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COMMONWEALTH v. SMITH (07/02/63)

July 2, 1963

COMMONWEALTH
v.
SMITH, APPELLANT.



Appeal, No. 404, Jan. T., 1962, from order of Superior Court, Oct. T., 1962, No. 75, affirming judgment of Court of Quarter Sessions of Chester County, June T., 1960, No. 210-A, in case of Commonwealth of Pennsylvania v. E. Newbold Smith. Order affirmed; reargument refused August 7, 1963.

COUNSEL

John B. Hannum, with him Theodore O. Rogers, and Pepper, Hamilton & Scheetz, for appellant.

Samuel J. Halpren, District Attorney, for Commonwealth, appellee.

Before Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.

Author: Cohen

[ 412 Pa. Page 2]

OPINION BY MR. JUSTICE COHEN

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. Page 3]

    the two women.*fn1 Upon being questioned as to the purpose 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 (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: "'[Since] 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. ...'" (353 U.S. at 671). With regard to the problem of disclosing secret information, the Court concluded that the federal government must either reveal the information or

[ 412 Pa. Page 4]

    abandon the prosecution. Appellant asserts that the Jencks decision ...


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