Lewis v. Court of Common Pleas of Lebanon County

• Court: Pennsylvania Supreme Court
• Writing for the Court: Before BELL; JONES; After a hearing at which both defense counsel and the district attorney presented arguments on the merits of the petition; BELL
• Citation: Lewis v. Court of Common Pleas of Lebanon County, 436 Pa. 296, 260 A.2d 184 (Pa. 1969)
• Decision Date: 12 December 1969
• Parties: Alvin B. LEWIS, Jr., District Attorney, County of Lebanon, Petitioner, v. The COURT OF COMMON PLEAS OF LEBANON COUNTY, Criminal, Respondent.

Page 184

260 A.2d 184

436 Pa. 296

Alvin B. LEWIS, Jr., District Attorney, County of Lebanon, Petitioner, v. The COURT OF COMMON PLEAS OF LEBANON COUNTY, Criminal, Respondent.

Supreme Court of Pennsylvania.

Dec. 12, 1969.

Alvin B. Lewis, Jr., Dist. Atty., Lebanon, George E. Christianson, Joseph C. Mesics, Asst. Dist. Attys., for petitioner.

Thomas A. Ehrgood, Robert C. Rowe, Lebanon, for Arthur McKinley Root, Jr.

William C. Sennett, Atty. Gen., Harrisburg, Frank P. Lawley, Jr., Deputy Atty., Gen., for Commonwealth of Pennsylvania, amicus curiae.

Maurice L. Epstein, LeRoy Zimmerman, David M. Boyd, Dist. Attys., for District Attorneys Association of Pennsylvania, amicus curiae.

Vincent Ziccardi, Defendant, Melvin Dildine, Chief, Appeals Division, John W. Packel, Philadelphia, for Defender Association of Philadelphia, amicus curiae.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.

OPINION

JONES, Justice.

On May 25, 1968, a homicide occurred in Lebanon County and, on November 11, 1968, Arthur M. Root, Jr., was arrested and charged with the offense. Two days later, defense counsel were appointed by the court and, on December 16, 1968, a preliminary hearing was held.

At the preliminary hearing, the Commonwealth's key witness was Paul M. Stombaugh, a Special Agent for the Federal Bureau of Investigation (FBI), assigned as a hair and fiber examiner to the FBI Laboratory in Washington, D. C. Agent Stombaugh's testimony as to certain laboratory tests he had made presented persuasive circumstantial evidence to connect Root with the homicide. At this hearing, Stombaugh was cross-examined by defense counsel.

The defense counsel, in preparing for trial, contacted Agent Stombaugh and requested an opportunity to interview him prior to trial. The FBI, however, has a standard policy against granting such pretrial interviews without the consent of the district attorney, and, in the case at bar, the district attorney refused to give such consent. On August 22, 1969, defense counsel filed a petition in the Court of Common Pleas of Lebanon County, requesting that the district attorney be directed to permit the interview of the expert witness, Stombaugh.

After a hearing at which both defense counsel and the district attorney presented arguments on the merits of the petition, President Judge Gates issued the following Order: 'AND NOW, to wit, August 27, A.D., 1969, it is the order of the court that counsel for the defendant be allowed to discuss the testimony of the witness, Special Agent Paul M. Strombaugh (sic), and that the District Attorney is enjoined not to prohibit Special Agent Strombaugh (sic) from discussing the testimony and the evidence with counsel for the defendant.' The same day that this order was made, the district attorney wrote a letter to Agent Stombaugh in which, after quoting the court order, he stated that he felt that the FBI should not agree to the interview although he did not have the power to bar such an interview.

On August 28th and 29th, the district attorney conferred with Judge Gates In camera. The court expressed the view that the district attorney's letter was contemptuous of the court order and informed the district attorney that Agent Stombaugh would be barred from testifying at the trial if he did not agree to meet with defense counsel. A representative of the FBI has indicated that they construe the court order as requiring them to talk with defense counsel, and Agent Stombaugh is presently willing to have such an interview.

The instant proceeding was commenced on September 1, 1969, when the district attorney petitioned this Court for a writ of prohibition to prevent Judge Gates from enforcing his order. We granted a rule to show cause why the writ should not issue. ¹

The instant petition presents two separate questions of pre-trial criminal procedure. First, we must consider to what extent and under what circumstances a district attorney may interfere with attempts by the counsel for a criminal defendant to have a pre-trial interview with a prosecution witness. Second, we are asked to consider what, if any, sanctions may be imposed by the court in the event that the district attorney interferes unduly with this interview by the defense counsel.

Initially, it is important to note that these are questions of first impression before this Court.

We have, on numerous occasions, dealt with problems of the pre-trial discovery by defense counsel of tangible items such as police reports, lists of the prosecution's witnesses, written statements of these witnesses, written statements of the defendant, photographs, and other items of physical evidence actually in the possession and control of the district attorney. E.g., Commonwealth v. Caplan, 411 Pa. 563, 192 A.2d 894 (1963); Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693 (1963); DiJoseph Petition, 394 Pa. 19, 145 A.2d 187 (1958); Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955). See Pa.R.Crim.P. 310, 19 P.S. Appendix (adopted June 30, 1964). However, these cases and Rule 310 are applicable only to pre-trial discovery and inspection and govern situations in which the district attorney is called upon to produce physical evidence which is in his control. Rule 310 was adopted to incorporate the general rule in criminal proceedings that, In the absence of exceptional circumstances and compelling reasons, an accused has no right to the inspection or disclosure before trial of evidence in the possession of the prosecution. Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955). Thus, 'discovery' in the context of criminal procedure has a much more limited scope than it does with respect to civil proceedings. Compare Pa.R.Crim.P. 221, 304 and 310 With Pa.R.Civ.P. 4001--4025, 12 P.S. Appendix. In the case at bar, the defense counsel is not seeking to 'discover' any evidence in the possession of the district attorney. Counsel is seeking the opportunity to question an expert witness for the Commonwealth in preparation for trial, and such request does not involve the production or inspection of evidence which is already in the hands of the prosecution. Discovery proceedings, under Rule 310, need only be used when counsel wishes to acquire access to evidence within the control of the district attorney. Witnesses themselves can certainly not be so classified. Accordingly, Rule 310 is inapplicable to the instant petition, as are the cases which presaged Rule 310. ²

Generally speaking, an attorney who represents the Commonwealth in a criminal proceeding is unlike an ordinary party to an adversary proceeding. The interests of the Commonwealth do not require that a district attorney should win every case, but rather that justice should be done. The state has an interest in seeing that the innocent not be wrongfully punished, as well as in convicting the guilty. See Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); State v. Tune, 13 N.J. 203, 98 A.2d 881, 895 (1953) (dissenting opinion by Mr. Justice William J. Brennan). In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct 1194, 1197, 10 L.Ed.2d 215 (1963), the special function of a public prosecutor was discussed as follows: 'Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: 'The United States wins its point whenever justice is done its citizens in the courts.' A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecution in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not 'the result of guile,' to use the words of the Court of Appeals.' A district attorney may not suppress evidence or secrete witnesses; indeed, such conduct may constitute a denial of due process under the United States Constitution. Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Alcorta v. Texas, 335 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); United States ex rel. Thompson v. Dye, 221 F.2d 763 (3rd Cir. 1955).

We are aware of no authority in the law which gives the district attorney the right, In general, to deny defense counsel access to the Commonwealth's witnesses. Under the ethical standards of our profession, in the absence of special circumstances to which we hereinafter allude, the consent of the district attorney should not be necessary to insure defense counsel's right to interview a witness prior to the trial. The primary duty of a district attorney is not to convict, but to see that justice is done. ³

It is not clear why the district attorney would prevent defense counsel from interviewing Agent Stombaugh before trial. There have been no allegations which would indicate a special need to sequester this witness, such as to protect the witness from harm, or to prevent the likelihood of subornation of perjury. On the other hand, if it is possible that Agent Stombaugh might have evidence which is favorable to the defendant, then the suppression of that evidence may well constitute a denial of due process. Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). See Comment, The Prosecutor's Constitutional Duty to Reveal Evidence to the Defendant, 74 Yale L.J. 138 (1964). In Commonwealth v. Smith, 417 Pa. 321, 332, 208 A.2d 219, 225 (1965), Mr. Justice Musmanno, in holding that the defendant should be allowed access to a witness' prior written statements, stated: 'It is simply unthinkable that in a government of the people, the government should withhold from one of the...