Dissenting Opinion
Schiffman, J.,This matter is before the court upon the petition of defendant, who has been indicted upon counts of murder and manslaughter for having caused the death of Joseph Wildes on August 2, 1964, in the City of Wilkes-Barre.
Defendant seeks to examine and have copied the written statement of alleged witnesses Michael Bonk, Mrs. Ruth Moharter and her minor niece, Jane Dougher. Their statements are purported to be in the custody of the district attorney, who refuses the examination sought. The case against defendant has not yet proceeded to trial.
The majority of this court assign Rule 310 of the Criminal Procedural Rules of the Commonwealth as a reason precluding granting of defendant’s petition. That rule, effective January 1, 1965, is entitled Pretrial Discovery and Inspection and states, inter alia, “In no event, however, shall the court order pretrial discovery or inspection of written statements of witnesses in the possession of the Commonwealth”.
Prior to the effective date of the aforementioned rule, the court-appointed investigator was, in behalf of defendant, unsuccessful in his endeavor to interview the witnesses whose statements are sought. At no time were either defendant’s court-appointed counsel or investigator successful in securing such interviews.
Michael Bonk did testify on behalf of the Commonwealth at a habeas corpus proceeding on the narrow issue of whether the Commonwealth had made out a prima facie case sufficient to hold defendant without *659bail, and his testimony therein was strictly limited to that point.
Despite the contention that rule 310 is procedural and controlling, I believe its application herein could be of fundamental prejudice to defendant. The alleged offense, indictment and petition to examine the statements were prior to January 1, 1965, the effective date of the rule. All were at a time when a discretionary right was vested in the court in regard to inspection or disclosure before trial of evidence in the possession of the prosecution.
In reaching this conclusion, I respectfully disagree with the majority opinion that rule 310 embodied the law as it existed prior to January 1, 1965. I believe the expression of the Supreme Court of this Commonwealth is consonant with vesting a discretionary right in the court. Commonwealth v. Caplan, 411 Pa. 563, 567, significantly stated:
“The general rule is that the accused has no right to the inspection or disclosure before trial of evidence in the possession of the prosecution . . .
“. . . at the very least, a defendant should be required to present exceptional circumstances and compelling reasons such as were present in DiJoseph’s Petition, 394 Pa. 19, . . . to justify an exception to the general rule. . . .
“. . . the lower Court before granting any discovery should at the very least, have conducted a preliminary hearing in order to determine the necessity for discovery and the extent of the discovery if any, which should be granted. . . .”
The very reference to a “general” rule does not foreclose an exception. “Exceptional circumstances” and “compelling reasons” are referred to as justification of an exception to the “general” rule.
The court should not, because of the adoption of a general rule, divest itself of the duty to exercise a *660discretion with which it is by law invested: South Pittsburgh Water Co. v. Winterberger, 75 Pa. Superior Ct. 150-53.
Defendant was not vested with an absolute right to examine the statements sought before trial. He was vested with the right to a fair and just exercise of the court’s discretion as to whether or not his request should be granted. The divesture of this discretionary right by application of the present Criminal Procedural Rules would cause what I believe to be a substantial and unconstitutional deprivation to defendant.
The statements sought are to be included within the perspective of the determination of defendant’s right to pretrial inspection. A rule directing production and permitting inspection prior to trial of books, papers, documents or objects has been held to embrace the written statements of witnesses: Fryer v. United States, 207 F. 2d 134, 136.
There is no question of the clarity and lack of ambiguity contained in the pertinent portion of rule 310. However, after respectful consideration, my responsibility impels me to look beyond the rule into matters of constitutional dimension.
The enabling Act of July 11, 1957, P. L. 819, sec. 1, 17 PS §2084, which sets forth the power of the Supreme and Superior Courts to promulgate criminal procedural rules, states, inter alia, that such rules will be consistent with the Constitution of the Commonwealth. It is elementary that they must also be consistent with the Federal Constitution.
The ninth section of the Bill of Rights, the Constitution of this Commonwealth, and the first section of the Fourteenth Amendment to the Constitution of the United States guarantee, in substance, to one accused of a crime not only the forms but also the fundamentals of a fair trial: Commonwealth v. Petrillo, 338 Pa. 65-98.
*661The Sixth Amendment to the Constitution of the United States grants the accused the right to have compulsory process for obtaining witnesses in his favor.
I am unable to glean from the present state of the record if these constitutional guarantees will be violated if defendant is denied the right to examine the statements sought. I do not believe sufficient circumstances have been ascertained to determine if the interests of justice warrant the granting or the denial of defendant’s application.
Defendant’s request should be evaluated to determine if it is necessary to the preparation of his case, the proper entry of his plea or any other reason fundamental to a fair trial. Justice means fairness and protection to society and of the basic rights of the accused: Commonwealth v. Caplan, supra.
The sweeping language of rule 310 should not bar a just evaluation. This rule, which without limitation and regardless of circumstances, precludes the discovery sought, must stand careful scrutiny in the light of Federal and State constitutional provisions.
Careful and complete ascertainment of all the essential circumstances are a fundamental condition precedent to a grant or denial of defendant’s request in this matter. The absence of such ascertainment impels my dissent.
Addenda
Pinola, P. J.,April 5, 1965.
My decision in the above case for the court en banc was prepared at home. On my return to the office today, I discovered from my notes that on March 31, 1964, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States submitted a second preliminary draft of proposed amendments to the Federal Rules of Criminal Procedure.
*662’ Under proposed rule 16, the district court is empowered to permit inspection of books, papers and documents or tangible objects which are in the possession, custody or control of the government on a showing that the items sought may be material for the preparation of the defense and that the request is reasonable. Defendant will no longer be required to show that the material was obtained from defendant by legal process.
A district judge is given the power to require the prosecution to disclose statements or confessions by defendant. This is another change from the present rule, under which defendant’s statements, recorded or written, have been held to be undiscoverable in the majority’s views: United States v. Murray, 297 F. 2d 812, cert. den. 369 U. S. 828.
The court also is given the power to require the prosecution to disclose the results or reports of physical or mental examinations and of scientific tests or experiments. Reports made by government agents or statements made by government witnesses are not subject to pretrial discovery. Limited discovery at the trial is allowed under the procedure described in the so-called Jencks Statute: 18 U. S. C. A. §3500.
All suggestions with respect to the proposed changes were to be submitted not later than April 1, 1965.
If this rule is adopted, it will agree with our rule.