DiJoseph Petition , 394 Pa. 19 ( 1958 )

Concurring Opinion by

Mr. Chief Justice Jones:

It is the rule in this State that a defendant in a criminal case has no absolute right to examine and inspect, prior to trial, evidence in the possession of the Commonwealth. Counsel for the present accused so conceded at bar and the Attorney General, as amicus curiae, so argued both orally and by brief. However, a trial court having jurisdiction of an alleged offender possesses discretionary power to permit a defendant, in appropriate circumstances, to examine and inspect in advance of trial physical or documentary evidence in the hands of the prosecution. And, this court’s current action so confirms. Also, see our opinion in Commonwealth v. Hoban et al., 54 Lackawanna Jurist 213, 218 (not reported in the official State Reports).

In the Rohan case, we said with respect to the question of an accused being allowed to examine and inspect before trial evidence in the possession of the prosecution “. . . the better view is that expressed in the case of State v. Cicenia, 6 N. J. 296, 78 A. 2d 568’'. In that case, the Supreme Court of New Jersey quoted with approval from the thorough and well-considered opinion of Chief Judge Marbury of the Court of Appeals of Maryland in State v. Haas, 188 Md. 63, 75-76, 51 A. 2d 647, as follows: “There can be uo doubt that the recognition of the right in a trial court to permit the defendant to examine his confession in advance of the trial was not recognized at common law. But law is a growth and a great many matters, common - place to us now, were not thought of many years ago. . . [T]he tendency in the courts of this country is to permit discretion in the trial judge. The argument made against any such discretion is based upon a fear that the State, which is charged with the prosecution of crime, may be hampered in its duty by the disclosure of its evidence to those charged with offenses. What ever merit that argument has as applied to a situation where it is contended that the accused has a right to inspect the evidence, it has no application, we think, to a situation where the trial judge in each case and on each application, determines what should be done in the interest oJ! justice. There are cases in which it would be clearly unjust to deny such an application and, on the other hand, cases are conceivable in which it might improperly hamper the prosecution to grant such an application. We do not understand that the court below decided that the appellees were entitled to this disclosure as a matter of right.”

Likewise in the instant case, the trial court did not hold that the petitioning defendant was entitled as a matter of right to the disclosure ordered. And, this court in its pro tanto approval of the order entered by the court below is not laying down a new rule. Chief Justice Stern's quotation in Commonwealth v. Wable, 382 Pa. 80, 86, 114 A. 2d 334, from Wharton’s Criminal Evidence that “ ‘The general rule is that the accused has no right to the inspection or disclosure before trial of evidence in the possession of the prosecution’ ” continues to be the rule in Pennsylvania. The matter of permitting a defendant to examine and inspect evidence in the keeping of the Commonwealth depends upon an exercise of judicial discretion in any instance and our trial courts can be trusted to exercise it wisely. The justification for the discretion so reposed lies, in part, in the concept expressed by Judge Hob an in Commonwealth v. Stepper, 54 Lackawanna Jurist 205, 212-213,—“We would rather remove any obstacle to a fair trial, before the trial, rather than have it removed later and double the expense of difficult and protracted proceedings to the Commonwealth.” Like the court in State v. Haas, supra, “We are not impressed by the fear of the prosecuting attorneys that the exercise of such discretion will change the whole practice of criminal law in this State, or will make the securing of proper convictions more difficult to obtain. It has not apparently had that effect elsewhere and we see no reason why it should have it here.”

The only question before us, then, just as in the Roban case, is whether the court below properly exercised its discretion. The court en bano, composed of the four judges of the Court of Common Pleas of Montgomery County, after reciting that it had reviewed all the evidence at its command, unanimously concluded that “. . . the Commonwealth has impeded and hampered defense counsel’s investigation and preparation for trial by unrestrained and arbitrary power without fair co-operation and is therefore depriving the accused of that due process of law commanded by the 14th Amendment to the Constitution of the United States.” Neither the record, the printed briefs, m>r the oral argument has presented anything that would justify us in holding that the foregoing considered conclusion of the court below was false. Consequently, it necessarily follows that the court below, acting for the purpose of vitiating the indicated harm, exercised a sound discretion by the entry of its order as restricted by the limitation now put upon it by this court.

For my own part, I would have refused the writ of prohibition, for which the district attorney has petitioned, without imposing on the order of the court below the limitation with respect to the photographs of fingerprints, if any, in the hands of the district attorney.