Commonwealth v. Smith , 417 Pa. 321 ( 1965 )

Concurring and Dissenting Opinion by

Mr. Justice Roberts:

I agree that defendant is entitled to and should be awarded a new trial and in this result I fully concur.

I am, however, unable to agree that a new trial should be granted on constitutional grounds.¹ Two members of this Court proceed on the theory that grave and significant constitutional questions are involved here. In my view, all that is actually involved is simply a procedural and evidentiary issue, although an important one.

Current authority seems to indicate that Jencks v. United States, 353 U.S. 657, 77 S. Ct. 1007 (1957), rested on the supervisory power of the Supreme Court of the United States over federal court trial practice and that in Jencks the Supreme Court was laying down a rule based on that power. Palermo v. United States, 360 U.S. 343, 345, 362-63, 79 S. Ct. 1217, 1221, 1229-30 (1959).²

Nowhere in Jenclcs is there mentioned any constitutional provision or deprivation. What the Supreme Court was doing there, was what this Court does with routine frequency in our analogous state role: deciding how and whether production of relevant documents should be made available at trial.

1 have no doubt that this Court has the supervisory power to say that it is the best practice for the courts of this Commonwealth to compel disclosure of pertinent statements in the hands of Commonwealth officials. See Commonwealth v. Caplan, 411 Pa. 563, 568, 192 A. 2d 894, 896 (1963). Nor do I entertain any doubt that under some circumstances, state refusal to disclose, or refusal to attempt to obtain disclosure of, vital information may amount to a trial which is not fair within constitutional concepts of due process of law.

But all this is quite different from saying that constitutional requisites of due process always demand such disclosure. It is also drastically different from concluding that our courts may and must obtain such disclosure, at the risk of unconstitutionally denying a fair trial, when the pertinent statements are in the hands of federal officials. Weighty consequences would attach to imparting the concept of constitutional imperatives presented in the other opinion which announces our result. For example, the federal government, for valid reasons of privilege, can always refuse to disclose statements in its possession. I also have little doubt that, even beyond questions of privilege, the federal government could refuse to reveal, in state court proceedings, material in its possession. Out of comity, no doubt, these instances may be seldom, but the fact— legitimate power to refuse — remains. If I understand the other view expressed in support of the grant of a new trial, its effect is that if the federal government refused to comply with a request for statements, a fair trial in a state court cannot be constitutionally had, and the defendant must go untried. I think such a holding would go beyond what is necessary and, more importantly, beyond what is wise and sound. If Mr. Justice Brennan is correct in his belief that the Jenchs case also has a constitutional premise,³ then, in my view, the state, at the most, would be compelled to do its best to obtain the documents in question. If it does this, yet fails, then due process will not be violated.

I think this Court should first determine, in its supervisory capacity as this Commonwealth’s highest court, whether it believes that the state should attempt to make the statements in question available. If we answer that question in the affirmative and conclude that the trial judge erred in his refusal to make the statements available, then no constitutional question need be reached.⁴

Did the trial court err when it passed upon defendant’s application for inspection of the two statements in question? I believe the statements should have been made available if pertinent.

The court, during the trial, refused defendant’s request for the opportunity to have produced for his inspection, examination and possible trial use, statements of two Commonwealth witnesses given to the Federal Bureau of Investigation.⁵ The only reason assigned by the court for its ruling was “that the information sought ... is being made available to the defendant by the District Attorney.” The trial court undoubtedly was motivated by the assumption that the statements given to the FBI and to the district attorney were identical. In the absence of such proof that the statements were identical, the defendant should not have been precluded from examining the similarities and differences, if any, in the statements. The court, no doubt, was also influenced by the earlier appearance of representatives of the FBI who asserted that the requested FBI file (which included the statements) was regarded as confidential and not subject to state subpoena. It was not until after trial, appeal and decisión by this Court, when this matter came before the Supreme Court of the United States, that the Solicitor General indicated that the federal government would likely not claim privilege for these two statements and indicated that upon proper request the statements would probably be made available to our courts.

Since almost everyone in the chain of circumstances from the inception of the effort to secure the statements has apparently been confused, the trial court included, I would grant a new trial in the interests of justice — and not on constitutional grounds. Despite the previously created confusion, the granting of a new trial should now clarify the issues and procedures involving the two questioned statements. If the defendant proceeds by subpoena duces tecum, the trial court, upon compliance with its local rules, should issue the subpoena. Once produced, the statements should then be inspected by the court to determine whether they are relevant and admissible. If so, the statements should be made available to the defendant.

Mr. Justice Jones and Mr. Justice Eagen join in this opinion.

1 Only Mr. Justice Musmanno and Mr. Justice O’Brien place the grant of a new trial on constitutional grounds.

2 But see Mr. Justice Brennan’s concurring opinion, joined in by Chief Justice Warren and Justices Black and Douglas, id. at 362-63, 79 S. Ct. at 1229-30.

3 See Palermo v. United States, 360 U.S. 343, 360, 362-63, 79 S. Ct. 1217, 1228, 1229-30 (1959).

4 The statement by the Solicitor General and the remand by the Supreme Court of the United States seem to have elicited undue conclusions. As I interpret it, the remand means only this: If the Commonwealth denied to the defendant the opportunity to see statements pertinent to the accused’s defense, when it was within the power of the state to effect the disclosure, then the question of whether such refusal amounts to a constitutional denial of due process would be squarely before the Supreme Court. In this case, however, as the case stood before the Supreme Court of the United States, it was unclear whether the state had realized that no federal privilege was being claimed. In such a posture, it would be difficult, if not impossible, to determine whether there had been a denial of due process. If, with knowledge that no privilege was being claimed, we decide that the statements should be seen by the defendant, no constitutional question would confront the Supreme Court. Thus, the ease was remanded to us seemingly for the purpose of making clear this Commonwealth’s position.

5 As I read the record, the last request by defendant’s counsel for the documents in question was sufficiently specific. Moreover, counsel for the Commonwealth admitted on oral argument before this Court that, whatever the state of the record, the request was made quite specific at side bar.