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DIJOSEPH PETITION. (10/16/58)

October 16, 1958

DIJOSEPH PETITION.


Original jurisdiction. No. 194 Miscellaneous Docket No. 11, in case of Petition of Bernard DiJoseph, District Attorney of Montgomery County for writ of prohibition. Writ refused.

COUNSEL

J. William Ditter, Jr., First Assistant District Attorney, with him Bernard E. DiJoseph, District Attorney, for petitioner.

Samuel Strauss, with him P. Richard Thomas, for Pennsylvania District Attorneys' Association, amicus curiae.

William L. O'Hey, Jr., with him Henderson, Wetherhill & O'Hey, for Ethel Kravitz, intervenor.

Thomas D. McBride, Attorney General, as amicus curiae.

Before Jones, C.j., Bell, Musmanno, Jones and Cohen, JJ.

[ 394 Pa. Page 21]

OPINION PER CURIAM.

A majority of the court is of the opinion that the District Attorney should not be required to make available before trial for examination and inspection by Ethel Kravitz and her counsel photographs of fingerprints, if any, in the possession of the District Attorney. The order of the court below is amended accordingly.

Disposition

Order amended; rule discharged and writ of prohibition refused.

[ 394 Pa. Page 22]

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 Hoban 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 no 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, commonplace to us now, were not thought of many years ago... [The] tendency in the courts of this country is to permit discretion in the trial judge. The ...


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