# Petition for a Writ of Certiorari — Steinberg v. Pennsylvania > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0101%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 404 U.S. 1000 ## Text 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 | 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 PICO Pe VR LEDREE LORE LD LIV LISI ETE AIRS oS OME DTI pent ee EOI HT Ze eo Pee HN i ie ee ear 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). REF ast Te est re tae te eS eee “ahi 3 Ss ais coe aS sh natn SP rwrad ad 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. LE = 7 . ee s a ee SSS eS : 2 LDAP RADEON BOI 0 EAD I ERLE PATA TION BG PMNs SERS: oor eee