# Motion to Dismiss — Kelly v. Pennsylvania > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0556%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss - **Published:** January 1, 1979 - **Citation:** 444 U.S. 947 ## Text : 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 —_— ‘ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0556%3A2. Public record. Not legal advice.