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LEWIS v. LEBANON COURT COMMON PLEAS (12/12/69)

decided: December 12, 1969.

LEWIS, PETITIONER,
v.
LEBANON COURT OF COMMON PLEAS



Petition of district attorney for writ of prohibition to prevent Judge of Court of Common Pleas of Lebanon County from enforcing order, in criminal action, No. 44 of 1969.

COUNSEL

Alvin B. Lewis, Jr., District Attorney, in propria persona, with him Joseph C. Mesics, Assistant District Attorney, and George E. Christianson, First Assistant District Attorney, for petitioner.

Maurice L. Epstein, LeRoy S. Zimmerman and David M. Boyd, amicus curiae, for District Attorney's Association of Pennsylvania.

John W. Packel and Melvin Dildine, Assistant Defenders, and Vincent J. Ziccardi, Acting Defender, for amicus curiae, Defender Association of Philadelphia.

Thomas A. Ehrgood, for defendant in criminal action.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Jones

[ 436 Pa. Page 297]

On May 25, 1968, a homicide occurred in Lebanon County and, on November 11, 1968, Arthur M. Root, Jr., was arrested and charged with the offense. Two days later, defense counsel were appointed by the court and, on December 16, 1968, a preliminary hearing was held.

At the preliminary hearing, the Commonwealth's key witness was Paul M. Stombaugh, a Special Agent for the Federal Bureau of Investigation (FBI), assigned

[ 436 Pa. Page 298]

    as a hair and fiber examiner to the FBI Laboratory in Washington, D. C. Agent Stombaugh's testimony as to certain laboratory tests he had made presented persuasive circumstantial evidence to connect Root with the homicide. At this hearing, Stombaugh was cross-examined by defense counsel.

The defense counsel, in preparing for trial, contacted Agent Stombaugh and requested an opportunity to interview him prior to trial. The FBI, however, has a standard policy against granting such pretrial interviews without the consent of the district attorney, and, in the case at bar, the district attorney refused to give such consent. On August 22, 1969, defense counsel filed a petition in the Court of Common Pleas of Lebanon County, requesting that the district attorney be directed to permit the interview of the expert witness, Stombaugh.

After a hearing at which both defense counsel and the district attorney presented arguments on the merits of the petition, President Judge Gates issued the following Order: "And Now, to wit, August 27, A. D., 1969, it is the order of the court that counsel for the defendant be allowed to discuss the testimony of the witness, Special Agent Paul M. Strombaugh [sic], and that the District Attorney is enjoined not to prohibit Special Agent Strombaugh [sic] from discussing the testimony and the evidence with counsel for the defendant." The same day that this order was made, the district attorney wrote a letter to Agent Stombaugh in which, ...


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