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decided: March 16, 1965.


Appeal 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.


John B. Hannum, with him Peter Hearn, William T. Coleman, Jr., Robert W. Maris, Theodore O. Rogers, and Pepper, Hamilton and Scheetz, and Dilworth, Paxson, Kalish, Kohn & Dilks, for appellant.

Alfred Delduco, District Attorney, for Commonwealth, appellee.

Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Concurring and Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Jones and Mr. Justice Eagen join in this opinion. Dissenting Opinion by Mr. Justice Cohen.

Author: Musmanno

[ 417 Pa. Page 323]

So insignificant an event in the world of constitutional rights and liberties as the purchase of an ice cream cone on a summer's evening, set off, in this case, a chain of events which carried litigation into a court of quarter sessions, the Superior Court of Pennsylvania, the Supreme Court of Pennsylvania, the office of the Solicitor General of the United States, and the Supreme Court of the United States -- and now into this Court again.

On the evening of August 8, 1960, E. Newbold Smith, a graduate of the U. S. Naval Academy, married and a father of three children, was driving his car northwardly on Route 202 in Thornbury Township, Chester County, when he stopped at a Dairy Queen stand to purchase the telltale cone. Munching on this confection he drove his car on to the adjacent property of a Sunoco gasoline station and then crossed over the medial strip of Route 202 to the northbound lane to resume his journey. The Chief of Police of Thornbury Township, Frank H. Elliott, who was in the gasoline station at the time, stated later that when Smith reentered Route 202, he emerged in front of another car, forcing it over the center line. No collision occurred nor did any damage result from this traffic incident.

Elliott got into his police car to pursue Smith. It is not clear whether Smith knew that Elliott was following him, but when they both reached a point where

[ 417 Pa. Page 324]

Route 202 intersects with Route 926, Elliott ordered Smith to pull over to the side of the road, which he did. What happened from then on depends upon whose story is to be accredited. Smith testified later that Elliott approached him angrily, demanding cards. Smith dropped his ice cream cone and reached into his inside pocket for his driver's card when Elliott struck him over the head with a blackjack. Stunned by astonishment as well as by the physical impact, Smith recoiled, but when he received "another crack on the head," he struck back at Elliott and they both fell to the ground, now striking at one another furiously, employing both feet and hands and interspersing their fistic and pedal fusillade with attempted chokings on one another.

Elliott, on his side, testified later that after he and Smith had parked their cars at the side of the road, he approached Smith, who was standing behind his car, and asked him for his driver's license and owner's card, holding in his own hand at the time a pad and pencil. Elliott said he saw Smith make a motion with his left hand "as though going toward the back of his trousers," and the next thing he knew he was on the ground, having been struck in the face over the left eye. While they were on the ground with Smith on top, Elliott reached up to seize Smith's necktie and attempted to twist it to shut off Smith's breath. He then kicked him in the stomach. At the height of the fistic, wrestling, kicking and strangling duel, two men from a nearby gasoline station ran up and separated the bleeding antagonists.

A West Chester police car took Elliott and Smith to the West Chester Police Station. Smith later charged that while at the police station he was severely beaten by three police officers, including Elliott, that he was denied medical attention and an opportunity

[ 417 Pa. Page 325]

    to obtain counsel, being finally released the next morning at about 10 o'clock.

It is quite evident that both men were severely mauled in their roadside clash. It is equally evident that one or the other of them was justified in striking back, as a matter of self-defense, after the first blow had landed. Who struck the first blow? That is the crucial question in this case.

Smith complained to the United States Attorney for the Eastern District of Pennsylvania of the mistreatment he states he received at the West Chester Police Station. As a result, the involved police officers were indicted by a Federal grand jury under the Civil Rights Act, and are presently awaiting trial.

Smith was indicted by the Commonwealth of Pennsylvania in Chester County on seven bills, including assault and battery, the charges growing out of the altercation on the highway and the occurrences at the police station. At the trial which followed in Chester County, Smith was convicted of assault and battery but acquitted on all other indictments. He was sentenced to 30 days imprisonment and a $1000 fine. During the trial each side strove to prove that it was the opposing adversary who had precipitated the sanguinary bout. The stories told by the principals, Smith and Elliott, were irreconcilable.

It chanced that on the evening under discussion two ladies were riding in an automobile on Route 202 as the Smith-Elliott drama was unfolding, and they testified at the Chester County trial as to what they said they saw and heard. Mrs. Yvonne Corcoran, who was driving the car, said she saw Smith strike Elliott. Miss Elizabeth Sweet, who was a passenger in the car, testified she saw Smith strike Elliott to the ground and repeatedly punch him. Their testimony generally seemed to favor the position that Smith had been the aggressor in the pitched battle at the crossroads, although

[ 417 Pa. Page 326]

    some question could arise as to whether their view and their period of view encompassed all that occurred.

The day after the roadside fracas, Miss Sweet and Mrs. Corcoran gave statements at the West Chester police station as to their knowledge of the event. Over one month later, on September 21, 1960, the ladies gave statements to the FBI, which was investigating the charges made by Smith.

On January 11, 1961, the special agent in charge of the Philadelphia office of the Federal Bureau of Investigation (hereinafter referred to, for convenience, as the FBI) was served with what purported to be a subpoena duces tecum commanding him to appear at the Smith trial in West Chester and to bring with him: "Statements of all witnesses, diagrams, sketches and photographs taken in connection with investigation of incidents on Monday, August 8, 1960, at or about 9:00 p.m. and continuing thereafter in Thornbury Township and in the Borough of West Chester, Chester County, Pennsylvania, when peace officer Frank H. Elliott of Thornbury Township and police officers Harry Saltzman and Gordon W. Smith together with certain other West Chester Borough officers willfully subjected E. Newbold Smith of Warren Avenue, Paoli, Pennsylvania, to the deprivation of his rights, privileges and immunities secured and protected by the Constitution and the laws of the United States in violation of Title 18 U.S.C. Section 242. . . ."

On January 16, 1961, the date set for Smith's trial on the State charges, the special agent appeared before the Chester County court of quarter sessions, accompanied by an assistant United States attorney who moved to quash the subpoena on the grounds, inter alia, that the requested records pertained to a confidential investigation undertaken by the Department of Justice. At this point, it appeared that the subpoena had issued without the approval of the court of quarter

[ 417 Pa. Page 327]

    sessions, in violation of a Chester County rule of court. The court held: "Not limiting myself to . . . the rule of Court, I am going to allow the motion to quash."

On the following day, January 17th, Smith filed a petition formally requesting the court to issue a subpoena duces tecum for specific documents in the F.B.I.'s investigative file, paragraph 4 of the petition reading: "That your petitioner believes and therefore avers that included in said report are signed statements of Yvonne Corcoran and Betty Sweet, alleged eyewitnesses to some of said events of August 8, 1960, who have categorically refused to discuss what they saw with your petitioner or his representatives, although they have freely given statements to the prosecutors herein."

The court denied the petition, stating that "the information sought for is being made available to the defendant by the District Attorney." The "information" referred to consisted of the statements made by Sweet and Corcoran at the police station. After Miss Sweet had testified in full and Mrs. Corcoran had testified on direct, but not in cross-examination, defendant's counsel renewed his application for a subpoena duces tecum requiring the production of the F.B.I.'s file in the matter, "particularly with reference to the statements given by these ladies." The court denied the motion, stating it would not consider its previous ruling.

Smith was convicted and he appealed to the Superior Court, which affirmed the conviction. This Court granted allocatur because of the defendant's contention that he had been denied due process when he was refused the F.B.I. statements for use at his trial.

After hearing argument on the appeal this Court decided by a vote of 5 to 1,*fn1 that the defendant was not

[ 417 Pa. Page 328]

    entitled to inspect the FBI, Corcoran and Sweet statements. Justice O'Brien dissented, and in his dissenting opinion stated that the defendant's rights had been constitutionally prejudiced by the refusal of the court below to direct the issuance of the requested subpoena on the FBI.

The defendant petitioned the Supreme Court of the United States for a writ of certiorari and on March 4, 1964, the Supreme Court granted the writ, stating: "In response to an inquiry from this Court, the Solicitor General has indicated that the claim of confidential privilege was concerned solely with the initial broad-based demand for virtually the entire FBI file on the matter and that the Department of Justice was not informed of, and did not refuse to comply with, the subsequent specific requests for statements given by the two witnesses. We grant the petition for a writ of certiorari and remand the case to the Supreme Court of Pennsylvania, for reconsideration of petitioner's claim in light of the representation of the Solicitor General."

In his memorandum to the Supreme Court of the United States, the Solicitor General stated: "At no time has a request for a particular document in the FBI file been presented to any federal officer. The only demand with which the federal government has been confronted has been, as noted, the original blanket demand for practically the entire contents of a voluminous file relating to an ongoing investigation -- a demand as to which the Department properly asserted privilege in the motion to quash the defense's subpoena. The Department has never been requested to consider whether, in the interests of justice, the information contained in either Miss Sweet's or Mrs. Corcoran's statement to the FBI should be made available to the court and counsel in the Pennsylvania prosecution." (Emphasis supplied).

[ 417 Pa. Page 329]

It must be obvious from this statement that it is the Solicitor General's view that if the interests of justice require that Smith be allowed to examine the Sweet and Corcoran statements, the Department will interpose no objection on the ground of security. Certainly there would have been no point in the Solicitor General's having made this observation if the facts did not warrant a release of the Sweet-Corcoran statements for the defendant's use at a trial involving his name, reputation and liberty.

This Court, after the case had been remanded to us by the Supreme Court of the United States, ordered a reargument, and at the hearing, the District Attorney of Chester County, speaking in behalf of the Commonwealth, reasserted his opposition to a new trial, arguing Smith had no right to or need for the statements in controversy.

To the contrary, Smith had the right to, and great need for, the statements he requested. The 6th Amendment to the Constitution of the United States guarantees to the accused the right "to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defense."*fn2 While this amendment is directed to federal criminal prosecutions, the Supreme Court of the United States held in Gideon v. Wainwright, 372 U.S. 335, that that part of the 6th Amendment requiring assistance of counsel is binding on the States. Since the process sought to be here invoked had to do with documents in possession of the Federal government, the 6th Amendment would apply, and a refusal to comply with the mandate would amount to denial of due process guaranteed under the 14th Amendment.

In Jencks v. U. S., 353 U.S. 657, the defendant asked for court process to compel the FBI to make

[ 417 Pa. Page 330]

    available to him reports made on him by certain witnesses who now testified against him. The trial court refused to issue such an order. The Supreme Court reversed, declaring: "The petitioner was entitled to an order directing the government to produce for inspection all reports of Matusow and Ford in its possession, written and, when orally made, as recorded by the FBI, touching the events and activities as to which they testified at the trial."*fn3

Recent decisions of the Supreme Court of the United States demonstrate unmistakenly an expansion of the frontiers of due process to include not only what is ipsissimis verbis spelled out in statutes and constitutional provisions but to "advance in its standards of what is deemed reasonable and right." Wolf v. Colorado, 338 U.S. 25, 27. In that case, Justice Frankfurter said: "Due process of law thus conveys neither formal nor fixed nor narrow requirements. It is the compendious expression for all those rights which the courts must enforce because they are basic to our free society . . . It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or the essentials of fundamental rights."

While our system of government is that of a federated republic with each state exercising full sovereign powers, except on such subjects where authority has been delegated to the national government, the people of the United States enjoy the fullest protection of

[ 417 Pa. Page 331]

    the United States Constitution in the basic citizenship rights, regardless of state boundaries. The preamble of the United States Constitution reads: "We the people," and not, "We, the States." The United States Supreme Court has been giving increasing expression to these basic rights of citizenship. For instance, in the case of Burns v. Ohio, 360 U.S. 252, 258, the defendant was denied an appeal to the Supreme Court of Ohio because he did not have funds with which to pay the docket fee. The Supreme Court of the United States reprehended the deprivation with the statement: "The imposition by the State of financial barriers restricting the availability of appellate review for indigent criminal defendants has no place in our heritage of Equal Justice Under Law."

In discussing convictions in State courts on forced confessions, Chief Justice Warren said in Spano v. New York, 360 U.S. 315, 321: "Those cases suggest that in recent years law enforcement officials have become increasingly aware of the burden which they share, along with our courts, in protecting fundamental rights of our citizenry, including that portion of our citizenry suspected of crime." (Emphasis supplied).

In Sherman v. United States, 356 U.S. 369, 380, Justice Frankfurter observed that the federal courts "have an obligation to set their face against enforcement of the law by lawless means or means that violate rationally vindicated standards of justice. . . Public confidence in the fair and honorable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake." (Emphasis supplied).

Certainly the State courts have no less an obligation. The area of Federal-State relationship has become a subject of augmenting study in the courts and it is clear for everyone to see that the towering walls ...

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