This is an appeal by Alfred W. Drew from the denial of his petition for a writ of habeas corpus by the United States District Court for the Eastern District of Pennsylvania.1 The following pertinent facts and circumstances are gleaned from a stipulation2 filed in the District Court by counsel for Drew and the Commonwealth of Pennsylvania.

On January 29, 1958, Drew was arrested in Philadelphia for the illegal possession and sale of narcotics on September 5, 1957. He was indicted therefor on February 11, 1958, in the Philadelphia Court of Common Pleas.

On February 15, 1958, Drew retained counsel, who unsuccessfully attempted to contact Thomas Sherwood, an alleged alibi witness. He would establish, purportedly, that Drew was in New York on the date of the crime.

On February 15, 1958, Drew's counsel received notice that the trial was set for Wednesday, March 5, 1958. Before the selection of the jury on that date, Drew's attorney moved for a continuance on the ground that he lacked adequate time to prepare his case. He further advised the Trial Court that Drew's defense would be alibi, but that his attempts to contact Sherwood, as yet, had been unsuccessful.

The Trial Court denied the motion for a continuance, stating: "Well, I think you have had sufficient time to work it out and will refuse your motion."

Prior to the taking of testimony, on March 6, 1958, counsel for Drew requested the prosecution to divulge the identity of any eyewitnesses to the alleged crime not indorsed on the bill of indictment. The Commonwealth stated that there were no witnesses other than those listed on the bill of indictment.3

The Commonwealth's first witness was an undercover agent and police officer, named Harold Carter. He testified that on September 5, 1957, he and Irving Carter4 were walking together in the vicinity of Broad and South Streets in Philadelphia, when they saw Drew. Irving, according to Harold, then left him to speak to Drew, after which, Irving returned to converse with Harold. Then, allegedly, Harold approached Drew from whom he purchased narcotics. The purchase occurred about ten feet from where Irving stood. Harold stated that he rejoined Irving after the transaction and together they left the scene.5

Following this testimony, Drew's counsel moved for a continuance for the purpose of having the Commonwealth produce Irving Carter or to permit counsel to produce him. Drew's counsel asserted that this was the first time the defense had ever heard of Irving. The Trial Court refused the motion. Counsel later renewed the motion, and again it was refused.

As the trial began on Wednesday, Drew's counsel contacted Dale Wright in New York City, asking him to locate Sherwood. On Friday, Mr. Wright advised counsel "that the address given to him was incorrect" but that he would continue with his attempt to locate Sherwood over the weekend. Mr. Wright testified at the habeas corpus proceeding in the District Court that he located Sherwood on Monday, March 10, the last day of the trial.

At 11:15 a. m., of that Monday, counsel for Drew stated to the Trial Court that he had just received word from New York City that Sherwood had been located but was reluctant to go to Philadelphia. He expressed the thought, however, that the "witness might be in by 2:00 o'clock." The trial judge then stated: "If he is here by 2:00 we will take his testimony, otherwise there will be no more witnesses."

After the noon recess, counsel again made a motion for continuance to obtain the testimony of Sherwood. To demonstrate the "bona fides" of the motion, Drew claims, counsel then introduced a statement of a "telephone message" from Mr. Wright, signed by counsel's secretary. It read:

"Thomas Sherwood, the witness, can be reached at University 4-1952 or University 4-9649 before 12:30 P.M.; he is a porter in Leo's restaurant at 2077 7th Avenue. He will be reluctant to come over to Philadelphia to testify on the stand because he is an ex-con and in domestic trouble with his wife. He does know that Alvin Drew was in New York from September the 1st to September 15th and specifically on September the 5th, and he does know Alvin Drew."

This motion was also denied.

Thereafter on the same day, the jury adjudged Drew guilty. He received a sentence of seven and one half to thirty years and is presently confined in the State Correctional Institution at Graterford, Pennsylvania.

Drew, represented by his counsel in the Trial Court, then appealed to the Superior Court of Pennsylvania. In affirming his conviction, it found that there was no "abuse of discretion in the refusal of the trial judge to grant a continuance" to the defense so that it could obtain the testimony of Irving Carter.6 There was no appeal from the affirmance.7

Subsequently, Drew filed a petition pro se for a writ of habeas corpus in the Court of Common Pleas for Philadelphia. In dismissing his petition, it stated that "his contention that an alleged eye-witness [Irving Carter] should have been called at the time of the trial * * *"8 was decided by the Superior Court. The Superior Court affirmed the dismissal of Drew's habeas corpus petition on the opinion of the Court of Common Pleas.9 On June 1, 1961, in an unreported order, the Supreme Court of Pennsylvania refused allocatur.10 The United States Supreme Court denied certiorari.11

On July 3, 1962, Drew filed a pro se petition for writ of habeas corpus in the United States District Court. On July 16, the District Court appointed counsel to represent petitioner.12 An amended petition for writ of habeas corpus was filed on August 23. After conducting a full hearing, the District Court held that there was no denial of due process because of the refusal of the Trial Court to grant Drew's motions for continuance to obtain the testimony of Irving Carter and Sherwood, the alleged alibi witness.13

This appeal presents the following issue: Whether Drew was denied due process of law by the cumulative effect of (1) the Commonwealth's failure to disclose the name of an alleged essential witness, Irving Carter, (2) the Trial Court's refusal to grant Drew a continuance to obtain the testimony of an alleged essential witness, Irving Carter, and (3) the Trial Court's refusal to grant the defense a continuance to obtain the testimony of an alleged alibi witness, Thomas Sherwood. On the basis of the record before us, it is apparent that the State courts have never ruled on whether there was a denial of due process of law because of the cumulative effect of these three points. Rather, they have ruled merely on the second point independently.14

1. The Commonwealth's Failure to Disclose the Name of an Alleged Essential Witness, Irving Carter.

The prosecution concedes that Irving Carter made the contact with Drew for Officer Harold Carter, conversed with Harold immediately before the alleged illegal transaction, and was merely about ten feet away from the spot where the narcotics were purchased. Accordingly, Irving was aware of the identity of the individual consummating the alleged illegal transaction which he, indeed, had set up for Harold. Moreover, the record shows that Irving was the only witness, besides Harold, who could have identified the accused as being at the scene of the alleged illegal transaction.

To engage in a semantic argument whether Irving fits within the definition of an eyewitness, is to provoke a needless discussion.15 Although Irving may have been unable to see the claimed passing of the tiny narcotics package between Drew and Harold, a conclusion that he was unable to see Drew is untenable. Therefore, whether or not Irving was an eyewitness, what he saw — as it relates to the identity of the individual allegedly conducting the illegal transfer with Harold — would appear to make him an essential witness. Calling him could have elicited relevant and material facts contributing to a determination of the truth. And not only may a trial judge, as a proper exercise of his discretion, direct the prosecution to call eyewitnesses to the crime,16 but any additional witnesses that are necessary to elicit relevant and material facts contributing to a determination of the truth.17 Drew, it is clear, had the right "to have all of the facts connected with the [alleged illegal possession and sale of narcotics] * * * fully and fairly disclosed by the prosecution * * *."18

On Thursday morning, March 6, 1958, the assistant district attorney said that there were no other witnesses to the alleged transaction other than those on the bill of indictment. This may have been inspired by the prosecution's reluctance to disclose the identity of the informer. Preserving the anonymity of persons who furnish information of law violations encourages citizens to perform their duty of communicating knowledge about commission of crimes to the proper officials.19

Yet, even assuming that Pennsylvania recognizes the privilege20 to withhold from disclosure the identity of persons who furnish information of law violation to officers charged with enforcement of law, it nonetheless is a limited privilege. The United States Supreme Court has held that the fundamental requirements of fairness demand that the privilege give way where the disclosure of an informer's identity "is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause."21

When, however, the Commonwealth's first and main witness testified early Thursday morning, he told about Irving's nearness to the alleged transaction. At this moment the defense learned, gratuitously, of a witness who may have aided the Trial Court in reaching the truth. Thus, it may well be that standing by itself the Commonwealth's failure to disclose Irving Carter's presence at the scene did not violate the fundamental justice implicit in due process of law, since Drew's counsel did discover Irving's existence at an early moment in the trial. Nevertheless, the prosecution would have promoted the concepts of fair play by disclosing Irving's proximity, instead of stating that there were "no other witnesses to the transaction" in response to the inquiry. For although the prosecutor must have a large measure of discretion in presenting his case, manifestly he is a quasi-judicial officer22 and should be motivated by a judicial attitude.23

2. The Trial Court's Refusal to Grant Drew a Continuance to Obtain the Testimony of the Alleged Essential Witness, Irving Carter.

Drew argues that because of Irving's importance and the law relating thereto, the Commonwealth should have had him available for the defendant.24 Non-fulfillment of this obligation, coupled with the assistant district attorney's misleading statement as to the non-existence of witnesses to the crime, Drew maintains, required the Trial Court to grant a continuance so that his lawyer could have an opportunity to produce Irving. Also, it must be borne in mind that Irving was allegedly unknown to defense counsel, and that neither had the Commonwealth indicated Irving was a witness to the alleged crime nor had it required Irving to be present in the courtroom.

Conversely, the Commonwealth asserts that even if it be decided that Irving was a germane witness who could have aided the Trial Court in reaching the truth, there was no infringement upon due process. The reasons therefor are, it is argued, that Drew's counsel had from Thursday morning to Monday afternoon, to ascertain the whereabouts of the witness and to subpoena him;25 and that a few questions by defense counsel on cross examination of the narcotics officers, who testified for the prosecution, could have elicited information as to the whereabouts of Irving Carter. The Commonwealth maintains, accordingly, that the refusal to grant a continuance was proper.

Both in the Pennsylvania and Federal courts an application for a continuance is addressed to the sound discretion of the trial judge, whose ruling thereon the appellate court will leave undisturbed in the absence of an abuse of discretion.26 As put by the District Judge the reason therefor is that the trial court is closest to the immediate situation, aware of all circumstances and conditions.27 Again, it may thus be, that standing by itself, the denial of Drew's motion for the continuance to procure Irving did not violate the fundamental justice implicit in due process of law.

3. The Trial Court's Refusal to Grant the Defense a Continuance to Obtain the Testimony of the Alleged Alibi Witness, Thomas Sherwood.

It is apparent that counsel for Drew actually attempted to locate the alleged alibi witness, Sherwood. Finally, on the last day of trial counsel for Drew offered the telephone message from Mr. Wright for the purpose of demonstrating the good faith of his motion for a continuance to secure the testimony of the alleged alibi witness. Also, he asserted that this was the first time the defense had been able to locate this witness. It would seem, therefore, that when the trial judge denied the motion for a continuance, Sherwood may have been within the defense's grasp.

But it should be remembered that the refusal to grant a continuance transgresses the guarantee of due process only in extreme cases.28 A reasonable argument could be put forth, moreover, that through an earnest and aggressive investigation the defense could have obtained the alleged alibi witness in time for the trial.

If the Trial Court had permitted a continuance, it could have limited the time thereof. In addition, Pennsylvania had enacted the Uniform Act to Secure Attendance of Witnesses,29 which provides a speedy and effective procedure, through the use of a certificate issued under the seal of the court, to summon witnesses living in another state.30

Harold Carter testified at the trial that he had never seen the accused prior to September 5, 1957 — the date of the crime and then, according to the stipulation, for only "30 or 40 seconds". Under our system of law the opportunity to meet the prosecution's case with the aid of witnesses is historically and in practice fundamental to a fair trial.31 Supported by Sherwood, the defense's assertion that the accused was in New York at the time of the alleged illegal transaction could have influenced the jury in favor of Drew. But, as with the prosecution's failure to disclose the presence of Irving Carter and the denial of the motion for a continuance to enable his production, the denial of this motion to obtain the alleged alibi witness, may not, in itself, have violated the fundamental justice implicit in due process of law.

As in all cases involving what is or is not due process, so in this case, no hard and fast rule can be laid down; rather, the pattern of due process must be picked out of the facts and circumstances of each case.32 This case presents facts and circumstances which bring into reasonable dispute whether the cumulative effect of the alleged three injustices impinged upon petitioner's rights to fundamental justice guaranteed to him by the due process clause of the Fourteenth Amendment.

Title 28 U.S.C. § 2254 (1958)33 simply requires, as a matter of national policy, that in the district court's exercise of its power to entertain and dispose of petitions for habeas corpus, it shall not grant affirmative relief to a state prisoner until he has exhausted the remedies available in the state courts.34 The reason for this restraint lies in the belief that the federal courts would avoid "unseemly collisions" by allowing the state courts first opportunity to review alleged state abuses of federal constitutional rights.35

The general grant of jurisdiction in habeas corpus,36 which appears in Title 28 U.S.C. § 2241 (1958),37 permits denial of a petition for the Great Writ on its merits, though state remedies may not be exhausted.38 Manifestly, "it is not an indignity to state processes to assert that a claim of this sort [constitutional infringement] on its face or on a full record is clearly without merit."39

But here, Drew's claim of constitutional infringement is not clearly without merit. Rather, there is a reasonable dispute whether his constitutional safeguard of fundamental justice has been violated by the cumulative effect of (1) the Commonwealth's non-disclosure of Irving Carter's presence at the scene of the crime, (2) the denial of a continuance to allow defense counsel time in which to produce Irving, and (3) the denial of a continuance to secure the testimony of the alleged alibi witness, Sherwood.

Nothing in the record before us reveals that this issue was argued before, or decided by, any of the Pennsylvania state courts.40 Accordingly, comity dictates that the Pennsylvania state courts first have an opportunity to rule thereon.41

The judgment of the United States District Court for the Eastern District of Pennsylvania dismissing the amended petition of Alfred W. Drew for habeas corpus will be affirmed, not on the grounds set forth by the District Court, but on the grounds that there has been a failure to show an exhaustion of state remedies as set forth herein.