Com. v. Smith

• Decision Date: 02 July 1963
• Parties: COMMONWEALTH of Pennsylvania v. E. Newbold SMITH, Appellant.
• Court: Pennsylvania Supreme Court

Page 671

192 A.2d 671

412 Pa. 1

COMMONWEALTH of Pennsylvania v. E. Newbold SMITH, Appellant.

Supreme Court of Pennsylvania.

July 2, 1963.

Rehearing Denied Aug. 7, 1963.

John B. Hannum, Philadelphia, Theodore O. Rogers, West Chester, Pepper, Hamilton & Scheetz, Philadelphia, for appellant.

Samuel J. Halpern, Dist. Atty., West Chester, for appellee.

Before MUSMANNO, JONES, COHEN, KEIM, EAGEN and O'BRIEN, JJ.

COHEN, Justice.

This is an appeal from a conviction of simple assault and battery arising out of a fight between appellant and a police officer on a public highway. At appellant's trial, each of the men maintained that the other was the instigator of the altercation. On this key factual issue, two women who were driving on the highway corroborated the police officer's testimony. At this point in the trial, appellant's counsel requested the trial judge to issue a subpoena duces tecum to compel the F. B. I. to turn over statements given to it by the two women. ¹ Upon being questioned as to the purpose of this production, counsel replied that the statements given to the F. B. I. did not include 'any observation of who struck the first blow' and thus could be used to impeach the testimony of the two women. The trial judge refused to issue the subpoena after being informed by a representative of the F. B. I. that the Bureau would not produce the reports because they contained confidential information, the disclosure of which would threaten the security of the Justice Department.

The jury decided the factual question of who instigated the fight adversely to appellant and the Superior Court affirmed the conviction. We granted allocatur because of appellant's claim that the refusal to issue the subpoena deprived him of due process of law contrary to the decision of the United States Supreme Court in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). After considering appellant's arguments, we find that the Jencks doctrine is inapplicable to the instant case.

In Jencks, the United States Supreme Court held that a conviction could not stand where defense counsel was denied access for impeachment purposes to certain F. B. I. reports. In setting forth the rationale for its decision, the Court stated: '[S]ince the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense * * *.' (355 U.S. at 671, 77 S.Ct. at 1014). With regard to the problem of disclosing secret information, the Court concluded that the federal government must either reveal the information or abandon the prosecution. Appellant asserts that the Jencks decision controls this case. ²

Although we are in complete agreement with the salutary principle of the Jencks doctrine, we find that it has no application to the instant case.

In the first place, it was the F. B. I. and not the Commonwealth which denied appellant access to the information in question. Ironically, the F. B. I. entered this case and made its investigation during which the statements were secured solely because of appellant's claim that the arresting officers had violated his civil rights. The Commonwealth is no more to blame for the unavailability of the F. B. I. reports than if a witness beyond the reach of process refused to voluntarily appear and testify on behalf of appellant. Consequently, the unfairness which troubled the Jencks court is not present here.

In addition, we fail to perceive how the defense was harmed by the nonproduction of the F. B. I. reports. The two witnesses gave a statement to the district attorney which also did not include an observation as to who struck the first blow. This statement was given to appellant. Therefore, even if reports of the state police were involved, the offer of proof would not justify the disclosure of confidential information. ³ cf. Rosenberg v. United States, 360 U.S. 367, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959).

It is true that certain remarks made by the plurality opinion in Schlesinger Appeal, 404 Pa. 584, 172 A.2d 835 (1961), lend support to the position taken by appellant. These observations which were based on a misapplication of the Jencks case were unnecessary to the result in Schlesinger and, to the extent that they are inconsistent with our holding here, they are expressly disapproved.

Judgment affirmed.

BELL, C. J., disqualified himself because his daughter-in-law was a character witness.

O'BRIEN, J., files a dissenting opinion.

O'BRIEN, Justice (dissenting).

I cannot agree with the conclusion reached by the majority nor with the off hand manner in which it treats and disapproves 'certain remarks' in the opinion of Mr. Chief Justice Charles Alvin Jones in Schlesinger Appeal, 404 Pa. 584, 172 A.2d 835, 847 (1961).

In Schlesinger, a proceeding instituted to disbar an attorney, this court considered the application of Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, to state actions; we there held:

'The Subcommittee denied the appellant's request that it issue a subpoena directed to the FBI to produce the recordings made by the FBI of the meetings at 440 Wood Street, Pittsburgh, as to the making whereof the Committee's witness Dietze had testified. This evidence was proffered to contradict the statements of Dietze, Mazzei and Cvetic, and to show that appellant had never attended or participated in any meetings on the premises described. The Subcommittee also denied the appellant's similar request that it issue a subpoena directed to the FBI to produce the reports which the Committee's witnesses Dietze, Mazzei and Cvetic testified that they had submitted to the FBI covering the matters to which they had testified at the hearing. This proposed evidence was for the purpose of contradicting statements made by these witnesses at the hearing. The appellant was entitled to the requested evidence in both particulars on the basis of the decision of the Supreme Court in Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103.

'In disposing of the exceptions to the report and recommendation of the Subcommittee the court en banc held the Jencks case to be inapplicable on the ground that it was 'a criminal prosecution and relates to the procedural requirements for Federal prosecution of crime by providing for requirement of fair procedure for the defendant.' The distinction is without merit. In the Jencks case the defendant was charged with perjury for falsely swearing in a non-Communist affidavit which he filed with the National Labor Relations Board. The principal witnesses against him were two informers, Ford and Matusow, hired by the FBI. They testified that they had sent reports to the FBI concerning matters to which they were testifying at trial. The trial court refused the defendant's motion to direct the FBI to produce these reports for inspection. The Supreme Court reversed the defendant's conviction, declaring (353 U.S. at pages 668-669, 77 S.Ct. at page 1013) that 'the petitioner was entitled to an order directing the Government to produce for inspection all reports of Matusow and Ford in its possession, written and, when orally made, as recorded by the F.B.I., touching the events and activities as to which they testified at the trial. * * * Justice requires no less.' The Supreme Court further held (353 U.S. at page 666, 77 S.Ct. at page 1012) that 'the petitioner was not required to lay a preliminary foundation of inconsistency, because a sufficient foundation was established by the testimony of Matusow and Ford that their reports were of the events and activities related in their testimony.'

'The present appellant is just as much entitled to fair procedure as was the defendant in the Jencks case. A disbarment proceeding is every bit as serious as a criminal trial and often far more so; the penalty of disbarment is certainly harsher than a fine or short imprisonment. Nor is the rule of the Jencks case peculiar to federal criminal prosecutions; it is a requirement of due process of law. The appellant has a constitutional right to the production of the reports of the witnesses against him, touching the events and activities to which they testified, and to inspect so much of such reports as is relevant to the issue. Justice required no less in the Jencks case, and it requires no less in the instant case.' (Emphasis supplied)

I believe the above quoted language of Schlesinger to be a correct statement of the law and that the Jencks decision applies to the instant case. The majority distinguishes the situation by absolving the Commonwealth of any attempt to deny appellant access to the reports in question. The same circumstances existed in Schlesinger, where we reached...