¶1Dissenting Opinion by
¶2After handing down our opinion in this matter, 412 Pa. 1, the Supreme Court of the United States granted certiorari and remanded this case to us for reconsideration in light of the representation made to the Court by the Solicitor General of the United States. In reconsidering in accordance with the mandate of the Supreme Court of the United States, I shall review the history of this litigation.
¶3Defendant, E. Newbold Smith, was indicted in 1960 for assaulting a police officer. The incident took place on a public highway and was viewed by two women, Yvonne Corcoran and Elizabeth Sweet, who were driving by the scene in Mrs. Corcoran’s car. *346Smith admitted the fight but claimed that the police officer was the instigator. He also filed a complaint with the U. 8. Justice Department asserting that his civil rights had been violated during his subsequent detention at the police station. The F.B.I. investigated the complaint and an indictment was brought in Federal court against the police officers.
¶4Prior to Smith’s trial on the assault charge defense counsel had a subpoena duces tecum issued upon the F.B.I. commanding the production of “[s] tatements of all witnesses, diagrams, sketches and photographs taken in connection with investigation of incidents on Monday, August 8, 1960. . . .” At trial, James Kelley, an assistant United States attorney, appeared with an official of F.B.I. and made the following statement: “Mr. Kelley: This is an investigation by the United States Government and is confidential, and it is the position of the United States Government that the person served was the improper person to be served, and furthermore that this is a violation of the security of the office of the Department of Justice, and accordingly, Your Honor, I move that this subpoena be quashed.”
¶5The trial judge quashed the subpoena, setting forth as another reason for his action the failure of defense counsel to comply with a local court rule to the effect that no subpoena for a public record should be issued without the special permission of the court. The Solicitor General of the United States in his memorandum to the United States Supreme Court concerning this action on the part of the lower court said: “The subpoena served on the Philadelphia special agent in charge of this case, which the State court quashed . . . called for the production of ‘[statements of all witnesses, diagrams, sketches and photographs taken in connection with [the F.B.I.’s investigation of the incidents in question]’. There was no request for, or *347reference to, any specific document or paper in the file. Neither of the two women (Mrs. Corcoran and Miss Sweet) whose names figured in the subsequent discussions and events (after the federal government’s connection with the case had terminated) was mentioned. The subpoena was simply a broad-based demand for virtually the entire contents of an F.B.I. file on a matter which the Department had currently under investigation.
“It was for this reason that the Department resisted the subpoena as violative of the confidentiality of executive records in a matter still in live status. For the same reason, we believe that the State court’s order . . . granting Assistant United States Attorney Kelley’s motion to quash the subpoena was correct— wholly apart from the additional and independent ground on which the court declared the subopena invalid, viz., counsel’s failure to comply with the local rule of court prohibiting the issuance of a subpoena duces tecum for a public record or paper without the special order of a judge.”
¶6In an effort, presumably, to meet the requirement of the local court on the day following the quashing of the subpoena, defense counsel filed a formal petition with the court to subpoena the F.B.I. records—
“The petition of E. Newbold Smith
“Respectfully Represents:
“1. That he is defendant in the above cases in which he is charged with Assault and Battery, Aggravated Assault and Battery and Obstructing an Officer in the Execution of Process.
“2. That your petitioner’s counsel have heretofore had issued and served a subpoena duces tecum on the special agent in charge of the Federal Bureau of Investigation of Philadelphia requiring him to produce at petitioner’s trial the records of an investigation into the facts and circumstances surrounding cer*348tain events of the night of August 8, 1960. Said investigation has been made at the instance of the petitioner, who contends he had been denied civil rights.
“3. In response to said subpoena said Special Officer appeared January 16, 1961 as required but did not have with him said desired records but had with him one James Nelly, Esquire, Assistant United States Attorney who moved to quash the subpoena on the grounds inter alia that the information contained in the desired report was confidential to the Bureau and not available to others than the Bureau.
“4. That your petitioner believes and therefore avers that included in said report are signed statements of Yvonne. Cochrane and Betty Sweet, alleged eye witnesses 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.
“5. That in quashing said subpoena your Honor cited among other reasons, though not as controlling, the following local rule: ‘Subpoena Duces Tecum. Section 1. No subpoena duces tecum for a public record or paper shall be issued without the special order of the Judge.’
“6. Your petitioner is advised and avers that it is important to his defense to have the aforementioned records and reports available at his trial. .
“Wherefore, your petitioner prays your Honorable Court to make a Special Order authorizing the issuance of a subpoena duces tecum in the form now in the records of this case.
“And he will ever pray.
E. Newbold Smith”
¶7This petition was denied.
¶8At the trial, Mrs. Corcoran and Miss Sweet testified that they saw defendant Smith strike the first blow *349of the altercation. In an attempt to impeach Miss Sweet’s testimony, defense counsel confronted her with her statement made to the district attorney in which she apparently indicated that she did not see the inception of the fight but was rather alerted to it by a declaration of Mrs. Corcoran. Miss Sweet attempted to reconcile this apparent inconsistency on the stand.
¶9Defense counsel then orally renewed its application for a subpoena of the F.B.I. investigation file. The record reveals the following colloquy: “Mr. Bogers (defense counsel) : If Your Honor please, I would like to renew the application that we made for a subpoena duces tecum to produce the Federal Bureau of Investigation File of the examination of this matter, particularly with reference to the statement given by these ladies. There is, I believe, a discrepancy between the statement and her testimony here, I am reasonably certain that there is a discrepancy between the statement given to the Federal Bureau of Investigation and that in the possession of the District Attorney.
“The Court: What is the nature of the discrepancy?
“Mr. Hannum (defense counsel) : Maybe I should speak, the discrepancy as I understand it is in the statement of Miss Elizabeth Sweet, and it is my belief that her testimony or her statement to the FBI does not include any observation of who struck the first blow whereas today she states that Mr. Smith did.”
¶10The trial judge refused to reconsider his earlier ruling and again denied the request.
¶11The jury found defendant guilty of simple assault and battery and he was fined $1,000 and sentenced to 30 days imprisonment. Defendant’s motion for new trial was denied and his conviction was affirmed by the Superior Court (198 Pa. Superior Ct. 499). We granted allocatur because of defendant’s claim that *350the action of the trial court conflicted with the decision of the Supreme Court of the United States in Jencks v. United States, 353 U.S. 657 (1957). In our decision affirming the conviction (412 Pa. 1), we set forth two independent grounds: (1) that, contrary to the situation in Jenchs, the prosecution was not responsible for the unavailability of the alleged impeaching reports since it was the F.B.I., a third party to the prosecution, which had refused to produce the requested material, see People v. Parham, 384 P. 2d 1001, 1003 (1963) (Traynor, J.); (2) that even if an error had been committed no prejudice resulted to the defendant because, on the basis of defendant’s representation as to what he hoped to obtain from the F.B.I. investigation file (See colloquy, supra), the desired impeaching information had already been made available by the district attorney. It is true, however, that the majority in the first opinion failed to distinguish between the initial catch-all demand for a subpoena, which was properly refused by the lower court and the two additional requests for a subpoena which also were refused by the court.
¶12After our denial of defendant’s petition for reargument, defendant petitioned the Supreme Court of the United States for a writ of certiorari. In granting the petition, the Supreme Court stated: “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.”
¶13*351It is clear that the Supreme Court of the United States and the Solicitor General of the United States considered the action of the lower court proper in denying the initial catch-all request of the defendant. I agree. It would be manifestly inappropriate to hold that a state trial court erred when it quashed a subpoena for F.B.I. records after the U. S. Attorney has stated to the court that it would not be obeyed and when no citation for contempt may issue because of such disobedience. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). See also The Jencks Right: Judicial and Legislative Modification, The States and the Future, 50 Virginia Law Review, 535, 550 (1964). The issue for present determination, therefor, is whether the denial of the two subsequent requests for a subpoena constituted such a violation of defendant’s rights that the grant of a new trial is required. In so defining the issue I am guided, at the United States Supreme Court’s suggestion, by the Memorandum of the Solicitor General of the United States. He says: “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. Cochrane’s statement to the F.B.I. should be made available to the court and counsel in the Pennsylvania prosecution.
“The issues presented, therefore, would seem to be: (1) whether the trial court erred in denying a subpoena for specific documents which would have called upon the federal government to decide whether to furnish prior statements by witnesses in a State prose*352cntion; (2) whether counsel distinguished between his initial catch-all demand and subsequent request with sufficient clarity to present the question to the trial court; and (3) whether the error, if any, was harmless, .... Since no question of federal privilege or of the consequences of the assertion of a federal privilege is involved, the United States has no official interest in the case.”
¶14The second suggested issue, namely, whether counsel distinguished his subsequent requests for a subpoena from his initial catch-all demand with sufficient clarity to present the question to the trial court of whether it should issue a subpoena for specific documents which would have called upon the federal government to decide whether to furnish only the statements by witnesses Corcoran and Sweet, is clearly the pivotal issue. If counsel did not so distinguish then the Commonwealth cannot be considered to have denied defendant any right. Rather, the trial court merely refused to issue a subpoena of a type which had properly been quashed before when the U. S. Attorney indicated that the federal government did not intend to comply.
¶15The crucial determination can be made only by reading the record, pertinent parts of which are set forth in the first part of this opinion. First, the original catch-all subpoena duces tecum which was issued, and which was properly quashed by the trial court, commanded the production of F.B.I. reports showing “[statements of all witnesses, diagrams, sketches and photographs taken in connection with investigation of incidents on Monday, August 8, 1960 . . . .” Second, the subsequent petition for a subpoena, while it indicates in paragraph 4 that the F.B.I. reports contain statements of the two witnesses, does not distinguish, in its request, between the materials sought by it and the materials sought by the subpoena previously is*353sued and properly quashed. The petition prays for the “issuance of a subpoena duces tecum in the form now in the records of this case/’ i.e., the catch-all subpoena quoted above. Third, the final request for a subpoena, made orally at trial, was “to renew the application that we made ... to produce the Federal Bureau of Investigation file of an examination of this matter particularly with reference to the statement given by these ladies.” Nowhere in this record do I see a clear, unequivocal request for the statements given by Miss Sweet and Mrs. Corcoran alone. In fact, each of the subsequent requests demands the entire records and files of the F.B.I. in the matter — a demand with which the U. S. Attorney had already indicated noncompliance.
¶16In light of the Solicitor General’s Memorandum, I do not comprehend how a majority of this Court failed to perceive the pivotal issue. If the issue had been perceived and the record studied a majority surely would have concluded that it was unnecessary to decide any other question; no right having been asserted by defendant, none could have been denied. Assuming, however, that a majority had addressed itself to the pivotal question and concluded, differently than I have, that the second or third requests for a subpoena was sufficiently limited, the next question logically would seem to be whether the trial court’s refusal was reversible error. This would depend upon whether or not the error was “harmless”, a question which we have confronted on numerous occasions. While the answer may not always be easy we have never had so much difficulty, as we have had here, in perceiving the question. More specifically, the matter involves a question of exclusion of evidence. If the defendant had actually had possession of the statements made to the F.B.I. by witnesses Corcoran and Sweet and had attempted to introduce them into evidence at the trial *354would the exclusion by the trial court have been “harmless” error under the circumstances? If we would hold that it was not “harmless” error we would also have to hold that a refusal to subpoena such evidence was not “harmless” error. Accordingly, we would order a new trial. (Of course, if the trial court knew for a fact that the F.B.I. would not obey a properly limited request it would not even be error to refuse to issue the subpoena because it could not compel the F.B.I. to obey. See Touhy, supra. It need not take a useless action which can produce nothing but embarrassment.) I shall not discuss my opinion on whether the assumed error was “harmless” or not because the answer is not relevant to my view of the case.
¶17While I am surprised at the failure of a majority to perceive and dispose one way or the other of the pivotal question, I am completely bewildered by the undue and confusing consideration given to Jencks v. U. S., 353 U. S. 657 (1957) and the Sixth and Fourteenth Amendments to the Federal Constitution. The import of the former, even if we assume it had due process overtones, was the United States Supreme Court’s holding that, in the interest of fair play, if the federal prosecutor refused to supply properly requested evidence in a federal prosecution it would be required to drop the prosecution. Here, the prosecution, i.e., the Commonwealth, is not refusing to supply anything. True, in Jenelcs it was also held that the federal trial judge must issue the properly requested subpoena but we do not need Jenelcs to gauge the propriety of the trial judge’s refusal here. The standard to be applied is that of “harmless” or “harmful” error. As to the Sixth Amendment, I am not aware that it contains a right and duty which is both applicable to the trial of the issue before us and imposed upon the states by virtue of its inclusion in the Fourteenth Amendment. At *355least, the late Mr. Justice Frankfurter, in an article published immediately before his death, did not indicate that any such part of the Sixth Amendment has been carried over to the due process clause. See Frankfurter, Memorandum on ‘Incorporation’ of the Bill of Rights Into the Due Process Clause of the Fourteenth Amendment, 78 Harv. L. Rev. 746, 760-764 (1965). Moreover, why should this Court address itself to the commands of the federal constitution before it directs its attention to its own constitutional mandates? Article I, §9 thereof provides: “In all criminal prosecutions the accused hath a right to be heard . . . [and] to have compulsory process for obtaining witnesses in his favor. . . .”
¶18Again, I will not discuss whether in a case which properly presents the issue this clause would require the issuance of a subpoena under present circumstances.
¶19Unfortunately, this Court has not produced an opinion which authoritatively informs the losing litigant why it lost or which authoritatively sets forth legal principles to be resorted to as precedent in future litigation. Only the result commands a majority. It would have been far better if a majority had decided that defense counsel’s second or third request for a subpoena was properly limited and that, in the circumstances, the trial judge’s refusal to issue such subpoena was “harmful” error. Instead we have an unauthoritative variety of unclear expressions on important issues which we need not have reached.
¶20In my view defense counsel’s failure — whether knowing or simply inept — to request a subpoena properly limited in scope is dispositive. Accordingly, I would affirm.