dissenting:
I respectfully dissent. I agree with the majority that “the determinative question is whether the report was ‘material’; [that] is, whether ‘there is a reasonable probability that, had the report been disclosed to Wilson, the result of the jury trial would have been different.’” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). However, I disagree with the majority that a police report, sworn or unsworn, adopted or not, is not “material” where it directly calls into question the accuracy and the credibility of the testimony given by the State’s sole witness able to positively identify Wilson as one of the robbers.1
The majority recognizes that other than the testimony of the other victim, who identified Wilson only by his build, “there was no other corroborating evidence of Wilson’s guilt ... [t]hus, Pierces’ eyewitness testimony was essential to Wilson’s conviction ... [and] our focus is on whether the report contains information that could have been used on cross examination, to significantly undermine Pierces’ credibility.” (majority opinion p. 439). The police report contained the only evidence capable of providing the defense with an opportunity to undermine Pierce’s credibility. His testimony was enhanced by a sworn version of the robbery that allowed him a greater opportunity to view the robbers than the account described in the report. Pierce’s credibility was further buttressed by testimony that he was “absolutely sure” and had “no doubt” that Wilson was the person who robbed him. Pierce testified that Wilson was “face to face ... less than a foot away from my face.” The police report is clearly material to the defense because it provides evidence that contradicts Pierce’s trial testimony regarding his opportunity to view his attackers. Without the ability to use, or even know of, the inconsistent police report of the investigating officer, the testimony provided by the State’s sole identifying witness was all but impregnable. Wilson was deprived of his right to a fair trial. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (defendant’s fundamental rights of due process were vio*444lated by non-disclosure of evidence that impeached the reliability and credibility of a key witness where potentially impeaching evidence was never presented to the jury for consideration) See also United States v. Oxman, 740 F.2d 1298, 1313 (3rd Cir.1984) (when impeaching evidence that significantly impairs the incriminatory quality of a witness’ testimony is not disclosed to the defense, a new trial must be granted because the impeachment of an incriminating witness with significant evidence attacking the truthfulness of his testimony “might affect” the jury’s assessment of reasonable doubt and thereby affect the outcome of the trial).
Considering that the police report was Brady evidence, that it was wrongfully withheld by the prosecution, and that it contained a substantially different account of the robbery than that presented in open court, had the evidence been disclosed to the defense and been used effectively, the result of the proceeding would probably have been different. I respectfully dissent.
. The majority bases its decision on the following: the police report was unsigned and unacknowledged by Pierce, the police report contained many similarities to the trial testimony and the other victim gave a similar account and "identified” Wilson by his build. The majority states that "the report does implicate Wilson ... it implicates him as one of the three perpetrators of the armed robbery, each of them aided and abetted the others.” Footnote 5. I disagree. The police report merely gives a general description of three armed robbers and the victim’s account of the events as they unfolded. It does not identify Wilson in particular as one of the perpetrators.