# Commonwealth v. Levinson

> Supreme Court of Pennsylvania · July 19, 1978 · 480 Pa. 273

URL: https://www.frixlaw.com/law-library/cases/9711126

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellant, v. Hillel LEVINSON, Appellee
- **Court:** Supreme Court of Pennsylvania
- **Decided:** July 19, 1978
- **Citations:** 480 Pa. 273; 389 A.2d 1062; 2 A.L.R. 4th 964; 1978 Pa. LEXIS 760
- **Precedential status:** Published
- **Opinion:** Dissent by Roberts
- **Judges:** Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino, Larsen
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9711126

## How later opinions describe it (automated extraction)

- explaining “[wjhfen a substantial percentage of the total membership of the jury is absent from a significant portion of the presentation of evidence, it can no longer be said with confidence that the deliberations were not affected”

## Opinion text

ROBERTS, Justice,
dissenting.
Thirty-nine months ago, the 1974 Special Investigating Grand Jury probing corruption of officials of the City of Philadelphia issued its fourteenth Presentment recommending indictment of appellee Hillel Levinson, Managing Director of Philadelphia, on charges of extortion, violating the Philadelphia Home Rule Charter, prohibited political assessments, and false swearing. One month later, a separate, regular Indicting Grand Jury, upon reviewing the Presentment and hearing additional evidence, indicted appellee on all charges.
The Commonwealth’s case against appellee never reached trial. Appellee filed numerous pre-trial motions, one of which requested the court to quash the indictment. The *291 court denied relief, but certified the issue for interlocutory appeal to the Superior Court. That court reversed (Spaeth, J., concurring and dissenting; Price, J., dissenting). We granted the Commonwealth’s petition for allowance of appeal, and, in January, 1977, at the time fixed for oral argument, the Commonwealth and appellee submitted the case to this Court on briefs.
Even before confirmation of the Magna Charta in 1215, delays in administration of justice were considered just as evil as denial of justice itself. Today, seven and one-half centuries later, the same is true, perhaps with even greater force.
In cases involving criminal charges of political and governmental corruption, delays like those found here are especially disturbing. Despite substantial expenditures of prosecutorial, law enforcement, judicial, and other public resources, the merits of the charges have long remained unresolved, denying both the Commonwealth and the accused the opportunity for timely vindication. Most unfortunate, this demonstrated lack of timely resolution undermines public confidence in the effective and equal administration of the criminal law. All that is left is an unwarranted and unnecessary classic case of delay, totally defeating justice. 1
Equally disturbing is the majority’s erroneous resolution of the merits. The majority agrees with appellee that supervising Judge Takiff committed prejudicial error by adding six regularly selected jurors when the total number of original investigating grand jurors fell to seventeen because one juror died and five others were excused because of personal hardship.
*292 Federal courts, facing similar claims of prejudice, have refused to quash indictments where supervising courts have replaced grand jurors, In re Meckley, 50 F.Supp. 274 (M.D.Pa.1943), and where not all grand jurors heard all the evidence, United States ex rel. McCann v. Thompson, 144 F.2d 604 (2d Cir. 1944). In In re Investigation of January 1974 Philadelphia County Grand Jury, 458 Pa. 586 , 328 A.2d 485 (1974), this Court, in October, 1974, refused to terminate this investigating grand jury, empanelled and charged nine months earlier. We held that it could properly continue its probe of suspected criminal activity even though its life might exceed the normal life of investigating grand juries. 2
Meckley, McCann, and Philadelphia Grand Jury clearly support the proposition that the supervising court must have authority to take steps reasonably necessary to permit an extended grand jury to complete its work. Criminal activity, particularly where it involves governmental corruption, is often too extensive, and procedural objections too involved, to be dealt with in a period through which all original grand jurors are able to sit. These significant considerations, of great public concern, as well as the fact that fifteen of the original twenty-three investigating grand jurors, a lawful quorum, remained members of the grand jury until its termination, far outweigh appellee’s vague and unsupported assertion of prejudice. Indeed, Judge Takiff’s addition of six new jurors, properly chosen, sworn, and charged, was a reasonable and appropriate measure that in no way increased the likelihood that the original grand jurors would recommend indictment or otherwise injure appellee.
Following selection of the six new investigating grand jurors, the Commonwealth summarized its evidence before the full investigating grand jury. This too, concludes the majority, prejudiced appellee. I cannot agree. Summation *293 has been employed and approved in similar settings. E. g., United States v. Mitchell, 397 F.Supp. 166, 172 (D.D.C.1974) (no reversible error where prosecutor prepared summary of evidence for grand jurors). Nothing in the record demonstrates, or even suggests, that the Commonwealth mischaracterized its case or engaged in any other prejudicial conduct before the jurors. Rather, this established procedure of American jurisprudence enabled all jurors, both the fifteen original and six new, to assess the Commonwealth’s case intelligently and should be approved.
Moreover, neither action in the proceedings before the investigating grand jury affected the validity of the regular, indicting grand jury’s indictment. The indicting grand jury had before it the investigating grand jury’s well-documented Presentment, itself evidence that indictable offenses may have been committed. Further, the indicting grand jury heard extensive additional testimony. Appellee has challenged the probative value of neither the investigating grand jury’s Presentment nor the additional testimony heard by the indicting grand jury. An indicting grand jury, in discharging its responsibility of determining whether criminal charges should be instituted, may consider all probative evidence, including, for example, hearsay, which may be inadmissible at trial. United States v. Calandra, 414 U.S. 338, 345 , 94 S.Ct. 613, 618 , 38 L.Ed.2d 561 (1974) (citing cases). As Mr. Justice Powell, speaking for the Supreme Court of the United States, has stated:
“A grand jury investigation ‘is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.’ . . . Such an investigation may be triggered by tips, rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors. . It is only after the grand jury has examined the evidence that a determination of whether the proceeding will result in an indictment can be made.”
United States v. Calandra, 414 U.S. at 344 , 94 S.Ct. at 618 , quoting Branzburg v. Hayes, 408 U.S. 665, 701-702 , 92 S.Ct. 2646, 2666 , 33 L.Ed.2d 626 (1972). It is therefore difficult to *294 see, and the majority fails to state satisfactorily, how either Judge Takiff’s empanelment of six additional jurors to the investigating grand jury or the Commonwealth’s summation of evidence can serve as a basis for quashing the indictment. See Commonwealth v. Levinson, 239 Pa.Super. 387, 410 , 362 A.2d 1080, 1093 (1976) (Price, J., dissenting).
In sum, the majority fails to recognize the fundamental purpose of grand juries in the administration of criminal justice. “A grand jury proceeding is not an adversary hearing in which the guilt or innocence of the accused is adjudicated. Rather, it is an ex parte investigation to determine whether a crime has been committed and whether criminal proceedings should be instituted against any person.” United States v. Calandra, 414 U.S. at 343-44 , 94 S.Ct. at 618 . The majority disregards this vital substantive distinction and proceeds to create remedies for rights that have not been injured and to find prejudice where none exists. Ignored also is the admonition of the Supreme Court in Calandra : “When the grand jury is performing its investigatory function into a general problem area . society’s interest is best served by a thorough and extensive investigation.” 414 U.S. at 344 , 94 S.Ct. at 618 . At this time in our societal and jurisprudential development, when the functions of investigating grand juries probing governmental corruption are so essential to the fair and equal administration of criminal justice, the majority’s intrusion into the grand jury room and its unsupported findings of prejudice serve no public interest and only frustrate the important work grand juries must perform.
Finding no basis for the majority’s action in quashing a proper and regularly returned indictment following presentment by an investigating grand jury, I dissent, would reverse the order of the Superior Court, and would affirm the order of the trial court refusing to quash the indictment.
O’BRIEN, J., joins in this dissenting opinion.
. Broadly interpreting the Hobbs Act, 18 U.S.C. § 1951 , to reach beyond mere “racketeering,” the Supreme Court of the United States recently recognized Congress’ disapproval of the recalcitrance of some state governments to prosecute crimes like those here under investigation by the grand juries. United States v. Culbert, 435 U.S. 371 , 98 S.Ct. 1112 , 55 L.Ed.2d 34 (1978). It may be argued that the demonstrated record of delay in this case is symtomatic of state recalcitrance, which unnecessarily leaves the task of prosecuting state official corruption to the federal government. See generally Tuerkheimer, “The Executive Investigates Itself,” 65 Calif.L.Rev. 597 (1977).
. In its Final Report, the June 1972 Grand Jury, probing the same suspected criminal activity as the present one, recommended formation of a new grand jury “very promptly.” Formation of the present grand jury, empanelled upon this recommendation, was sustained by this Court over a variety of procedural challenges. See In re Investigation of January 1974 Philadelphia County Grand Jury, 458 Pa. 586 , 328 A.2d 485 (1974).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9711126. Public record. Not legal advice.