Com. v. Smith

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtCOHEN; O'BRIEN; O'BRIEN
PartiesCOMMONWEALTH of Pennsylvania v. E. Newbold SMITH, Appellant.
Decision Date02 July 1963

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.

[412 Pa. 2] John B. Hannum, Philadelphia, Theodore O. Rogers, West Chester, Pepper, Hamilton & Scheetz, Philadelphia, for appellant.

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

[412 Pa. 1] Before MUSMANNO, JONES, COHEN, KEIM, EAGEN and O'BRIEN, JJ.

[412 Pa. 2] 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 [412 Pa. 3] the two women. 1 Upon being questioned as to the purpose

Page 672

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 [412 Pa. 4] 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

Page 673

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).

[412 Pa. 5] 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.

[412 Pa. 1] O'BRIEN, J., files a dissenting opinion.

[412 Pa. 5] 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 [412 Pa. 6] FBI to produce the recordings made by the FBI of the meetings at 440 Wood Street,...

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8 practice notes
  • State v. Thompson, Nos. 39343
    • United States
    • Minnesota Supreme Court
    • January 7, 1966
    ...100, 51 Del. 100, 138 A.2d 342; Walker v. State, 78 Nev. 463, 376 P.2d 137; State v. Hunt, 25 N.J. 514, 138 A.2d 1; Commonwealth v. Smith, 412 Pa. 1, 192 A.2d 671; State v. Lavallee, 122 Vt. 75, 163 A.2d 856; State v. Richards, 21 Wis.2d 622, 124 N.W.2d 684. Some indication appears from the......
  • State v. Grunau, No. 39573
    • United States
    • Supreme Court of Minnesota (US)
    • March 18, 1966
    ...People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881; State v. Hunt, 25 N.J. 514, 138 A.2d 1; Commonwealth v. Smith, 412 Pa. 1, 192 A.2d 671; State v. Lavallee, 122 Vt. 75, 163 A.2d 856; State v. Richards, 21 Wis.2d 622, 124 N.W.2d 7 For pertinent cases on the question decided ......
  • State v. Page, No. 10722-E
    • United States
    • United States State Supreme Court of Rhode Island
    • July 17, 1968
    ...100, 51 Del. 100, 138 A.2d 342; Walker v. State, 78 Nev. 463, 376 P.2d 137; State v. Hunt, 25 N.J. 514, 138 A.2d 1; Commonwealth v. Smith, 412 Pa. 1, 192 A.2d 671; State v. Lavallee, 122 Vt. 75, 163 A.2d 856; State v. Richards, 21 Wis.2d 622, 124 N.W.2d 684; State v.Thompson, 273 Minn. 1, 1......
  • Harvey Aluminum (Incorporated) v. NLRB, No. 18273.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 5, 1964
    ...and we perceive no valid distinction, for this purpose, between that case and this one. The Board relies upon Commonwealth v. Smith, 412 Pa. 1, 192 A.2d 671 (1963), and People v. Parham, 60 Cal.2d 378, 33 Cal.Rptr. 497, 384 P.2d 1001 (1963), but that reliance is misplaced: the United States......
  • Request a trial to view additional results
8 cases
  • State v. Thompson, Nos. 39343
    • United States
    • Minnesota Supreme Court
    • January 7, 1966
    ...100, 51 Del. 100, 138 A.2d 342; Walker v. State, 78 Nev. 463, 376 P.2d 137; State v. Hunt, 25 N.J. 514, 138 A.2d 1; Commonwealth v. Smith, 412 Pa. 1, 192 A.2d 671; State v. Lavallee, 122 Vt. 75, 163 A.2d 856; State v. Richards, 21 Wis.2d 622, 124 N.W.2d 684. Some indication appears from the......
  • State v. Grunau, No. 39573
    • United States
    • Supreme Court of Minnesota (US)
    • March 18, 1966
    ...People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881; State v. Hunt, 25 N.J. 514, 138 A.2d 1; Commonwealth v. Smith, 412 Pa. 1, 192 A.2d 671; State v. Lavallee, 122 Vt. 75, 163 A.2d 856; State v. Richards, 21 Wis.2d 622, 124 N.W.2d 7 For pertinent cases on the question decided ......
  • State v. Page, No. 10722-E
    • United States
    • United States State Supreme Court of Rhode Island
    • July 17, 1968
    ...100, 51 Del. 100, 138 A.2d 342; Walker v. State, 78 Nev. 463, 376 P.2d 137; State v. Hunt, 25 N.J. 514, 138 A.2d 1; Commonwealth v. Smith, 412 Pa. 1, 192 A.2d 671; State v. Lavallee, 122 Vt. 75, 163 A.2d 856; State v. Richards, 21 Wis.2d 622, 124 N.W.2d 684; State v.Thompson, 273 Minn. 1, 1......
  • Harvey Aluminum (Incorporated) v. NLRB, No. 18273.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 5, 1964
    ...and we perceive no valid distinction, for this purpose, between that case and this one. The Board relies upon Commonwealth v. Smith, 412 Pa. 1, 192 A.2d 671 (1963), and People v. Parham, 60 Cal.2d 378, 33 Cal.Rptr. 497, 384 P.2d 1001 (1963), but that reliance is misplaced: the United States......
  • Request a trial to view additional results

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