Motion to Dismiss — Kelly v. Pennsylvania

: RILED

') OCT 28 1979

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO. 79-69

WILLIAM J. KELLY, APPELLANT

COMMONWEALTH OF PENNSYLVANIA, ApPeLLee

APPEAL FROM THE PENNSYLVANIA SUPREME COURT

MOTION TO DISMISS

400 CENTRE Say ARE WEST

HILADELPHIA, BENNSYLVANIA

MICHAEL F. HENRY

AAD. reese

EPU ISTRICT ATTORNEY

ho aie

EPuTY DISTRICT ATTORNEY

EBA MG. RENDELL

ISTRICT ATTORNEY

19102

‘MICE. fay! DAK, IR.,

[Pun Court, ial

|

CLERK

MOTION TO DISMISS

Pursuant TO Ruce 16(1)(a) and (B) OF THE RULES ‘OF

THE SupReME CourT OF THE UNITED STATES, APPELLEE MOVES THE

CourT TO DISMISS THE APPEAL HEREIN ON THE GROUND THAT THE

APPEAL IS NOT WITHIN THE JURISDICTION OF THIS COURT AS

HEREINAFTER SET FORTH,

STATEMENT

_ THIS IS AN APPEAL FROM THE JUDGMENT OF THE

PENNSYLVANIA SUPREME COURT, REPORTED AS COMMONWEALTH V.

Kerry, 399 A,2p 1061 (Pa, 1979), WHICH JUDGMENT AFFIRMED

APPELLANT ’S STATE COURT JURY CONVICTIONS FOR THREE COUNTS

OF PERJURY, ONE COUNT OF OBSTRUCTION OF JUSTICE AND ONE

COUNT OF BRIBERY, APPELLANT HAD PREVIOUSLY APPEALED HIS

CONVICTIONS TO PENNSYLVANIA’S INTERMEDIATE APPELLATE

COURT, WHICH ALSO AFFIRMED THE JUDGMENT OF SENTENCE, AS

REPORTED IN COMMONWEALTH V. KELLY, 245 Pa. Supertor CT.

351 (1976). THE FACTS UNDERLYING THE APPEAL ARE BRIEFLY

AS FOLLOWS: THE ON-GOING PENNSYLVANIA CRIME COMMISSION

INVESTIGATION OF CORRUPTION IN PHILADELPHIA RESULTED IN

CHARGES THAT APPELLANT, A POLICE OFFICER, HAD RECEIVED

SUMS OF MONEY A NUMBER OF TIMES IN 1973 FROM ONE JOSEPH

1

ANTHONY JARCISE, IN EXCHANGE FOR WHICH APPELLANT WOULD

REFRAIN FROM INTERFERING WITH AN UNLAWFUL GAMBLING

OPERATION IN WHICH WARCISE WAS INVOLVED. THE OBSTRUCTION

CHARGE ALLEGED THAT IN SEPTEMBER, 1973, APPELLANT AND

IARCISE BECAME SUSPICIOUS OF AN UNDERCOVER AGENT, ANDREW

MARRESE, WHO WAS POSING AS A GAMBLER, AND ARRANGED TO HAVE

THE AGENT ARRESTED AND THUS BLOW HIS COVER, ONE OF THE

PERJURY COUNTS CHARGED APPELLANT WITH MAKING FALSE STATE-

MENTS UNDER OATH BEFORE PHILADELPHIA MuntcrPAL Court JuDGe

MELTON WHO THEN ISSUED A SEARCH WARRANT WHICH LED TO THE

ARREST OF THE UNDERCOVER AGENT. APPELLANT WAS ALSO CHARGED

WITH TWO COUNTS OF PERJURY AS A RESULT OF HIS TESTIMONY

BEFORE THE JANUARY, 1974 SpecIAL INVESTIGATING GRAND JuRY,

WHEREIN HE REASSERTED THE FACTS SWORN TO IN THE SEARCH

WARRANT AFFIDAVIT, AND DENIED ANY PRIOR DEALINGS WITH

NARCISE. APPELLANT CONTENDED PRIOR TO TRIAL, BEFORE

PHILADELPHIA Court oF Common PLEAS JupGe STANLEY KUBACKI,

THAT HIS GRAND JURY TESTIMONY WAS COERCED. HE CLAIMED

THAT THE MERE EXISTENCE OF $ 10-110 oF THE PHILADELPHIA

Home Rute CHARTER TAINTED HIS GRAND JURY TESTIMONY. THAT

1. Copies OF APPELLANT’S TESTIMONY BEFORE THIS GRAND JuRY

AS WELL AS THE WARNINGS ADMINISTERED TO HIM PRIOR TO SAID

TESTIMONY ARE ATTACHED HEREIN AS APPENDICES A AND

RESPECTIVELY.

2

CHARTER PROVISION PROVIDESS INTER ALIA, FOR THE DISMISSAL OF

CITY EMPLOYEES WHO FAIL TO TESTIFY BEFORE ANY COURT OR INVES-

TIGATIVE BODY CONCERNING THEIR OFFICIAL DUTIES. APPELLANT'S

CLAIM WAS REJECTED BY THE PENNSYLVANIA COURTS SINCE HE WAS

NEVER GIVEN THE ALLEGEDLY COERCIVE WARNINGS OF THE Home

RULE CHARTER. ADDITIONALLY, SINCE HE WAS SELECTIVE IN HIS

ANSWERS TO QUESTIONS PROPOUNDED, INVOKING HIS FIFTH AMEND-

MENT PRIVILEGE ON A NUMBER OF OCCASIONS, HIS GRAND JURY

TESTIMONY WAS CLEARLY NOT COERCED BY THE MERE EXISTENCE OF

THE Home Rute CHARTER. THIS WAS THE PRECISE HOLDING OF THE

SuPERIOR Court. COMMONWEALTH v, KetLy, 245 Pa, Supertor

Cr. 351, 362, ace’p, 399 A.2p 1061, (1979),

ARGUMENT

HRS Cather‘ GeeR SATUS. CIE SMBEG ASE SURISDICTION oF

IN THE INSTANT CASE APPELLANT CLAIMS THAT THIS

CouRT HAS DIRECT APPELLATE JURISDICTION UNDER 28 U.S.C,

§ 1257(2), SucH A CLAIM IS ERRONEOUS SINCE APPELLANT CANNOT

ESTABLISH THAT THE PENNSYLVANIA STATE CouRTS PASSED UPON THE

CONSTITUTIONALITY OF THE PHILADELPHIA Home Ruce CHARTER

PROVISION REFERRED TO ABOVE. IN GARRITY vy. STATE oF New

Jersey, 385 U.S. 493 (1967), THrs CourT CONSIDERED THE

ase DR stn (aha RTD Recs Oi

PROPRIETY OF DIRECT APPELLATE REVIEW UNDER 28 U.S.C.

1257(2). In Garrity, THE ‘lew Jersey Supreme Court DE-

CLINED TO RULE ON THE VALIDITY OF ITS FORFEITURE STATUTE,

EVEN THOUGH THE DEFENDANT THEREIN WAS WARNED THAT HE WOULD

BE SUBJECT TO REMOVAL PURSUANT TO THAT STATUTE IF HE IN-

VOKED HIS FIFTH AMENDMENT PRIVILEGE. THIS COURT HELD:

THE STATUTE 1s THEREPORE TOO

TANGEN LY [NYOL

SATISFY ph SH t $289 (2),

FOR THE ONLY BEARING IT HAD

WAS WHETHER, VALID OR NOT,

THE FEAR OF BEING DISCHARGED

UNDER IT FOR REFUSAL TO ANSWER

ON THE ONE HAND AND THE FEAR

OF SELF~INGRIMINATION ON THE

OTHER WAS "A CHOICE BETWEE

THE ROCK AND THE WHIRLPOOL

WHICH MADE THE STATEMENTS

PRODUCTS OF COERCION IN VIOLA-

TION OF THE FOURTEENTH AMEND-

MENT,

Ip. aT 496,

IN THE INSTANT CASE, THE COMPLAINED OF Home RULE

CHARTER PROVISION WAS NOT EVEN TANGENTIALLY INVOLVED SINCE

PETITIONER WAS NEVER GIVEN THE CHARTER WARNINGS AND, IN FACT,

ASSERTED HIS PRIVILEGE TO DECLINE TO ANSWER TWO SEPARATE

QUESTIONS. COMMONWEALTH V, KELLY, SUPRA AT 362. IT IS THERE-

FORE CLEAR THAT THERE IS NO JURISDICTION HEREIN INVOLVED

UNDER 28 U.S.C. $ 1257(2). ApDITIONALLY, AS THE WARNINGS WERE

NEVER EVEN GIVEN IN THIS CASE, NO ISSUE EXISTS WHICH WOULD

4

JUSTIFY REVIEW BY APPEAL OR CERTIORARI (AS THIS Court DID

IN GARRITY).

Us FARE RAD! sUBSTART IRC rebefat GUEST OH ES PRESETED"

APPELLANT, PRIOR TO HIS GRAND JURY TESTIMONY WAS WARNED

OF HIS RIGHT NOT TO INCRIMINATE HIMSELF. DURING HIS TESTIMONY

HE ANSWERED CERTAIN QUESTIONS, BUT SELECTIVELY INVOKED HIS

FIFTH AMENDMENT PRIVILEGE AS TO TWO QUESTIONS. HE WAS NEVER

GIVEN ANY ALLEGEDLY COERCIVE liome RuLE CHARTER WARNINGS. THE

PENNSYLVANIA COURTS DETERMINED THAT APPELLANT’S GRAND JURY

TESTIMONY WAS VOLUNTARY SINCE HIS SELECTIVE ASSERTION OF HIS

FIFTH AMENDMENT PRIVILEGE NEGATED ANY CLAIM THAT THE MERE

EXISTENCE OF THE Home RULE CHARTER COERCED HIS TESTIMONY,

APPELLANT’S GRAND JURY TESTIMONY WAS THEREFORE PROPERLY INTRO-

DUCED AT TRIAL,

Tuts CouRT HAS HELD THAT EVEN IF A PARTY SHOULD NOT

HAVE BEEN COMPELLED TO TESTIFY BEFORE A GRAND JURY, IF FALSE

TESTIMONY WAS IN FACT GIVEN, THE ERRONEOUSLY COMPELLED TESTI-

MONY WOULD NOT BE SUBJECT TO SUPPRESSION IN A SUBSEQUENT STATE

PERJURY TRIAL. UNITED STATES v. jlanDuyano, 425 U.S, 564

(1976), IN LIGHT OF [IANDUJANO NO SUBSTANTIAL FEDERAL QUESTION

EXISTS WHICH WOULD JUSTIFY REVIEW BY APPEAL OR WRIT OF

CERTIORARI.

CONCLUS 1011

FoR ALL THE FOREGOING REASONS, APPELLEE MOVES THAT

THIS APPEAL BE DISMISSED.

——— LT

BEFORE THE JANUARY, 1O¥4,

SPECIAL INVESTIGATING CRAND JURY

Testimony of:

OFFICER WILLIAM KELLY

Friday, December 20, 197%, 4:13 P.M.

907 Five Penn Center Plaza

Philadelphia, Pa.

APPEARANCES:

PETER NOEL DUHAMEL, ESQUIRE,

Assistant Attorney General,

for the Office of the Special Prosecutor.

APPENDIX “A”

IS b

OFFICER WILLIAM KELLY (Badge No. 3987,

3rd Police District), previously sworn, was

exemined and testified as follows:

EXAMINATION

MR. DUHAMEL: Mey the record reflect that

My name is Peter Noel Duhamel. I am an Assistant

Attorney General in the Office of the Special

Prosecutor. At this time I will essist the grand

jury by examining a witness who is appearing sates |

the grand jury in regards to allegations of police

corruption in the Philadelphia Police Departient.

BY MR. DUHAMEL:

Q Would you please identify yourself by stating your

name and your position for the record.

A Officer William Kelly, No. 3987, 3rd Police Distria

Q Officer Kelly, is it correct that you were present

during a hearing before Judge Takiff on Wednesday after-

noon of this week?

A Yes.

, And at that time is it trus that Judge Takiff

explained to all those present ths Jaw in regards to

conflict of interest?

A Yes.

2 And {fs it truce that, yqu indicated et that tire th"

there is a quorum of seyenteen grand jurors present.

t.

cance

Kelly a

you fully understood the explanation as given by Judge

Takiff?

A Yes.

Q And is it true that you still understand the

instruction thet was given by Judge Takiff regarding

conflict of interest?

Yes.

Are you presently represented by counsel?

Yes.

And who is that counsel?

Tony Pirillo.

Mr. Pirillo.

& >» © rr O&O PP

In electing to continue to be represented

by Mr. Pirillo, is it true that you have elected to

waive any possible future prejudico resulting from

any conflict of interest?

A Whet's that again?

Q The Judge explained the possibility of conflict

of interest developing in being represented by Mr. Piri}

A Right.

QQ: So he stated that if you elect to continue to ve

represented by Mr. Pirillo, which is your right, that

thereby you are waiving any possible future prejudice

mee

lo.

which mey result from any conflict of interest, is that

7h

ate babtie Lala

Kelly 4

A Right.

Q Thank you.

During what period of time were you an

inspector's man in the West Police Division?

A Frow May of '72 to February, '74.

Q Was there any particular reason why you wens

transferred, or did you request a transfer out of that

division --

A No, I didn't.

Q -- or just normal police practice?

Directing your attention to this document

which has already been marked Grand Jury Exhibit No. l,

Harrese, 9/5/74, and is initialed "KS," would you please

examine this document end identify it for the grand jury

A Search warrant. Oe:

Q It's a search warrant.

Who is it requested by, sir?

A Me.

Q The grand jury can't read it, that's why I'm askin

A Policeman William Kelly, No. 3987, West Police

Division.

a There isn a DC number,: is that correct?

A Yes.

Q Could you please state for the record what the Do

number is?

is b

?

a ae ee nn ee ee ae

Kelly §

Q And this document is @ ever document, is that

correct?

A Thet's right.

Q You testified to the facts alleged therein under

oath, is that correct?

A That's right.

Q Could you please read the probeble cause section,

which is the facts you swore to under oath, into the

record?

A "Acting on information received from a reliable

informant who in the past four months hes given

me information that has led to three arrest for

this type of violation resulting in all three

being held for court, physical evidence being

confiscated. On 9/24/73 at approximately 12:30

p.m. my informant had cause to be inside the

'Chippy's Bar! located at 6400 Vine Street end

did place with the bartender two horse bets and

three number bets, the bertender is known to him

as 'Joe.' On 9/25/73 between the hours of 12:15

re and 1:00 p.m. surveillance was set up on the

ebove location and I observed twenty-two people

enter and leave this location after one or two

minutes. On 9/26/73 betweon the hours of 12:30

p.m. and 1:00 DB. rvell.tnce was again s¢t up

oath,

cause

A

2

they in fact true?

by the name of joe Narcise?

Kelly 6

on this location and en this occasion I did observe

twenty-five persons enter this location and leave

after steying approximately two to three minutes.

From informetion received and my personal

observations it is my belief that the above

subject is engeged in an illegal lottery and book-

making operation which he conducts from inside

'Chippy's Bar,' above location.”

Thank you, sir.

Now, you did swear to these facts under

is that correct?

Thet's correct.

And are these facts as alleged in the probable

section that you just read into the record, are

That's correct.

Thenk you, sir.

Officer Kolly, do you know an individual

Yes.

What is your relationship with this individual?

No relationship.

How do you happen to know this individual?

I kad @ search warrant for tim.

3 2 4 i , = c «. S % 2a1

I has the ex pores thas you just reai?

ate ee ee

eres Ameren. seseee ee

eee + oe

bad a drimns with him and talked with him at thet tice

A Thet's right.

Q Have you ever had occasion to speak with Mr.

Narcise prior to the execution of this search warrant?

A No.

Q Did you heve any we'll say hearsey knowledge of

ir. Narcise prior to the time of,the search warrent?

Hed you heard -- let me put it this way -- I don't mean

to confuse you -- if I understand correctly, as a plain-

clothes officer, an inspector's man in the West Police

Division, it was in a sense one of your duties to

investigate instances of gambling violations, is that

correct?

A That's correct.

Q And pursuant to those duties did you ever become

eavare of information regarding gandling activities being

conducted by Mr. Narcise other than the facts that were

allesed in the search warrant?

A No.

to Mr. Narcise personally prior to the execution of this

search varrant?

A No.

Q Had you ever met Mr. Narcise in Chippy's Bar and

! |

Nviutle @rinticg vith hin? oo, J

Q Have you ever -- or, excusa me, had you ever spokeh

"

oo St A ee ow emmem ees © er mee s

Kelly 8

A At what time?

Q During the conversation with hin, while having a

drink at Chippy's Bar, at any time prior to the exscutior

of the search warrant.

A No.

2 Have you ever attempted to contact Mr. Narcise

through a bartender by the name of Don Nigro?

A When?

Q At any time.

A I take the Fifth Amendment on that.

Q Fifth Amendment. Does that mean thet you refuse

to ansver on the grounds thet the answer might tend to

incrininatse you?

A Yes.

Q Has Mr. Nercise ever contacted you through Don

Wigro?

A I take the Fifth.

. Q Once egain, just so it's clear for the recerd, wher

you sey you teke the Fifth, it will mean that you are

refusing to answer on the grounds thst the answer may

tend to incriminate you, is that correct?

A That's right.

MR. DUHAMEL: Thank you, sir.

You may be excused for one movent, sir.

L

(The witness loft the grand jury roou

22 b

Kelly oe

at 4:20 o'clock p.m., whereupon the folievine

ensued: )

MR. DUHAMEL: This is for the record.

In considering prior testimony that has been given

to the Investigating Grend Jury, the grand jury

is now aware that Mr. Kelly's testimony has -- he

has perjured himself by his testimony on two

different occasions, by stating that the facts

Glleged in the scarch warrant are in fact true

-- the grend jury has testimony indicating that

this was not true -- by also stating that he has

never met with Mr. Narcise in Chippy's Bar before.

The grand jury also has testimony thet that in

fact is a lie. On July 30th, 19735, he did in fact

meet with Mr. Narcise and that meetings was observe

by Corporal Albert Pistone, who was working at

that time in an undercover capacity for the

Pennsylvenia State Police.

(The witness returned to the grend jury

room et 4:22 o'clock p.m.)

MR. DUHAMEL: On the record.

Officer Nelly, at this time the fore-

person will instruct you es to the nature of

your suonoena.

ME™ POPU ATI ONS You are advised that 7ou

a>

Se em mene. eres es wes +

Eelly 10

are under e continuing subpoene. When and if w

Q

want you back here, we vill notify you either

~

|

mail, phone or through your attorney.

MR. DOHAMEL: And I'd also like to state

for the record, Mr. Kelly, make sure that you

understand it, that you are not permitted to

discuss eny grend jury watters that occurred this

afternoon involving you with enyone other than ycuy

attorncy, Mr. Pirillo, is that correct?

THE WITNESS: That's correct.

MR. DUHANEL: And you understand tnat?

TH WITNESS: Yes.

MR. DUHAMEL: Fine. Thank you very much,

sir. You are excused.

One more thing, for the record, if ws

have to contact you, should we do so through

Mr. Pirillo?

THE WITNESS: Through the Police Department.

MR. DUHAMEL: You'd rather go through the

Police Department. Fine. Thank you very much, six.

(Testimony concluded at 4:23 o'clock p.m.

oe

2

IN THE COURT OF COMMON PLEAS

FIRST JUDICTAL DISTRICT OF PEWISYLVANTA

GRAND JURY

RE: Investigation of Police Corruption

BEFORE: Hon. Harry Takiff, ¢.

Room 225 City Hall

Philadelonia, Penna.

Wednesday, December 18, 1974

PRESENT:

PETER N. DUHAMEL, ESQ.

Assistant Attorney General

Office of Special Prosecutor

HERBERT LEVIN, ES@.

Attorney for Mary Boone

GUSTINE I. PELAGATTI, ESQ.

Attorney for Sylvester Fighera

APPENDIX “B”

HAROLD SCIHULMAN ASSOCIATES

CEUNTIFIZGD SHO@THSAAO BEPORIESS

SUITS OS - 1 MOATH (Ir STOKET

PMILACELPMIA PENNSYLVANIA (9197

93-3237 ¢4

a

§ MORTH t3a0n OT

HAROLD SCHULMAN ASGOCIATES SUITE bos.

THe COURT: We have a number of vitnesses.

As I call your nenes, will you please identify

yourself? Spell your name, your second name, and

give your address for the record? Mary Booze?

MISS ECONE: Msry Boone. B-O-O-N-E, 3415

Disston Street.

THE COURT: Are you attended by Judge

Levin? Gocd morning, Judge.

Mr. Eighera?7

MR. FIGHERA: Sylvester F-I-G-8-5-R-A,

1921 South Hicks.

TEE COURT: You are attended by Mr.

Pelagatti?

MR. FIGHERA: Yes, sir. :

THE COURT: Staff Insrector Edmund !

Zengolowicz? I trust I don't mispronounce your nane.

LIEUTENANT COLE: Sir, he’s not here. 1

understand he is on vacation.

MR. DUHAMEL: Your Honor, I received a

call approximately at nine-twenty saying he didshoe .

up today and he's proceeding over here. Re is

Slightly delayed but he is proceeding over here,

TdE COURT: [Inspector Gregory S2cbor:

—S---

HAROLO SCHULMAN ASSOCIATES GUITE BOB. | NORTH t3tm ST.

LIEUTENANT COLE: He is en route, your

Bonor, and he will te here any moment.

THE COURT: Captain Bernard Small?

CAPTAIN SHALL: Here, your Honor.

THE COURT: Will you give your address,

Captain Srall?

CAPTAIN SHALL: Hone address?

THE COURT: Either your home or business.

CAPTAIN SHALL: Philadelphia Police

Departmeat, Nineteenth District.

THE COURT: Lieutenant William Cole?

LIEUTENANT COLE: C-O-L-E, your Honor.’

District Attorney's Office.

THE COURT: Officer William Keily7

CFrICER KELLY: Here, your Houcr,

K-E-L-L-Y. |

THE COURT: Your address, sir?

OFFICER KELLY: Philadelphia Police

Departrent, Third District.

THE COURT: Officer Charles Dougherty?

OFFICER COUGEERTY: D-O-U-G-H-E-R-T-Y,

Philadalpkie Police Nepartment, Mineteenth District.

Tre COURT: Cificer Stanley Eagerty7

me ee ES ES TT SS Se

wm in a mn i ee | ee

7 .

t MOAT tdt0 ST

HAROLD SCHULMAN ASSOCIATES Sule 208

OFFICER HAGERTY: B-A-G-E-R-T-y, 2254.

THE COURT: Officer Candito7

OFFICER CANDITO: C-A-N-D-I-T-O,

Philadelphia Police Department, West Police

Division.

THE COURT: Officer Martin Grawl?

OFFICER GRAWL: Here, your Honcr,

G-R-A-W-L, Eighteenth Police District.

THE COURT: The gentleran who arrired

belatedly?

INSPECTOR ZONCOLOWICZ: Inspector

Zongolowicz. Z-O-N-G-O-L-O-W-I-C-Z, Special

Affairs.

‘ THE COURT: The missing gentleman is

Inspector Gregory Sembor, and the inforzatica is

he is en route. We will nevertheless proceed in

his absence.

Miss Boone, gentlemen, I am the Sxrer-

vising Judge for the Grand Jury which has subpecansec

you to appear tefore it. The Jury has requested

your appearance because they have reason to telieve

you have in your possession knowledge aud inferzi-

tion which is relevant and materisl to the aritear

a4

ela, , 6 :

os. scctn-ws eens cere st ses ome eee

1 NORTH I3t ST

HAROLO SCHULMAN ASSOCIATES SUITE 805.

to representation. Miss.Eoone, you are attended by

querentty being investigated by the Jury. Jucge Levin. Have you had an opportunity to ccafer |

All witnesses tho appear before the Jury, with him and has he advised you of your rights and |

no matter in what capacity they do-appoar, are ! privileges?

entitled to the instruction of the Court with ik

ns ¢ 3 ' MISS SCONE: A little, not a lot.

respect to their rights and their duties, and I THE COURT: Well, I will instruct the

will appropriately instruct you at this time. Deputy Attorney General to defer your appearance

ee re ee emme 8

With respect to your rights, first you until you kave had rensorable opportunity to discuss

bave the right to the advice and assistance of these matters with Judce Levin and get the bencfit

counsel. That means you may confer with an attor- : of his counsel and advice

ney and discuss with him any and all matters “Mr. Fighers, have you had an opportunity

to confer with Nr. Pelagatti?

MR. FIGHERA: Yes, sir.

THe COURT: And h2s he advised ycu of

pertaining to your appearances tefore the Jury,

including the right to disclose to your attorney,

if you have one, everything that transpires before

O00 0 9Ge 20S AEEEEES @ 6 01ST H8 POSSCS SOD AED Ore HOSE OD ANS

the Grind Jury after you have appeared and testi-

your rights and your privileges?

fied. | ik

MR. FIGHERA: Yes, sir.

HAROLO SCHULMAN ASSOCIATES SUITE 60S. | HORTH I3tH ST.

wall iciehi weil vata inicot hon ened encom Mceiaall a} : THE COURT: Inspector Zongolovicz, have

him before you testify, after you testify, and you conferred with counsel, sir?

during any recesses which may be declared by the Pak INSPECTOR ZONCOLOWICZ: No, sir.

) |

Jury. However, under our law, an attorney may not | : THE COURT: Do you desire to do so prior —

|

accozpsny a witness irside the Grand Jury roox ! 4) to your appearnrce?

‘ % *a- 2 are 5 i-

while the witress is actually appearing and test INSPECTOR ZCNGCLOVICZ: No, sir. ;

fying.

TiS COURT: Captain Small, bave you

—

I will ask you individually with respect

ee ee

ee ee ee ee Some meee t ..< _ + —ee —

ee ee er oy

HAROLO SCHULMAN ASSOCIATES SUITE G09. | NORTH t31— ST.

conferred vith counsel?

CAPTAIN SHALL: No, sir.

THE CCURT: Do you desire to do so prior |

to your appearance? \

CAPTAIN SMALL: At this time, no sir.

THe COURT: Lieutenant Cole, have you |

conferred with counsel? |

CAPTAIN SMALL: Mr. Pirillo, sir.

Tat COURT: Has Mr. Pirillo advised yeu

of your rights ard privileges?

CAPTAIN SiiALL: Yes, Sir.

THE COURT: Officer Keliy, have you

conferred with counsel?

OFFICER KELLY: Yes, sir.

THE COURT: With whom have you conferred?

OFFICER KELLY: Mr. Pirillo.

THE COURT: Has he advised you of your |

rights and privileges? :

OFFICER KELLY: Yes, sir. |

THE COURT: Officer Dougherty, have you |

ccaferred with coursel?

OFFICER LCUGHERTY: Yes, sir, Mr. Pirillo.

T2E COURT: And has he advised ycu of vot:

— ee eee

7 -

- a ._——— — oe

1 NORTH t31e GT.

HAROLD SCHULMAN ASSOCIATES SU:TE 605.

rights and privileges?

OFFICER DOUGHERTY: Yes, sir.

THE COURT: Officer Hagerty, have you

conferred with coursel?

OFFICER HAGERTY: No, sir.

TEE COURT: Do you desire to confer with

counsel prior to your appearance?

OFFICER EAGERTY: Yes, I could.

TEE COURT: With whom do you wish to

confer?

OFFICER HAGERTY: Mr. Pirillo.

THE COURT: And Officer Candito, have you

coarerred with ccunsel?

OFFICER CANDITO: No, sir.

THE COURT: Co you desire to do so prior

to your appearance?

OFFICER CANDITO: Yes, sir.

THE COURT: With whoa do you wisk to

confer?

OFFICER CANDITO: Mr. Pirillo.

Tae COURT: Officer Grawl, have ycu

coxnrerred with counsgei, sir?

CFPICER GRAYL: Ns, sir.

Sb

— eee

HAROLO SCHULMAN ASSOCIATES SUITE 605. | NORTH 1310 ST.

Deputy Attorney General will defer the cnrearances

AN

THE COURT: Do you desire to do so? |

OFFICER GRAVL: With Mr. Pirille, sir. |

THE COURT: As I previcusly cbserved, the |

|

of the officers who have indicated they wish to

confer with tir. Pirillo until they have had an |

opportunity to do so. |

With respect to the other witnesses who

have not heretofore conferred with counsel nnd do

not chocse to do so at this tine, gentleren, if at

any time durirg the course of ycur appearances

before the Grand Jury, you do conclude that you do

|

i

wish to avsil yourselves of the opportunity to |

confer with counsel so that ycou may get the benefit |

of counsel's acsistnunce and guidance with respect |

to your rights and privileges, if you will advise |

the Deputy Attorney General or the Court that that |

is your desire, an appropriate recens will te

declared cso that you vill have a full and adequate |

opportunity to avail yourselves of that ccursel.

Secondly, with respect to ycur rights, you

have the right to refuse to ansver any questica as :

to which the arsrer nicht tend to incriminate Fou.

~ciquenee:

te alae a=

10

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‘

1 NORTH tat ST.

HAROLD SCHULMAN ASSOCIATES CUITE 608.

You nay, if you wish, give a factual rensoa for you

It is

merely sufficient that ycu state the legal conclu-

refusal, but ycu sre not. obliged to do so.

sica that you are invexing your constitutional

privileces against self-incrizination cr eny other

conztitutional privilege you may clain.

If you answer some questions, that dces

not mean that you are thereafter barred frea

invokxing your privilege if it is appropriate to do

sc. You may invoke ycur privilege as to any

specific question where you deen it aprropriate. In

this regard, let re caution you that the cozctitu-

ticanl privilege against self-incrimination is a

very real right that every citizen possesses and

when it's appropriately exercised, it will be pro-

tected and enforced by the Court. Horever, it is no

a right to te claired arbitrarily or capriciously.

Grasd Juries are entitled to every witness’ testi-

meny, save only that testimony which is incrinina-

tory in mature as to the individual who is testify-

ing. Tks rigat. is appropriately claimed when a vit-

GSS rensourbiy and in goed faith believes thet the

acsver to a particular question put, ray in fac

Ic b

“rr fee

li ieieied

°

as

1 NORTH I8te 6T

HAROLD SCHULMAN ASSOCIATES SUITE 699.

It is ny obligation and resporsibility as tho

tend to incriciznate him or her. Urder such circtun-

stanees, it is appropriate to clain tke privilere.

With respect to those of you who are

employees of the City of Philadelphia, I do not

know whether the circuxstance will or vill not

arise, but should you elain constitutional priviles.

it may then becane incumbent upon c2 to give you

further instruction by reason of certain provisions

of the Hcte Rule Charter. However, I will defer

any guch supplenenatary instruction until and unless

that instruction is in fact required.

Kezt with respect to your rights. Should

any problem of any nature arise during the course o-

your appearances before the Jury such as by way of

illuztratica, if you are ursure as to whether jou

Ay appropriately claim your ccostitutional privi-

lege or any other preblen, you have a right to

appesr tefore me either aloae or together with your

coursel ard obtain a Ruling from me on the ratter.

Surervising Judy2e to tbe available anc to rule wrona

ary preblen with vaich any witness may be cconirciaty:

Guringy the course of his or her aproarauce defor:

ee ‘es

a Re. By:

MAROLG SCHULMAN ASSOCIATES SUITE 608. 1 NORTH t3tH ST.

the Jury. And should the circusstesces arise,

want you to understand that you have a right to call

upon me, and I have a responsibility to you to rule

upen any such prodlea. I am and will be available

for such purposes.

Nov, in additioa to these rights, you have

certain duties, ‘tho first of thich is the cbvicus

duty to give full, truth2ul ard ccsplete ansters to

all qucsticns except only these questions which you

decline to answor on the ground tkat the ensver

might tend to incriminate you. And secondly, you

kave the duty of scerecy. The Grand Jury preceedince

is a cecrot proccedinrg for the benefit of both the

Jury as well ac for tho kenefit of the witnesses.

I have already advised you that i? you have couvsel,

you kave a right to cake a ccuplete and total

ciscliesure to your attorzey of everything that

transpires before the Grand Jury, including any

information that you learred frou the Gracd Jury.

With that single exception, however, you

are under duty to caiatain secrecy as to the qiues~

tiozrs and arsveru, vhetlur elicited during the

Ccarae oF your appearauecs, 4s to all other porsoiu

12 3

+ cerwnee -

- ee ee

ee ee ed

mee

eee or eee ene were

a ee Psst

{2 V0

13

be they menvers of your faaily, your housshold, a, tine eee eR

: ghall £2 the trusts, tio wisle truth acd acthiag bv

gional associates or anyone : . a

: the truth, so Leip ycu Ged.

your business and prof?

else. :

| Thank you yery much.

Are there any questicns? t an 4

“a CGireverraa Zerold Seaulean was evora

* HISS BOE: Just I vould like to state, - :

, a3 official cous steve mapior Zor the Court of

your Hoxcr, that I'm ready to appear whenever you re a

Comzon Flcsa.)

want m2.

TE COUNT: Thank you. I know we havo the

|

You have always Even |

CRETIFICATIOR

1 NORTH tte OT.

—~—--

benefit of your cocperation.

I hereby certify that the proceedings,

+ ot emeee eee ee ome

Se eet ee ee

ee eee

st cooperative.

Yory wll, I will nov adzinister the cath

evidence and cijections noted, are contained fully

and accurately in the notes taken by me on the

hands upoa the Bibles? . |

- hearing of the above deposition, and that this co»

CAPTALY SHALL: Hay I ask one question?

|

to you. Will you please rise and place your right |

|

|

| :

is a correct transcript of the sane.

Are «2 allozad to discuss anything, like not the

l thome with our

HAROLD SCHULMAN ASSOCIATES SUITE 805.

specific questiess, but the genera

Eorold Schulran, Notary Public

Certified Court Reporter

HAROLD SCHULMAN ASSOCIATES SUITE 205. | MORTH t3tH st.

gupericrs?

Tis COURT: Ho.

CAPTAIN SUALL: lething at all, sir?

THE CCURT: Nothing at all.

ou do ecoleoaly svear

You ard enca of F

1l give before the Grand

-

~*~

that the testimesy you gi

Jury ead tac catters being inquired info by it |

—_—— «--3emme e