how many occasions?
“A. I guess about once or twice.
“Q. Had you known him?
“A. Not personally, no. Just by seeing him, that’s all.”
Upon cross-examination: “Q. Did you, at the time that these men came in the store, recognize any one of them?
“A. Well, they just looked like people I have seen around the' neighborhood, that’s all.
******
“Q. But once you saw them entering the store, you couldn’t base your identifi*1306cation on that? Is that a fair thing to say?
“A. I could say that I knew David Felton from seeing him around the neighborhood, just seeing him around there.
“Q. Did you recognize him when he came into the store?
“A. Yes.
“Q. You did?
“A. Yes.”
Unlike his testimony at trial, the statement attributed to Moore in the report was as follows: “[Moore] stated that he had seen 3 strange men standing across the street earlier and knew that they were not from the neighborhood.” 3
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. The information contained in the report could have been of value for other cogent purposes ; for example, to open up other lines of inquiry to Felton’s counsel. I therefore base this dissent primarily on Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), in which the Supreme Court held that “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 * * I think the word “evidence” in the foregoing quotation was not intended by Mr. Justice Douglas to have other than an expansive meaning and would include the report. Whether or not Felton would have attempted to put the report in evidence or would do so at a new trial presents a question of trial tactics and would have to be resolved by competent counsel after scrutiny of the document and careful consideration of its potentialities for advantage or disadvantage to his client for ours is an adversary system. Felton’s counsel might well have contented himself by using his knowledge of the contents of the report to inform his cross-examination of Moore.
Therefore there is presently no need to speculate on this question for surely material relating so directly to the guilt or innocence of an accused should not be suppressed or withheld from the scrutiny of counsel. Brady holds that the suppressed material is to be made available to the accused “upon request”. Ibid. Excerpts from the majority opinion reveal that Felton satisfied this requirement.4 That the Supreme Court has perceived the need for scrutiny by an accused’s counsel is shown by Giles v. Maryland, 386 U.S. 66, 74, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967) and Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).
In this connection the majority opinion seemingly relies on United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), as sustaining “‘the appropriately limited review of appellate courts.’ ” But I am of the view that Aug-enblick was intended to describe the reach of the Jencks Act and not to limit the applicability of Brady v. Maryland, supra. I think the Supreme Court left open the issue which might be tendered in some cases as to whether a denial of pertinent material to an accused under the Jencks Act would fall within the interdiction of the Sixth Amendment. In Augenblick Mr. Justice Douglas stated: “Indeed our Jencks [Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103] *1307decision and the Jencks Act were not cast in constitutional terms, Palermo v. United States * * * [360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959)] at 345, 362, 79 S.Ct. at 1229.” Mr. Justice Douglas went on to say that the Jencks decision and the Jencks Act “state rules of evidence governing trials before federal tribunals; and we have never extended their principles to state criminal trials. It may be that in some situations, denial of a Jencks Act type of a statement might be a denial of a Sixth Amendment right.” It seems to me that the case at bar presents a situation similar to that referred to in the last quotations. I conclude that Felton has been denied a constitutional right.
Accordingly, I must respectfully dissent. I would reverse the judgment and would direct the court below to grant habeas corpus conditioned, however, upon the Commonwealth granting Felton a new trial within a reasonable period of time, a trial in which the report would be made available to him.
. The Commonwealth’s attorney insists that there was no “formal statement”. If the Police Report is an informal one it is a formidable informality. We have before us only a carbon copy, but I deem its contents to be sufficiently clear. It is headed “Investigation Report, Philadelphia Police Department” and has the subheading “Interviews and Interrogations”. It consists of three typewritten single space pages and it is signed by Detective Finkelstein at the bottom of each page. The report is dated 1/30/65; the robbery occurred on 1/29/65 at 8:05 p. m. It does not appear at what time on Saturday, 1/30/65, the report was typed and signed by Finkelstein. It is agreed that the report is on Police Department Form 49. At the argument on rehearing en banc counsel for the Commonwealth stipulated that the report was not before the Pennsylvania trial court and that it was not contained in the record in the court below. The Commonwealth offered to this court and we have presently before us a carbon copy of the original Form 49 report with Detective Finkelstein’s signature on the bottom of each page.
. The trial court refused to make the report available to the defense apparently on the ground that it had not been signed by Rubin Selikson.
Felton’s counsel did not take any exception to the failure of the court to grant his request to examine the report but in view of Rule 100(a), “Exceptions”, Pennsylvania Rules of Criminal Procedure, 19 Appendix P.S., the taking of an exception was unnecessary.
. The constitutional issue asserted by Fel-ton is sufficiently brought before this court by the statement attributed to Moore in the report. There are other inconsistencies between the evidence of other Commonwealth witnesses and those attributed to them in the report. I deem it unnecessary to lengthen this opinion by referring to them.
. The majority opinion states: “Q. [By Mr. Hogan, Felton’s counsel] Now, sir, have you at a later time made a statement to detectives about this case?
“A. [Mr. Rubin Selikson] Yes.
“Q. Was this taken down in writing in your presence by the detectives? [Detective Herman Finkelstein]
“A. They took it down in writing.
“Mr. Hogan: If your Honor please, may I respectfully request that this statement be made available to the defense?” (Emphasis added.)