Petition for a Writ of Certiorari — Steinberg v. Pennsylvania

Leisseseiaitaindiibtlanin

PF LIBRARY oF

SUPREME COURT, U.S.

ad

na

FILED

IN THE

SEP 12 1]

ati Court of the United States

Ocroser Term; 1971

W1l- 374

COMMONWEALTH OF PENNSYLVANIA,

Petitioner,

0s.

JAMES C. McCLOSKEY,

PAUL J. MARZULLO,

and THOMAS TAYLOR,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF PENNSYLVANIA

JAMES D. CRAWFORD,

Deputy District Attorney

RICHARD A. SPRAGUE,

First Assistant District Attorney

ARLEN SPECTER,

District Attorney

Room 666, City Hall,

Philadeiphia, Pennsylvania 19107

|

<n One a meee ener ne east

OPINIONS BELOW

Opinion of the Court of Common Pleas of Phila-

delphia County quashing indictments against and

suppressing evidence obtained from several de-

fendants is unreported and is printed at pages la

to 38a of the Appendix attached hereto. The iden-

tical orders of the Superior Court of Pennsylvania

which, by an evenly divided court, affirmed without

opinion the orders of the Court of Comraon Pleas

are reported at 217 Pa. Superior Ct. 789, 790

(1970), and are printed at page 38a of the Ap-

pendix attached hereto. The opinion of the Su-

preme Court of Pennsylvania affirming in part and

reversing in part the judgment of the Superior

Court is reported at 443 Pa. 117 (1971), and is

printed at pages 39a to 76a of the Appendix

attached hereto. The unpublished order refusing

reargument is noted at 443 Pa. 117, 118 (1971),

and is printed on page 76a of the Appendix at-

tached hereto.

2

JURISDICTION

The original order of the Pennsylvania Supreme

Court was entered on May 12, 1971. Reargument

was refused on June 14, 1971. The jurisdiction of

this Court is invoked under 28 U.S.C. Sec. 1247 (3).

3

CONSTITUTIONAL PROVISION

INVOLVED

The Fifth Amendment to the United States Con-

stitution provides, in pertinent pert, that:

no person . . . shall be compelled in any crim-

inal case to be a witness against himself.

QUESTIONS PRESENTED

I. When repondent’s were subpoenaed and ap-

peared before the ‘nvestigating grand jury with

their private counsel, were advised of their right

to consult counsel before and after their appear-

ance and were aware that the grand jury was

investigating criminal conduct did their failure

to assert the privilege against self-incrimination

amount to a waiver of the privilege?

II. When respondents appeared to be sworn

before the investigating grand jury accompanied

by counsel of their choice and were given a full

opportunity to consult with counsel before entering

the grand jury room, must the indictments re-

turned by an indicting grand jury be quashed

because the grand jury judge relied on private

counsel to advise respondents of their right against

self-incrimination and how to exercise that right

instead of himself advising respondents of their

rights on the record?

5

petition and charged the April Grand Jury of 1969

with the investigating function and that grand

jury sat in continuous session for seventeen months

offenses.

The Second Presentment of the investigating

grand Jury, filed in August 1969, dealt with the

6 Statement of the Case

tracting and actual construction of the stadium.

In particular, it charged the general contractor,

McCloskey & Co., Inc. and its executive Vice

President, James McCloskey, together with the

steel sub-contractor, H. H. Robertson Co. and its

district manager, Thomas Taylor and the consulting

engineers retained by the stadium architects, Mc-

Cormick-Taylor Associates as well as the Director

of Architecture and Engineering of the City, Paul

Marzullo, with conspiring to cheat and defraud

the City and with obtaining money and the City’s

signature to contracts by false pretenses and con-

spiring to commit this offense, as well as malfeas-

ance and misconduct in office against Marzullo..

In the same presentment but separately stated,

the Stadium Coordinator, Harry Blatstein, was

charged with soliciting a bribe and malfeasance

and misconduct in office and attempting to extort

$10,000 from the losing bidder for the seating con-

tract in the stadium, American Seating Company.

With respect to each of these separate present-

ments, the convening Judge appointed by the Ad-

ministrative Judge as in charge of the grand jury,

accepted the presentments in open court and di-

rected the District Attorney in accordance with

Rule 212(c) of the Pennsylvania Rules of Criminal

Procedure to prepare appropriate bills of indict-

ment for submission to an indicting grand jury in

accordance with the recommenaations in each pre-

sentment. Following this order of the Court, the

District Attorney submitted such bills to the regu-

lar grand juries and indictments were returned

against Steinberg by the September grand jury and

against the stadium defendants by the October

Statement of the Case 7

grand jury of 1969. An additional consolidated

indictment against the principal stadium defen-

dants was obtained on the basis of the same pre-

sentment from the January 1970 grand jury

charging one general conspiracy among the six

defendants there involved.

Prior to the submission of the bills of indictment

to the October grand jury, all of the defendants

named in the Fourth Presentment filed with the

Judge in charge of the October grand jury (Judge

Spaeth) motions demanding preliminary hearings

prior to submission, motions restricting the charac-

ter of the evidence to be submitted to the grand

jury and insisting that, rather than simply offering

the presentment to the grand jury, live witnesses

be called before the indicting grand jury and other

motions of similar tenor challenging the right to

proceed in accordance with the order of the con-

vening Judge. These motions were all denied by

Judge Spaeth in an opinion dated October 24, 1969,

which, in substance, held that in the case of defend-

ants naaed in presentments of an investigating

grand jury, no preliminary hearing was required by

the rules and that the Commonwealth had the right

to proceed to the indicting grand jury on the basis

of the presentment alone.

Witnesses called before the Grand Jury were

Sworn in open Court by the convening Judge. A

number of them, including all of the defendants in

this case, were represented by counsel at the time

of their appearance. Uniformly they moved that

counsel be permitted either to accompany them in

the grand jury room and consult there or that they

be permitted to consult with counsel outside of the

8 Statement of the Case

grand jury room as to each and any question on

which they wished to consult. At the outset con-

vening Judge ruled that witnesses would be per-

mitted to consult with their counsel before entering

and after leaving the grand jury room but would

not be permitted to consult on a question by ques-

tion basis. However, he also ruled that if a witness

did not wish to answer any Yuestion, such matters

should be taken up before the Gourt, at which time

the witness would be given opportunity to consult

with his own counsel.

It was stipulated before the Court below at the

hearing on the motions to quash and to suppress

that none of the individual defendants, with the ex-

ception of Thomas Taylor, made any request in the

course of his questioning before the grand jury to

consult with counsel. Thomas Taylor testified that

he had made such a request; the court stenographer

testified that no such request was made in her hear-

ing. The Court below found as a fact that no such

request was made. Neither did any of the defend-

ants on appeal below refuse to answer any question

before the grand jury, except Frank M. Steinberg.

As noted above, a large number of witnesses

was called before the grand jury, some of whom

pleaded the Fifth Amendment as to some or all of

the questions asked of them. In each instance where

the Commonwealth desired to compel their testi-

mony, they were taken before the Court with their

counsel who was provided with a transcript of the

questioning before the grand jury and the Court

was then asked to rule on each question where the

witness asserted a right not to answer. For the

convenience of the witness and the grand jury, these

—- saree

Statement of the Case 9

questions were uniformly put aside until the com-

pletion of the testimony of the witness at least as

to those questions he was willing to anwer so that

a minimum of interruption would be suffered in the

continuity of testimony before the jury. In some

cases, the Court, after hearing arguments of coun-

sel. ordered the witnesses to answer the questions;

in other cases the Court sustained a plea of privi-

lege.

The present respondents filed pre-trial motions to

suppress their testimony (and any fruits thereof )

and to quash the indictments for lack of complaint

and preliminary hearing as well as on the ground

that their testimony, obtained without counsel, as

above stated, was used to obtain the indictments

The Common Pleas Court, in a departure from

its earlier ruling, granted all of these motions on

grounds which raise pure questions of law and the

Commonwealth appealed to the Superior Court of

Pennsylvania which, on September 25, 1970, af-

firmed without opinion by an equally divided

court. The Commonwealth’s Petition to the Su-

preme Court of Pennsylvania followed.

On May 13, 1971, the Supreme Court of Penn-

Sylvania reversed in part, and affirmed in part

Commonwealth v. McCloskey, 443 Pa. 117 ( 1971),

Reargument was sought by certain defendants

but denied June 14, 1971. In reversing the order of

the Common Pleas Court quashing indictments

against Harry Blatstein, Frank M. Steinberg, Mc-

Cormick-Taylor Associates, McCloskey and Co..

Inc., and H. H. Robertson Company the Court held

that an indictment based upon an investigating

10 Statement of the Case

grand jury's presentment directly to an indicting

grand jury with leave of court is lawful, even

though no preliminary hearing was held.

In affirming the orders of the Common Pleas

Court quashing indictments against James C. Mc-

Closkey, Paul J. Marzullo, and Thomas Taylor the

Court held that a subpoenaed witness, who has

given testimony before an investigating grand jury

without express warning that should he be doubtful.

as to whether he can properly refuse to answer a

particular question he can come before the court

with counsel and obtain a ruling as to whether he

should answer the question, has been denied his

right against self-incrimination.

The Supreme Court of Pennsylvania included in

its written opinion a portion of the record of the

grand jury proceedings, wherefrom it concluded

that respondents McCloskey, Marzullo, Taylor and

Steinberg had not been given the newly required

warning, and that Blatstein had been given such

warning. (See 443 Pa. at 140-41, n. 29.) The Court

then upheld the quashal of those indictments

against McCloskey, Marzullo and Taylor which

were based in part on the incriminating testimony

they gave before the grand jury without the above

warning. The indictment against Steinberg was

not quashed since he exercised his Fifth Amend-

ment rights before the grand jury and only testified

as to his name and address.

Review of the latter part of this opinion—affinn-

ing the order quashing the indictments against

these three respondents—is now sought in this

Court.

ll

ARGUMENT

I. Respondents, Who Were Subpoenaed and

Appeared Before the Investigating Grand

Jury, Were Represented by Counsel of

Their Own Choice, Were Advised of Their

Right to Consult Counsel Before and After

Their Appearance, and Were Aware that

the Grand Jury Was Investigating Criminal

Conduct, Waived Their Privilege Against

Self-Incrimination by Testifying Before the

Grand Jury Without Asserting the Privi-

lege.

In upholding the quashal of the indictments

against respondents McCloskey, Marzullo and Tay-

lor, the Supreme Court of Pennsylvania ruled that

each of these respondents had been denied the

right against self-incrimination enjoyed by a wit-

ness before the grand jury. It is the Common-

wealth’s position that when each of the respondents

appeared to be sworn before the grand jury ac-

companied by privately retained counsel of his

choice, took the oath, entered the grand jury room

Constitution or the decisions of this Court to sup-

port the holding of the Pennsylvania court that this

failure to assert the privilege cannot be a knowing

and intelligent waiver unless the waiver is given

an explicit warning before he enters the grand jury

room that he may refuse to answer. The general

question of waiver will be discussed here; the nec-

12 Argument

essit’ of the new warning requirement in the suc-

ceeding section of this petition.

It should be noted at the outset that this case

involves only the Fifth Amendment right against

self-incrimination and not the Sixth Amendment

right to counsel. While the original Opinion of

Judge Spaeth in the Court of Common Pleas held

that respondents had been denied the right to

counsel, the Pennsylvania Supreme Court found

otherwise on the basis of the uncontradicted case

law authority of the decisions of this and lower

courts:

In his July, 1970, opinions, Judge Spaeth ruled

that appellees were entitled under the Fifth and

Sixth Amendments to consult with their lawyers

outside the grand jury room during their testi-

mony. He based hie ruling on the United States

Supreme Court decisions in Miranda v. Arizona,

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966) and Escobedo v. Illinois, 378 U.S. 478,

84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), as well

as the decision of the New York Court of Appeals

in People v. Ianniello, 21 N.Y.2d 418, 288

N.Y.S.2d 462, 235 N.E.2d 439, cert. denied, 393

U.S. 827, 89 S.Ct. 90, 21 L.Ed.2d 98 (1968). We

cannot agree.

Neither Escobedo nor Miranda were even re-

motely concerned with right to counsel before

an investigating grand jury. The interpretation

urged by appellees that counsel be accessible at

. all times during a witness's appearance is an un-

warranted extension of the teaching of those de-

Argument 13

cisions. As to lanniello, we believe it supports

the result we reach today, as appears more fully

below.

In In re Groban’s Petition, 352 U.S. 330, 77

S.Ct. 510, 1 L.Ed.2d 376 (1957), the last pro-

nouncement by the Supreme Court directly on

this issue, it was held that ° ° °* [a] witness

before a grand jury cannot insist, as a matter

of constitutional right, on being represented by

his counsel ° °°, When ° ° ° charges are made

in a criminal proceeding, he then may demand

the presence of his counsel for his defense.” Id

at 333, 77 S.Ct. at 513,

It would be a serious interruption and impair

continuity in a grand jury investigation if wit-

nesses were permitted to leave the room and

consult with counsel prior to responding to every

question.

(443 Pa. at 141-42. )

The court then continued its reading of In re

Groban’s Petition, 352 U.S. 330 (1957), and held

that a witness before the grand jury does have

available the privilege against self-incrimination.

Petitioner recognizes that the privilege against

self-incrimination is available to the grand jury

witnesses. But the privilege has not been violated

here where it was specifically protected by the

grand jury judge’s Procedure, and was thereafter

waived by these respondents when they chose to

testify.

The procedure which the Honorable Joseph

Sloane, the judge who presided over the April

14 Argument

Term, 1969, Grand Jury adopted to protect the

Fifth Amendment rights of witnesses before the

grand jury were established as early as April 22.

1969, when the jury began its investigative func-

tion.’ These rulings were followed throughout the

' The question of how a witness was to be allowed to invoke his

right not to incriminate himself was resolved early in the life of

the investigating grand jury on the motion of counsel for the first

witnesses before the grand jury who might have faced a_ possible

self-incrimination problem. The following excerpt from the records of

the grand jury, containing these initial rulings, is reprinted from the

appendix to the Commonwealth's brief in the Supreme Court of

Pennsylvania:

IN RE: THE INVESTIGATING GRAND JURY OF

APRIL TERM 1969.

Room 480 City Hall

Philadelphia, Pa.

April 22, 1969.

Before: HONORABLE JOSEPH SLOANE, J.

APPEARANCES:

ARLEN SPECTER, Esq., District Attorney of Philadelphia.

RAYMOND J. BRADLEY, Esq., LOUIS J]. GOFFMAN, Esq., Wolf,

Block, Schoor & Solis-Cohen for David Solms.

ROBERT L. TRESCHER, Esq., for Sander Field.

MR. BRADLEY: For the record, sir, we do object on behalf of

Mr. Solms to his being sworn in open court. And we request per-

mission of Your Honor to accompany him to the Grand Jury room

and be present with him. And we also object to the taking of any

transcription while he is in the Grand Jury room.

THE COURT: Of course, I might have added to my ruling—I

just thought of it—that if Mr. Solms or any other witness when he

is asked a question decides that he will not answer it, the propriety

or impropriety of that refusal to answer will be adjudicated by the

Court. And certainly he has a right to say, “I will not answer that

question,” because of reasons he may want to give. And then,

whether he does or does not have to answer the question will have

to be resolved by the Court. But I have made the rulings, Mr.

Bradley, and your objections are noted. And exceptions to my rul-

ings are indeed granted.

ba Nii TE

Argument 15

MR. BRADLEY: Does Your Honor then deny those requests

that I have just made?

THE COURT: I deny those.

MR. BRADLEY: I make two further requests, Your Honor. One,

in light of Your Honor's ruling that I may not accompany the witness

into the Grand Jury room, I request that the witness be given permis-

sion to leave the Grand Jury room to consult with his counsel at

such times as he might feel that it is appropriate during the course

of the questioning.

THE COURT: That's not my ruling. That's the reverse of my

ruling. He may not leave the Grand Jury room to consult with vou.

He may, if he so desires, say, “I shall not answer that question.”

And if he wants to, he may give a reason. If not, if he doesn't give

a reason, then the question and the witness will be brought before

this Court, and we hope we will give whatever wise judgment is

to be given after hearing the question.

MR. TRESCHER: May I ask for a clarification on that, Your

Honor Do I understand that if a witness chooses not to answer a

question, sir, that he then may appear with counsel before you?

THE COURT: Right.

MR. TRESCHER: And that if it appears to counsel that he should

answer, he can so advise him, and that he may go back and answer

without contempt charges?

THE COURT: Well, that will be in Open court, Mr. Trescher,

befcre me, with his counsel Present at that point. Since he has re-

fused to answer a question, the question and the witness will be

brought before me in open court, with his counsel present. 1 may

modify that if I see that it becomes an impractical way of doing it.

For example, whoever ‘is interviewing the particular witness may be

permitted to finish his interrogation as to every other question that

the witness is willing to answer and then just bring before the

Court the question or questions that he won't answer.

MR. TRESCHER: I am not suggesting, Your Honor, that—

THE COURT: You see, I am fearful—not fearful—but I can un-

derstand how impractical it would be if a question is asked of a

witness and the witness says, “I won't answer.” they then come into

open court, with his lawyer presen’, and we go back and forth that

way. That may tum out to be impractical. I don’t know vet. And

maybe we may experiment that way, gentlemen, to see how it goes.

But if the Assistant District Attorney is questioning a particular wit-

ness and the witness savs as to one question, “I will not answer

that question,” I am wondering why the District Attomey or Assistant

District Attorney who is questioning that particular witness cannot

say to him, “Well, I'll go onto another question”—unless he feels

that the one question that is not answered cannot remain un-

answered at that point.

a ae

16 Argument

life of the investigating grand jury, both before and

after the appearance of the present respondents as

witnesses before that body.”

MR. SPECTER: Judge Sloane, we would seek to do just that.

MR. TRESCHER: But suppose the witness is perplexed as to

whether his answer might incriminate him under the Federal or the

State Constitution, Your Honor, and he wants guidance on that

subject?

THE COURT: If he has a doubt—

MR. TRESCHER: Would he then be required to explain in open

court why it might incriminate him?

THE COURT: Well, let’s wait until that happens, and maybe

‘ we will have a conference and decide it. At this point, I don’t

know. I do think that we ought aot to disturb the regularity of the

proceedings—and I was thinking of that--by having the Grand Jury

interrogation stopped at every question until that question is decided.

We couldn't possibly do that, I don’t think.

2 A typical example of the operation of the grand jury when a wit-

ness wanted not merely to invoke his privilege against self-incrimina-

tion, but to consult with counsel before making such a claim, also

reprinted from the appendix of the Commonwealth's brief in the

court below, will illustrate the procedure followed.

The record shows that James J. O'Neill's testimony was inter-

rupted so that he could consult with counsel in proceedings on

December 15, 1969, as follows:

BEFORE THE INVESTIGATINC GRAND JURY

OF APRIL TERM, 1969.

TESTIMONY OF JAMES J. O'NEILL.

Room 613, City Hall

Philadelphia, Pa.

Monday, December 15, 1969 at 2:15 o'clock P.M.

PRESENT:

ROBERT E. GABRIEL, Esq., and JOHN ROGERS CARROLL,

esq., Assistant District Attorneys.

(The witness’s testimony then covered 23 pages of notes cf testi-

mony, with the witness : nswering some questions and declining to

answer other questions. His testimony concluded at Pages 22 and

23, when he responded to a specific question as follows: )

Argument 17

Not only did the procedures adopted by Judge

Sloane provide a practical and effective method to

protect Fifth Amendment rights, but the propriety

of this procedure was explicitly approved by the

lower federal courts in another case which sought

to attack the investigating grand jury. See National

Land & Investment Co. v. Specter, 304 F. Supp

1004, 1012 (E.D. Pa. 1969) aff'd, 428 F.2d 91 (3d

Cir. 1970):

The plaintiff's first objeccion to the ruling of

the state court that they are unable to have the

assistance of counsel before the Grand Jury, and

that they are unable to leave the Grand Jury

A. I respectfully refuse to answer the questions on the grounds

that the answer may tend to incriminate me, and in justification of

my refusal I plead the 5th Amendment to the Constitution of the

United States, Section 1 of the 14th Amendment to the Constitution

of the United States, and Section 9 of the Constitution of the Com-

monwealth of Pennsylvania.

Q. Now, I understand, sir, that you would like an opportunity to

consult with your attorney with reference to the questions that have

been put to you, with the idea being you will be guided by what

your attorney tells you in terms of whether or not you are going to

answer questions that have beer put to you; is that right, sir?

A. That is right.

Q. How long will it take you to consult with counsel of your

choice? ;

A. Well, I don’t know, two or three days.

Q. Is it necessary that we give you another subpoena to appear

here Thursday morning?

A. I don’t believe so.

Q. Then, consider the fact that you are under subpoena and you

will return here 9:30 on Thursday morning with your attorney. We

will expect you at that time to have consulted with counsel of your

choosing, to have discussed these questions and other questions from

the questions that we have put to you, sir, and we will expect you to

answer these questions, or if you refuse tc answer, then, of course

we will have a hearing before Judge Sloane; you understand that?

A. I do.

a

TN eRe ety Poo

18 Argument

at will to consult with their attorney. Pursuant

to the order of the Court, the plaintiffs who have

been called before the Grand Jury have been

permitted to consult with their attorney before

testifying, after testifying, at intermission of the

Grand Jury’s deliberations, and when they raise

a claim of privilege which is taken before the

Court for a ruling. There is overwhelming

precedent that these procedures are constitution-

ally unobjectionable. In In re Groban, 352 U.S.

330, 77 S.Ct. 510, 1 L.Ed.2d 376 (1957), the

Supreme Court countenanced proceedings under

an Ohio Statute in which a Fire Marshal held

investigatory proceedings to determine the cause

of fires. Under the applicable statute, the Mar-

shal was empowered to make the proceedings

private and to “exclude from the place where

[the] investigation is held all persons other than

‘those required to be present”, 352 U.S. 331, 77

S.Ct. at 512. The Court there concluded that:

“The fact that appellants were under a legal

duty to speak and that their testimony might

provide a basis for criminal charges against

them does not mean that they had a constitu-

tional right to the assistance of their counsel.

* ° ° A witness before a grand jury cannot

insist, as a matter of constitutional right, on

being represented by his counsel, nor can a

witness before other investigatory bodies. ° ° °

Obviously ° ° ° evidence obtained may pos-

sibly lay a witness open to criminal charges.

When such charges are made in a criminal

proceeding, he then may demand the pres-

ence of his counsel for his defense. Until then

Argument 19

his protection is the privilege against self-

incrimination.” 352 U.S. 330 at 332-333, 77 S.

Ct. 510 at 513, 1 L.Ed.2d 376. See also Jones v.

United States, 119 U.S. App.D.C. 284, 342

F.2d 863, 882 (1964); In re Black, 47 F.2d

042, 543 (2nd Cir., 1931): Directory Services,

Inc. v. United States, 353 F.2d 299, 301 (8th

Cir. 1965); United States v. Wolfson, 282

F.Supp. 772 (S.D.N.Y.1967); United States v.

Goldenberg, 276 F.Supp. 898, 900 (S.D.

N.Y.1967 ).

This procedure existed throughout the grand

jury. Thus, had any of respondents requested an

opportunity to confer with counsel on what they

conceived to be a difficult question concerning self-

incrimination, they would, no doubt, have been

allowed to do so as was every other witness who

made such a request was permitted to do. Certain-

ly, had any of respondents invoked their Fifth

Amendment rights, they would have brought the

questioning to a halt pending a ruling on the

claim. In fact, at least twenty-five other witnesses

before the grand jury did effectively plead the

privilege. As noted earlier, Frank Steinberg, ap-

pellee below, who received no cautionary instruc-

tions upon being sworn as a witness, effectively

exercised his Fifth Amendment rights by refusing

to state more than his name and address

Respondents McCloskey, Marzullo and Taylor

simply chose not to exercise their privilege against

self-incrimination. As distinguished from many

of the other witnesses, they never refused to answer

any question on self-incrimination grounds, nor did

RL VEO Ce a a oA

20 Argument

they ever even request to leave the grand jury room

to consult with their private counsel waiting out-

side. By their failure to assert their self-incrimina-

tion claims, respondents waived them. As _ this

Court held in Rogers v. United States, 340 U.S. 367,

370 (1951):

If the petitioner desired the protection of the

privilege against self-incrimination, (he) was

required to claim it. ° ° ° The privilege “is

deemed waived unless invoked.” United States

v. Murdock, 1931, 284 U.S. 141, 148, 52 S.Ct.

63, 64, 76 L.Ed. 210.

This principle has been reaffirmed by this Court as

recently as last year in United States v. Kordel, 397

U.S. 1, 10 (1970). See also Robinson v. United

States, 401 F.2d 248, 250 (9th Cir. 1968) (“Un-

doubtedly, the defendant, when questioned by the

grand jury as to whether he had bought beer from

Davis, had the right to claim his privilege against

self-incrimination and refuse to answer. But he

did not claim the privilege, and the Government

was under no duty to suggest to him that he claim

the privilege.” ); United States v. Luxenberg, 374

F.2d 241, 246 (6th Cir. 1967); United States v.

Klein, 124 F.Supp. 476, 479 (S.D.N.Y. 1954);

United States v. Miller, 80 F.Supp. 979, 982 (E.D

Pa. 1948).

Under the circumstances of this case, it is im-

possible to imagine that these respondents, who

were continuously represented by most able and

industrious private counsel long before they testi-

fied, and who were aware of the investigatory na-

ture and areas of inquiry of the grand jury, were

Argument 21

unaware of their privilege against self-incrimina-

tion. The unescapable conclusion under these

circumstances is that these respondents were ad-

vised, and chose to waive the privilege and answer

all questions before the grand jury.

II. When a Witness Appears To Be Sworn in

for His Appearance Before the Grand

Jury Accompanied by Counsel of His

Choice and Is Given a Full] Opportunity

to Consult with That Counsc} before En-

tering the Grand Jury Room, the Grand

Jury Judge Need Not Warn the Witness

of His Right Against Self-Incrimination

But May Rely of Counsel To Do So.

In fact, the Supreme Court of Pennsylvania did

not question the need for a witness before the grand

jury to assert his right against self-incrimination,

Nor did the Court hold that such a witness must

be warned of his rights under Miranda v. Arizona,

384 U.S. 436 (1966), before the Fifth Amendment

waiver can be knowing and intelligent or that the

witness has the right to have counsel with him

before the grand jury. But, having made all of

these rulings, the court then created an entirely

new warning for witnesses before the investigating

grand jury whose absence, the court held, vitiated

any indictment based on this testimony. Specifi-

cally, the Supreme Court of Pennsylvania held that

each of the respondents should have been warned

that he had a right to refuse to answer questions

until he had a chance to consult with his counsel

during a recess of the grand jury so that he would

92 Argument

have the benefit of counsel's advice before claiming

the privilege. And the Court held that it was not

enough that each of the respondents was repre-

sented by able counsel who could similarly have

advised their clients before the clients entered the

grand jury room and that it was the practice of

the grand jury to excuse witnesses who believed

they needed time to consult with counsel before

making a Fifth Amendment claim. In doing so.

the Court below created another new warning

which must be given to potential defendants at

pain of having an otherwise completely unblem-

ished criminal charge forever dismissed.

There was, of course, no need for this novel

ruling. Respondents were never in any danger

from making a claim of the Fifth Amendment

privilege whenever they had any fear that they

might incriminate themselves. The law has alw avs

been clear—and so defendants must have been

warmed by their counsel—that no claim of the

privilege is punishable by contempt until the mat-

ter is brought into open court for a ruling at a time

when the witness has had a chance to consult with

counsel and is represented by counsel before the

court. This procedure was described by this Court

in the leading case of Brown v. United States, 359

U.S. 41, 49-50 (1959) where the Court said:

When the petitioner first refused to answer the

grand jury's questions, he was guilty of no con-

tempt. He was entitled to persist in his refusal

until the court ordered him to answer. Unless,

therefore, it was to be frustrated in its investi-

Argument 23

gative purpose, the grand jury had to do exactly

what it did—turn to the court for help. If the

court had ruled that the privilege against self-

incrimination had been properly invoked, that

would have been the end of the matter. Even

after an adverse ruling upon his claim of privi-

lege, the petitioner was still guilty of no con-

tempt. It was incumbent upon the court

unequivocally to order the petitioner to answer.

Thus, even before the Pennsylvania Supreme

Court's ruling in this case, counsel had every reason

to advise respondents of the wisdom of claiming

the Fifth Amendment right on all doubtful ques-

tions. And the grand jury judge and the prosecut-

ing attorney had every reason to rely on able

privately retained counsel of respondent's own

choice to warn respondents of their rights and how

these rights might best be exercized before the

grand jury.

Not only was the Pennsylvania Supreme Court's

new rule concerning warnings of grand jury wit-

nesses unnecessary in the face of the availability of

able counsel to advise such witnesses, but it was

entirely unprecedented. Thus, in United States v.

DeMichele, 375. F 2d 949 (3d Cir. 1967), cert

denied, 389 U.S. 838, a decision after Miranda and

its related cases, the Court of Appeals, relying on

the fact that the defendant had had two weeks

before his appearance before the grand jury in

which to consult with counsel, upheld the defend-

24 Argument

Appellant's entire argument is based upon the

theory that the law should be changed to provide

that a witness before a grand jury must be

warned of his right to counsel and his right

against self-incrimination . . . he (appellant)

confines himself to the contention that he re-

ceived no warnings of any kind when he ap-

peared before the grand jury. He substantially

concedes, as is the fact, that under existent law

a grand jury witness is not entitled to a warning

of right to counsel and to remain silent. United

States v. Miller, 80 F.Supp. 979 (E.D. Pa. 1948);

United States v. Ponti, 257 F.Supp. 925 (E.D.

Pa. 1966); United States v. Scully, 225 F.2d 113,

116 (2d Cir. 1955); United States v. Parker, 244

F.2d 943 (7th Cir. 1957); United States v. Orta,

253 F.2d 362 (5th Cir. 1958); United States v

Winter, 348 F.2d 204 (2d Cir. 1965). (partial

emphasis added. )

In United States v. Miller, 80 F.Supp. 979 (ED.

Pa. 1948), where another perjury conviction of a

grand jury witness was sustained, the court expli-

sitle outlined the rights of a witness before the

grand jury.

At the (grand jury) hearing, the witness may.

if he so desires, rely on his constitutional privilege

of refusing to respond to questions the answers to

which would reveal facts or circumstances which

might tend to incriminate him . . . [citing cases]

Provided no fraud or duress is used upon the wit-

ness, there is no obligation upon the attorney for

the Government to warn him of his constitutional

Argument 25

privilege or the dangers of self-incrimination . . .

[citing numerous cases at 80 F.Supp. 981-82]. The

witness, upon oath must claim his privilege in no

uncertain terms at the proceeding in which the in-

formation is sought or he will not thereafter be

considered to have been “compelled” within the

meaning of the Amendment . . . (citing numerous

cases at 80 F.Supp. 982).

In a later case, United States v. Gilboy, 160

F.Supp. 442 (M.D. Pa. 1958), where the grand

jury witness had subsequently been convicted, not

of perjury before the grand jury but of conspiracy

to defraud the United States, the court stated that:

The mere possibility that the witness may later

be indicted furnishes no basis for requiring that

he be advised of his rights under the V Amend-

ment when summoned to give testimony before

a Grand Jury. United States v. Scully, supra,

225 F.2d at page 116;'* United States v. Parker,

7 Cir., 1957, 244 F.2d 943. He was subject to

call as a witness and only had the right of any

witness to decline to give answers when inter-_

rogated, which might tend to incriminate him.

United States v. Benjamin, supra, 120 F.2d at

page 522; see Wigmore Id. § 2268. The privilege

is “° ° ° an option of refusal, not a prohibition

of inquiry.”

While the government may not practice de-

ception, fraud or duress upon an accused to

obtair evidence, it is not required to advise him

of his rights as to self-incrimination. Wilson v.

United States, 1896, 162 U.S. 613, 624, 16 S.Ct.

hs again’ <

26 Argument

895, 40 L.Ed. 1090; Powers v. United States,

1912, 223 U.S. 303, at pages 313, 314, 32 S.Ct.

281, 56 L.Ed. 448; Thompson v. United States.

7 Cir., 1926, 10 F.2d 781, at page 784; Knoell v.

United States, 3 Cir., 1917, 239 F. 16, at page

21; Mattes v. United States, 3 Cir., 1935, 79 F.2d

127, 128; Nicola v. United States, 1934, 3 Cir.,

72 F.2d 780; Pulford v. United States, 6 Cir.,

1946, 155 F.2d 944, at page 947.

Similarly in United States v. Scully, 225 F.2d 113

(2d Cir.) (Medina, J.). cert. denied 350 U.S. 897

(1955), where the defendant was likewise con-

victed of conspiracy to defraud the United States.

the Court of Appeals for the Second Circuit held

that the mere possibility, existing at the time the

witness appeared before the grand jury, that he

might later be indicted furnished no basis for re-

quiring that he, at the time of appearance before

the grand jury, be advised of his rights against

self-incrimination. Before reaching their conclu-

sion the Scully court recited facts very similar to

the case before this Court.

Nor does it appear that he was unaware of his

rights or that, had he been warned, he would not

have testified as he did. Indeed, he testified

without demur, consulted a lawver and then

voluntarily gave further testimony before the

Grand Jury.

(225 F.2d at 114).

Of even greater similarity to the instant case is

United States v. Klein. 124 F. Supp. 476 (S.D.N.Y.

Argument 27

1954) (Palmieri, J.), where the District Court held

that where witnesses before the federal grand jury

were represented by counsel, and did not claim

that they did not know of their right to refuse to

answer questions which might incriminate them.

the United States Attorney had no duty to inform

the witnesses as to the privilege, and they were not

entitled to have the subsequent indictment against

them dismissed because the United State Attorney

did not inform them of the privilege.

In reaching this result the court said:

Defendants seek to bring themselves within

the compass of the cases that state that a defen-

dant in a criminal case cannot be compelled to

testify before a grand jury on matters pertaining

to that case. See United States v. Lawn,

D.C.S.D.N.Y. 1953, 115 F.Supp. 674. But these

Cases are not applicable because defendants

were not charged with the commission of any

offense against the United States when they ap-

peared before the grand jury At that time de-

fendants were witnesses, and although it was

probable that the grand jury would, as it did,

subsequently indict them, they are not entitled

to the protection that is afforded a defendant.

United States vy. Scully. D.C.S.D.N.Y. 1954, 119

F.Supp. 225 Therefore, defendants’ rights were

not violated when they were subpoenaed to

_ appear and testify before a grand jury; United

States v. Scully, supra; United States <- Wilson,

D.C. Del. 1942. 42 F.Supp. 721: and if thev de-

sired the protection of the privilege, they should

have claimed it. See United States v. Monia.

es ew eee Lee ee

bts aneriheindn Antes ae 6.

28 Argument

1943, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed.

376; United States ex rel. Vajtauer v. Commis-

sioner of Immigration, 1927, 273 U.S. 103, 47

S.Ct. 302, 71 L.Ed. 560.

Defendants urge upon the Court that when per-

sons who are likely to be indicted are called as

witnesses before a grand jury, the United States

Attorney should be required to inform them of

their privilege under the Fifth Amendment. (Cf.

Federal Rules of Criminal Procedure, rules 5(b)

and 40(b)(2), 18 U.S.C.A. However, defend-

ants (two of whom are lawyers and all of whom

were represented by counsel) do not claim that

they were ignorant of the privilege, and that if

they had known of it they would not have

answered the questions put to them. They have

failed to make any showing of fraud, duress, or

deception on the part of the Government which

they contend resulted in their testifying before

the grand jury. It is clear that under such cir-

cumstances, a United States Attorney is not re-

quired to inform a grand jury witness who is

under suspicion of his privilege. Powers v. United

States, 1912, 223 U.S. 303, 32 S. Ct. 281, 56 L.Ed.

448; United States v. Scully, supra; United States

v. Wilson, supra; see Wilson v. United States,

1896, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed.

1090; Pulford v. United States, 6 Cir., 1946, 155

F.2d 944, 947-948; 8 Wigmore on Evidence §2269

(3d ed. 1940). The defendants have placed great

emphasis upon the statement of the Assistant

United States Atturney, made upon the argu-

ment of these motions, to the effect that at the

time of the grand jury proceedings, he believed

Argument 29

that there was a strong possibility that informa-

tion the Government then had in its possession

would lead to the indictment of the defendants

Haas and Alprin. But it is quite apparent that

the defendants and their counsel were well aware

of this possibilty. Moreover, the applicable rules

of law are not affected by the state of mind of

Government counsel,

Nor can I conclude on the basis of the af-

fidavits before me that the defendants were in

any way overreached or that substantial justice

was frustrated. It would seem that, far from be- -

ing deprived of their rights, the defendants have

sedulously availed themselves of their rights at

every stage of the proceedings. Having failed

to invoke the privilege under the Fifth Amend-

men: in good time, they cannot be heard to say

that they would now decide otherwise and that

the indictment should be dismissed upon their

tardy assertion of privilege.

(124 F.Supp. at 478-79 ).

The same reasoning is certainly applicable in this

case. Respondents have always been represented

by the most able of counsel, privately chosen and

retained, who have actively and zealously defended

their clients’ interests. Nor have respondents ever

claimed that they were ignorant of their privilege

against self-incrimination. Nor have they claimed

that had they known of the privilege they would

not have answered the questions put to them.

Finally, there has been absolutely no showing of

fraud, duress, or deception on the part of the Com-

monwealth which resulted in their testifying before

the grand jury. ,

“4

30 Argument

In the more recent case of United States v. Luxen-

berg, 374 F.2d 241 (6th Cir. 1967), which sustained

convictions of grand jury witnesses for conspiracy

to misapply and defraud a licensee of the Small

Business Administration, the Court of Appeals for

the Sixth Circuit stated:

Both defendants assign as error the trial judge's

denial of their motion to dismiss the indictment

on the ground that it was based on their testi-

mony before the grand jury in violation of their

privilege against self-incrimination. The fifth

amendment’s privilege against self-incrimination

in criminal cases is applicable in proceedngs

before a grand jury. United States v. Monia,

317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376; Counsel-

man v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35

L.Ed. 1110. The extent to which one must be

advised of this right depends upon whether one

is a defendant in custody of the authorities or

whether one is merely a witness. One who is

a defendant must be advised that he may refuse

to answer incriminating questions and that any-

thing he says may be used against him. A person

testifying before a grand jury as a witness need

not be so advised, but does retain the right to de-

cline to give an incriminating answer. Stanley

v. United States, 245 F.2d 427 (C.A.6); United

States v. Benjamain; 120 F.2d 521 (C.A.2); Mul-

loney v. United States, 79 F.2d 566 (C.A.1),

cert. den. 296 U.S. 658, 56 S.Ct. 383, 80 LEd. 468.

This Court has held that a person who is virtually

in the position of a defendant must be accorded

the same rights as a defendant. Stanley v. United

States, supra. Consequently a person against

Argument 31

whom the prosecuting attorney is Piecing an

indictment need not be advised of his right to

refuse to answer incriminating questions. United

States v. Parker, 244 F.2d 943 (C.A.7), cert. den.

355 U.S. 836, 78 S.Ct. 61, 2 L.Ed.2d 48. The

fact that a person appeared in the Capacity of a

witness and testified before a grand jury without

being so advised, does not furnish a basis for

dismissing an indictment subsequently returned

against such individual based, in part, upon his

testimony. United States v. Scully, 225 F.2d 113

(C.A.2), cert. den. 350 U.S. 897, 76 S.Ct. 156,

100 L.Ed. 788. It is the duty and right of such

witness to invoke the privilege against self-

incrimination and refuse to answer questions.

The stipulated facts in this case demonstrates

that this assignment of error is without merit.

Zimmerman and Luxenberg testified before a

grand jury investigating the business operations

of Mervin Gold. Neither was advised of his right

to refuse to answer incriminating questions. On

the basis of this and other testimony, the grand

jury returned indictments against both defend-

ants. The crucial fact stipulated by the parties

was that no “criminal proceedings were pending,

or threatened against either of them; ° ° ° nor

* * © (was) the United States °° ° then seeking

an indictment against either of them,”

(374 F.2d at 246 ( footnote omitted ) 3

Certainly the respondents in the present case

were neither defendants in custody of the author-

ities nor persons in a position equivalent to such

32 Argument

defendants. None of the respondents here involved

was mentioned in the grand jury petition, no in-

dictments were pending against any of the respond-

ents, nor had any charges been made against these

respondents until the issuance of the persentment

of the grand jury. Moreover, not only were the

respondents here able to be fully advised of their

rights prior to their entry into the grand jury room

by their own retained counsel, but they had to face

not an indictment, but merely a_ presentment

recommending that a second grand jury indict

respondents.

Thus, the Supreme Court of Pennsylvania has

misinterpreted the constitutional privilege against

self-incrimination and the decisions of this Court

defining the circumstances under which a defend-

ant must be advised of both this right and his right

to consult with counsel in order to knowingly and

intelligently waive that Fifth Amendment right.

Since each of the respondents was accompanied

to the door of the grand jury room by competent

counsel who were fully able to warn their clients of

their rights under the Fifth Amendment and of the

time-honored procedure by which alone testimony

could be compelled under identical state and federal

law, there was no justification whatever for this

novel constitutional interpretation.

33

CONCLUSION

For the foregoing reasons the Common-

weaith respectfully requests that this petition

for writ of certiorari be granted.

Respectfully submitted,

JAMES D. CRAWFORD

Deputy District Attorney

RICHARD A. SPRAGUE

First Assistant District Atterney

ARLEN SPECTER

District Attorney

y

- PE VET RP EAT ee aay

ORT PONT Re Pe

la

APPENDIX

A. Opinion and Order of Court of

Common Pleas of Philadelphia County

NATURE OF THE CASE

HISTORY OF THE CASE

On September 4, 1969. the Investigating Grand

Jury of April Term, 1969, returned its Fourth

indicting Grand Jury appropriate bills of indict-

ment” charging defendant with various offenses

incident to the construction of a sports stadium in

On October 3. 1969, defendant filed a petition

with this Court, in charge of the October Grand

Jury, asking, generally, that this Court stay the

District Attorney from Presenting bills of indict-

ment against defendant to the October Grand Jury

until the District Attorney had made out a prima

Sree

See OSG eee ES

2a Opinion and Order of Court of

Common Pleas of Philadelphia County

facie case against defendant at a preliminary hear-

ing, or, if the Court would not grant that. relief,

that it impose certain conditions upon the manner

in which evidence against defendant should be

presented to the October Grand Jury.

On October 24 the Court filed an order dismissing

defendant's petition, stating its reasons in an opinion

accompanying the order. In re Petition of H. H.

Robertson Company et al., September Term, 1969,

Miscellaneous No. 7540. The District Attorney

thereupon presented to the October Grand Jury evi-

dence against defendant. It has been stipulated

that the evidence was the Fourth Presentment,

which was read to the Grand Jury by a District

Attorney's detective. The Grand Jury returned Bill

No. 2420, charging defendant with conspiracy, and

Bil! No. 2421, charging him with false pretenses.

On January 12, 1970, the District Attorney pre-

sented to the January Grand Jury, and the Grand

Jury returned, Bill No. 266, charging that defend-

ant, Thomas Tavlor, H. H. Robertson C sompany,

McCormick- Taylor Associates, McCloskey Con-

struction Company, and Paul Marzullo * ‘did con-

spire to obtain money by false pretenses from the

City by falsely representing to the said City [vari-

ous matters with respect to the construction of the

stadium |”.

On April 22 The Honorable Vincent A. Carroll,

President Judge, assigned to this Court “for all pre-

trial and post-trial motions and trial” the indict-

ments against defendant (Bills Nos. 2420 and

2421 of the October, 1969, Term, and Bill No. 266

a | aera Fane 0m

Opinion and Order of Court of 3a

Common Pleas of Philadelphia County

of the January, 1970, Term), along with the indict-

ments against the other persons and companies

accused by the Investigating Grand Jury in its

Fourth Presentment of crimes incident to construc-

tion of the stadium. After conference with the

Assistant District Attorney and defense counsel on

all of the indictments thus assigned, the Ccurt

ordered: that all pre-trial motions either by the

Commonwealth or by any defendant must be filed

by June 1; that briefs in support of the motions

must be filed by June 15; and that argument on

the motions would be heard during the week of

Junke 22. At a second conference, the order in

which the motions should be argued was agreed

upon by the Assistant District Attorney and coun-

sel for defendants on all of the indictments, and the

agreement was approved by the Court. In accord-

ance with the agreement, argument was heard on

June 22. At a second conference. the order in

the motions thus argued was defendant’s motion

to quash the indictments.°

* Defendant's motion is captioned only under Bill No. 266 of the

January, 1970, Term. However, the motion is applicable also to

Bills Nos. 2420 and 2421 of the October, 1969, Term. One of the

motions filed with this Court was a motion by the Commonwealth

asking that all of the indictments returned by the October Grand

Jury against defendant and against Thomas Taylor, H. H. Robertson

Company, McCormick-Taylor Associates, McCloskey Construction

Company, and Paul Marzullo be consolidated for trial with the

indictment against these persons and companies returned by the

January Grand Jury. (The Commonwealth asked in the same motion

that with these indictments there be consolidated an indictment

returned by the October Grand Jury against Harry Blatstein.) In

this motion the Commonwealth described Bill No. 266 “as a super-

seding indictment charging the same offenses as are described in

[the indictments returned by the October Grand Jury.]”

ore

bhai ite.

4a Gpinion and Order of Court of

Common Pleas of Philadelphia County

DISCUSSION

a) Preliminary statement of the issue

Among the motions argued during the week that

defendant's motion to quash the indictments was

argued were motions filed by defendant and two

other defendants, Thomas Taylor and Paul Mar-

zullo, to suppress certain testimony. In an opinion

filed as a companion to this opinion it has been

held that these motions to suppress must be granted

because when defendant, Taylor, and Marzullo

were judically compelled to testify before the In-

vestigating Grand Jury without being permitted to

consult with counsel, their rights under the Fifth

and Sixth Amendments of the United States Con-

stitution were violated.

The Court does not know what the testimony

was; the Assistant District Attorney has contended

that the Court should not examine the transcript of

the testimony, and as it has been possible to dispose

of the motion before the Court without an examina-

tion of the transcript, the Court has acceded to the

Assistant District Attorney's contention. It is evi-

dent, however, that the indictments against defend-

ant are based at least in part upon his testimony to

the Investigating Grand Jury. It has been stipu-

lated that the only evidence presented *» the Octo-

ber Grand Jury, when the District Attorney asked

it to return indictments against defendant, was the

Investigating Grand Jury’ s Fourth Presentment.

From that Presentment it appears that the Investi-

gating Grand Jury in arriving at its recommendation

that defendant should be indicted considered the

- Opinion and Order of Court of 5a

Common Pleas of Philadelphia C ounty

testimony of defendant as well as of other wit-

nesses;° in addition, it appears that the Common-

wealth intends to use at trial the testimony that

defendant, and also Taylor and Marzullo, gave to

the Investigating Grand Jury. Accordingly, it is

necessary to decide whether an indictment must be

quashed when based at least in part upon testi-

mony obtained in violation of a aefendant’s con-

stitutional rights.

b) The historical background

Because the grand jury developed in England be-

fore the United States Constitution was adopted,

the Federal courts, when required to interpret the

Fifth Amendment's guarantee of a grand jury pre-

sentment or indictment in an infamous case, looked

to English grand jury practice. Costello v. United

States, 350 U.S. 359, 361-63 (1956).

In general it may be said that the English prac-

tice was to rely upon the trial rather than upon the

grand jury proceedings to protect a defendant's

rights. Thus, a motion to quash an indictment as

based upon hearsay evidence, or incompetent evi-

dence, or evidence insufficient to make out a prima

facie case, would be dismissed. See: Costello v.

United States, supra, at 363: Holi v. United States,

218 U.S. 245 (1910). To be sure, in a sense it was

unjust to a defendant to indict him on the basis of

such evidence. However. the injustice would be

redressed at the trial. If the only evidence that the

° Defendant's testimony is quoted, directly or by yaraphrase. at

Pages 21, 22, and 23 of the fourth Presentment.

\

a

SO A SUE LEME Ow Uy

6a Opinion and Order of Court of

~ Common Pleas of Philadelphia County

Crown had was hearsay, or incompetent, or insufh-

cient to make out a prima facie case, the defendant

would be acquitted.

This approach appears to have been the result

of a balancing by the English courts of two factors:

on the one hand, procedural speed, as opposed,

on the other hand, to the protection of the defend-

ant’s rights. If an indictment could be challenged

because based upon evidence that was hearsay, or

incompetent, or insufficient to make out a prima

facie case, the result would be that in many crimi-

nal prosecutions there would be two ev identiary

proceedings: first the defendant would move against

the indictment; and second, if the indictment were

sustained, he would be tried. Evidently the con-

clusion of the English courts was that such a pro-

cedure was unnecessarily dilatory and cumbersome.

See cases collected in Commonwealth v. Dessus, 423

Pa. 177, 224 A.2d 188 (1966). It was recognized

that there were advantages in permitting the grand

jury to decide whether to return an indictment

unfettered by technical rules of evidence; and al-

though this might sometimes result in unjust indict-

ments, the advantages of such informal procedure

were thought to overcome the disadvantage of such

injustice since the injustice could be redressed at

the trial.

c) The impact of the United States Constitution

on English practice *

As an initial proposition it might be supposed

that grand jury practice in the United States should

be the same as in England. Indeed, as will appear,

| le SEONG eA

Opinion and Order of Court of 7a

Common Pleas of Philadelphia C ounty

there is language in the cases that seems to Say as

much. It is evident, however, that such a proposi-

tion would depend upon an unstated conclusion.

English practice developed in the absence of a

written constitution; and to conclude that grand

jury practice in the United States should be the

same as in England would be to say that the United

States Constitution should not affect United States

practice. As a matter of logic, this is a non sequitur.

The fact that the courts in England, where there is

no constitution, have found a particular practice

sufficient to protect a defendant's rights, does not

prove that the courts in the United States, which

are inhibited by a constitution that guarantees

rights not guaranteed in England, must, or should,

adopt the English practice. The point may be

illustrated by asking a question: Should it be held,

that no matter how rudely a grand jury treats the

constitutional rights of a defendant, the indictment

will not be quashed but the defendant left to assert

his rights at trial?

The question is not new. For example, in Cos-

tello v. United States, 350 U.S. 359, 362 (1956),

Mr. Justice Black used language so broad as to sug-

gest that to comply with the Constitution it was

necessary only to follow English grand jury prac-

tice. Mr. Justice Burton agreed with Mr. Justice

Black’s conclusion, that on the facts before the

Court the motion to quash the indictment should

be denied. He was unwilling, however, to join Mr.

Justice Black’s opinion because he was concerned

that its language was too broad. Thus he said:

ee ee

8a

Opinion and Order of Court of

Common Pleas of Philadelphia County

I agree with the denial of the motion to quash

the indictment. In my view, however, this case

does not justify the breadth of the declarations

made by the Court. I assume that this Court

would not preclude an examination of grand jury

action to ascertain. the existence of bias or pre-

judice in an indictment. Likewise, it seems to

me that if it is shown that the grand jury had

before it no substantial or rationally persuasive

evidence upon which to base its indictment, that

indictment should be quashed. To hold a person

to answer to such an empty indictment for a capi-

tal or otherwise infamous federal crime robs the

Fifth Amendment of much of its protective value

to the private citizen.

To sustain this indictment under the above cir-

cumstances is well enough, but I agree with

Judge Learned Hand that “if it appeared that no

evidence had been offered that rationally estab-

lished the facts, the indictment ought to be

quashed; because then the grand jury would have

in substance abdicated.” 2 Cir. 221 F.2d 668, 677.

Accordingly, I concur in this judgment, but do

so for the reasons stated in the opinion of the

Court of Appeals and subject to the limitations

there expressed. See also, Notes, 62 Harv. L. Rev.

111; 65 Yale L. J. 390. (350 U.S. at 364-65.)

Thus, the question, what impact does the United

States Constitution have on grand jury practice, re-

mains open, or at least its answer uncertain. In

deciding upon the answer in the present case, it

= Pe SBS tee! Saari,

: :

| tthe > eg

Opinion and Order of Court of 9a

Common Pleas of Philadelphia County

will be helpful to consider first the Federal cases

and then the Pennsylvania cases.°

d) The Federal cases

The question, what is the impact of the Constitu-

tion on grand jury practice, was the subject of ex-

tended and searching discussion in Jones v. United

States, 342 F.2d 863 (D.C. Cir. 1964). In that case

there were other questions, and the eleven Judges

of the Court, who heard argument and re-argument

en banc, divided in a complex way that need not be

analyzed here. It is sufficient to note that Senior

Circuit Judge Prettyn.2n in his opinion opposing

quashing the indictments before the Court spoke in

terms so broad as to permit the interpretation that

he would not quash an indictment no matter how

rudely the grand jury violates a defendant’s con-

stitutional rights, and that Senior Circuit Judge

Edgerton for reasons stated in his opinion concluded

that none of the cases on which Judge Prettyman

relied, nor any other case, went so far, and that at

least under some circumstances an indictment

should be quashed if based on evidence unconsti-

tutionally obtained. °°

* For cases from other jurisdictions, see Annot., Self-Incrimination

Before Grand Jury, 38 A.L.R. 2d 225 (1954), in particular, Section

IV, Validity of Indictment; apart from immunity statutes, at 269 ct

seq., and A.L.R. 2d Later Case Service 660-661 (1969).

°* Chief Judge Bazelon and Judges Fahy and Wright concurred

in Judge Edgerton’s opinion. It is perhaps not clear but it would

appear that Judges Washington and McGowan also concurred in

Judge Edgerton’s opinion, although they may have regarded it as

unnecessary to decide the question. Judges Miller, Danaher, Bastian,

and Burger (now Mr. Chief Justice Burger) concurred in Judge

10a Opinion and Order of Court of

Common Pleas of Philadelphia County

The cases on which Judge Prettyman principally

relied were: Costello v. United States, 350 U.S. 359

(1956); Lawn v. United States, 355 U.S. 339 (1958);

Holt v. United States, 218 U.S. 245 (1910); and

United States v. Cleary, 265 F.2d 459 (2d Cir.

1959), cert. denied, 360 U.S. 936 (1959). Examina-

tion of these cases has lead this Court to conclude

that Judge Edgerton’s analysis is persuasive, and

that they do not hold that an indictment will not be

quashed no matter what the constitutional violation

but to ‘he contrary clearly imply that at least under

some circumstances of constitutional violation the

indictment must be quashed.

In Costello, Mr. Justice Black, opened the opinion

for the Court by stating:

We granted certiorari in this case to consider

a single question: “ “May a defendant be required

| to stand trial and a conviction be sustained

where only hearsay evidence was presented to

the grand jury which indicted him?” 350 U.S.

819. (350 U.S. at 359.)

Prettyman’s opinion. It should also be noted that the difference

between Judge Prettyman ard Judge Edgerton should not be over-

stated. The two judges looked at the record somewhat differently,

and it is difficult to know to what extent this difference influenced

their opinions. In particular, Judge Prettyman did not regard the

record as showing that the defendant had been deprived of the

assistance of counsel for his defense. (See, for example, 342 F.2d at

862). Nevertheless, it seems fair to say that Judge Edgerton and

the Judges who concurred in his opinion understood that at least

Judge Prettyman might be suggesting that an indictment would not be

quashed no matter what the constitutional violation, although at

least as this Court reads Judge Prettyman’s opinion, it is not obvious

that Judge Prettyman intended to say more than that on the record

before him, the constitutional violation was not one that would

warrant granting the motion to quash the indictment.

OE EE oer

ee |

Opinion and Order of Court of lla

Common Pleas of Philadelphia County

Thus it is clear that in Costello the Court did not

consider the issue presented in the present case, i.e.,

whether an indictnent must be quashed when

based at least in part upon evidence obtained in

violation of a defendant's constitutional rights, but

was considering a much narrower (or, if one pre-

fers, broader) issue, Sometimes, to be sure, to

admit hearsay evidence may violate a defendant's

rights. Often, however, no violation of a constitu-

tional right will be involved; and that was the case

in Costello.

There it appeared that at the defendant's trial,

which was on the charge that the defendant had

“falsely and fraudulently reported less income than

he and his wife had received during the taxable

years in question” (350 U.S. at 360), “the Govern-

ment called and examined 144 witnesses and intro-

duced 368 exhibits” (id.). It also appeared, how-

ever, that the evidence against the defendant had

been presented to the grand jury by only three gov-

ernment agents, who “had no firsthand knowledge

of the transaction” (350 U-S. at 361) but had sum-

marized the evidence and had introduced com-

putations derived from the summary. Thus the

defendant was correct in noting that the indictment

against him was “based solely on hearsay evidence”.

(350 U.S. at 361.) The Court held, however, that

that fact did not constitute a violation of

that part of the Fifth Amendment providing that

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury ° °°”... .

(350 U.S. at 261.)

12a Opinion and Order of Court of

Common Pleas of Philadelphia County

This provision of the Fifth Amendment, said the

Court, did not prescribe “the kind of evidence upon

which grand juries must act.” (350 U.S. at 362.)

When the Fifth Amendment was adopted, the Eng-

lish grand jury could return an indictment upon

hearsay evidence: and

There is every reason to believe that our con-

stitutional grand jury was intended to operate

substantially like its English progenitor.

oO °O 2° °

An indictment returned by a legally constituted

and unbiased grand jury [footnote omitted], like

an information drawn by a prosecutor, if valid

on its face, is enough to call fu. a trial of the

charge on the merits. The Fifth Amendment

requires nothing more. (350 U.S. at 362, 363.)

It may be that the Supreme Court, if faced with

a case such as the present case, where a defendant

was required to testify before a grand jury in viola-

tion of his rights under the Fifth and Sixth Amend-

ments, will hold that the violation is immaterial so

far as a motion to quash the indictment is con-

cerned; but to make such a prediction upon the

basis of the Court's rather broad language in Cos-

tello, when that language is considered in light of

the facts that were before the Court, appears un-

warranted. Instead, this Court accepts and follows

; the following analysis by Judge Edgerton:

apr a 80

In rejecting [defendant's] contention [in Cos-

tello| the Supreme Court used the broad lan-

guage quoted above and immediately added “The

_ . Aa oe IER SS

Opinion and Order of Court of 13a

Common Pleas of Philadelphia County

Fifth Amendment requires nothing more’, i.e.,

nothing more than an “indictment returned by

a legally constituted and unbiased grand jury,

* ° © if valid on its face”. . . This means that the

grand jury clause of the Fifth Amendment “re-

quires nothing more”. No other constitutional

question was before the Court. We do not under-

stand the Court's opinion to say anything about

any other constitutional question. Due defer-

ence forbids us to interpret the opinion as con-

taining a vast dictum to the effect that the entire

Constitution, including all its Amendments,

“requires nothing more”; in other words, that the

proceedings of a legally constituted and unbiased

grand jury may violate any number of the de-

fendant'’s constitutional rights, including his right

to the assistance of counsel and his privilege

against self-incrimination, without affecting the

validity of the indictment. Costello, therefore, is

no bar to our view that an indictment obtained

in violation of constitutional rights must be dis-

missed. On the contrary, Costello substantially

supports this view. For the Supreme Court

affirmed the conviction of Costello on the ground

that the grand jury's action in indicting him had

not violated his constitutional rights. The Court

thereby implied that if the grand jury’s action

had violated his constitutional rights, the indict-

ment would have been invalid and the conviction

would have been reversed. (342 F.2d at 872.)

Nor does the Supreme Court’s later decision in

Lawn, also, as has been noted, relied upon by

l4a Opinion and Order of Court of

Common Pleas of Philadelphia County

Judge Prettyman, in any way disturb Judge Edger-

ton’s analysis of Costello.

In Lawn the defendants were charged with evad-

ing assessment and payment of federal income taxes

for the year 1946; the assertion was that they had

concealed income derived from World Wax II black

market operations. (355 U.S. at 342-43.) The inves-

tigation of the defendants had begun in 1948. (355

U.S. at 344.) In early July 1952, the defendants

were subpoenaed to appear and testify before a

grand jury, and on July 14, 1952, they did appear

and testify, “but were not warned of their constitu-

tional privilege against self-incrimination”. (355

U.S. at 344-45.) On October 20, 1952, the grand

jury returned indictments against the defendants.

On the defendant:’ motions, the District Court dis-

missed the indictr’ents and directed the Govern-

ment to return to the defendants the records that

the defendants had produced before the grand jury

in response to the subpoenas. (355 U.S. at 345. )

The Government appealed, but the appeal was

dismissed as untimely. (355 U.S. at 345.) While the

appeal was pending, however,

the Government caused a new investigation to

be made of [the defendants’] federal income tax

liabilities by another grand jury, before whom

[the defendants] did not appear, and on July 23,

1953, that grand jury returned the present indict-

ment which was sealed. After the Government's

appeal from the order dismissing the 1952 indict-

ment had been dismissed . . . the new sealed in-

dictment was opened, and soon afterwards [the

2 EEE Eee

Opinion and Order of Court of 15a

Common Pleas of Philadelphia County

defendants] moved (1) to dismiss the indictment,

and in that connection (2) to have a hearing to

determine whether the Government had used

testimony given or documents produced by [the

defendants] before the 1952 grand jury, or evi-

dence obtained through leads and clues furnished

thereby .... (355 U.S. at 346. )

In opposition to the defendants’ motions to dis-

miss the indictment

the Government filed affidavits made by all of the

revenue agents who had conducted investigations

leading to the indictment and by all the United

States Attorneys who had been responsible for

the prosecution of the case. (355 U.S. at 346,

n. 9.)

The affidavits showed that the indictment was not

based in any way upon the testimony or docu-

ments obtained in the 1952 grand jury proceedings

but instead was based only upon evidence obtained

by the Government “long before 1952”. (Id. )

The defeadants’ motions to dismiss the indict-

ment were submitted to the District Court upon the

defendants’ and the Government’s affidavits, and

the Court found that there was ;

no room for an inference that the Government

had used illegally obtained materials in securing

the present indictment

and that no further proceeding with respect to the

motions was warranted. (355 U.S. at 346-47. )

16a Opinion and Order of Court of

Common Pleas of Philadelphia County

After tial the defendants were found guilty as

charged, and the Court of Appeals affirmed. (355

U.S. at 342.) On appeal to the Supreme Court one

of the contentions by defendants was

that they were deprived of due process in viola-

tion of the Fifth Amendment by ice refusal of

the District Court to conduct a full-dress hearing

to determine whether testimony or documents ob-

tained from them in [the 1952] grand jury inves-

tigation, or evidence derived from leads and clues

furnished thereby, was considered by the grand

jury that returned the present indictment. (355

U.S. at 344.)

As is evident from the statement of the case, this

contention was close to frivolous, and the Supreme

Court dismissed it almost curtly, stating:

It should be unnecessary to say that we are

not here dealing with the use of incompetent or

illegal evidence in a trial on the merits, nor with

the right to decline to give incriminatng testi-

mony in legal proveedings or to suppress the di-

rect or derivative use at the trial of evidence

illegally obtained. We deal here only with the

question whether [the defendants], in the cir-

cumstances of this case, were entitled to a pre-

liminary hearing to enable them to satisfy their

unsupported suspicions that the 1953 grand jury

that returned this indictment made direct or de-

rivative use of the materials which they produced

before the 1952 grand jury. We hold that they

were not. (355 U.S. at 350.)

Opinion and Order of Court of l/a

Common Pleas of Philadelphia County

Thus, it would seem most difficult to read Lawn

as supporting the conclusion that no indictment will

be quashed, no matter what the constitutional viola-

tion upon which the indictment depends. Instead,

the great care that Mr. Justice Whittaker expended

in stating the case implies that had it appeared that

the defendants’ second indictment had been based

at least in part upon evidence that had been ob-

tained in violation of the defendants’ constitutional

rights, the Supreme Court would have considered

whether the violation warranted quashing the in-

dictment.

The remaining Federal cases to be considered,

and which were relied upon by Judge Prettyman,

need be stated only briefly.

In Holt Mr. Justice Holmes said:

It is pressed with more earnestness that the

court erred in not granting leave to withdraw the

plea of not guilty, and to interpose a plea’ in

abatement and motion to quash. The ground on

which leave was asked was an affidavit of the

prisoner's counsel that they had been informed

by Captain Newton, of the Coast Artillery Corps,

that he testified before the grand jury to admis-

sions by the prisoner, but that these admissions

were obtained under ‘circumstances that made

them incompetent. The affidavit added that.

aside from the above testimony, there was very

little evidence against the accused. Without con-

sidering how far, if at all, the court is warranted

in inquiring into the nature of the evidence on

which a grand jury has acted, and how far, in

18a Opinion and Order of Court of

Common Pleas of Philadelphia County

case of such an inquiry, the discretion of the trial

court is subject to review ( United States v. Rosen-

burgh, 7 Wall. 580), it is enough to say that there

is no reason for reviewing it here. All that the

affidavit disclosed was that evidence in its nature

competent, but made incompetent by circum-

stances, had been considered along with the rest.

The abuses of criminal practice would be en-

hanced if indictments could be upset on such a

ground. McGregor v. United States, 69 C.C.A.

477, 134 Fed. 187, 192; Radford v. United States,

63 C.C.A. 491, 129 Fed. 49 51; Chadwick v.

United Stat~s, 72 C.C.A. 343, 141 Fed. 225, 235.

(218 U.S. at 247-48. )

Strictly read, this would seem to be dictum, but

however read, it is not pertinent to the question

now being considered, for later in Mr. Justice

Holmes opinion it appears that the trial judge, after

hearing, determined that in fact the defendant’s ad-

missions were not obtained under circumstances

that made them incompetent. (218 U.S. at 250.)

As for Cleary, although it does contain a full dis-

cussion of the origin and nature of the grand jury,

in the course of which some broad statements are

made (265 F.2d at 460-61), nevertheless, in revers-

ing the order of the District Court dismissing the

defendant's indictment, the Court of Appeals only

held that

we have no doubt that Cieary’s testimony [before

the grand jury] was completely voluntary [be-

cause he had been warned of his rights and had

.

Opinion and Order of Court of 19a

Common Pleas of Philadelphia County

intelligently waived those rights] (265 F.2d at

462. )

and that

[w]e do not see that the circumstances under

which [the defendant's] indictment was procured

reveal the slightest injustice to him or afford him

any basis for believing that he will not receive a

fair trial in due course. Hence the indictment

must be reinstated. (265 F.2d at 463. )

e) The Pennsylvania cases

It will be convenient to consider the Pennsylvania

cases under two headings: (i) Commonwealth v.

Dessus, 423 Pa. 177, 224 A.2d 188 (1966), which is

the strongest case in support of the Common-

wealth’s assertion that defendant's motions to quash

the indictments should be denied; and (ii) Com-

monwealth v. Kilgallen, 379 Pa. 315, 108 A.2d 780

(1954), which is the strongest case in support of

defendant’s assertion that the motions should be

granted.

(i) Commonwealth v. Dessus

In Dessus the defendant was indicted for mur-

der; the indictment was returned on May 10, 1966,

which was the same day the defendant was held for

the grand jury. (423 Pa. at 179, 224 A.2d at 190.)

On August 16, 1966, the defendant filed a motior to

suppress a confession that he had given to a detec-

tive of the Philadelphia police force. After hearing,

the lower court suppressed the confession on the

BA INS foe et Bes

20a Opinion and Order of Court of

Common Pleas of Philadelphia County

ground that the defendant had not been fully

warned of his constittuional rights. Then, on Sep-

tember 28, 1966, the lower court ordered that the

indictment be quashed because based on hearsay

testimony. (423 Pa. at 180, 224 A.2d at 190.) On

appeal, this was held error, although the lower

court's order was affirmed on other grounds that

were argued only to the Supreme Court. (423 Pa.

at 186-89, 224 A.2d at 195.) The error was held

to be both factual and legal.

The factual error was that the lower court

“assumed that defendant's statement had been sub-

mitted by [the detective] to the Grand Jury”,

whereas “there was no evidence that [the] state-

ment . . . was read by or shown by [the detective]

to the Grand Jury... .” (423 Pa. at 180, 224 A.2d

at 190. )

The Supreme Court, however, made it plain that

its decision went beyond this factual error and was

based upon legal error; it did not say in so many

words that it would assume arguendo that the de-

fendant’s statement had been submitted to the

grand jury, but its discussion, starting at 423 Pa. at

181, 224 A.2d at 191, unmistakably implies that

arguendo it did make such an assumption, and that

even so the lower court’s order was error.

The reason it was error was that

The law is well settled in Pennsylvania that an

indictment can be found by a Grand Jury based

upon hearsay testimony or upon evidence which

was incompetent or inadequate to make ovt a

F

Opinion and Order of Court of 2la

Common Pleas of Philadelphia County

prima facie case. (423 Pa. at 181, 224 A.2d at

191.)

In support of this proposition the Court collected

many Pennsylvania cases; it also cited Federal

cases, including Lawn and Holt, and particularly

Costell2, which have been discussed ear'ier in this

opinion. Costello was quoted extensively. (423 Pa.

at 181, 182-85, 224 A.2d 191-92. )

It is clear from Dessus that the Court decided

two propositions. The first proposition was that an

indictment would not be quashed because based on

hearsay. This proposition was not new, and, as the

Court noted, had often been decided. The second

proposition was that an indictment would not be

quashed because based on hearsay, even if the

_ hearsay depended upon a violation of the defend-

ant'’s constitutional rights, specifically, his right un-

der the Fifth Amendment not to incriminate him-

self. This proposition was new; and although the

Court in deciding it relied upon Costello, Lawn, and

Holt, it has been seen earlier in this opinion that in

fact those cases did not involve situations where

there had been a violation of a defendant’s con-

stitutional rights.

The question, therefore, is this: How far did the

Court in Dessus intend to go?” Did it intend to say

that an indictment should not be quashed no matter

what the constitutional violation? Or was the Court

addressing itself only to the particular constitutional

violation presented by the facts before it?

The Assistant District Attorney urges that Dessus

should be read as saying that an indictment should

22a Opinion and Order of Court of

Common Pleas of Philadelphia County

not be quashed no matter what the constitutional

violation. If he is correct, defendant's motion to

quash must be denied. It is clear, however, that he

is not correct, as will appear, first from a considera-

tion of Kilgallen, and next from a reconsideration of

Dessus, in particular, of its statement of what Kil-

gallen holds.

%

(ii) Commonwealth v. Kilgallen

Kilgallen can be understood only against the

background of the decisions that led up to it:

Manko Appeal, 168 Pa. Super. 177, 77 A.2d 700

(1951); Commonwealth v. Gross, 172 Pa. Super.

85 92 A.2d 251 (1952); and the decision by the

Superior Court that the Supreme Court in Kilgallen

reversed; the Superior Court’s decision is reported

in 175 Pa. Super. 52, 103 A.2d 183 (1954).° The

events that led up to these decisions were as follows:

* This is not to say that there are no other Pennsylvania cases

involving motions to quash indictments based upon a claim that a

defendant’s constitutional rights have been violated. These other

cases do not, however, appear helpful, for, in contrast to the present

case, no constitutional violation appeared. For example, in Common-

wealth v. Bolger, 229 Pa. 597, 79 A. 113 (1911), the defendant moved

that the indictment should be quashed because based upon testimony

he had given to an investigating grand jury, which he said, was self-

incriminating. However, after examining the record, the Court said:

“So we say here the fair presumptions that flow from the record . . .

point to the conclusion that this defendant was deprived of no

constitutional right. It was his right to place upon the record, if he

could, the facts which would properly raise the conclusion he now

asks us to reach. We are satisfied he has not done this ... .” (229

Pa. at 606, 79 A. at 116.) Similarly, in Commonwealth v. Rhey, 140

Pa. Super. 340, 345, 14 A.2d 192, 195 (1940), the Court said:

“The record, here, shows that in each instance when a witness re-

fused to answer before the grand jury on the ground of self-incrimina-

tion, he was taken before the court and was instructed as to his

rights and those rights were respected.”

————

Opinion and Order of Court of 23a

Common Pleas of Philadelphia County

On July 7, 1950, the Attorney General of Penn-

sylvania petitioned the Court of Quarter Sessions of

Allegheny County to summon an investigating

grand jury. (See Margiotti Appeal, 365 Pa. 330, 75

A.2d 485 (1950). The petition charged that How-

ard Gross, George Manko, and Thomas Kilgallen

had defrauded the City of Pittsburgh. An investi-

gating grand jury was summoned, and Gross, Man-

ko, and Kilgallen were called as witnesses before it.

Gross and Manko each declined to answer certain

questions on the ground that the answers would

incriminate him; for this, each was adjudged guilty

of contempt and sentenced to a fine and imprison-

ment. When Kilgallen was called, he claimed con-

stitutional immunity. The Court nevertheless di-

rected him to testify before the investigating grand

jury, which he did. As of the September Sessions,

1950, the investigating grand jury, without the testi-

mony of Gross or Manko, but on the basis of the

testimony of Kilgallen and of many other witnesses,

returned a presentment recommending that Gross,

Manko, and Kilgallen be indicted. The Attorney

General thereupon presented indictments to an in-

dicting grand jury, which returned them as true

bills.

In Manko Appeal the fines and sentences im-

posed upon Gross and Manko for their refusal to

testify before the investigating grand jury were set

aside, the Court holding:

Where one is charged with a specific crime or

crimes in a petition for the calling of an investi-

gating grand jury, such person is not merely a

24a Opinion and Order of Court of

Common Pleas of Philadelphia County

witness. The only purpose of calling him as a

witness is to obtain proof of the criminal charges,

i.e. to have him give evidence against himself.

He therefore cannot be compelled to testify be-

fore the grand jury if he claims his constitutional

privilege . . . . To say that a person accused of a

crime can be compelled to testify as a witness

before an investigating grand jury merely because

that jury can only recommend an indictment, is

fallacious.

We are also of the opinion that answers to the

questions asked each of the appellants might very

well be incriminatory [footnote, quoting the ques-

tions, omitted]. While the witness, of course, is

not the sole judge of whether the answers might

be incriminating, yet each question must be

viewed in the light of whether the answer can

implicate the witness. (168 Pa. Super. at 180-81,

77 A.2d at 701-02; the Court's emphasis. )

There were two indictments returned by the in-

dicting grand jury against Gross, Manko, and Kil-

gallen; one indictment was against Gross; the other

was against Gross, Manko, and Kilgallen. The

lower court granted motions to quash each indict-

ment, and the Commonwealth appealed to the

Superior Court. So far as Gross and Manko were

concerned, the appeals were decided in Gross; the

appeal from the order quashing the indictment

against Kilgallen was decided in Kilgallen.

In Gross the Superior Court reversed the order

of the lower court and reinstated the indictments.

Opinion and Order of Court of 25a

Common Pleas of Philadelphia County

Gross and Manko argued that the indictments had

been properly quashed because when presented to

the indicting grand jury for its consideration, the

indictments contained a reference to the “Present-

ment [of the investigating grand jury] at No. 59

September Sessions 1950”. The lower court had

accepted this argument, saying that because of the

reference to the presentment, the indicting grand

jury “could easily have been influenced by the illegal

invasion of the constitutional rights of these defend-

ants ....” (172 Pa. Super. at 88, 92 A.2d at 253. )

The Superior Court, in reversing, nuted, however,

that there had been no such illegal invasion; citing

its decision in Manko Appeal, it said:

There was an attempt to invade [Gross’s and

Manko’s] constitutional rights but the invasion

was staunchly repelled by this Court (172 Pa.

Super. at 89-90, 92 A.2d at 253),

and that

There is no evidence that testimony taken by the

investigating grand jury was introduced or re-

ferred to before the indicting grand jury. Gross

and Manko were not called before the indicting

grand jury, and there is no evidence that it knew

that they had refused to testify before the in-

vestigating grand jury (id. at 91, 92 A.2d at

254). |

Thus, Gross is comparable to some of the Fed-

eral cases that have been considered earlier in this

opinion. As in Costello and Lawn, the indictments

26a Opinion and Order of Court of

Common Pleas of Philadelphia County

were not quashed; but the reasoning of the Court

in reaching this conclusion implied that they wou'u

have been quashed, had the Court found a con-

stitutional violation that warranted quashing them.

Additionally, it is essential to note that the de-

cision in Gross is closer in point than the Federal

cases that have been discussed, for it involved, as

does the present case, an investigating grand jury.

The difference between the present case and Gross

is that in the present case the grand jury did,

whereas in Gross it did not, indict the defendants at

least in part on the basis of testimony unconstitu-

tionally obtained from the defendants before the in-

vestigating grand jury.

It will be recalled that when Kilgallen was in-

dicted he too moved that the indictment be

quashed, the lower court granted the motion, and

the Commonwealth appealed to the Superior Court.

The difference between Gross and Manko, on the

one hand, and Kilgallen, on the other, was that

Gross and Manko did not testify before the investi-

gating grand jury, while Kilgallen did. If the view

that has been just expressed with respect to the

Superior Court's reasoning in Gross is correct, this

difference should have been critical: In Gross, the

constitutional rights of Gross and Manko had not

been violated, because they were not required to

testify; hence the indictments against them should

not be quashed; however, in Gross the Court im-

plied that had there been constitutional violation,

the indictments would have been quashed; the con-

stitutional rights of Kilgallen were violated, because

wie.

)

Opinion and Order of Court of 27a

Common Pleas of Philadelphia County

he was required to testify, hence the indictment

against him should be quashed.

A majority of the Superior Court, however, Judge

Woodside not participating in the consideration or

decision of the case, nevertheless held that the in-

dictment against Kilgallen should not be quashed.

With deference, the reasoning of the majority is

difficult to follow. Gross is cited (175 Pa. Super. at

60, 103 A.2d at 186) but as though it held only that

the secrecy of a grand jury's proceedings should not

be violated, the majority seeming to regard Kilgal-

len's motion to quash the indictment as an attempt

to impeach the regularity of the grand jury's pro-

ceedings (cf. 175 Pa. Super. at 57-60, 103 A.2d at

185-86), although also expressing doubt whether

Kilgallen’s testimony before the investigating grand

jury had incriminated him (175 Pa. Super. at 60,

103 A.2d at 186).

Judge Reno filed a dissent from this reasoning,

in which he said:

The averments clearly present the case of the

defendant. He claimed privilege under Art. I,

sec. 9 of the Constitution of Pennsylvania when

called to testify before an investigating grand

jury, but by authority of Art. 3, sec. 32 he was

compelled to testify despite claim of privilege.

Art. 3, sec. 32 of the Constitution provides:

“Any person may be compelled to testify...

against any person who may be charged with

having committed the offense of bribery . . . but

such testimony shall not afterwards be used

28a Opinion and Order of Court of

Common Pleas of Philadelphia County

against him in any judicial proceeding, except

for perjury...” .... If the compelled testimony

were read to or made available to the grand jury

as evidence against the defendant, it cannot be

m intained that such action is not a violation of

the Constitution... .

Whether or not there was other evidence pre-

sented to the grand jury does not alter the fact

that the presenting of compelled testimony was a

direct contravention of the constitutional pro-

hibition. Whether or not the jurors were in-

fluenced by the presence of such prohibited

testimony is immaterial, its presence denies the

defendant a constitutionally guaranteed _privi-

lege . .

The cases that express a reluctance to inquire

into the secrecy of the grand jury all provide that

under some circumstances it may be proper to

do so. Indictments have been quashed for rea-

sons comparatively technical. No case has come

so far as to say that the breach of a constitutional

prohibition is not an injustice that the court

has no power to correct... . The Commonwealth

is never prejudiced by a proceeding undertaken

to assure protection of a fundamental right in-

hering in a citizen charged with a serious offense.

(175 Pa. Super. at 61-63, 103 A.2d at 187; Judge

Reno's emphasis. )

Judge Reno did not cite Gross; this may heve

been because he was the author of the opinion in

Gross. In any event, his dissent is consistent with

Opinion and Order of Court of 29a

Common Pleas of Philadelphia County

Gross as this Court has read Gross, i.e., as implying

that in some circumstances, specifically including

those circumstances presented in Kilgallen, a viola-

tion of a defendant's constitutional rights will re-

sult in the indictment being quashed.

Recognizing “the importance of the legal ques-

tion involved”, the Superior Court certified its de-

cision to the Supreme Court. (175 Pa. Super. at 60-

61, 103 A.2d (paragraph not reported in Atlantic

Reporter ).) The Supreme Court, speaking by Mr.

Justice Chidsey, Mr. Chief Justice Stern dissenting,

and Mr. Justice Bell not participating in the con-

sideration or decision of the case, reversed the order

of the Superior Court and remitted the record to

the lower court for reinstatement of the motion to

quash the indictment, with a direction that Kilgal-

Jen be permitted to offer testimony in support of the

motion. (379 Pa. at 330, 108 A.2d at 787.)

The Supreme Court’s opinion is expressed with

notable vigor. After concluding that Kilgallen

should be allowed to prove that the indicting grand

jury had had read to it parts of the testimony that

he had been required to give to the investigat-

ing grand jury, the court said:

'™n so holding we must not be considered as

departing from a strong adherence to the rule

that ordinarily, for the reasons set forth in the

Smart case [368 Pa. 630, 84 A.2d 782 (1951)],

grand jurors cannot be permitted to impeach

indictments regularly returned by them. How-

ever, as recognized in that case, the impenetra-

bility of grand jury proceedings is subject to

30a Opinion and Order of Court of

Common Pleas of Philadelphia County

exceptions and we think that the instant case

presents a justifiable exception. If appellant's

constitutional rights were ignored as contended,

it was a flagrant transgression of the letter and

spirit of our organic law. (379 Pa. at 330, 108

A.2d at 787.)

It is particularly to be noted that in reaching

this conclusion, the Court quoted extensively from

Gross, “refer[ring] [to it] at some length” (379 Pa.

at 323, 108 A.2d at 784) and expressly noting the

distinction, which has been stated above, between

the facts in Gross and the facts in Kilgallen:

There is a marked difference in the situation here

presented. In the Gross case Manko and Gross

did not testify before the investigating grand

jury other than to give their names and addresses,

and the indicting grand jury did not even know

that they had appeared and refused to testify.

Here it is averred in the motions to quash, and

not denied by the Commonwealth, that Kilgallen

at the direction of the court testified generally

before the investigatory grand jury and that his

testimony was made available to, considered and

used by the indicting grand jury. (379 Pa. at 323-

24, 108 A.2d at 784.)

In concluding that Kilgallen’s averments sup-

ported his motion to quash the indictment the Court

made alternative holdings.

First, the Court relied upon the fact that when

Kilgallen “appeared before the grand jury, [and]

testified at the Court's order and thus under judicial

Opinion and Order of Court of 3la

Common Pleas of Philadelphia County

compulsion” (379 Pa. at 324, 108 A.2d at 785), his

right under Article I, §9, of the Pennsylvania Con-

stitution not to incriminate himself was violated.

Said the Court:

It is true, as stated by the Superior Court in

the Gross case, that “. . . Proof that a grand jury

heard irrelevant testimony, Com. v. Spallone, 154

Pa. Superior Court 290, 35 A.2d 731; or hearsay

evidence, Com. v. Stones, 70 Pa. Superior Ct.

365, affirmed 265 Pa. 139, 108 A. 624; or incom-

petent witnesses, Com. v. Padden, 160 Pa. Su-

perior Ct. 269, 50 A.2d 722, will not invalidate

an indictment where other proper evidence was

adduced before it . . .”. But we know of no case

in this jurisdiction that denies the right to chal-

lenge the validity of an indictment on the ground

of violation of the accused’s constitutional rights

here asserted—and so challenge successfully upon

proper and sufficient proof. (379 Pa. at 325-26,

108 A.2d at 786.)

As the second ground of its holding, the Court

followed the reasoning of Judge Reno’s dissent in

the Superior Court. Said the Court:

Assuming arguendo that an indictment may be

upheld despite the reception of criminating evi-

dence in violation of the accused’s rights under

Article I, Section 9 of the Constitution if there is

other evidence to support the indictment, here

the appellant was charged with bribery

(379 Pa. at 326, 108 A.2d at 785),

Trew Pee wey

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32a Opinion and Order of Court of

Common Pleas of Philadelphia County

the Court going on to note, as had Judge Reno in

the passage from his dissent that has been quoted

above, that Article III, §32, of the Pennsylvania

Constitution forbids the use of the testimony of a

person compelled to testify “in any lawful investi-

gation or judicial proceeding against any person

who may be charged with having committed the

offense of bribery”, and that this provision was vio-

lated when Kilgallen’s testimony was used before

| the grand jury that indicted him (379 Pa. at 326-

28, 108 A.2d at 785). |

1. Has Kilgallen been substantially overruled by

Dessus?P |

rE The Assistant District Attorney has argued that

Kilgallen and Dessus are so at odds that Kilgallen

must be regarded as substantially overruled by

Dessus. The argument is without merit.

In Dessus the lower court had relied upon Kil-

gallen. In noting that this reliance was error, the

| Supreme Court said:

Kilgallen is clearly distinguishable. That case

merely decided (1) that an indictment cannot be

found cr based upon the judicially compelled

testimony of the defendant because it would vio-

late Article I, §9, of the Pennsylvania Constiu-

tion, which provides that a person “cannot be

compelled to give evidence against himself”, and

also the Fifth Amendment to the United States

: Constitution which provides: “. . . nor shall [any

person] be compelled in any criminal case to be

a witness against himself... .” and (2) for these

wn eet oe re

Opinion and Order of Court of 33a

Common Pleas of Philadelphia County

reasons the indictment must be quashed. (423

Pa. at 182, 224 A.2d at 191; the Court's em-

phasis. )

This statement is precisely applicable to the

Present case. In Dessus there was no judicial com-

pulsion; hence the motion to quash was denied.

In Kilgalien there was judicial compulsion; hence

the motion to quash was granted.° In the present

case, there was judicial compulsion; hence the mo-

tion to quash the indictments against defendant

must be granted, unless there is some significant

distinction between Kilgallen and the present case.

Before considering the Assistant District Attor-

ney’s contention that there is a significant distinction

between Kilgallen and the present case, one further

point should be noted.

If anything, Dessus strengthened Kilgallen, rather

than weakening it. Nothing said in Kilgallen can

fairly be read as applying to any case except one

id which there was judicial compulsion of a defend-

/

ant. By noting in Dessus, therefore, that Kilgallen

“merely” applied to a case of judicial compulsion,

the Supreme Court did not narrow Kilgallen but

simply stated it accurately. However, as has been

observed above, in Kilgallen the Supreme Court

based its holding on two grounds: the defendant's

rights under Article I, §9, of the Pennsylvania Con-

stitution; and his rights under Article III, §32, of the

Pennsylvania Constitution. If the Supreme Court

* Cf. Annot., Self-Incrimination Before Grand Jury, 38 A.L.R. 2d

225, 269-70, 295-96 (1954).

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34a Opinion and Order of Court of

Common Pleas of Philadelphia County

in Dessus was applicable only to a case involving

Article III, §32. Such a statement would seem

logically unsound; no reason is apparent why one

constitutional right should be preferred to another;

and in any event, the right guaranteed by Article

III, §32, is a corollary of the right guaranteed by

Article I, §9; the very fact of the illogic, however,

would indicate a desire to overrule Kilgallen sub

silentio. Instead of making any such statement, the

Court in Dessus made it plain that the basis of Kil-

gallen was not Article III, §32, expressly stating that

the basis was Article I, §9, of the Pennsylvania Con-

stitution and the Fifth Amendment of the United

States Constitution.

2. Is Kilgallen distinguishable from the present

case?

The Assistant District Attorney contends that Kil-

gallen is to be distinguished from the present case

because in Kilgallen the defendant was named in

the petition for an investigating grand jury as a

person suspected to have committed a crime, where-

as in the present case the petition for an investigat-

ing grand jury did not name defendant. This

factual difference does not rise to a legal distinc-

tion.° The reasoning of the Supreme Court in

* The difference is in any event slight. In paragraph 3 of the

petition asking that an investigating grand jury be summoned, the

District Attorney activity . . . in the City of Philadelphia’s urban

renewal efforts ....”. Pharagraph 4 of the petition defines “urban

renewal” as “including, but not limited to, new construction .

land use, capital improvenments . . . and the participation in. . .

said activities by any and all persons, partnerships, corporations and

associations.”

Opinion and Order of Court of 35a

Common Pleas of Philadelphia County

Kilgallen in no way turned upon the fact that Kil-

gallen was named in the petition for an investigat-

ing grand jury. The essential fact so far as the

Court's reasoning was concerned was that Kilgallen

had been judicially compelled to testify. The fact

that Kilgallen had been named in the petition was

irrelevant to the finding of compulsion; it only pre-

cluded argument that when compelled, he was not

entitled to assert his privilege not to incriminate

himself.

f) Conclusions to be drawn from the cases

It may be helpful to summarize the conclusions

that have been drawn from the foregoing review of

the cases.

(i) This Court accepts and follows the analysis

of the Federal cases by Judge Edgerton in Jones,

that an indictment must be quashed upon a show-

ing of sufficient violation of a defendant’s con-

stitutional rights.

(ii) The decision of the Pennsylvania Superior

Court in Gross implies, and the decision of the

One of defendants, Thomas Taylor, testified to this Court that

when he was called to testify before the Investigating Grand jury,

he was told that it was investigating the stadium (N.T. 5), and it

may be assumed that the same was said to the other defendants.

If the petition asking that an investigating grand jury be summoned

had said in so many words that the jury suspected “widespread

criminal activity” with respect to the construction of the stadium,

there would be substantially no distinction between Kilgallen and the

present case; if a district attorney alleges corruption in the construc-

tion of a stadium, and then summons those responsible for the

construction, it may be assumed that the district attorney is in-

vestigating those he has summoned.

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36a Opinion and Order of Court of

Common Pleas of Philadelphia County

Pennsylvania Supreme Court in Kilgallen holds,

that the showing of violation is sufficient, and the

indictment must be quashed, when the showing

is that a defendant's rights under the Fifth Amend-

ment of the United States Constitution and Ar-

ticle I, §9, of the Pennsylvania Constitution have

been violated in that the defendant has been ju-

dically compelled to incriminate himself by test-

tifying before an investigating grand jury.

(iii) This conclusion is not inconsistent with

sound grand jury practice but represents a proper

accommodation between the desirability of prompt

procedure and the need to protect a defendant's

constitutional rights. Upon occasion there wiil

have to be a hearing in addition to such hearings

as may occur incident to trial. The occasion, how-

ever, will be rare, and its propriety and necessity

have been recognized in Kilgallen (“If appellant's

constitutional rights were ignored as contended, it

was a flagrant transgression of the letter and spirit

of our organic law’) and reaffirmed in Dessus.

(iv) There is no such difference in the present

case as would warrant this Court in not follow-

ing Gross and Kilgallen.

g) Remedy

In Kilgallen the Supreme Court remanded for

a hearing to determine whether the indicting grand

jury had acted at least in part upon the basis of

evidence obtained in violation of the defendant's

Opinion and Order of Court of 37a

Common Pleas of Philadelphia County

constitutional rights.° In the present case the

necessary hearing has been held, and the motion

to quash will be granted without further proceed-

ings. By stipulation it is known what the evidence

was that was presented to the indicting grand jury;

it was the Investigating Grand Jury's Fourth Pre-

sentment; it is therefore further known that the

indicting grand jury did act at least in part upon

the basis of evidence obtained in violation of de-

fendant’s constitutional rights when defendant was

judicially compelled to testify before the Investi-

gating Grand Jury;°° under Kilgallen no mare is

required to sustain the motion.

* In referring to some cases from other jurisdictions it has been

said that “the court’s refusal to invalidate an indictment on the

ground that the accused testified before the grand jury which in-

dicted him has been made to turn, at least in part, on the court's

conclusion that no incriminating evidence appeared in the accused’s

testimony.” Annot., Self-Incrimination Before Grand Jury, 38 A.L.R.

2d 225 (1954) at 282. Here, however, it appears from the Fourth

Presentment that, at least in the opinion of the Investigating Grand

Jury, defendant did give incriminating testimony; moreover the Com-

monwealth is evidently determined to be able to use defendant's

testimony to the Investigating Grand Jury at trial. It is not

necessary to consider what other evidence against defendant the

indicting grand jury considered. In the investigation in which Gross,

Manko, and Kilgallen were involved, “a hundred other witnesses

testified to the investigating grand jury (172 Pa. Super. at 89, 92

A.2d at 253); in holding that Kilgallen’s motion to quash would lie,

the Supreme Court did not require any averment that Kilgallen’s

testimony had had any particular significance as compared to the

testimony of these other witnesses but only the averment that “the

testimony of [Kilgallen] before the investigatory grand jury was made

available and parts thereof read to the indicting grand jury . . .’

(379 Pa. at 329, 108 A.2d at 787).

°° Defendant's testimony is quoted, directly or by paraphrase. at

pages 21, 22, and 23, of the Fourth Presentment.

38a Opinion and Judgment of

Superior Court of Pennsylvania

ORDER

AND NOW, July 27, 1970, the Motion by de-

fendant James McCloskey, to quash Bills Nos. 2420

and 2421 of the October, 1969, Term, and Bill No.

266 of the January, 1970, Terms, is granted.

Filed: July 27, 1970

B. Opinion and Judgment of

~ Superior Court of Pennsylvania

OPINION Per Curiam, September 25, 1970:

The six judges who heard this appeal being equ-

ally divided, the order of the court below is af-

firmed.

HOFFMAN, J., absent.

39a

C. Opinion and Judgment of

Supreme Court of Pennsylvania

Commonwealth, Appellant, v. McCloskey.

Appeal, No. 157, Jan. T., 1971, from order of

Superior Court, Oct. T., 1970, Nos. 1377 to 1384,

inclusive, affirming order of Court of Common

Pleas, Criminal Division, of Philadelphia, Nos.

2416 to 2421, inclusive, Oct. T., 1969, 266, Jan.

T., 1970, 2674 to 2679, inclusive, Oct. T. 1969,

2723 and 2724, Oct. T., 1969 and 879 to 897, in-

clusive, Sept. T., 1969. Orders of Superior Court

versed in part and affirmed in part; reargument re-

fused June 14, 1971.

Opinion by Mr. Justice Roberts, May 13, 1971:

The Commonwealth here appeals from decisions

by an evenly divided Superior Court affirming vari-

ous orders of the Philadelphia Court of Common

Pleas quashing indictments against and suppressing

evidence Obtained from the several defendants.

This complex appeal involves numerous issues, all

of which center on two problems: (1) whether a

criminal proceeding can lawfully be commenced by

1 Commonwealth v. Blatstein, 217 Pa. Superior Ct. 788, 269 A.

2d 151 (1970); Commonwealth v. H. H. Robertson Company, 217

Pa. Superior Ct. 789, 269 A. 2d 367 (1970); Commonwealth v. Mc-

Closkey, 217 Pa. Superior Ct. 789, 269 A. 2d 151 (1970); Common-

wealth v. McCloskey Construction Company, 217 Pa. Superior Ct.

790, 269 A. 2d 367 (1970): Commonwealth v. McCormick Taylor

Associates, 217 Pa. Superior Ct. 790, 269 A. 2d 152 ( 1970); Com-

monwealth v. Marzullo, 217 Pa. Superior Ct. 791, 269 A. 2d 152

(1970); Commonwealth v. Steinberg, 217 Pa. Superior Ct. 791, 269

A. 2d 146 (1970); Commonwealth v. Taylor 217 Pa. Superior Ct.

792, 269 A. 2d 146 (1970).

os pI RIRLAB LS RMN Wane iad te

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oe ea

40a Opinion and Judgment of

Supreme Court of Pennsylvania

an investigating grand jury's presentment to an in-

dicting grand jury without affording defendant an

opportunity for a preliminary hearing; and (2)

whether, cr to what degree, a subpoenaed witness

and potential defendant before an investigating

grand jury is entitled to the assistance of counsel

to aid him in asserting his right against self incrimi-

nation guaranteed both by the Fifth Amendment,

applied to the states through the Fourteenth

Amendment, and Article I, Section 9 of the Penn-

sylvania Constitution.

As to the former issue, we believe that an indict-

ment based upon an investigating grand jury's pres-

sentment directly to an indicting grand jury with

leave of court is lawful, even though no preliminary

hearing was held. Concerning the assistance of

counsel and the right against self incrimination,

while we do not today hold that a witness is en-

titled to have counsel present in the hearing room

or that he is entitled to step outside the door and

consult with counsel after every question, we do

believe that a witness should receive a warning by

the court in charge of the investigating grand jury

that if the witness is confused or believes his an-

swer might be incriminating, he may come before

the court accompanied by counsel and be advised

of his rights. This procedure was not followed with

reference to certain of the individual appellees now

before us. Accordingly, those indictments in any

way based upon a defendant's own testimony given

without this warning and in violation of his right

against self incrimination must be quashed.

Opinion and Judgment of 4la

Supreme Court of Pennsylvania

I. BACKGROUND

The investigating grand jury of April Term, 1969,

was convened by court order pursuant to a petition .

submitted by the Philadelphia District Attorney al-

leging various offenses were being or had been com-

mitted with respect to housing, urban renewal and

public construction.

a. Frank M. Steinberg

After hearing numerous witnesses and receiving

voluminous evidence, the investigating grand jury

returned a presentment * on August 18, 1969, re-

questing that appellee, Frank M. Steinberg, a former

Chairman of the Philadelphia Housing Authority,

be indicted on several counts.

The court in charge of the investigating grand

jury (Stoang, J.) accepted the presentment, and

the district attorney with leave of court then sub-

mitted the recommendations to the September in-

dicting grand jury, which returned true bills against

appellee Steinberg charging him with malfeasance,

misfeasance and nonfeasance in office; conspiracy;

deposit of public money for gains; violation of the

State Adverse Interest Act; practice of corrupt so-

licitation; and corrupt solicitation.’ All these in-

dictments were returned without any complaint

having been issued or any preliminary arraignment

or preliminary hearing having been held.

2 The “second” presentment.

3 The charges were embodied in Bills Nos. 879-90, 892-97.

24

42a Opinion and Judgment of

Supreme Court of Pennsylvania

Appellee filed several pre-trial motions chaileng-

ing his indictments, all of which were argued dur-

ing the week of June 22, 1970, when similar mo-

tions by the other appellees in this case were also

being heard. Steinberg’s motion to quash was

granted on the basis that he had been deprived of

his right to a preliminary hearing, and hence his

motions for suppression of evidence, pre-trial dis-

covery and severance were dismissed as moot by

the court (SpaETH, J.). The Commonwealth ap-

pealed from the granting of the motion, and the

Superior Court affirmed by an evenly divided court.*

b. The Stadium Cases

The same Aprii, 1969, investigating grand jury

returned a separate presentment’ on September 4,

1969, recommending indictments against the other

appellees on various charges relating to the con-

struction of an all purpose municipal sports stadium

in Philadelphia costing approximately $50,000,000.

The court (SLOANE, J.) accepted the presentment.

Defendant Thomas Taylor, the district manager of

H. H. Robertson Company, the steel subcontractors

for the stadium, petitioned the court in charge of

the investigating grand jury to grant him a prelimi-

nary hearing. His petition was denied, and his

appeal to the Superior Court was quashed.

Then, on October 1, 1969, defendant H. H. Rob-

ertson Company itself filed a petition before the

#See note |, supra.

* The “fourth” presentment.

Opinion and Judgment of 43a

Supreme Court of Pennsylvania

court in charge of the October, 1969, indicting

grand jury (Spartu, J.) seeking to restrain the dis-

trict attorney from presenting the investigating

grand jury's recommendations to the indicting grand

jury until a preliminary hearing had been held, or

else until certain conditions had been imposed on

the manner in which the evidence was to be pre-

sented to the indicting grand jury. Defendants

McCloskey and Company, Inc., the general con-

tractor for the stadium, and James C. McCloskey,

the firm’s executive vice president, filed similar pe-

titions on October 3, 1969, and defendants Paul

Marzullo, Director of Architecture and Engineer-

ing for Philadelphia, and Harry Blatstcin, the stad-

ium coordinator, did likewise on October 6, 1969.

On October 24, 1969, Judge Spaetu entered an

order dismissing defendants’ petitions, setting forth

his reasons for his action in an opinion, In re Pe-

tition of H. H. Robertson Company, September

Term, 1969, Miscellaneous No. 7540. The dis-

trict attorney then presented evidence ° against the

stadium defendants to the October indicting grand

jury, which returned the following bills: charges

of false pretenses and conspiracy against James C.

McCloskey; charges of false pretenses and con-

-spiracy against McCloskey and Company, Inc.;’

charges of conspiracy against McCormick-Taylor

Associates, engineering consultants to the stadium

®It has been stipulated that this evidence consisted of the

“fourth” presentment.

7 Although the indictment was against “McCloskey Construction

Company”, we will refer to this defendant by its proper name,

“McCloskey & Company, Inc.”

Opinion and Judgment of

Supreme Court of Pennsylvania

architect; charges of conspiracy against Thomas

Taylor; charges of bribery of government offices

and employees, bribery of servants and employees,

extortion, and malfeasance, misfeasance and non-

feasance in office against Harry Blatstein; charges

of malfeasance, misfeasance, and nonfeasance in

office and conspiracy against Paul J. Marzull; and

charges of conspiracy against H. H. Robertson.*

The district attorney also submitted a consolidated

bill based on the same September presentment to

the January, 1970, indicting grand jury, which re-

turned a true bill” charging Thomas Taylor, H. H.

Robertson Company, McCormick-Taylor Associ-

ates, McClosky & Company, Inc., James McCloskey

and Paul Marzullo with conspiracy to obtain money

by false pretenses from the City of Philadelphia.

None of the above indictments were preceded by

either a compiaint, prelimiuary arraignment, or pre-

liminary hearing.

The President Judge of the Philadelphia Court

of Common Pleas "’ assigned all the foregoing cases

to Judge Spaeru “for all pre-trial and post-trial

motions and trial.” Various pre-trial motions re-

questing, inter alia, the suppression of evidence, the

quashing of indictments, and severance were filed,

and arguments were heard during the week of June

22, 1970."

8 All these charges were embodied in Bills Nos. 2416-21, 2674-78,

and 2723-24.

” Bill No. 266.

1” The late Hon. Vincent A. Carroll.

1! The following pre-trial motions were filed:

“1. Notions to suppress testimony

Opinion and Judgment of 45a

Supreme Court of Pennsylvania

On July 27, 1970, in a departure from his October

24, 1969, decision. Judge Spaetu filed four opinions

granting the motions to quash and to suppress tes-

timeny of certain defendants. As to all the stad-

ium defendants, Judge SpaeTH concluded that in

Filed by:

Paul Marzullo

James McCloskey

Thomas Taylor

“2. Motion to quash indictments as based on unconstitutionally

obtained testimony

Filed by:

James McCloskey

“3. Motions to quash indictments as defective for denial of a

preliminary hearing

Filed by:

Harry Biststein

Paul Marzullo

McCloskey & Company, Inc.

James McCloskey

McCormick-Taylor Associates

H. H. Robertson Company

Thomas Taylor

“4. Motions for change of venue (withdrawn during arg:ment)

Filed by:

Paul Marzullo

McCormick-Taylor Associates

Thomas Taylor

“5. Motions for continuonce until the investigating Grand Jury

is discharged

Filed by:

Paul Marzullo

McCloskey & Company, Inc.

James McCloskey

H. H. Robertson Company

Thomes Taylor

“6. Motions for continuance until the completion of the stadium

Filed by:

Paul Marzullo

H. H. Robertson Company

Thomas Taylor

|

a ee ate

46a Opinion and Judgment of

Supreme Court of Pennsylvania

light of the intervening decision of this court in

Commonwealth v. Rose and Commonwealth ex rel.

Magaziner v. Sheriff, 437 Pa. 30, 261 A. 2d 586

(1970), the Pennsylvania Rules of Criminal Pro-

cedure now required a preliminary hearing in every

criminal case. He therefore determined that the

teaching of the recent decision of the United States

Supreme Court in Coleman v. Alabama, 399 U.S.

“7. Motions for discovery and for production of scientific reports

Filed by:

McCloskey & Company, Inc.

James McCloskey

McCormick-Taylor Associates

“8. Motions for bill of particulars

Filed by:

Harry Blatstein

Paul Marzullo

McCloskey & Company, Inc.

James McCloskey

Thomas Taylor

“9. Motion for consolidation of all bills

Filed by:

Commonwealth of Pennsylvania

“10. Motions for severance

Filed by:

Paul Marzullo

McCloskey & Company, Inc.

James McCloskey ;

H. H. Robertson Company

Thomas Taylor

“11. Motions in re order of proof

Filed by:

McCloskey & Company, Inc.

James McCloskey

H. H. Robertson Company

“12. Motions to quash superseded indictments

Filed by:

McCloskey & Company, Inc.

James McCloskey

McCormick-Taylor Associates

Thomas Taylor

Opinion and Judgment of 47a

Supreme Court of Pennsylvania

I, 90 S. Ct. 1999 (1970) as well as considerations

of equal protection and the defendants’ right to

counsel necessitated the indictments be quashed.

In a separate opinion dealing with defendant

James McCloskey’s petition to quash, Judge

SPAETH ruled invalid an indictment based in part

on testimony obtained in violation of a defendant’s

rights under the Fifth Amendment to the United

States Constitution and Article I, Section 9 of the

Pennsylvania Constitution. In another separate

opinion, Judge Spaetu directed that the testimon

of defendants James McCloskey, Paul Marzullo and

Thomas Taylor before the April, 1969, investigating

grand jury be supressed because their Sixth Amend-

ruent right to effective assistance of counsel at a

critical stage had been denied. Finally, as noted

above,'* Judge SparTu quashed the indictment with

respect to Frank Steinberg.

The Commonwealth appealed these decisions to

the Superior Court which affirmed them all with-

“13. Motions for inspection of grand jury notes of testimony

Filed by:

Harry Blatstein

Paul Marzullo

McCloskey & Company, Inc.

James McCloskey

H. H. Robertson Company

Thomas Taylor

“14. Application for a blue ribbon jury

Filed by:

Thomas Taylor”

™ See pp. 2-3, supra. The Steinberg indictment was not involved

in Judge Spaeth’s October, 1969, opinion. There was accordingly no

change with respect to this appellee.

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48a Opinion and Judgment of

Supreme Court of Pennsylvania

out opinion by an equally divided court on Sep-

tember 25, 1970.'" This consolidated appeal fol-

lowed."

II. NECESSITY OF A PRELIMINARY

HEARING

a. Rules of Criminal Procedure

Appellees urge that their indictments are invalid

because they violate the Pennsylvania Rules of

Criminal Procedure which, in their view, establish

a comprehensive procedure for the institution of

all criminal prosecutions.

Rule 102 provides that “[e]xcept as otherwise pro-

vided in these rules, all proceedings shall be initi-

ated by a written complaint, sworn to or affirmed,

13 See note 1, supra.

14 Meanwhile, the Commonwealth proceeded against defendants

McCloskey and Company, Inc., McCormick- .aylor Associates, H. H.

Robertson Company, Paul Marzullo and James C. McCloskey by

way of complaint, preliminary arraignment and preliminary hear-

ing. Complaints were presented to the Muncipal Court (Dandbridge,

J.) A dispute arose as to whether the preliminary hearing should

proceed before Judge Dandbridge, as the district attorney desired,

or before Judge Spaeth, as ordered by the late Hon. Vincent A.

Carroll. Defendants petitioned this Court for a writ of prohibition

and on September 15, 1970, we issued a rule calling upon Judge

Dandbridge and President Judge Joseph R. Glancey of the Munici-

pal Court of Philadelphia to show cause why the writ should riot

be granted. The rule issued without prejudice to preliminary hear-

ings held in the meantime. On September 23, 1970, we granted de-

fendants’ petition for a writ of prohibition and the complaints were

then transferred to Judge Spaeth for disposition. On September

28, 1970, a pre-hearing conference was held. Upon motion of the

district attorney and over defendants’ objections, the court on

November 30, 1970, continued the preliminary hearing, explaining

in an accompanying opinion that it did not wish to take any action

which might interfere with this Court’s disposition of this appeal.

Opinion and Judgment of 49a

Supreme Court of Pennsylvania

and subscribed by affiant.” Rule 116 requires

that a preliminary arraignment he held without

“unnecessary delay” after an arrest, at which time

the accused is entitled to a warning of his right

to counsel and to bail, if he is accused of a bailable

offense, as well as to his “right to have a prelimi-

nary hearing, or, except as provided in these rules,

to waive it.” '® Rules 117 to 119 respectively deal

with the nature and place of a preliminary hearing,

the publicity and recording of the hearing, and the

rights of parties at a preliminary hearing.

The issue, simply stated, is whether these Rules

of Criminal Procedure have abrogated the power of

a prosecuting official to submit an investigating

grand jury presentment directly, with leave of

court, to an indicting grand jury, a power which

was a traditional and established exception to the

normal procedure of instituting criminal proceedings

by criminal complaint and preliminary hearing."

As noted above, Rule 102 provided that all pro-

ceedings should be initiated by criminal complaint

“[e]xcept as otherwise provided in these rules . . .”

The Commonwealth submits that Rule 212(c)’s

definition of “presentment” as “. . . a formal ac-

cusation made by a grand jury, drafted by the Com-

monwealth’s attorney with leave of court and sub-

Rule 102 was subsequently amended effective May 1, 1970,

to provide that a complaint is only one of several permissible

methods of instituting criminal Proceedings. However, the present

appeal is governed by the former rules,

‘6 Rules 116, 117, 118, and 119 have likewise been revised.

See pp. 130-131, infra.

meena sa

50a Opinion and Judgment of

Supreme Court of Pennsylvania

mitted for action to a subsequent indicting grand

jury, is such an exception to Rule 102.

In his October, 1969, opinion Judge SPAETH ac-

cepted the Commonwealth's view of the Rules. The

principal reason for altering his view on this issue

in the July, 1970, determination, was his reading

of the opinion of this Court in Commonwealth v.

Rose and Commonwealth ex rel. Magaziner v.

Sheriff, supra.

Initially we note that while Judge SpaETH may

have been understandably misled by Rose and Mag-

aziner, that decision is not determinative of the

issue now before us. Rose and Magaziner involved

situations where a trial judge in one case, and a

habeas corpus, hearing judge in the other sat as

committing magistrates and summarily held de-

fendants on charges of perjury, with no complaint

having been issued or preliminary hearing having

been held. No such situation is now before us.

No challenge to a grand jury presentment or the

powers of a special investigating grand jury existed

in Rose and Magaziner. Furthermore, the opin-

ion’s language concerning the Rules of Criminal

Procedure stressed that the Rules applied to com-

mon pleas judges sitting as committing magistrates.

The opinion was limited to that factual situation.

This Court in no way there settled the question of

whether the criminal rules pertaining to complaint

and preliminary hearing superseded the other his-

torical methods of commencing criminai prescu-

tions.

Opinion and Judgment of 5la

Supreme Court of Pennsylvania

While the Rules are silent on special grand jury

functions, we agree with the Commonwealth that

Rule 212(c) provides a sufficient exception to Rule

102 to permit the interpretation we enunciate to-

day.

Moreover, even in the absence of Rule 212(c),

we would not infer that such silence was intended

to abolish the traditionally sanctioned procedure

by which a court-supervised investigating grand

jury makes its presentment. It would be unrea-

sonable to infer such a drastic alteration, as urged

by appellees, from mere silence in rules dealing

with more commonplace criminal proceedings. The

Rules of Criminal Procedure at present simply do

not concern themselves with this long established

practice, nor do they foreclose any of the other

traditional exceptions to proceeding by a pre-

liminary hearing.

b. Constitutionality of an Investigating Grand Jury

Presentment

Several of the appellees here advance the argu-

ment that to deny them a preliminary hearing in

contradistinction to defendants whose prosecutions

began with complaints is an invidious discrimination

in violation of the equal protection clause of the

Fourteenth Amendment. A review and analysis

of the traditional and historic methods for institut-

ing criminal proceedings in this Commonwealth

discloses that this contention is without merit.

'* See pp. 130-131, infra.

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52a Opinion and Judgment of

Supreme Court of Pennsylvania

In the overwhelming majority of cases a criminal

action commences with the appropriate prosecuting

officials’ filing of a complaint.’ Preliminary ar-

raignment and a preliminary hearing * follow. This

procedure, which can certainly be viewed as the

norm, admitted of exceptions in three general sit-

uations. |

The first is where the district attorney or attorney

general submits a bill to a grand jury without prev-

ious binding over or commitment of the accused.

Such an exercise of official authority would be jus-

tified, for example, when the accused has fled or

is about to flee the jurisdiction, and great haste is

necessary. “The procedure in such cases, however,

is under supervision of the court, and if the process

and power is misapplied the court will vindicate

itself in restraining its exercise.” Commonwealth

v. Green, 126 Pa. 531, 537, 17 Atl. 878, 879, (1889).

Accord, McNair's Petition, 324 Pa. 48, 59-60, 187

Atl. 498, 503-04 (1936) and cases cited therein.

See also, Commonwealth v. Coyle, 415 Pa. 379,

396, 203 A. 2d 782, 790-91 (1964).

The second exception is when an indicting grand

jury makes a presentment based on personal knowl-

See generally, Address by the Hon. John C. Bell, District

Attorney of Philadelphia, “The Several Modes of Instituting Crim-

inal Proceedings in Pennsylvania,” 13 Pa. Dist. Repts. 815 (1904).

“"It is interesting, to note that preliminary hearings were un-

known at early common law. They were created by statute and

originated not as a means of protecting persons arrested for crime

but ther as an instrument to restrict their indiscriminate release.

For a thorough history of the development of preliminary hearings

in both England and this Commonwealth, see Commonwealth v.

O'Brien, 181 Pa. Superior Ct. 382, 387-97, 124 A. 2d 666, 669-73

(1956).

Opinion and Judgment of 53a

Supreme Court of Peiunsylvania

edge of the juror without any bill of indictment

having been laid before them. See McNair's Peti-

tion, supra, at 60, 187 Atl. at 504; Commonwealth v.

Green, supra, at 537-38, 17 Atl. at 879. See gener-

ally 4 Wharton, Criminal Law and Procedure

§1710 (1957).

We are here concerned with the final exception—

a prosecutor's submission of an investigating grand

jury presentment to an. indicting grand jury with

leave of court. Appellees contend the recent de-

cision of the United States Supreme Court in Cole-

man v. Alabama, supra, while not requiring a pre-

liminary hearing as a matter of constitutional iaw,

holds that if a preliminary hearing is granted it

becomes a critical stage in the proceedings, and the

accused is accordingly entitled to the assistance of

counsel. They further assert that because Cole-

man emphasizes the critical nature of the prelimi-

nary hearing, a procedure whereby some criminal

prosecutions are initiated by hearing and others by

investigating grand jury presentments raises a ser-

ious question of equal protection, for in effect two

types of. defendants have been created: ‘hose en-

titled to a preliminary hearing and those not en-

titled to such a proceeding. Appellees urge that

such a classification is unreasonable and arbitrary

because it permits a district attorney to create a

classification at will, uninhibited by guidelines or

restrictions.

We do not agree that these alternative modes of

instituting criminal proceedings as they exist in this

Commonwealth constitute an unreasonable classifi-

cation. This Court has elsewhere summarized the

origins of a grand jury's investigative powers, which

—-_-

Pilate Boas.

54a Opinion and Judgment of

Supreme Court of Pennsylvania

has been recognized in this Commonwealth since

1791.°' It suffices to recall that while in some states

a grand jury's inquisatorial capacity is virtually un-

limited,” in Pennsylvania the freedom of the grand

21 See generally, Hamilton’s Appeal, 407 Pa. 366, 383-86, 180 A.

2d 782, 790-91 (1962) (dissenting opinion); McNair’s Petition, 324

Pa. 48, 56 n. 1, 187 Ail. 498, 502 n. 1 (1936).

Although the origins of the grand jury continue to be obscure,

compare McNair's Petition, supra (Norman or Anglo-Saxon) with

Whyte, Is the Grand Jury Necessary, 45 Va. L. Rev. 461, 452-63

(1959) (Greco-Roman or Scandinavian); there is general agreement

that the institution first became formalized in England in 1162 by

the Assize of Clarendon. See generally, Edwards, The Grand Jury

1-44 (1960); Plucknett, A Concise History of the Common Law,

16-19, 86-88, 102-21 (3d ed. 1940); 1 Pollock & Maitland, The His-

tory of the English Law 136-53, 598662 (2d ed. 1903); Stephen, A

History of the Criminal Law of England 184-86, 250-58 (1883).

The assize was a body of laymen who were to report persons

accused of robbery and other crimes to the royal sheriff. Their

deliberations were open, and their purpose was to further the

interest of the crown.

Then, in the seventeenth century, the grand jury became a

protector of the individual against the crown. The single most

significant manifestation of this change was the Earl of Shaftes-

bury’s Trial, 8 How. St. Tr. 759 (1681) where the jurors requested

and were permitted to question the witnesses in private. They then

refused to indict. See 8 Wigmore on Evidence, §2360 (1961); see

generally Calkins, Grand Jury Secrecy, 63 Hich. L. Rev. 455, 456-58

(1965). The function of protecting the individual from indiscrimi-

nate prosecution remains the foremost duty of the grand jury today.

The origins of the grand jury's investigative powers are equally

uncertain. See Dession and Cohen, The Inquisatorial Functions of

Grand Juries, 41 Yale L.J. 687 (1932); Segal, Spivack and Costilo,

Obtaining a Grand Jury Investigation in Pennsylvania, 35 Temp.

L.Q. 73, 75 (1961). Yet, its inquisatorial powers were clearly

established in this Commonwealth by 1791. See McNair's Petition,

supra at 57, 187 Atl. at 503.

*2 See McNair’s Petition, supra at 57-58, 187 Atl. at 503.

See generally Kuh, The Grand Jury “Presentment”: Foul Blow or

Fair Play? 55 Col. L. Rev. 1103 (1955): Note, The Grand Jury

as an Investigatory Body, 74 Harv. L. Rev. 590 (1961); Note, Dis-

cretionary Power in the Judiciary to Organize a Speci.! Invesiigat-

ing Grand Jury, 111 U. Pa. L. Rev. 954 (1963).

ee ae

Opinion and Judgment of 55a

Supreme Court of Pennsylvania

jury to investigate has been severely restricted.

Hence we believe any fears of arbitrary action by

district attorneys in this area are not supported by

either the decisional law or the requisite procedure.

One of the earliest and most comprehensive dis-

cussions of a grand jury was Lloyd & Carpenter's

Case, 5 Pa. L.J. 55, 3 Clark 188 (Ct. of Qtr. Sess.

of Phila. 1845), cited with approval by this Court

on many occasions.”* After commenting on the

other two extraordinary modes of procedure,” Judge

Kinc there observed that an investigating grand

jury is justified where criminal courts direct the

investigation of: “. . . matters of general public

import, which, from their nature and operation in

the entire community, justify such intervention.

The action of the courts on such occasions, rather

hear on things than persons; the object being the

suppression of general and public evils, affecting in

their influence and operation communities rather

than individuals and therefore, more properly the

subject of general than special complaint. Such as

great riots that shake the social fabric, carrying ter-

ror and dismay among the citizens; general public

nuisances affecting the public health and comfort;

multiplied and flagrant vices tending to debauch

and corrupt the public morals, and the like. In such

cases the courts may properly, in aid of inquiries by

them, summon, swear, and send before the grand

*3 See, e.g., Special Grand Jury Case, 397 Pa. 254, 256, 154

A. 2d 592, 594 (1959); McNair’s Petition, swpra at 58, 187 Atl. at

503.

*4 See discussion, supra, pp. 130-131.

3 bce OS AS Rie aewtlieg RO cop ek A RR eat a aa

Opinion and Judgment of

Supreme Court of Pennsylvania

jury, such witnesses a they may deem necessary to

a full investigation of the evils intimated, in order

to enable the grand jury to present the offence and

the offenders. But this course is never adopted

in case of ordinary crimes, charged against individ-

uals. Because it would involve, to a certain extent,

the expression of opinion by anticipation, on facts

subsequently to come before the courts for direct

judgment; and because such cases present none of

those urgent necessities which authorize a departure

from the ordinary course of justice. In directing

any of these investigations, the court act [sic] under

their official responsibilities and must answer for

any step taken, not justified by the proper exercise

of a sound judicial discretion.” Id. at 58-59, 3

Clark at 192 (emphasis added).

We have stressed with regard to a grand jury's

investigative function that “... °. . . this power,

which is a most delicate one, is never exercised

unless under urgent necessity or . . . [where] the

public would suffer from delays incident to ordi-

nary forms of law.” McNair's Petition, supra at

60, 187 Atl. at 504 (brackets in original) (citations

omitted). Such concerns were the prime motiva-

tion underlying the historic requirement in Penn-

sylvania that a court be placed in charge of a

special investigating grand jury to regulate the scope

of inquiry, by, for example, administering the oath

to the witnesses and receiving objections.”

25 The foreman of an investigating grand jury does not have

the power to administer the oath. See Commonwealth v. Hubbs,

137 Pa. Superior Ct. 229, 8 A. 2d 611 (1939).

Opinion and Judgment of 57a

Supreme Court of Pennsylvania

A court will first scrutinize the prosecuting offi-

cial’s petition for summoning the jury. See, e.g.,

In re Grand Jury Investigation of Registration

Commission, etc., 22 Pa. D. & C. 2d 285 (1960);

District Attorney's Petition, 50 Pa. C.C. 347 (1921);

In re Alleged Extortion Cases, 29 Pa. C.C. 538

(1904).

The court's decision to proceed with, as well as

its overseeing of the investigation is subject to the

review of this Court through the recognized pro-

cedure of applying for a writ of prohibition to pre-

vent an alleged improper exercise of power or an

abuse of discretion by the supervising court. See

Hamilton Appeal, 407 Pa. 366, 180 A. 2d 782

(1962). We have not hesitated to issue a writ

of prohibition in cases where evidence did not in-

dicate a special grand jury was necessary. Com-

pare Philadelphia County Grand Jury Investigation

Case, 347 Pa. 316, 32 A. 2d 199 (1943) (writ of

prohibition issued) and McNair's Petition, supra

(writ of prohibition issued) with Dauphin County

Grand Jury Investigation (No. 1), 332 Pa. 289,

2 A.2d 783 (1938) (invetigation approved) and

Shenkar v. Harr, 332 Pa. 382, 2 A. 2d 298 (1938)

(investigation approved). See generally Hamilton

Appeal, supra at 376-81, 180 A. 2d at 787-89 (1962)

(appendix attached to concurring opinion listing

Pennsylvania grand jury cases).

Moreover, we note that a writ of prohibition is

not the only method by which our Court will re-

view the propriety of the convening and function-

ing of an investigating grand jury. A convicted

defendant who believes he has been aggrieved by

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58a Opinion and Judgment of

Supreme Court of Pennsylvania

any illegal actions of the investigating grand jury

could obtain appropriate appellate review in his

appeal from judgment of sentence.

In McNair’s Petition we set forth some of the

more crucia: requirements surrounding the approval

of a grand jury investigation: “A grond jury in-

vestigation, because of the gravity of the under-

taking, must have a definite purpose to discover

criminal acts which seriously affect or injure the

public generally, which effect, if permitted to con-

tinue, would endanger public safety . . . or health,

demoralize the personal security of members of

the public, or permit systematic criminal depre-

dations by public officers. . . . Such matters re-

quire immediate attention so that these evils may

be suppressed. The criminal acts subject to in-

vestigation must be such that the ordinary process

of the law is inadequate to cope with or discover

them. ...

“A grand jury's investigation cannot be a blanket

inquiry to bring to light supposed grievances or

wrongs for the purpose of criticizing an officer or a

department of government, nor may it be instituted

without direct knowledge or knowledge gained from

trustworthy information that criminal conspiracy,

systematic violations of the law or other criminal

acts of a widespread nature prevail, and at least one

or more cognate offenses should exist on which to

base a general investigation. The investigation can-

not be aimed at individuals primarily, as such, nor

at the commission of ordinary crimes . . . but should

aOR A B+ DW Ba OS

Opinion and Judgment of 59a

Supreme Court of Pennsylvania

be of matters or criminal nature wherein public

officers or the interests of the general public are

involved.

“Where it is made to appear to a court, as above

indicated, that there exists a system of crime among

public officers, or criminal conspiracies respecting

public business, safety or health, or other criminal

acts affecting these functions of a widespread na-

ture, jeopardizing or demoralizing public security

or health, the judge may properly order such Sal

vestigation.

“Investigations for purely speculative purposes

are odious and oppressive and should not be toler-

ated by law. . . . The grand jury must know what

crimes it is to investigate. The court of quarter

sessions has no power to set such an inquiry in

motion unless it has reasonable cause to believe

that an investigation will disclose some criminal mis-

conduct which is within its jurisdcton to punsh.

“The grand jury must not be set upon fruitless

searches, founded upon mere rumor, suspicion or

conjecture. These are proper matters for police in-

vestigation. Before reflection is cast upon the in-

tegrity of public officials a preliminary investi-

gation by the forces of law charged with the dis-

covery of crime should be made to determine

whether there is any real foundation. Such jury

investigations involve great expense to the public;

subject the citizen to inconvenience and frequently

interfere with the normal functioning of public offi-

cials and bodies brought before it. They throw a

cloud of suspicion upon the parties subject to at-

tack and undermine public confidence in them.

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tn eee S

Opinion and Judgment of

Supreme Court of Pennsylvania

There must be a sound, solid basis on which to

proceed.” Id. at 60-62, 187 Atl. at 504-05 (foot-

note and citations omitted).

|

Having reviewed in depth the nature and charac-

teristics of an investigating grand jury, we believe

it serves identifiable and legitimate state interests.

: We cannot agree that the omission of a preliminary

hearing for a defendant indicted pursuant to a pre-

sentment, when the extraordinary and limited cir-

cumstances * justifying the impaneling of an in-

vestigating grand jury existed, in any way preju-

dices him, or denies him a greater degree of pro-

tection than is available to a defendant in a crim-

inal proceeding instituted by complaint and pre-

liminary hearing. In comparing the safeguards af-

forded by these alternative procedures, we must

turn again to the Rules of Criminal Procedure.

i CN RPA LORE

Rule 119 lists four rights of an accused at a pre-

liminary hearing: assistance of counsel, cross-ex-

26It has been suggested that the minimum requisites for ob-

’ taining a grand jury investigation are: (a) the subject matter of

the investigation must affect the members of the community as a

: whole, rather than as individuals; (b) the investigation must be

4 aimed at conditions and not primarily at individuals; (c) the ordi-

nary processes of the law must be inadequate to cope with the prob-

lems; (d) the investigation must have a defined scope, be aimed

at crimes, and supported by information indicating the existence of

a system of related crimes or a widespread conspiracy; (e) in-

formation as to the crimes must come from direct knowledge or a

trustworthy source. See Segal, Spivack and Costilo, supra, note

21 at 79.

27 Rule 120 of the new Rules. It is not without interest that

the rules pertaining to preliminary arraignment and préliminary

hearing mention that these procedures occur after an arrest. To our

knowledge, no arrest has occurred in the instant cases.

OS

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Opinion and Judgment of 6la

Supreme Court of Pennsylvania

amination of witnesses and inspection of physical

evidence, giving of testimony and recording the pro-

ceedings at his own expense.

We deal with the right to counsel in Section III of

this opinion and accordingly defer a discussion of

that subject.

As to recording the proceedings, a record was

made of the special grand jury investigation here

involved. Each witness is entitled to his own tes-

timony. Furthermore, should any of the other

evidence before the investigating grand jury be ma-

terial to the impeachment of Commonwealth wit-

nesses at trial, we will not presuppose that the trial

court would not adequately protect any rights a de-

fendant might have to utilize such evidence.™

Likewise, the other preliminary hearing advan-

tages allegedly denied defendants are illusory. In

Commonwealth v. Dessus. 423 Pa. 177, 181, 224 A.

2d 188, 191 (1966), we held that an indictment

based solely on hearsay testimony was valid. That

being the case, an accused's opportunity to cross-

examine at a preliminary hearing is severely re-

stricted. We believe that the policy considerations

justifying the impaneling of a special investigating

grand jury when ordinary law enforcement proced-

ures are no longer capable of dealing with the prob-

lem as outlined above justifies this “curtailment,”

if indeed it is one, of an accused's cross-examination

opportunity (Cf. California v. Green, 399 USS.

149, 90 S. Ct. 1930 (1970).

28 Cf. Pittsburgh Plate Glass Co. v. U. S., 360 U.S. 395, 79 S.

Ct. 1237 (1959); see generally, Calkins, supra, note 21 at 476-85.

Opinion and Judgment of

Supreme Court of Pennsylvania

Additionally, in view of the limited quantum of

evidence necessary to bind a defendant over, and a

defendant's opportunity to testify on his own behalf,

we believe any disclosure benefits available to a

defendant in a preliminary hearing through the

availability of inspecting the minimum if any,

‘ amount of physical evidence introduced by the

Commonwealth are more than adequately balanced

in the context of an indictment arising out of a

grand jury investigation. In the latter situation, a

defendant has the entire presentment as a basis

upon which to prepare for trial as well as the right

to request a bill of particulars under Rule 221. As

; the record now before us discloses, a presentment

i is a rather complete summary of the grounds on

j which the investigating grand jury is making its

; recommendation, and includes descriptions of both

the physical evidence and testimony that prompts

its action.

It has been urged by various appellees that the

A proper procedure required by both the criminal

| rules and considerations of equal protection is that

subsequent to the investigating grand jury present-

ment, a complaint should be issued and preliminary

| hearing held before th~ matter is submitted to an

indicting grand jury. To accede to appellee’s re

quest would merely be subjecting the administra-

tion of criminal justice to another superfluous layer

of delay and impesing an uwise burden upon our

judicial process as well as upon the prosecutor and

counsel for the defense with only a slight expecta-

tion for what at most be a highly speculative de

minimus advantage to an accused.

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Opinion and Judgment of 63a

Supreme Court of Pennsylvania

We reiterate that an investigating grand jury is

an arm of the court, in this Commonwealth is

judicially supervised from its inception contrary to

the practice in most jurisdictions and is strictly regu-

lated in the scope of its inquiry. The rights of an

accused will certainly be as well protected before

an investigating grand jury as during a preliminary

hearing. Both are conducted before persons not

necessarily schooled in the law. At least in the in-

vestigating grand jury context, the procedure is

subject to supervision by a court.

Finally, we do not view Coleman v. Alabama,

supra, as compelling a different result. Coleman

did not decide that a preliminary hearing was con-

stitutionally required; it held that when an ac-

cused has a preliminary hearing, he is entitled to

counsel. This Court has ruled Coleman to be

non-retroactive in Commonwealth v. James, 440 Pa.

205, 269 A. 2d 898 (1970). Moreover, Coleman

mace clear that appellate review of the denial of

counsel at a preliminary hearing was subject to

the harmless error test of Chapman v. California,

386 U.S. 18, 87 S. Ct. 824 (1967). 399 USS. at 3,

90 S. Ct. at 2004. As wul appear more fully below,

we apply an analogous test, for relief is denied

only to those appellees now before us whose in-

dictments were not based in part on self-incrimina-

tory statements made before the investigating

grand jury without sufficient warning from the

court

In sum, an investigating grand jury present-

ment is a constitutionally permissible and reason-

able alternative to a preliminary hearing. We turn

64a Opinion and Judgment of

Supreme Court of Pennsylvania

now to a witness's right to the assistance of counsel

and privilege against self iacrimination during his

appearance before an investigating grand jury.

III. RIGHT TO COUNSEL AND RIGHT

AGAINST SELF INCRIMINATION

BEFORE AN INVESTIGATING

GRAND JURY

When the five individual appellees were sub-

poenaed to testify before the April, 1969, inves-

tigating grand jury, each requested the court

(SLOANE,J.) that he be permitted to have counsel

with him in the grand jury room, or in the alterna-

tive that he be allowed to consult with counsel at

will outside the door. These motions were properly

refused. The court then instructed defendants as

to their duties as witnesses. The relevant portions

of these irstructions are set forth in the margin.”

29 The record in this appeal reveals the following:

To Mr. McCloskey:

“The Court: Now, here, too, gentlemen, you are represented by

very able counsel, Mr. Gittis. You have a right, each of you—both

of you—to talk to Mr. Gittis before you go into the Grand Jury room,

and you confide in Mr. Gittis after you come out—but with nobody

else—not even your wives.

“I have said you have able counsel. You may consult with him

or his associate before you go into the Grand Jury room, and after

you come out, but not while you are there.”

To Mr. Marzullo:

“The Court: Mr. Marzullo, I will tell you what, most likely,

you just heard when I said it to Mr. Breen. And that is, you

certainly have a right to have a lawyer—and you have one, and a

good one. You have a right to consult with him before you go into

the Grand Jury room, and have questions presented to you and

answers made, as indicated by the oath I have just given you.

ot. at

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Opinion and Judgment of 65a

Supreme Court of Pennsylvania

In his July, 1970, opons- Sune SPAETH ruled

that appellees were efifitled under the Fifth and

Sixth Amendments to consult with their lawyers

outside the grand jury room during their testimony.

He based his ruling on the United States Supreme

Court decisions in Miranda v. Arizona, 384 U.S.

436, 86 S. Ct. 1602 (1966) and Escobedo v. Illinois,

378 U.S. 478, 84 S. Ct. 1758 (1964), as well as

the decision of the New York Court of Appeals in

People v. Ianniello, 21 N.Y. 2d 418, 235 N.E. 2d

439, cert. denied, 393 U.S. 827, 89 S. Ct. 90 (1968).

We cannot agree.

Neither Escobedo nor Miranda were’ even ic-

motely concerned with right to counsel before an

You may tell your lawer—and nobody else—on the basis of the

great tradition of the lawyer-client relationship—what went on in

the Grand Jury room—but no one else. And that includes your

wife

“You may not have a lawyer with you while you are in the

C and Jury room.”

To Mr. Taylor:

“The Court: * * °

“As you may have heard, each one of you has the right to

sonsult a lawyer, counsel, before you go into the Grand Jury room,

and to confide in that same counsel after you come out. You may

not confide in anyone else excepting your lawyer—not even your

wife. I say ‘wife’ because generally she is the most intimate person

that a man knows—when he jis raarried. Otherwise, everything is

secret, under the law, under the Grand Jury proceeding.”

To Mr. Blatstein:

“The Court: * * °

“As you know, Mr. Blatstein, you may consult with your coun-

sel, Mr. Richter, before you go into the Grand Jury room. And

you may confide in Mr. Richter yhen you come out of the Grand

Jury room. While you are in the Grand Jury room, you are in there

alone. If there is any problem or question, it will be brought before

the court.” (Emphasis added. )

Mr. Steinberg was administered the oath without any caution-

ary instructions.

5 ee RAI RR Sate

(ian eR aA ED lag hy cctital ak leinvts Sid om, Laat BEAN eT ene

Paran..us a

66a Opinion and Jua_ment of

Supreme Court of Pennsylvania

investigating grand jury. The interpretation urged

by appellees that counsel be accessible at all times

during a witness’ appearance is an unwarranted

extension of the teaching of those decisions. As

to lanniello, we believe it supports the result we

reach today, as appears more fully below.

In In re Groban’s Petition, 352 U.S. 330, 77 S.

Ct. 510 (1957), the last pronouncement by the

Supreme Court witness before a grand jury cannot

insist, as a matter of constitutional right, on being

represented by his counsel. . .. When . . . charges

are made in a criminal proceeding, he then may de-

mand the presence of his counsel for his defense.”

Id. at 333, 77 S. Ct. at 513.

It would be a serious interruption and impair

continuity in a grand jury investigation if witnesses

were permtted to leave the room and consult with

counsel prior to responding to every question.

However, in In re Groban’s Petition, supra,

the Supreme Court also stressed that a witness be-

fore a grand jury is always protected by the privi-

lege against self incrimination, “. . . a privilege

available in investigations as well as in prosecu-

tions.” Id. at 333, 77 S. Ct. at 513 (emphasis

added). See generally, Annot., Self Incrimina-

tion Before a Grand Jury, 38 A.L.R. 2d 229 (1954).

In seeking to balance society's interest in the

grand jury's freedom of orderly inquiry and a wit-

ness’ right to exercise his privilege against self in-

crimination knowingly and intellgently, we beleve

that proper procedure is for the court supervising

Opinion and Judgment of 67a

Supreme Court of Pennsylvania

the investigating grand jury to instruct a witness

when administering the oath that while he ma

consult with counsel prior to and after his ap-

pearance, he cannot consult with counsel while he

is giving testimony. However, the witness should

also be informed that should a problem arise

while he is being interrogated, or should he be

doubtful as to whether he can properly refuse to

answer a particular question, the witness can come

before the court accompanied by counsel and ob-

tain a ruling as to whether he should answer the

question.

Such a warning gives full recognition to the deli-

cate position of a witness before an investigating

grand jury.” He has been summoned to testify,

and he is subject to contempt proceedings should

he refuse to testify without justification.” The

question of when a witness has “reasonable cause

to apprehend danger” and hence can exercise his

right against self incrimination is not always clear.”

As was stated in Jones v. United States, 342 F. 2d

863 (D.C. Cir. 1964): “If... [a witness] answers

incriminating questions he may make certain, as

Short did, that he will be indicted. And testimony

before the grand jury may be used, though Short’s

was not, to impeach his testimony at trial. If he

refuses to testify at all, or to answer some ques-

tions on the ground that answers might incriminate

See generally, Meshbesher, Right to Counsel Before G, 1nd

Jury, 41 F.R.D. 189 (1967).

#1 See, e.g., United States v. Testa, 326 F. 2d 730 (3d Cir. 1963),

cert. denied, 376 U.S. 931, 84 S. Ct. 701 (1964).

See Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489 (1964).

’

:

:

j

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F

ie

68a Opinion and Judgment of

Supreme Court of Pennsylvania

him, the grand jury may draw conclusions. If he

refuses to answer questions that are not incrim-

inating, he may be guilty of contempt.” Id. at 868

(Encerton, J., joined by Bazeon, C. J., and Fany

and Wricut, J.J.).”

Determining what is an incriminating statement

is not always clear to a layman. We thus conclude

that a subpoenaed witness who has given testimony

before an investigating grand jury without the

above warning has been denied his right against

self incrimination.

As noted above, appellees urge that the New

York Court of Appeals’ decision in People v. Ian-

niello, supra, is persuasive authority for the propo-

sition that a witness before an investigating grand

jury be allowed to consult with his attorney out-

side the hearing room after each question. Hav-

ing examined that decision we find, to the contrary,

that it supports the result we reach today.

The holding of that decision was that Ianniello

in fact had not been deprived of ary right to con-

sult with his lawyer. See 21 N.Y. 2d at 424, 235

N.E.2d at 441. Judge Brierex then observed that

“[clourts have a particular responsibility to pre-

vent unfairness in Grand Jury proceedings, for the

Grand Jury is an ‘arm of the Court’”. Id. at 424,

288 N.Y.S. 2d at 1468, 235 N.E. 2d at 443 (em-

ph

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