Petition for a Writ of Certiorari — Steinberg v. Pennsylvania

INDEX TO PETITION.

Page

CN oi eo cca ccancectinkees vatueensdevess 1

SORIIICUIED an onc nth cosas vad wsdariencdvcusseedasiess 2

CONN. PUIG oo ce dc cv ccccadesdediceneceevtnesnes 2

CONSTTUTIONAL PROVISION AND RULE INVOLVED ........... 3

re ee ee ee ne ere 5

REASONS FOR GRANTING THE WRIT .........ecececcccceres 7

CREME ai ccktacekctws dese cednsdceeesceneasvisunes 12

INDEX TO APPENDIX.

Page

Opinion and Order of the Supreme Court of Fennsylvania ... 44

Concurring and Dissenting Opinion ............-.2eeee eee 57

Order of Superior Cour: of Pennsylvania ..............6-4. 43

Opinion and Order of Court of Common Pleas of Philadelphia

CEE occ eet excercscceessnoetenades sesanesurdyss 13

CITATIONS.

Cases: | Page

Coleman v. Alabama, 399 U. S. 1 (1970) ........ceeeevees 7,8

Commonwealth v. Littlejohn, 433 Pa. 336 (1969) ........... 10

Douglas v. California, 372 U .S. 353 (1963) ............... 10

Griffin v. Illinois, 351 U. S. 12 (1956) .......... easteues 10

Guersa v. Rodriguez, 372 F. 2d 472 (19th Cir. 1967) ...... 10

Give v. Con, 301 F. 26 Gl (IG Cie, TRGR) oc cs vcececsvnes 10

CITATIONS (Continued).

Cases (Continued):

United States Constitution:

i SE RES Sat ne en Se EE Ae

Rules:

Pennsylvania Rules of Criminal Procedure, 19 P. S: Ap-

pendix— ‘

ee Oe COs BOP science cedeencess Wi ecesea Pie sus

Rule 119 (now Rule 120) ........ po A epee

a

Miscellaneous: :

“Developments in the Law—Equal Protection,” note in 82

Se tas OE COED sxevepscnsesvevsesneceress

Be he a Ge ED BRP GED ck evendevecnsccccssoeseeucs

IN THE

Supreme Court of the United States

Octoser Term, 1971.

' No.

McCLOSKEY & CO., INC. ann McCORMICK

TAYLOR ASSOCIATES,

Petitioners,

Vv.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA.

Petitioners pray that a Writ of Certiorari issue to re-

view the judgment of the Supreme Court of Pennsylvania

entered on May 13, 1971.

OPINIONS BELOW.

The opinion of the Court of Common Pleas of Phila-

delphia County is unreported, but is printed in the Appendix

hereto at p. 13. The opinion of the Superior Court of

Pennsylvania is reported at 217 Pa. Super. 791, 269 A. 2d

146 (1970), and is printed in the Appendix hereto at p. 43.

The opinion of the Supreme Court of Pennsylvania is re-

ported at 443 Pa. 177, 277 A. 2d 764 (1971), and is printed

in the Appendix hereto at p. 44.

. ;

2 Petition for Writ of Certiorari

JURISDICTION.

The judgment of the Supreme Court of Pennsylvania

was entered on May 13, 1971 and is printed in the Appendix

hereto at p. 76. The jurisdiction of this Court is invoked

under 28 U.S. C., Section 1257 (3).

QUESTION PRESENTED.

Under the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution, .aay defend-

ants in a Pennsylvania criminal case be deprived of the

righi to a preliminary hearing guaranteed other accuseds in

that state merely necause their prosecution was recom-

mended by an investigating grand jury?

"a ah a ee

Petition for Writ of Certiorart 3

CONSTITUTIONAL PROVISION AND RULE

INVOLVED.

The Fourteenth Amendment to the United States Con-

stitution provides, in part:

‘| | . nor shall any State deprive any person of life,

liberty, or property, without due process of jaw; nor

deny to any person within its jurisdiction the eqval

protection of the laws.’’

Rule 119,! Pennsylvania Rules of Criminal Procedure,

19 P. S. Appendix provides:

‘‘Rule 119. Rights of parties at Preliminary Hearing

(a) The attorney for the Commonwealth may ap-

pear at a preliminary hearing and:

‘1) Assume charge of the prosecution; and

(2) Recommend to the issuing authority that

the defendant be discharged or bound over to court

according to law.

(b) The defendant shall be present at a preliminary

hearing, except as provided in these rules, and may, if

he desires:

(1) Be represente< by counsel to act in his

behalf ;

(2) Cross-examine witnesses and inspect phys-

ical evidence offered against him;

(3) Testify, call witnesses other than witnesses

to his good reputation only, and offer other evi-

1. Throughout this petition, the rules cited are those in effect

at the time defendants were indicted. Pursuant to the Pennsylvania

Supreme Court Order of January 13, 1970, No. 66 Criminal Proce-

dural Rules, Docket No. 1, new rules were adopted and promul-

gated, which went into effect as of May 1, 1970. However, the new

rules do not alter the former requirement of a preliminary hearing,

and the rights of a defendant at the preliminary hearing remain the

same, Rule 119 is now Rule 120. |

Petition for Writ of Certiorari

dence in lis own behalf, except where the offense

charged is murder, voluntary manslaughter, kid-

napping, arson, robbery or burglary; and

(4) Make written notes of the preceedings, or

have bis counsel do so, or have at his own expense

a stenographer present to make a record of the

proceedings.

(c) If a prima facie case of the defendant’s guilt

is not established at the preliminary hearing, and no

application for continuance, supported by reasonable

grounds, is made by an interested person, and nv reason

for a continuance otherwise appears, the issuing av-

thority shall discharge the defendant. No further pro-

ceedings may be had before any issuing autkority on

the same cause until the complainant in the original

action has repaid the costs to the person or entity

charged therewith. When a defendant has been dis-

charged as herein provided and is thereafter arrested

or summoned before an issuing authority upon the same

cause without the repayment of costs by the original

complainant, a judge of a court may, in his discretion,

upon application of the defendant and upon being satis-

fied that the subsequent action is substantially the iden-

tical cause involved in the first action, by whatever

name it may be called, quash the proceedings and dis-

charge the defendant from custody or the obligation of

his bond without costs, or he may permit the prosecu-

tion to continue.

(d) A defendant, charged with a capital offense,

shall have the right to have counsel assigned to repre-

sent him at the preliminary hearing. Adupted June 30,

1964. Eff. Jan. 1, 1965.’’

Petition for Writ of Certiorart 4)

STATEMENT.

On March 30, 1969 the District Attorney of Philadel-

phia filed a petition to convene an investigating grand jury

alleging a breakdown of usual law enforcement in connec-

tion with alleged wrongdoing involving Philadelphia’s

urban renewal programs, Housing and Redevelopment Au-

thorities, and Department of Licenses and Inspections. The

Court of Common Pleas of Philadelphia granted this peti-

tion and specially charged the regular grand jury of April

Term, 1969 with the investigating function.

On September 3, 1969 the investigating grand jury re-

turned its Fourth Presentment recommending the indict-

ment of the petitioners and others on sharges of conspiracy

and false pretenses in connection with the construction of

Philadelphia’s new sports stadium. The judge in charge of

the investigating grand jury accepted the presentment and

authorized the District Attorney to submit its recommenda-

tions directly to the next indicting grand jury without first

affording to the accuseds the customary right to a prelimi-

nary hearing which Pennsylvania law provides. Upon the

return of indictments petitioners filed several pretrial

motions challenging their validity. On July 27, 1970 the

Court of Common Pleas of Philadelphia County (Spaeth,

J.) granted petitioners’ motion to quash the indictments on

the ground that they had been deprived of the preliminary

hearing to which they were entitled under the Pennsylvania

Rules of Criminal Procedure.

By so construing the rules Judge Spaeth specifically

noted that he was thereby able to avoid the ‘‘serious consti-

tutional question’’ of equal protection which would be pre-

sented if he were to interpret the rules as the Commonwealth

contended, to require a preliminary hearing in most cases,

but not where there had been an investigating grand jury’s

presentment. (Appendix p. 39.)

6 Petition for Writ of Certiorart

In considering the issue, however, Judge Spaeth said

the problem would be to determine what might be the pur-

pose of classifying criminal prosecutions in such a way that

sometimes the accused would be entitled to a preliminary

hearing and sometimes he would not, particularly when this

would mean that those who did not receive a preliminary

hearing would be deprived of many significant opportunities

that those who did receive a preliminary hearing would

enjoy: the opportunity to ‘‘expose fatal weakness in the

State’s case’’; to ‘‘fashion a vital impeachment tool’’, to

‘‘preserve testimony favorable to the accused’’; and to

‘*discover the case the State has . . . and make possible the

preparation of a proper defense.’’ (Appendix p.38.) Judge

Spaeth then said: ‘‘In determining the possible purpose of

a classification, the Courts have developed various tests.

See: Note, Developments in the Law—Equal Protection, 82

Harv. L. R. 1065, 1077 et seq. (1969). Without stating these

tests, it would seem that under any of them the classifica-

tions that would result from accepting the Commonwealth’s

view of the rules would be invalid as arbitrary and unre-

lated to the achievement of any rational purpose.’’ (Ap-

pendix p. 38.)

-The Commonwealth appealed to the Superior Court of

F:nnsylvania which affirmed without opinion by an equally

divided court on September 25, 1970. (Appendix p. 43.)

Tke Commonwealth next appealed to the Supreme Court of

Pennsylvania which reversed and held that the Pennsyl-

vania Rules of Criminal Procedure which provide the right

to a preliminary hearing were not meant to apply where an

investigating grand jury had recammended the prosecution

of the accused. (Appendix pp. 44, et seq.) The court met the

equal protection issue by holding that an investigating

grand jury’s presentment was a constitutionally permissible

and reasonable alternative to a preliminary hearing. (Ap-

pendix p. 67.)

This petition followed.

Petition for Writ of Certiorari 7

REASONS FOR GRANTING THE WRIT.

The Pennsylvania Supreme Court has decided a serious

constitutional question of equal protection of law in a way

not in accord with applicable decisions of this Court. In

summary, the Supreme Court of Pennsylvania held that

while normal Pennsylvania criminal procedure requires

that an accused be afforded a preliminary hearing before

presentation ef his case to an indicting grand jury, such

a hearing need not be granted where accused’s prosecution

was recommended by an investigating grand jury. In the

latter situation the district attorney was authorized to

secure an indictment by presenting the recommendations of

the investigating grand jury directly to the next indicting

grand jury, and thereby to circumvent the important rights

which a preliminary hearing would afford the accused.

Every lawyer with experience in the defense of criminal

cases knows the value of a preliminary hearing to protect

the interest of his client. While this Court has yet to hold

that a preliminary hearing is constitutionally required, it

did very recently rule that if a preliminary hearing is con-

ducted, it is a ‘‘critical stage’’ at which the accused must be

as fully represented as at trial. Coleman v. Alabama, 399

U. S. 1 (1970). In Coleman the defendants had been con-

victed of assault with intent to murder. Under Alabama

law the preliminary hearing is not even a required step.

The prosecutor there may seek an indictment directly from

the grand jury without a preliminary hearing. Moreover,

under Alabama law the sole purpose of a preliminary hear-

ing is to determine whether there is sufficient evidence

against the accused to warrant presenting his case to the

grand jury. Also, if the accused is not represented at the

preliminary hearing by counsel, nothing occurring at

the hearing can be used to the prejudice of the accused at

trial. The Coleman defendants did have a preliminary hear-

8

Petition for Writ of Certiorari

ing; they were not represented by counsel, and the State

was not permitted to use against them at trial anything that

occurred at the preliminary hearing. They contended never-

theless that the Alabama preliminary hearing was a ‘‘critical

stage

99

of the proceeding at which they were entitled to

counsel. This Court agreed, saying:

‘‘The determination whether the hearing is a

‘critical stage’ requiring the provision of counsel de-

pends, as noted, upon an analysis ‘whether potential

substantial prejudice to defendant’s rights inheres in

the . . . confrontation and the ability of counsel to help

avoid that prejudice.’ United States v. Wade, supra.

[388 U. 8. 218 (1966)], at 227. Plainly the guiding

hand of counsel at the preliminary hearing is essential

to protect the indigent accused against an erroneous or

improper prosecution. First, the lawyer’s skilled exami-

nation and cross-examination of witnesses may expose

fatal weaknesses in the State’s case that may lead the

magistrate to refuse to bind the accused over. Second,

in any event, the skilled interrogation of witnesses by

an experienced lawyer can fashion a vital impeachment

tool for use in cross-examination of the State’s wit-

nesses at the trial, or preserve testimony favorable to

the accused of a witness who does not appear at the

trial. Third, trained counsel can more effectively dis-

cover the case the State has against his cl'ent and make

possible the preparation of a proper defense to mect

that case at the trial. Fourth, counsel can also be in-

fluential at the preliminary hearing in making effective

arguments for the accused on such matters as the ne-

cessity for an early psychiatric examination or bail.

‘‘The inability of the indigent accused on his own

to realize these advantages of a lawyer’s assistance

compels the conclusion that the Alabama preliminary

Petition for Writ of Certiorari 9

hearing is a ‘critical stage’ of the State’s criminal

process at which the accused is ‘as much entitled to

. such aid [of counsel] . . . as at the trial itself.’ Powell

v. Alabama, supra. [287 U. S. 45 (1932)], at 57.’’ 399

U.S. at 9.

The opinion of the court was by Mr. Justice Brennan,

and Part II of the opinion, a portion of which has just been

quoted, was joined by Mr. Justice Douglas, Mr. Justice

White and Mr. Justice Marshall. In a separate concurring

opinion Mr. Justice Black agreed that the considerations

outlined above by Mr. Justice Brennan were more than

sufficient to compel the conclusion that the preliminary

hearing is a ‘‘critical stage’’ of the proceeding. Mr. Justice

Harlan also thought that the United States Constitution

required Alabama to provide counsel at a preliminary

hearing. Mr. Chief Justice Burger and Mr. Justice

Stewart dissented. Mr. Justice Blackmun did not sit.

So far as is here pertinent, the significance of Coleman

lies only in its recognition that where available, a prelimi-

nary hearing is a critical event in the progress of a case,

and that those who receive one enjoy substantial rights

to ‘‘expose fatal weakness in the State’s case’’; to ‘‘fashion

a vital impeachment tool’’; to ‘‘preserve testimony favor-

able to the accused’’; and to ‘‘discover the case the State

has . . . and make possible the preparation of a proper

defense.’’

This aspect of Coleman is not new for Pennsylvania.

Under Pennsylvania Rules of Criminal Procedure (as con-

trasted to Alabama practice) a defendant has a right to a

preliminary hearing. Pennsylvania Rules of Criminal Pro-

cedure, 116, 117, 118, 119. 19 P. S. Appendix. Moreover,

the Pennsylvania Rules have long spelled out the rights of

a defendant at a preliminary hearing in much the same

language as later used in Coleman by Mr. Justice Brennan.

10 Petition for Writ of Certiorari

Thus, Rule 119 provides that at a preliminary hearing the

defendant:

1) May be represented by counsel to act in his

behalf ;

2) May cross-examine witnesses and_ inspect

physical evidence offered against him;

3) May testify, call witnesses and offer evidence

except where certain offenses not present here are charged;

4) May make a stenographic record of the pro-

ceeding;

5) Shall be discharged if a prima facie case of

the defendant’s guilt is not established.

Perhaps the Pennsylvania Rules of Criminal Proce-

dure need not have provided all of these rights. However,

once having done so, the State may not carve out a small

group from the class of all accuseds in Pennsylvania and

declare them ineligible to enjoy the same rights as the

others unless there is good reason for treating them dif-

ferently. Commonwealth v. Littlejohn, 433 Pa. 336, 345-

346 (1969); Douglas v. California, 372 U. S. 353 (1963) ;

Griffin v. Illinois, 351 U. S. 12 (1956). ‘*The right to a

preliminary hearing . . . only becomes a Federal constitu-

tional guarantee by the equal protection clause of the Four-

teenth Amendment because it is a part of the due process

of the state,’’? which must be afforded equally to all de-

fendants. Silva v. Cox, 351 F. 2d 61, 64 (10th Cir. 1965) ;

Guerra v. Rodriguez, 372 F. 2d 472, 473 (10th Cir. 1967).

It is impossible to discern any reasonable difference

between those accused by an investigating grand jury and

those otherwise accused as would justify depriving the

former of the opportunities noted by Mr. Justice Brennan

and specified in Rule 119. Indeed, it would be a sad doy

for justice in this land if the rights afforded a defendant

Petition for Writ of Certiorari 11

could be curtailed because of the source of the accusation,

the reputation of the accuser, or his high place.

One purpose of a preliminary hearing is to determine

whether a prima facie case of the defendant’s guilt has

been sufficiently established so as to require him to meet

the charges at a trial. But, this determination can be made

only after first affording the accused the important rights

enumerated in Rule 119. The determinations of an in-

vestigating grand jury are made without affording accused

any of these rights. The investigating grand jury acts

in secret, summons such witnesses as it chooses and does

not permit any participation in the proceedirgs by the

accused or his counsel. Surely, no one would countenance

allowing the Commonwealth to establish its ‘‘prima facie’’

case in a secret preliminary hearing from which the accused

and his counsel have been excluded, whether that hearing

be held before one or one hundred of our finest jurists. At

its best, an investigating grand jury is no better. Such

panels serve the important purpose of making the accusa-

tions, but no concept of ‘‘due process’’ would allow a

‘‘finding’’ or ‘‘recommendation”’ of theirs to impinge upon

procedural rights of defendants who are not a party to

their proceedings. Why, for example, should the accused

here be prejudiced in his defense at trial by the loss of

favorable testimony that might otherwise have been pre-

served had he a preliminary hearing? Why should these

particular accuseds face indictment and trial when the

Commonwealth has not established a prima facie case of

their guilt in open Court at a preliminary hearing at which

they are represented by counsel who may cross-examine

and call witnesses? Indeed, the preliminary hearing in

Pennsylvania quite often results in the discharge of the

accused.

Moreover, the Commonwealth has never argued that i:

could not grant these accuseds a preliminary hearing, but

12 Petition for Writ of Certvorari

only that it need not. Thus, while those ‘‘normally”’’ ac-

cused in Pennsylvania receive a preliminary hearing as

of right, those ‘‘specially’’ accused receive one only if the

prosecutor is willing. Im this case the prosecutor was

uuwilling and as a consequence petitioners were the vic-

tims of constitutionally impermissible discrimination.

CONCLUSION.

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

Steven A. ARBITTIER,

Howarp GITTISs,

Counsel for Petitioner, McCloskey

& Co., Ince.

Joun T. Cuary,

Tuomas J. MULLANEY,

Counsel for Petitioner, McCormick

Taylor Associates.

APPENDIX.

OPINION OF JUDGE SPAETH OF THE COMMON

PLEAS COURT OF PHILADELPHIA COUNTY.

[1]

IN THE

COURT OF COMMON PLEAS

For tHe County oF PHILADELPHIA, PENNSYLVANIA

Octoser TERM, 1969.

Nos. 2418, 2419, 2420.

JaNuaRy TERM, 1979.

No. 266.

COMMONWEALTH OF PENNSYLVANIA

”,

McCLOSKEY CONSTRUCTION CO.

Octoser TERM, 1969.

Nos. 2420, 2421.

January Term, 1970.

No. 266.

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES McCLOSKEY

- Octoser Term, 1969.

No. 2417.

January Term, 1970.

No. 266.

(13)

14 Opinion of Judge Spaeth

COMMONWEALTH OF PENNSYLVANIA

v.

McCORMICK TAYLOR ASSOCIATES

Octroser TERM, 1969.

No. 2410.

Jaxvary Term, 2970. |

No. 266.

COMMONWEALTH OF PENNSYLVANIA

v.

THOMAS TAYLOR

Qctroser Term, 1969.

Nos. 2677, 2678, 2679, 2680.

COMMONWEALTH OF PENNSYLVANIA

v.

HARRY BLATSTEIN

Octoser Term, 1969.

Nos. 2674, 2675, 2676.

Jaxvuary Term, 1970.

No. 266.

COMMONWEALTH OF PENNSYLVANIA

v.

PAUL J. MARZULLO

Octoser Term, 1969.

Nos. 2723, 2724.

Jaxvary Term, 1970.

No. 266.

Opinion of Judge Spaeth 15

COMMONWEALTH OF PENNSYLVANIA

v.

H. H. ROBERTSON COMPANY

OPINION.

(Filed July 27, 1970.)

SpaEtH, J.

COUNSEL FOR PARTIES.

Honorable Arlen Specter

District Attorney

John Rogers Carroll, Esquire

Assistant District Attorney

Counsel for Commonwealth

Howard Gittis, Esquire

Steven A. Arbittier, Esquire

Counsel for McCloskey Construction Co.

and James McCloskey

Thomas J. Mullaney, Esquire

Counsel for McCormick-Taylor Associates

James Francis Lawler, Esquire

Counsel for Thomas Taylor

David N. Savitt, Esquire

Counsel for Harry Blatstein

Jacob Kalish, Esquire

Louis M. Natali, Jr., Esquire

Counsel for Paul J. Marzullo

Henry T. Reath, Esquire

Counsel for H. H. Robertson Company

ie FOES PONT Em

16 Opinion of Judge Spaeth

[2]

Nature of the Case.

This case is before the Court on motions to quash the

indictments, defendants alleging that the denial of a pre-

liminary hearing prior to indictment was a violation of the

Peunsylvania Rules of Criminal Procedure.

History of the Case.

On September 4, 1969, the Investigating Grand Jury of

April Term, 1969, ~eturned its Fourth Presentment, which

asked The Honorable Joseph Sloane, in charge of the In-

vestigating Grand Jury, to direct the District Attorney ‘‘to

present to an indicting Grand Jury appropriate bills of

indictment’’ charging defendants with various offenses

incident to the construction of a sports stadium in Phila-

delphia. (Fourth Presentment, p. 41.) Judge Sloane ac-

cepted the Presentment and stated that ‘‘it will be sub-

mitted in indictments . . . to a subsequent indicting grand

jury’’. (Proceedings of September 4, 1969, relating to the

Fourth Presentment of the Investigating Grand Jury of

April Term, 1969, p. 3.)

On October 1, 1969, defendant H. H. Robertson Com-

pany filed a petition with this Court, in charge of the Octo-

ber Grand Jury, asking, generally, that this Court stay

the District Attorney from presenting bills of indictment

against it to the October Grand Jury until the District At-

torney had made out a prima facie case at a preliminary

hearing, or, if the Court would not grant that relief, that

it impose certain conditions upon the manner in which evi-

dence should be presented to the October Grand Jury.

Sunilar petitions were filed

Opinion of Judge Spaeth 17

[3]

by defendants McCloskey Construction Company,* and

James C. McCloskey on October 3, and by defendants Paul

J. Marzullo and Harry Blatstein on October 6.**

On October 24 this Court filed an order dismissing de-

fendants’ petitions, stating its reasons in an opinion accom-

panying the order, In re Petition of H. H. Robertson Com-

pany, September Term, 1969, Miscellaneous No. 7540. The

District Attorney thereupon presented to the October Grand

Jury evidence against defendants. 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 the following bills: Bill No. 2421,

charging James C. McCloskey with false pretenses; Bill No.

2418, charging McCloskey Construction Company with false

pretenses, and Bill No. 2419 charging it with conspiracy ;

Bill No. 2420, charging McCloskey Construction and James

McCloskey with conspiracy; Bill No. 2417, charging Me-

Cormick-Taylor Associates with conspiracy; Bill No. 2416,

charging Thomas Taylor with conspiracy; Bill No. 2677,

charging Harry Blatstein with bribery of governmental

offices and employees, Bill No. 2678, charging him with

bribery of servants and employees, Bill No. 2679, charging

him with extortion, and Bill No. 2680, charging him with

malfeasance, misfeasance and nonfeasance in office; Bill No.

2674, charging Paul J. Marzullo with malfeasance, mis-

feasance and nonfeasance in office, Bill No. 2675, charging

him

* The indictments are against “McCloskey Construction Com-

pany”, and defendant will be so referred to; in fact, its correct title

is McCloskey and Co., Inc.

** Defendant Thomas Taylor had previously filed a petition with

Judge Sloane as the Judge in charge of the Investigating Grand

Jury, asking for a preliminary hearing. Judge Sloane denied the

petition and Taylor appealed to the Superior Court, which quashed

the appeal.

-~

ek Gl has A st la Ma AN Maas ah ines enbeMBB SAR Se Ke Sth all Sih DADs mis Bel aaSe Ss .

Sate socalled: aba sintnmeat b.

18 Opinion of Judge Spaeth

[4]

with malfeasance, misfeasance and nonfeasance in office,

and Bill No. 2676, charging him with conspiracy; and Bills

Nos. 2723 and 2724, each charging H. H. Robertson Com-

pany with conspiracy.

On January 12, 1970, the District Attorney presented

to the January Grand Jury, and the Grand Jury returned,

Bill No. 266, charging that defendants Thomas Taylor, H. H.

Robertson Company, McCormick-Taylor Associates, Me-

Closkey Construction Company, James McCloskey, and

Paul Marzullo ‘‘did conspire to obtain money by false

pretenses from the City by falsely representing to the said

City [various matters with respect to the construction of

the stadium].

On April 22 The Honorable Vincent A. Carroll, Presi-

dent Judge, assigned the foregoing indictments to this

Court ‘‘for all pre-trial and post-trial motions and trial’’.

After conference with the Assistant District Attorney and

defense counsel, the Court ordered: that all pre-trial mo-

tions 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 1. ; and that argument on the

motions would be heard during the week of June 22. Ata

second conference the order in which the motions should

be argued was agreed upon by the Assistant District At-

torney and defense counsel, and the agreement was ap-

proved by the Court. In accordance with the agreement,

argument was heard on June 22 through 26, and also on

June 29. Among the motions thus argued were defendants’

motions to quash the indictments as defective because de-

fendants had received no preliminary hearing. Thus, de-

fendants ask the Court to reverse its decision of October

24, which held that defendants were not entitled to a pre-

liminary hearing.

Opinion of Judge Spaeth 19

[5]

Discussion.

In deciding earlier in these proceedings that defend-

ants were not entitled to a preliminary hearing, this Court

relied upon two propositions, each in accord with the de-

cided cases: 1) that there was no constitutional right to a

preliminary hearing; and 2) that the Pennsylvania Rules

of Criminal Procedure did not guarantee a preliminary

hearing. (Pages 31-388 of the Court’s opinion of October

24, 1969, in In re Petition of Il. H. Robertson Company,

September Term, 1969, Miscellaneous No. 7540.) Since this

Court’s decision, the first of these propositions has been

undermined by the decision of the United States Supreme

Court in Coleman v. Alabama, 38 U. S. L. W. 4535 (filed on

June 22, 1970), and the second has been overturned by the

decision of the Pennsylvania Supreme Court in Common-

wealth v. Rose, 437 Pa. 30, 261 A. 2d 586 (filed on January

30, 1970). These decisions will be considered in the order

in which they were filed. As will appear, because of them it

will be necessary for this Court to reverse its earlier deci-

sion. The Court cannot but confess to some rueful feelings

that this should be necessary. Perhaps the Court should

have foreseen the decisions. In the criminal law, one ean-

not step twice in the same stream.

1. Commonwealth v. Rose.

In Commonwealth v. Rose, 437 Pa. 30, 261 A. 2d 586

(1970), the Supreme Court had before it two appeals, one

by Joseph Rose, the other by D. Arthur Magaziuer.

[6]

Rose had been tried before a judge and jury on an

indictment charging fornication and bastardy. After the

jury’s verdict of acquittal, the trial judge at the request

aA i gi ec PUL it 35th att Bs WIT A A che

20 Opinion of Judge Spacth

of the assistant district attorney sat as committing magis-

trate and held [Rose] on a charge of perjury based on his

testimony as to his whereabouts during the time in question.

No criminal complaint accusing [Rose] of perjury was ever

issued, and no preliminary hearing was ever held. (437 Pa.

at 33, 261 A. 2d at 587.) The grand jury approved an in-

dictment charging Rose with perjury. Rose filed a motion

to quash the indictment. The lower court granted the motion,

giving as its principal reason the failure to adhere to

the Rules of Criminal Procedure in that no complaint

was ever issued nor a preliminary hearing ever held.

On appeal the Superior Court reversed that order, 214

Pa. Superior Ct. 50, 251 A. 2d 815 (1969), holding that

a complaint and preliminary arraignment were unnec-

essary because Rose knew of the specific charges

against him and that the court’s action itself consti-

tuted a preliminary hearing. (437 Pa. at 33, 261 A. 2d

at 587.)

On appeal allowed by the Supreme Court the order of the

Superior Court was vacated and the order of the lower

court quashing the indictment was reinstated.

Magaziner was called as a witness in a minority stock-

holders’ action and testified that certain statements at a

stockholders’ meet-

[7]

ing had not occurred. Later, after hearing a tape recording

of the meeting, he testified that he had erred but maintained

that he had not heard the statements. The trial judge

charged Magaziner with perjury. Magaziner refused to

enter bail, and on a rule for a hearing on a writ of habeas

corpus, the writ was dismissed; the hearing judge then

Opinion of Judge Spaeth 21

assumed the role of a committing magistrate and heid a

preliminary hearing on the perjury charge. He did this

despite the fact that no complaint had been filed. Again

Magaziner refused to enter bail and made application for a

second writ of habeas corpus. (437 Pa. at 34, 261 A. 2d

at 588.) The writ was dismissed and the Superior Court

quashed M*gaziner’s appeal. On appeal allowed by the

Supreme Court the order of the Superior Court was vacated

and the order of the lower court denying the writ was

reversed.

In arriving at these two decisions the Supreme Court

in an opinion by Mr. Justice Cohen said:

Our Rules of Criminal Procedure sneak in clear,

inclusive terms. Nothing in them suggests that they do

not apply to common pleas judges who sit as commit-

ting magistrates. Therefore, we hold that common

plegs judges when sitting as committing magistrates

must follow the rules precisely.

This means that proceedings must be initiated by

a written complaint. Rule 102 clearly states, ‘‘all pro-

ceed-

[8]

ings shall be initiated by a written complaint,’’ and

until other rules carve out exceptions, the reference to

‘fall’? must be taken literally.! It is no answer that

1. After May 1, 1970 see Rules 102 and 118. (437 at

35-36, 261 A. 2d at 588.)*

* The rules as of May 1, 1970, are as follows: Rule 102 provides

that criminal proceedings may be instituted by a written complaint

“in any case”, by arrest without a warrant in four specified types of

cases, and by citation for specified summary offenses. Rule 118 pro-

vides that “[w]hen a defendant has been arrested without a warrant,

he shail be taken without unnecessary delay before the proper issuing

22 Opinion of Judge Spaeth

the particular defendant already has notice of the

charges against him. Notice or knowledge of a charge

is not a unitary thing; it is a spectrum which ranges

from.total lack of knowledge to a general impression

to detailed awareness of all relevant facts. Rule 10*

in prescribing the contents of a complaint, established

a standard of knowledge that all accused must possess.

For this Court and other courts to have to determine

on a case-by-case basis whether a particular defendant

had the information that would have been included in

a complaint makes no sense when the time and energy

that would be involved is considered. Rules 102 and

104 provide a clear and simple procedure; until excep-

tions to those rules are adopted, they must be followed

in all cases.

This also means that a preliminary arraignment

must be held pursuant to Rule 116 and, if not waived,

a preliminary hearing held pursuant to Rules 116g,

117, 118 and 119. In the Rose appeal, the Superior

Court held that trial on the fornication and bastardy

charge was itself the preliminary hearing on the per-

jury charge. It is difficult to uphold such an action as

a valid preliminary bearing when Rose did not even

, know that it was such. As far as he knew, he was only

being charged with fornication and bastardy. If he

had known that the trial

authority where a complaint shall be filed against him . . . . If the

complaint charges a court case, the defendant shall be given an im-

mediate preliminary arraignment . . . . If the complaint charges a

summary offense, the defendant shall be given an immediate trial . . . .”

Rule 119 provides that “[a]t the preliminary arraignment, the issuing

authority shall . . . inform the defendant . . . [o]f his right to have

a preliminary hearing . . . .” Thus there have been siylistic

changes, with some consequent renumbering of the rules, but the

requirements of complaint, preliminary arraignment, and preliminary

hearing, insisted upon in Rose, have not been modified.

Opinion of Judge Spaeth 23

[9]

was also a preliminary hearing on a perjury charge, he

might have taken certain steps and called various wit-

nesses in defense of that charge. We cannot say that

what occurred at the trial is essentially what would

have happened at a preliminary hearing, because there

is no way of knowing how Rose would have defended

himself if he kad known of that charge.

Since no written complaint was filed against Maga-

ziner, the procedure followed was defective. The pro-

cedure was likewise defective in the Rose action be-

cause no written complaint was filed and because no

proper preliminary arraignment and no preliminary

hearing were held.

If this statement is applicable to the present case,

defendants’ motions to quash the indictments must be

granted; each of the partic-

[10]

ulars insisted upon by the Supreme Court has been vio-

lated: there has been no complaint issued against any

defendant pursuant to Rules 102 and 104; there has been

no preliminary arraignment pursuant to Rule 116; and

there has been no preliminary hearing pursuant to Rules

116g, 117, 118, and 119. The Assistant District Attorney,

however, has argued that the statement is not applicable,

and that Rose should be distinguished from the present

case. Examination will show, however, that such distinc-

tions as exist are of no substance.

The first distinction that the Assistant District Attor-

ney suggests is that defendants have no need of a complaint,

24 Opinion of Judge Spaeth

preliminary arraignment, and preliminary hearing because

they are fully informed by the Investigating Grand Jury’s

Fourth Presentment of the charges against them. This

distinction does not exist as a matter of fact; and if it did,

it would be immaterial.

The distinction does not exist as a matter of fact be-

cause the Fourth Presentment is in narrative form and its

statements are conclusions derived from testimony a

transcript of which the Commonwealth has refused to re-

lease (beyond releasing to each individual defendant a

transcript of what he testified to the Investigating Grand

Jury). On the Magaziner appeal in Rose, on the other

hand, Magaziner was given a preliminary hearing before

a judge sitting as a committing magistrate and so could

confront and cross-examine witnesses against him. Thus,

it cannot be maintained that the defendants in Rose knew

less than defendants here; Magaziner knew more.

Even if it could be said that defendants knew as much

from the Fourth Presentment as they would learn from a

preliminary hearing,

[11]

it would be immaterial. Although Magaziner had had a

preliminary hearing, still the indictment against him was

quashed, the Supreme Court stating that ‘‘[s]inee no writ-

ten complaint was filed against Magaziner, the procedure

followed was defective.’’ (437 Pa. at 36, 261 A. 2d at 589.)

Under Rose the question is not what a defendant knows,

but whether the rules have been followed.

That this is the question is unmistakable not only from

Rose itself but from its history. In Rose the Common-

wealth made the same argument that it makes here: no

complaint, preliminary arraignment, or preliminary hear-

Opinion of Judge Spaeth 29

\

ing were necessary because the defendant knew the charges

against him. The Superior Court accepted the argument,

stating:

In these limited circumstances, adherence to the

requirements of a sworn complaint and a preliminary

arraignment result in expense, delay and duplication

of proceedings without in any degree affecting the

fairness of the proceedings against the accused. The

purpose of requiring a sworn complaint is to inform

an accused of the specific nature of the charge against

him. Rule 104. Similarly, the purpose of preliminary

arraignment is to explain to the accused the charges

against him and inform him of his rights to counsel

and to a preliminary hearing. Rule 116(g). The re-

quirement of Rule 116(g) (1) that preliminary hearings

shall not be held less than three days after preliminary

arraignment is primarily to afford an accused the

opportunity to prepare for preliminary hearing. When

an offense has been committed in court before the judge

[12}

who sits as committing magistrate, the accused has

knowledge of the charges against him and the facts

and witnesses necessary to show that a prima facie

case has not been, established are present and available

{footnote omitted]. (214 Pa. Super. at 55-56, 251 A. 2d

at 818.)

The Supreme Court, however, as appears from the passage

of its opinion that has been quoted above, specifically re-

jected this reasoning, stating that it would not proceed ‘‘to

determine on a case-by-case basis whether a particular de-

fendant had the information that would have been included

26 | Opinion of Judge Spaeth

in a complaint’’, and that the rules must be followed ‘‘pre-

cisely’’. Indeed, this point was stated with particular force

by Mr. Justice Roberts, joined by Mr. Chief Justice Bell.

They dissented from the majority’s opinion in lose because

they regarded both Rose’s and Magaziner’s appeals as

interlocutory. In dissenting, however, Mr. Justice Roberts

said:

While I am in complete agreement with the ma-

jority’s interpretation of our Rules of Criminal Pro-

cedure, I must respectfully dissent from the majority’s

disposition of these two appeals. In my opinion, doth

appeals shéuld be quashed as interlocutory.

I think there is no doubt that the Commonwealth

must strictly adhere to our Rules of Criminal Proce-

dure. Likewise, it is clear that this Court must strictly

enforce compliance. We certainly do not promulgate

Rules merely to have them ignored or circumvented.

But the issue before us now is not whether we should

enforce our Rules, but when we should do so. In the

instant cases, we may

[13]

never be required to enforee compliance, since the

Commonwealth may not be able to secure convictions.

And if convictions are obtained, we can deal with these

violations in our normal course of adjudication. Cer-

tainly the Commonwealth should realize that this Court

will not allow a conviction to stand which has been

secured in violation of our Rules. (437 Pa. at 36-37,

261 A. 2d at 589.)

Next the Assistant District Attorney suggests that the

present case is outside the rules found in Rose to have been

violated.

Opinion of Judge Spaeth 27

As an initial proposition this suggestion is most per-

suasive, and the Schuylkill County Criminal Court and this

Court in its earlier decision in In re Petition of H. H.

Robertson Company, supra, accepted it. Thus this Court

said, at pages 32-33 of its earlier decision:

It may be granted that the Pennsylvania Rules of

Criminal Procedure are susceptible of being read as

providing that in every case an accused is entitled to

a preliminary hearing. Thus Rule 102 provides that

‘‘all [criminal] proceedings’’ are to be initiated by a

written complaint; and Rule 116(b)(2) states that at

the preliminary arraignment the defendant is to be

advised of his ‘‘right to have a preliminary hearing.”’

Nevertheless, it would appear that the Rules do not

abolish the procedure of presenting to a grand jury,

without a preliminary hearing, a district attorney’s

bill. The reasons for this conclusion are stated in

Commonwealth v. Spencer, 44

[14]

D. & C, 2d 209, 210-12 (Crim. Co. Schuylkill Co. 1968),

as follows:

[T]he matter of the presentation of the dis-

trict attorney’s bill is a long established and an

ancient right in the criminal law of the Common-

wealth of Pennsylvania. Before the court could

determine that the Pennsylvania Rules of Crim-

inal Procedure abolish such a procedure, it would

have to be satisfied that the rules specifically in-

tend to abolish this method of procedure in crim-

ina] matters. [Further quotation followed. ]

Nevertheless, however persuasive this reasoning may once

have been, it can no longer be accepted.

28 Opinion of Judge Spaeth

In Rose the procedure involved was also long estab-

lished and ancient: the right of a trial judge to sit as a

committing magistrate, and to hold for perjury a person

who h..d testified before him. There was no reference in

the rules to this procedure. Thus it was natural to con-

clude that the draftsmen of the rules did not intend to

affect it; and the Superior Court did so conclude, stating:

[T]o apply Rules 102 and 116 to this case would end

the power of the judges of the Court of Quarter Ses-

sions to sit as committing magistrates on offenses

committed in the courtroom. This is neither intended

by the Rules of Criminal Procedure nor consistent

with their stated goals of simplicity in procedure,

fairness in administration and the elimination of un-

justifiable expense and delay. (214 Pa. Super. at 56,

251 A. 2d at 818.)

[15]

The Supreme Court, however, as appears from the passage

of its opinion that has been quoted above, specifically

rejected this reasoning. Said the Court:

Our Rules of Criminal Procedure speak in clear,

inclusive terms. Nothing in them suggests that they

do not apply to common pleas judges who sit as com-

mitting magistrates. Therefore, we hold that common

pleas judges when sitting as committing magistrates

must follow the rules precisely. (437 Pa. at 35, 261

A. 2d at 588.)

If nothing in the rules suggests that they do not apply to

one established procedure unmentioned by the ru!es—com-

mon pleas judges sitting as committing magistrates—,

nothing in the rules suggests that they do not apply to

Opinion of Judge Spaeth 29

another established procedure unmentioned by the rules—

proceeding on a district attorney’s bill, without preliminary

hearing.

In explaining this inclusive interpretation of the rules,

the Supreme Court noted that ‘‘Rule 102 clearly states,

‘all proceedings shall be initiated by a written complaint’,

and until other rules carve out exceptions, the reference

to ‘all’ must be taken literally’’, and that ‘‘Rule 104, in

prescribing the contents of a complaint, established a

standard of knowledge that all accused must possess.”’

(437 Pa. at 35, 261 A. 2d at 588.) Thus, said the Court:

Rules 102 and 104 provide a clear and simple proce-

dure; until exceptions to those rules are adopted, they

must be followed in all cases.

[16]

This also means that a preliminary arraignment

must be held pursuant to Rule 116 and, if not waived,

a preliminary hearing held pursuant to Rules 116g,

117, 118 and 119. (437 Pa. at 35, 261 A, 2d at 588.)

The only question remaining, therefore, is whether

proceeuing on a district attorney’s bill without complaint,

preliminary arraignment, and preliminary hearing, is «

procedure recognized by the rules as an exception carved

out of the general requirement of Rules 102 and 104; and

the answer to the question is that it is not.

The rules governing the institution of criminal pro-

ceedings are collected in one chapter, as Rules 102 through

129.* There is no reference in those rules to proceeding

on a district attorney’s bill. The only reference anywhere

in the rules possibly pertinent to the present proceeding

* Rules 102 through 144, as of May 1, 1970.

30 Opinion of Judge Spaeth

is in Rule 212, which is the first rule of the chapter con-

cerning the indictment, and is entitled ‘‘ Definitions.’’ Rule

212(c) defines a ‘‘presentment’’ as ‘‘a formal accusation

made by a grand jury, drafted by the Commonwealth’s

attorney with leave of court and submitted for action to a

subsequent indicting grand jury.’’ Apart from the fact

that a ‘‘definition’’ cannot be read as an ‘‘exception’’, it

will be observed that Rule 212(c) is not in conflict with,

and hence cannot be an exception to, the requirement of

Rules 102, 104, 116, 117, 118, and 119, that all criminal pro-

ceedings should proceed from complaint to preliminary

arraignment to preliminary hearing. This is so because

nothing in Rules 102, 104, 116, 117,

[17]

118, and 119 interferes with the investigating grand jury

as a legal institution, nor diminishes its traditional powers

in any way. An investigating grand jury may continue

to investigate, and upon concluding its investigation, may

submit a presentment formally accusing a person of crime

and recommending that he be indicted. The rules, as con-

strued in Rose, only require that before the accused may

be indicted, a complaint must be filed, and a preliminary

arrignment and a preliminary hearing must be held.

It is true that this leaves for consideration the clause

in Rule 212(c), that a presentment is an accusation ‘‘sub-

mitted for action to a subsequent indicting grand jury.”’

There seems no tidy way to harmonize this clause with the

other rules. Perhaps it may be read as recognizing that

once the accused has been held at the preliminary hearing

for the grand jury, the district attorney may choose to

offer to the grand jury as evidence against .the accused

the presentment prepared by the investigating grand jury ;

this would not be to say that the district attorney has an

Opinion of Judge Spaeth 31

absolute right to proceed in such a manner; his right would

be limited by other principles; thus, for example, if the

presentment made an accusation of two crimes, but the

evidence at the preliminary hearing showed only one, the

grand jury could indict only for the one, and might not be

able to see what the presentment said about the other. How-

ever this may be, the slight untidiness created by the refer-

ence in Rule 212(c) to submitting a presentment to a

grand jury cannot be used as the basis for upholding in the

present case the avoidance by the Commonwealth of com-

plaint, preliminary arraignment, and preliminary hearing.

To do so would be in defiance both of the logic of Rose

and of

[18]

the notably forceful statements made there by Mr. Justice

Cohen, that the rules are to be followed ‘‘precisely’’, and

that ‘‘all’’ means ‘‘all’’ (437 Pa. at 35, 261 A. 2d at 588),

and by Mr. Justice Roberts, that ‘‘We certainly do not

promulgate Rules merely to have them ignored or circum-

vented’’ (437 Pa. at 36, 261 A. 2d at 589).

One final observation may be made. In the present

case the Court has also heard argument and received briefs

on a motion by the Commonwealth for consolidation and on

motions by various of defendants for severance, a bill of

particulars, and discovery. Repeatedly during this argu-

ment factual issues arose, the Commonwealth each time

replying that defendants had only to consult the Fourth

Presentment. As has been mentioned, however, the Fourth

Presentment is not the transcript of a hearing but a state-

ment by the Investigating Grand Jury of the conclusions

at which it arrived as a result of the testimony that it re-

ceived. To be sure, the Presentment appears to be a full

32 Opinion of Judge Spaeth

statement, the Investigating Grand Jury going to con-

siderable trouble to explain why it arrived at the conclu-

sions it did, and sometimes quoting excerpts of the testi-

mony that it received. These facts, however, do not resolve

the issue presently before the Court, which was stated dur-

ing argument by counsel in a companion case as follows:

Almost every single petition that has been pre-

sented to Your Honor is presented because of what

these Defendants have been deprived of [i.e., a pre-

liminary hearing], and they have been deprived of it

for no reason.

[19]

And it is not satisfactory for the Commonwealth

to come before you and wave that presentment because

that presentment goes out the window the minute we

walk in that courtroom. That presentment has no legal

validity other than to get the Commonwealth where

they are.

It is not a bill of particulars. I cannot jump up in

the courtroom and say your witness can’t say that, he

said this in the presentment. You make this charge in

the presentment. Now you’re coming in with evidence

in another direction entirely.

They may have an Indictment No. 107 which ap-

pears from the presentment to be based on Facts A, B,

C, D, E and F, and yet when I get into that courtroom

I don’t hear any of that. And those indictments are

general enough to take in anything. I hear the proof

going down the other side of the courtroom.

a

Opinion of Judge Spaeth 33

And I hold that that presentment is like a rabbit

in the hat. You see it when the Commonwealth wants

you to, but when you get into the courtroom it’s not

around.

That bill of indictment is not made a part of it as |

if it were a bill of particulars. It’s just a way the

Commonwealth got here.

And there is no earthly reason why they should

not go the other route [t.e., complaint, preliminary

arraignment, and preliminary hearing]. It is entirely

available to them. It has always been entirely avail-

able to them.

[20]

. . . . The rules seem to have ali been centered upon

the fact that there were going to be proceedings this

way.

* * *

Your Honor has before you motions for separate

trials, motions for severance, a variety of motions,

motions to suppress evidence where you have to know

what the case is about.

We cannot be expected to rely upon what the Com-

monwealth set forth in its presentment because what

the Commonwealth has given you is its conclusion from

the transcripts which it alone has in its possession. No

defendant ought to have crucial areas of concern to him

decided in such a fashion. No court would allow a

search warrant to be issued on a conclusionary basis.

We don’t have facts here, sir.

If Your Honor had a transcript of a preliminary

hearing, we could hand it to you. You’d quickly prob-

Opinion of Judge Spaeth

ably gather whether or not it was accusatory, whether

or not there was ground for trying the whole thing

together, what the evidence was. How in the world you

can be expected to make those decisions without know-

ing that I don’t know. (Proceedings of June 23, 1970,

N. T. 58-61.)

This is well stated. Because of the Court’s ruling on

the motions to quash now under consideration, the Court

will not consider the motions for consolidation, severance,

bill of particulars, and discovery. However, counsel’s

point, that decision on those motions

[21]

was complicated by the fact that no preliminary hearing

had been held, remains, and it illustrates the fact that if

Rose is accepted as meaning just what it says it means,

‘fa clear and simple procedure”’ will ensue (4387 Pa. at

30, 261 A. 2d at 588), whereas if Rose is held for some

reason not to be applicable to the present case, an uncer-

tain and difficult procedure may ensue, if not in defendants’

cases, then in others.

2. Coleman v. Alabama.

This Court in its earlier decision in In re Petition of

H. H. Robertson Company, at pages 31-32, cited and relied

upon Commonwealth v. O’Brien, 181 Pa. Super. 382, 387,

124 A. 2d 666, 669 (1956), rev’d on other grounds, 389 Pa.

109, 1382 A. 2d 265 (1957), and Commonwealth ex rel. Walls

v. Maroney, 416 Pa. 290, 294, 205 A. 2d 862, 864 (1965), for

the proposition that there is no constitutional right to a

preliminary hearing. Thus in O’Brien it was said: ‘‘It is

also settied that one has no constitutional right to be pres-

Opinion of Judge Spaeth 35

ent at a preliminary hearing, or, indeed, even to have one.’’

(Id.) Since the decision of the United States Supreme

Court in Coleman v. Alabama, 38 U. S. L. W. 4535 (U. S.

June 22, 1970), such statements cannot be read without a

qualification, and the qualification is significant to the

decision ef the present case.

In Coleman the defendants had been convicted in an

Alabama Circuit Court of assault with intent to murder.

Under Alabama law ‘‘[t]he preliminary hearing is not a

required step . . . . The prosecution may seek an indict-

ment directly from the grand jury without a preliminary

hearing.’? (38 U. S. L. W. at 4537.) If there is a pre-

[22]

liminary hearing, its only purpose is to determine whether

there is sufficient evidence to hold the accused for the grand

jury, and if there is, to set bail. Also, if the accused is

not represented at the preliminary hearing by counsel,

nothing occurring at the hearing can be used to the preju-

dice of the accused at trial. (38 U. S. L. W. 4537.) The

defendants did have a preliminary hearing; they were not

represer‘ed by counsel; and the State was not permitted

to use against them at trial anything that occurred at the

preliminary hearing. (38 U. S. L. W. at 4538.) They

contended nevertheless ‘‘that Alabama’s failure to pro-

vide them with appointed counsel at the [preliminary]

hearing . . . unconstitutionally denied them the assistance

of counsel.’’ (38 U. S. L. W. at 4535.)

The Supreme Court did not hold that a preliminary

hearing is constitutionally required. It did hold that if

there is a preliminary hearing, the accused is entitled to

the assistance of counsel at the hearing. Said the Court:

The determination whether the hearing is a ‘‘critical

stage’’ requiring the provision of counsel depends, as

36

[23]

Opinion of Judge Spaeth

noted, upon an analysis ‘‘whether potential substan-

tial prejudice to defendant’s rights inheres in the

. confrontation and the ability of counsel to help

avoid that prejudice.’’ United States v. Wade, supra,

[388 U. S. 218 (1966)], at 227. Plainly the guiding

hand of counsel at the preliminary hearing is essential

to protect the indigent accused against an erroneous

or improper prosecution. First, the lawyer’s skilled

exalaination and cross-examination of witnesses may

expose fatal weaknesses in the State’s case,

that may lead the magistrate to refuse to bind the

accused over. Second, in any event, the skilled inter-

rogation of witnesses by an experienced lawyer can

fashion a vital impeachment tool for use in cross-

examination of the State’s witnesses at the trial, or

preserve testimony favorable to the accused of a wit-

ness who does not appear at the trial. Third, trained

counsel can more effectively discover the case the

State has against his client and make possible the

preparation of a proper defense to meet that case

at the trial. Fourth, counsel can also be influential at

the preliminary hearing in making effective arguments

for the accused on such matters as the necessity for

an early psychiatric examination or bail.

The inability of the indigent accused on his own

to realize these advantages of a lawyer’s assistance

compels the conclusion that the Alabama preliminary

hearing is a ‘‘critical stage’’ of the State’s criminal

process at which the accused is ‘‘as much entitled

to such aid [of counsel] . . . as at the trial itself.’’

Powell v. Alabama, supra, [287 U. S. 45 (1932) ], at 57.

(38 U.S. L. W. at 4537-38.)

Opinion of Judge Spaeth 37

The opinion of the Court was by Mr. Justice Brennan,

and Part II of the opinion, a portion of which has just

been quoted, was joined by Mr. Justice Douglas, Mr.

Justice White, and Mr. Justice Marshall. Mr. Justice

Black, Mr. Justice Douglas, Mr. Justice Harlan, and Mr.

Justice White concurred in the holding that the defendants

were entitled to counsel at the preliminary hearing, al-

though they did so with varying degrees of emphasis,

Mr. Justice Stewart and The Chief Justice dissented.

[24]

It has been seen in the preceding section of this opinion

that under Pennsylvania practice (as contrasted to Ala-

bama practice) a preliminary hearing is required. Com-

monwealth v. Rose, supra. Accordingly, the only problem

created by Coleman so far as Pennsylvania practice is con-

cerned will be to ensure representation of the accused at

the preliminary hearing. Suppose, however, that the Com-

monwealth were correct, that although Rose does require

a preliminary hearing in most cases, it does not require

one in a case such as the present case, which was initiated

by an investi-ating grand jury’s presentment and a dis-

trict attorney’s bill. A serious constitutional question

would be presented: Would such a construction of the

rules be a violation of the provision of the Fourteenth

Amendment, §1, that ‘‘No State shall . . . deny to any

person within its jurisdiction the equal protection of the

lawe.’’?

In considering this question it would be immaterial

that the violation, if there were one, would be by virtue

of rules of court; for rules of court are just as much

‘‘State action’’ as are legislative enactments. See:

Douglas v. California, 372 U. S, 353 (1963) (holding invalid

as a derial of equal protection a California rule of criminal

38 Opinion of Judge Spacth

procedure). The problem would be to determine what

might be the purpose of classifying criminal prosecutions

in such a way that sometimes an aceused would receive

a preliminary hearing and sometimes he would not, partie-

ularly when this would mean, as Mr. Justice Brennan

noted in the passage of his opinion that has been quoted

above, that those who did not reeeive a preliminary hear-

ing would be deprived of many significant opportunities

that those who did reeeive a preliminary hearing would

enjoy: the opportunity

[25]

to ‘expose fatal weakness in the State's case’; to ‘fashion

a vital impeachment tool"*; to ‘*preserve testimovy favor-

able to the aceused"’; and to ‘‘diseover the ease the State

has . . . and make possible the preparation of a proper

defense."" (88 UL S. L. W. at 4587-38.)

In determining the possible purpose of a classification,

the courts have developed various tests. See: Note, Devel-

opments in the Law—Equal Protection, 82 Harv. L. R. 1065,

1077 ef seq. (1969). Without stating these tests, it would

seem that under any of them the classifications that would

result from aceepting the Commonwealth's view of the

rules would be imvalid as arbitrary and unrelated to the

achievement of any rational purpose.

At least two classifications would result. The first

classification would be between, on the one hand, a class

composed of most persons accused of crime, who would re-

ceive a preliminary hearing and hence enjoy the oppor-

tunities noted by Mr. Justice Brennan, and on the other

hand, a class composed of such persons as defendants, who

had been accused by an investigating grand jury and in-

dicted upon a district attorney's bill without a preliminary

Opinion of Judge Spaeth 39

hearing. There would seem to be no reason for such a

classification. The second classification would be within

the class composed of persons like defendants. Under the

Commonwealth’s view of the rules, a distriet attorney

would not be precluded from choosing to proceed against

some of such persons via complaint—preliminary arraign-

ment-—preliminary hearing. Indeed, in the present case

the Commonwealth has never argued that it could not grant

defendants a preliminary hearing but only that it need not.

There would seem to be no reason for permitting a district

attorney thus to create uw classification at will,

[26]

uninhibited by any guidelines or restrictions. In the pres-

ent case, for example, what would be the purpose of a

classification between, on the one hand, those of defendants

that the District Attorney chose to proceed against via

complaint—preliminary arraignment—preliminary hearing,

“and on the other hand, those of defendants that he chose

to proceed against en a district attorney’s bill? If there

were something that a district attorney had to fear from

wu preliminary hearing, with respect to a particular defend-

ant, such a view of the rules would permit him to cireum-

vent the preliminary hearing in the case of that defendant.

Whether the classifications resulting from the Com-

_ monwealth’s view of Rose and of the rules would be valid

need not be decided. It is sufficient to note that decision

would invoive a serious constitutional question. If a court

in construing a statute (and a rule has the force of a

statute) is confronted with a serious constitutional ques-

tion, it should if possible adopt that construction of the

statute that will avoid the constitutional question: See,

e.g., Commonwealth v. Janoff and Haugh, Supreme Court

40 Opinion of Judge Spaeth

of Pennsylvania, January Term, 1970, No. 873, opinion by

Mr. Justice Roberts, July 2, 1970. Accordingly, if there

is an ambiguity in the rules, this Jurt should construe

the rules as requiring a preliminary hearing.

3. Summary and conclusion.

The Penns¥vania Rules of Criminal Procedure do not

refer to prosecutions initiated by a district attorney’s bill.

Accordingly, the Schuylkill County Court in Commonwealth

v. Spencer and this

[27]

Court in In re Petition of H. H. Robertson Company con-

cluded that the rules were not intended to apply to such

prosecutions. In Commonwealth v. Rose the Superior

Court similarly concluded that the rules were not intended

to apply to prosecutions initiated by a trial judge sitting

as a committing magistrate. On appeal in Rose, however,

the Supreme Court held that the rules were intended to

apply to all prosecutions unless the rules noted a specific

exception. The Supreme Court stated that this was to

ensure that each accused should possess the same ‘‘standard

of knowledge’’ and meant that every prosecution, unless

otherwise specifically noted in the rules, should be a prose-

cution by complaint to preliminary arraignment to prelimi-

nary hearing. The rules do not note a specific exception

for cases in which an investigating grand jury makes an

accusation by presentment, and the district attorney then

proceeds against the accused upon a district attorney’s bill.

Therefore, in the case of an accusation by presentment, the

district attorney must proceed as in the usual case: by com-

piaint, preliminary arraignment, and preliminary hearing.

This conclusion is supported by the decision of the

Opinion of Judge Spaeth 41

United States Supreme Court in Coleman v. Alabama.

There it was held for the first time that the preliminary

hearing was if it occurred, a ‘‘critical stage’’ of the prose-

cution. To construe the rules as requiring a preliminary

hearing in some cases but not in others would present a

serious constitutional issue of equal protection. The Penn-

sylvania Supreme Court’s construction of the rules in Rose

avoids this issue.

When the rules are applied to the present case, it is

apparent that the procedure followed was defective, for no

complaint was issued, nor any preliminary arraignment or

preliminary hearing heid.

Order-—7/27/70

ORDER OF COMMON PLEAS COURT

OF PHILADELPHIA COUNTY.

ORDER

Anp Now, July 27, 1970, defendants’ motions to quash

the indictments are granted.

Spacth,

J.

Filed: July 27, 1970.

Honorable Arlen Specter

John Rogers Carroll, Esquire

Howard Gittis, Esquire

Steven A. Arbittier, Esquire

Thomas J. Mullaney, Esquire

James Francis Lawler, Esquire

David N. Savitt, Esquire

Jacob Kalish, Esquire

Louis M. Natali, Jr., Esquire

Henry T. Reath, Esquire

Order of Superior Court 43

ORDER OF SUPERIOR COURT OF PENNSYLVANIA.

[No. 735]

IN THE

SUPERIOR COURT OF PENNSYLVANIA.

No. 1377, Pcroser Term, 1970.

COMMONWEALTH OF PENNSYLVANIA,

Appellant

Vv.

JAMES McCLOSKEY.

APPEALS F'RoM THE ORDER OF THE CouRT oF ComMoN PLzEas,

Triau Division, CriminaL SEcTION, oF PaILaDELPHIA

County at No, 266, January Term, 1970 anp Nos.

2420, 2421, Ocroser Term, 1969.

Per CuriAM Fitep: September 25, 1970

The six Judges who heard this appeal being equally

divided, the order of the court below is affirmed.

44 Opinion of the Supreme Court

OPINION OF THE SUPREME COURT

OF PENNSYLVANIA.

[540]

IN THE

SUPREME COURT OF PENNSYLVANIA

Eastern District.

No. 157 January Term, 1971.

AppEALS From Orvers Datep SEPTEMBER 25, 1970, oF THE

Superior Court of PENNSYLVANIA, AS OF OcToBER TERM,

Nos. 1377 vo 1384.

COMMONWEALTH OF PENNSYLVANIA,

Appellant,

v.

JAMES McCLOSKEY, HARRY BLATSTEIN, McCOR-

MICK TAYLOR ASSOCIATES, H. H. ROBERT-

SON COMPANY, PAUL MARZULLO, FRANK M.

STEINBERG, THOMAS TAYLOR, McCLOSKEY &

COMPANY, INC.

OPINION OF THE COURT.

Roserts, J. Filed: May 13, 1971.

The Commonwealth here appeals from decisions by

an evenly divided Superior Court ' affirming various orders

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 (1979) ; Commonwealth v.

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

monwealth v. MCloskey Construction Company, 217 Pa. Superior

Opinion of the Supreme Court 45

of the Philadelphia Cc rt of Common Pleas quashing in-

dictments 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 an investig ting grand jury’s presentment to an indict-

ing grand jury without affording defendant an opportunity

for a preliminary hearing; and (2) whether, or to what

degree, a subpoened 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

[540-2] ,

incrimination guaranteed both by the Fifth Amendment,

applied to the states through the Fourteenth Amendment,

and Article I, Section 9 of the Pennsylvania Constitution.

As to the former issue, we believe that an indictment

based upon an investigating grand jury’s presentment di-

rectly to an indicting grand jury with leave of court is

lawful, even though no preliminary hearing was held. Con-

cerning the assistance of counsel and the right against

self incrimination, while we do not today hold that a wit-

ness is entitled 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 answer might be incriminating, he may

come before the court accompanied by counsel and be ad-

vised of his rights. This procedure was not followed with

reference to certain of the individual appellees now before

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, Z17 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).

46 Opinion of the Supreme Court

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.

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 alleging various of-

fenses were being or had been committed with respect to

housing, urban renewal and public construction.

a. Frank M, Steinberg.

After hearing numerous witnesses and receiving volu-

minous evidence, the investigating grand jury returned a

presentment * on August 18,1969, requesting that appellee,

Frank M. Steinberg, a former Chairman of the Philadel-

phia Housing Authority, be indicted on several counts.

[54_-3]

The court in charge of the investigating grand jury

(Sloane, J.) accepted the presentment, and the district at-

torney with leave of court then submitted the recommenda-

tions to the September indicting grand jury, which returned

true bills against appellee Steinberg charging him with .

malfeasance, misfeasance and nonfeasance in office; con-

spiracy; deposit of public money for gains; violation of

the State Adverse Interest Act; practice of corrupt solicita-

tion; and corrupt solicitation.* All these indictments 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 No. 879-90, 892-97.

Opinion of the Supreme Court — 47

Appellee filed several pre-trial motions challenging his

indictments, all of which were argued during the week of

June 22, 1970, when similar motions by 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 discovery and sever-

ance were dismissed as moot by the court ( Spaeth, J.). The

Commonwealth appealed from the granting of the motion,

and the Superior Court affirmed by an evenly divided

court.‘

b. The Stadium Cases.

The same April, 1969, investigating grand jury re-

turned a separate presentment ® on September 4, 1969, rec-

ommending indictments against the other appellees on

various charges relating to the construction of an all pur-

pose municipal sports stadium in Philadelphia costing ap-

proximately $50,000,000. The court (Sloane, J.) accepted

the presentment.

[540-4]

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 preliminary hearing. His peti-

tion was denied, and his appeal to the Superior Court was

quashed.

Then, on October 1, 1969, defendant H. H. Robertson

Company itself filed a petition before the court in charge

of the October, 1969 indicting grand jury (Spaeth, J.) seek-

ing to restrain the district attorney from presenting the

4. See note 1 supra.

5. The “fourth” presentment.

48 Opixion of the Supreme Court

investigating grand jury’s recommendations to the indict-

ing grand jury until a preliminary hearing had been held,

or else until certain conditions had been imposed on the

manner in which the evidnece was to be presented to the

indicting grand jury. Defendants McCloskey and Com-

pany, inc., the general contractor for the stadium, and ,

James C. McCloskey, the firm’s executive vice president,

filed similar petitions on October 3, 1969, and deferdants

Paul Marzullo, Director of Architecture and Engineering

for Philadelphia, and Harry Blatstein, the stadium co-

ordinator, did likew:se on October 6, 1969.

On October 24, 1969, Judge Spaeth entered an order

dismissing defendants’ petitions, setting forth his reasons

for his action in an opinion, In re Petition of H. H. Robert-

son Company, September Term, 1969, Miscellaneous No.

7540. The district 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. McClos-

key; charges of false pretenses and conspiracy against Me-

Closkey and Company, Inc.‘; charges of conspiracy against

[540-5]

McCormick-Taylor Associates, the stadium architects;

charges of conspiracy against Tuomas Taylor; charges of

bribery of government offices and employees, bribery of

servants and employees, extortion, and malfeasance, mis-

feasance and nonfeasance in office against Harry Blatstein;

charges of malfeasance, misfeasance, and nonfeasance in

office and conspiracy against Paul J. Marzullo; and charges

6. It has been stipulated that this evidence consisted of the

“fourth” presentment.

7. Although the indictment was against “McCloskey Construc-

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

“McCloskey & Company, Inc.”

Opinion of the Supreme Court 49

of conspiracy against H. H. Robertson.* The district attor-

ney also submitted a consolidated bill based on the same

September presentment to the January, 1970, indicting

grand jury, which returned a true bill® charging Thomas

Taylor, H. H. Robertson Company, McCormick-Taylor

Associates, McCloskey & 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 complaint, prelim-

inary arraignment, or preliminary hearing.

The President Judge of the Philadelphia Court of Com-

mon Pleas” assigned all the foregoing cases to Judge

Spaeth ‘‘for all pre-trial and post-trial motions and trial.’’

Various pre-trial motions requesting, inter alia, the sup.

pression of evidence, the quashing of indictments, and

severance were filed, and arguments were heard during the

week of June 22, 1970,"

On July 27, 1970, in a departure from his October 24,

1969, decision, Judge Spaeth filed four opinions granting

the motions to quash and to suppress testimony of certain

defendants. As to all the stadiuuu defendants, Judge Spaeth

concluded that in light of the intervening decision of this

Court in Commonwealtl. v. Rose and Commonwealth ex rel.

Magaziner

8. All these charges were embodied in Bills No. 2416-21, 2674-

78, and 2723-24.

9. Bill No. 266.

10. The late Hon. Vincent A. Carroll.

11. The following pre-trial motion were filed:

11. [cont’d from previous page]

“1. Motions to suppress testimony

Filed by:

Paul Marzullo

James McCloskey

Thomas Taylor

[cont’d on next page]

Pea

30 Opinion of the Supreme Court

[540-6]

v. Sheriff, 487 Pa. 30, 261 A. 2d 586 (1970), the Pennsy]l-

vania Rules of Criminal Procedure now required a pre-

liminary hearing in every criminal case. He therefore de-

termined that the teaching of the recent decision of the

United States Supreme Court in Coleman v. Alabama, 399

U.S. 1, 90 S. Ct. 1992 (1970) as well as considerations of

equal protection and the defendants’ right to counsel neces-

sitated the indictments be quashed.

11. [cont’d from previous page]

“2. Motion to quash indictments as based on unconstitutional

obtained testimony

Filed by:

James McCloskey

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

preliminary hearing

Filed by:

Harry Blatstein

Paul Marzullo

McCloskey & Company, Inc.

James McCloskey

McCormick-Taylor Associates

H. H. Robertson Company

Thomas Taylor

“4. Motions for change of venue (withdrawn during argument)

Filed by: 7

Paul Marzullo

McCormick-Taylor Associates

Thomas Taylor

“5. Motions for continuance until the Investigating Grand Jury

is discharged

Filed by:

Paul Marzullo

McCioskey & Company, Inc.

[cont’d on next page]

ae Me Oar ite a2 Bits stincd test do

4

Opinion of the Supreme Court 51

[540-7 ]

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 viola-

tion of a defendant’s rights under the Fifth

James McCloskey

H .H. Robertson Company

Thomas Taylor

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

Filed by:

Paul Marzullo

H. H. Robertson Company

Thomas Taylor

“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

“Q. Motion for consolidation of all bills

Filed by:

Commionwealth of Pennsylvania

“10. Motions for severance

Fiied by:

Paul Marzullo

McCloskey & Company, Inc.

James McCloskey

K. H. Robertson Company

Thomas Taylor

“11. Motions in re order of proof

Filed by:

McCloskey & Company, Inc.

James M¢Closkey

H. H. Robertson Company

[cont’c on next page]

CA RS ERR RE AIBN. £0 8 DV SONGS TLD AOE

52 Opinion of the Supreme Court

[540-8]

Amendment to the United States Consiituiion and Article I,

Section 9 of the Pennsylvania Constitution. In another

separ: te opinion, Judge Spaeth directed that the testimony

of defendants James McCloskey, Paul Marzullo and

Thomas Taylor before the April, 1969, investigating grand

jury be suppressed because their Sixth Amendment right

to effective assistance of counsel at a critical stage had been

denied. Finally, as noted above,’” Judge Spaeth quashed

the indictment with respect to Frank Steinberg.

The Commonwealth appealed these decisions to the

Superior Court which affirmed them all without opinion by

an equally divided court on September 25, 1970.'% This

consolidated appeal followed." |

11. [cont’d from previous page]

“12. Motions to quash superseded indictments

Filed by:

McCloskey & Company, Inc.

James McCloskey

McCormick-Taylor Associates

Thomas Taylor

“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”

12. See pp. 2-3 supra. The Steinberg indictment was not in-

volved in Judge Spaeth’s October, 1969, opinion. There was ac-

cordingly no change with respect to this appellee.

13. See note 1 supra.

14. See next page.

.

Opinion of the Supreme Court 53

[540-9]

II. NECESSITY OF A PRELIMINARY HEARING.

a. Rules of Criminal Procedure.

Appellees urge that their indictments are invalid be-

cause they violate the PennsyJvania 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 provided

in these rules, all proceedings shall be initiated by a written

complaint, sworn to or affirmed, and subszribed by affi-

ant.’’* Rule 116 requires that a preliminary arraignment

be held without ‘‘unnecessary delay’’ after an arrest,

14. Meanwhile, the Commonwealth proceeded against defend-

ants McCloskey and Company, Inc., McCormick-Taylor 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 Municipal Court (Dandridge,

A dispute arose as to whether the preliminary hearing should

proceed before Judge Dandridge, 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

Dandridge and President Judge Joseph R. Glancey of the Municipal

Court of Philadelphia to show cause why the writ should not be

granted. The rule issued without prejudice to preliminary hearings

held in the meantime.

On September 23, 1970, we granted defendants’ 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’ objec-

tions, 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.

15. 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.

54 Opinion of the Supreme Court

[540-10]

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 preliminary

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 aad

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 prose-

cuting official to submit an investigating grand jury pre-

sentment directly, with leave of court, to an indicting grand

jury, a power which was a traditional and established ex-

ception to the normal procedure of instituting criminal

proceedings by criminal complaint and preliminary hear-

ing.’

As noted above, Rule 102 provided that all proceedings

should be initiated by criminal complaint ‘‘[e]xcept as

otherwise provided in these rules. . . .’’ The Common-

wealth submits that Rule 212(c)’s definition of ‘‘present-

ment’’ as ‘*. . . a formal accusation made by a grand jury,

drafted by the Conmonwealth’s attorney with leave of

court and submitted for action to a subsequent indicting

grand jury,’’ is such an exception to Rule 102,

In his October, 1969, opinion Judge Spaeth accepted

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. Maga-

ziner v. Sheriff, supra.

16. Rules 116, 117, 118, and 119 have likewise bc:-n revised.

17. See pp. 12-13 infra.

Opinion of the Supreme Court 05

[540-11]

Initially we note that while Judge Spaeth may have

been understandabiy misled by Rose and Magaziner, 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 defend-

ants 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 opinion’s language con-

cerning the Rules of Criminal Procedure stressed that the

Rules applied to common pleas judges sitting as committing

magistrates. The opinion was limited to that factual situa-

tion. This Court in no way there settled the question of

whether the criminal rules pertaining to complaint and pre-

liminary hearing superseded the other historical methods of

commencing criminal prosecutions.

While the Rules are silent on special grand jury func-

tions, we agree with the Commonwealth that Rule 212(c)

provides a sufficient exception to Rule 102 to permit the

interpretation we enunciate today.

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

not infer that such silence was intended to abolish the tradi-

tionally sanctioned procedure by which a court-supervised

investigating grand jury makes its presentment. It would

be unreasonable 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

56 Opinion of the Supreme Court

the other traditional exceptions '* to proceeding by a pre-

liminary hearing.

[540-12]

b. Constitutionality of an Investigating Grand Jury

Presentment.

Several of the appellees here advance the argument

that to deny them a preliminary hearing in contradistinc-

tion to defendants whose prosecutions began with com-

plaints is an invidious discrimination in violation of the

eaual protection clause of the Fourteenth Amendment. A

review and analysis of the traditional and historic methods

for instituting criminal proceedings in this Commonwealth

discloses that this contention is without merit.

In the overwhelming majority of cases a criminal ac-

tion commences with the appropriate prosecuting official’s

filiag of a complaint.’® Preliminary arraignment and a pre-

liminary hearing * follows. This procedure, which can cer-

tainly be viewed as the norm, admitted of exceptions in

three general situations.

The first is where the district attorney or attorney

general submits a bill to a grand jury without previous

binding over or commitment of the accused. Such an exer-

cise of official authority would be justified, 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

18. See pp. 12-13 infra.

ee eee

Opinion of the Supreme Court 57

eases cited therein. See also, Commonwealth v. Coyle, 415

Pa. 379, 396, 203 A. 2d 782, 790-91 (1964).

[540-13]

The second exception is when an indicting grand jury

makes a presentment based on personal knowledge of the

jurors without any bill of indictment having been laid be-

fore them. See McNair’s Petition, supra at 60, 187 Atl. at

504; Commonwealth v. Green, supra at 537-38, 17 Atl. at

879. See generally 4 Wharton, Criminal Law and Pro-

cedure § 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 decision of the United States

Supreme Court in Coleman v. Alabama, supra, while not

requiring a preliminary hearing as a matter of constitu-

tional 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 Coleman emphasizes the critical

nature of the preliminary hearing, a procedure whereby

some criminal prosecutions are initiated by hearing and

others by investigating grand jury presentments raises a

serious question of equal protection, for in effect two types

of defendants have been created: those entitled to a pre-

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

Attorney of Philadelphia, ““The Several Modes of Instituting Criminal

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

20. 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 rather as an instrument to restrict their indiscriminate release.

For a thorough history of the

[cont’d on next page]

58 Opinion of the Supreme Court

liminary hearing and those not entitled to such a proceed-

ing. Appellees urge that such a classification is unreason-

able 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 insti-

tuting criminal proceedings as they exist in this Common-

wealth constitute an unreasonable classification. This Court

has elsewhere summarized the origins of a grand jury’s in-

vestigative powers, which have been recognized in this

[540-14]

Commonwealth since 1791."!_ It suffices to recall that while

in some states a grand jury’s inquisatorial capacity is vir-

20. [cont’d from previous page]

development of preliminary hearings in both England and this Com-

monwealth, see Commonwealth v. O’Brien, 181 Pa. Superior Ct.

382, 387-97, 124 A. 2d 666, 669-73 (1956).

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 Atl. 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, 462-

63 (1959) (Greco-Roman or Scandinavian), there is general agree-

ment that the institution first became formalized in England in 1162

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

Jury 1-44 (1906); Plucknett, A Concise History of the Common

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

History of the English Law 136-53, 598-662 (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 in-

terest of the crown.

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

tector of the individual against the crown. The single most sig-

nificant manifestation of this change was the Earl of Shaftesbury’s

Trial, 8 How. St. Tr. 759 (1681) where the jurors requested and

were permitted to question the witnesses in private. They then re-

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

Opinion of the Supreme Court 59

tually unlimited,” in Pennsylvania the freedom of the

grand 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 deci-

sional law or the requisite procedure.

One of the earliest and most comprehensive discussions

of a grand jury was Lloyd ¢ Carpenter’s Case, 5 Pa. L. J.

55, 3 Clark 188 (Ct. of Qtr.

[540-15]

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

many oceasions.* After commenting on the other two ex-

traordinary modes of procedure,“ Judge King there ob-

served 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

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

(1965). The function of protecting the individual from indiscriminate

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 (i961). Yet, its inquisatorial powers were clearly

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

supra at 57, 187 Atl. at 503.

22. See McNair’s Petition, supra at 57-58, 187 Atl. at 502.

See generaly Kuh, The Grand Jury “Presentment”: Fou! Blow or

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

as an Investigatory

22. [cont’d from previous page}

Body, 74 Harv. L. Rev. 590 (1961) ; Note, Discretionary Power in

the Judiciary to Organize a Special Investigating Grand Jury, 111

U. Pa. L. Rev. 954 (1963).

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

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

503.

24. See discussion supra pp. 12-13.

60

Opinion of the Supreme Court

on such occasions, rather bear on things than persons;

the object being the suppression of general and public

evils, affecting in their influence and operation com-

munities rather than individuals and therefore, more

properly the subject of gener:] than special complaint.

Such as great riots that shake the social fabzic, carry-

ing terror and dismay among the citizens; general

public . uisances affecting the public health and com-

fort; multiplied and flagrant vices tending tw debauch

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

cases the courts may properly, in aid of inquiries di-

rected by them, sammon, swear, and send before the

grand jury, such witnesses as they may deeni neces-

sary 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

[540-16]

we

/ ,

opinion by anticipaticn, 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 “he 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 in-

vestigative function that ‘*. . . ‘« . . this power, which

is a most delicate one, is never exercised unless under

Oxinion of the Supreme Court 61

urgent necessity or . . . [where] the public would suffer

from delays incident to ordinary forms of law.’ ’’ McNair’s

Petition, supra at 60, i87 Atl. at 504 (brackets in original)

(citations omitted). Such concerns were the prime motiva-

tion underlying the historic requirement in Pennsylvania

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.”

A court will first scrutinize the prosecuting official’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 procedure of applying

for a writ of prohibition to prevent an

[540-17]

alleged improper exercise of pow’: or an abuse ef discre-

tion 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

indicate a special grand jury was necessary. Compare

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 298, 783 (1938) (investigation approved) and

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).

62 Opinion of the Supreme Court

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

tion approved). See generally Hamilton Appeal, supra at

576-81, 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 review the propriety

of the convening and functioning of an investigating grand

Jury. A convicted defendant who believes he has been ag-

grieved by any illegal actions of the investigating grand

jury could obtain appropriate appellate review in his appeal

from judgment of sentence.

In WMeNair’s Petition we set forth some of the more

crucial requirements surrounding the approval of a grand

jury investigation:

‘*A grand jury investigation, because of the gravity

of the undertaking, must have a definite purpose to dis-

cover criminal acts which seriously affect or injure the

publie generally, which effect, if permitted to continue,

would endanger publie safety . . . or health, demoralize

the personal security of members of the publie, or per-

mit systematic criminal depreaations by public officers

Such matters require immediate attention so

that these evils may be suppressed. The criminal acts

subject to investigation must be such that the ordinary

process of the law is inadequate to cope with or dis-

cover them. .

[540-18]

“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 in-

Opinion of the Supreme Court 63

formation that criminal conspiracy, systematic viola-

tions 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 cannot be aimed at individuals pri-

marily, as such, nor at the commission of ordinary

crimes . . . but should be of maiters or criminal nature

wherein public officers or the interests of the general

publie 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 af-

tecting these functions of a widespread nature, jeopard-

izing or demoralizing public security or health, the

judge may properly order such investigation.

‘Investigations for purely speculative purposes

are odious and oppressive and should not be tolerated

by law. . . . The grand jury must know what crimes it

ix 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 misconduct which is within its

jurisdiction to punish.

‘‘The grand jury must not be set upon fruitless

searches, founded upon mere rumor, suspicion or con-

jecture. These are proper matters for police investi-

gation. Before reflection

[540-19]

is cast upon the integrity of public officials a prelimi-

nary investigation by the forees of law charged with

64 Opinion of the Supreme Court

the discovery of crime should be made to determine

whether there is any real foundation. Such jury in-

vestigations involve great expense to the public; subject

the citizen to inconvenience and frequently interfere

with the normal functioning of public officials and bodies

brought before it. They throw a cloud of suspicion

upon the parties subject to attack and undermine public

confidence in them. There must be a sound, solid basis

on which to proceed.”’

Id. at 60-62, 187 Atl. at 504-05 (footnote and citations

omitted).

Having reviewed in depth the nature and character-

istics 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 presentment, when the extraordinary

and limited circumstances ** justifying the impaneling of an

investigating grand jury existed, in any way prejudices him,

or denies him a greater degree of protection than is avail-

able to a defendant in a criminal proceeding instituted by

complaint and preliminary hearing. In comparing the safe-

guards afforded by these alternative procedures, we must

turn again to the Rules of Criminal Procedure.

26. It 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 aimed at

conditions and not primarily at individuals; c) the ordinary processes

of the law must be inadequate to cope with the problems; 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) information as to the

crimes must come from direct knowledge or a trustworthy source.

See Segal, Spivack, and Costilo, supra note 21 at 79.

SN eo

Opinion of the Supreme Court 65

[540-20]

Rule 119* lists four rights of an accused at a prelimi-

nary hearing: assistance of counsel, cross-examination of

witnesses and inspection of physical evidence, giving of

testimony, and recording the proceedings 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 testimony. Furthermore,

should any of the other evidence before the investigating

grand jury be material to the impeachment of Common-

wealth witnesses 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 advantages

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 justify-

ing the impaneling of a special investigating grand jury

when ordinary law enforcement procedures are no longer

eapable of dealing with the problem as outlined above justi-

fies this ‘‘eurtailment’’, if indeed it is one, of an accused’s

cross-examination opportunity. Cf. California v. Green, —

U.S. —, 90S. Ct. 1930 (1970).

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

the rules pertaining to preliminary arraignment and preliminary hear-

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

knowledge, no arrest has occurred in the instant cases.

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.

sspears

66 Opinion of the Supreme Court

[540-21]

Additionally, in view of the limited quantum of evi-

dence 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 Com-

monwealth are more than adequately balanced in the con-

text of an indictment arising out of a grand jury investi-

gation. 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

is a rather complete summary of the grounds on which the

investigating grand jury is making its recommendation, and

includes descriptions of both the physical evidence and tes-

timony that prompts its action.

It has been urged by various appellees that the proper

procedure required by both the criminal rules and consider-

ations of equal protection is that subsequent to the investi-

gating grand jury presentment, a complaint should be issued

and preliminary hearing held before the matter is sub-

mitted to an indicting grand jury. To accede to appellees’

request would merely be subjecting the administration of

criminal justice to another superfluous layer of delay and

imposing an unwise burden upon our judicial process as

well as upon the prosecutor and counsel for the defense with

only a slight expectation for what at most would be a highly

speculative de minimus advantage to an accused.

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 jurisdic-

tions, and is strictly regulated in the scope of its inquiry.

erase os

Opinion of the Supreme Court 67

The rights of an accused will certainly be as well protected

before an investigating grand jury as during a prelimirary

hearing. Both are conducted before persons not necessarily

schooled in the law, and hearsay evidence can serve as the

basis for the presentment as well as the binding over at a

preliminary hearing. At least in the investigating grand

jury context, the procedure is subject

[ 540-22]

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 constitutionally required ; it held

that when an accused has a preliminary hearing, he is en-

titled 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 made clear that appel-

late review of the denial of counsel at a preliminary hearing

was subject to the harmless error test of Chapman v. Cali-

fornia, 386 U. S. 18, 87 S. Ct. 824 (1967). — U.S. at —,

90 S. Ct. at 2004. As will appear more fully below, we apply

an analogous test, for relief is denied only to those appel-

lees now before us whose indictments were not based in part

on self-incriminatory statements made before the investi-

gating grand jury without sufficient warning from the court.

In sum, an investigating grand jury presentment is a

constitutionally permissible and reasonable alternative to

a preliminary hearing. We turn now to a witness’s right to

the assistance of counsel and privilege against self incrimi-

nation during his appearance before an investigating grand

jury.

A A Re tl

68 Opinion of the Supreme Court

IlI. RIGHT TO COUNSEL AND RIGHT AGAINST

SELF INCRIMINATION BEFORE AN

INVESTIGATING GRAND JURY.

When the five individual appellees were subpoened to

testify before the April, 1969, investigating 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.

[540-23]

The relevant portions of these instructions are set forth in

the margin.”®

29. The record in this appeal reveals the following:

To Mr. McCloskey:

“THE Cour7T: 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 whiie 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. You may tell your lawyer—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 arc in the

Grand Jury room.”

[cont’d on next page]

Opinion of the Supreme Court 69

[540-24]

In his July, 1970, opinions, Judge Spaeth ruled that

apvellees were entitled under the Fifth and Sixth Amend-

ments 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. 902, 84 S. Ct. 1758 (1964), as well as the

decision of the New York Court of Appeals in People v,

Tanniello, 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 remotely con-

cerned 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

unwarranted extension of the teaching of those decisions.

To Mr. Taylor:

“THe Court: * * *

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

consult 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 is married.

Otherwise, everything is secret, under the law, under the Grand

Jury proceeding.”

To Mr. Blatstein:

“THE Court: * * *

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

counsel, Mr. Richter, before you go into the grand jury room.

And you may confide in Mr. Richter when 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 cautionary

instructions.

70 Opinion of the Supreme Court

As to Janniello, 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 8. Ct. 510

(1957), the last pronouncement by the Supreme Court

directly on this issue, it was held that ‘*. . . [a] witness

before a grand jury cannot insist, as a matter of constitu-

tional 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 de-

fense.”’ Td. at 333, 77 S. Ct. at 513.

It would be a serious interruption and impair coniin-

uity in a grand jury investigation if witnesses were per-

mitted 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 before a grand

jury is always protected by the

[540-25]

privilege against self inerimination, ‘*. . . a privilege avail-

able in investigations as well as in prosecutions.’ Id. at

d80, 77 S. Ct. at 513 (emphasis added). See generally,

Annot., Self Incrimination 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 witness’s right to

exercise his privilege against self incrimination knowingly

and intelligently, we believe that proper procedure is foi

the court supervising the investigating grand jury to in-

struct a witness when administering the oath that while he

may consult with counsel prior to and after his appearance,

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

Opinion of the Supreme Court 71

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 obtain a ruling as to whether

he should answer the question.

Such a warning gives full recognition to the delicate

nosition of a witness before an investigating grand jury.*

He has been summoned to testify, and he is subject to con-

tempt proceedings should he refuse to testify without justi-

fication." 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).

[540-26]

‘“‘If . . . [a witness] answers incriminating questions

he may make certain, as Short aid, that he will be in-

dicted. 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 questions on the ground that answers might in-

criminate him, the grand jury may draw conclusions. |

If he refuses to answer questions that are not incrimi-

nating, he may be guilty of contempt.”’

Id. at 868 (Edgerton, J., joined by Bazelon, C. J., and Fahy

and Wright, J. J.).*

Determining what is an incriminating statement is not

always clear to a layman. We thus conclude that a sub-

30. See generally, Meshbesher, Right to Counsel Before Grand

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

31. 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).

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

33. The quoted portion of the opinion, although included in the

opinion of the court, was in a section joined in only by four members

of the court, which was not a majority.

is

OE a a arate ek de ed ea

72 Opinion of the Supreme Court

poenaed witness who has given testimony before an investi-

gating 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. lanniello, supra, is

persuasive authority for the proposition that a witness be-

fore an investigating grand jury be allowed to consult with

his attorney outside the hearing room after. each question.

Having 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 any right to consult with his

lawyer. See 21 N. Y. 2d at —, 235 N. E. 2d at 441. Judge

Brietel then observed that ‘‘[c]ourts have a particular re-

sponsibility to prevent unfairness in Grand Jury proceed-

ings, for the Grand Jury is an ‘arm of the court’’’. Id.

at —,

[540-27 ]

235 N. E. 2d at 443 (emphasis added). The court further

pertinently noted that if a witne.- is told he cannot see his

lawyer, .

‘*. ,. . he does not have license to commit perjury or

contempt. Rather, he must persist in his refusal to

answer, thus forcing the prosecutor to take the matter

into open court for a ruling. By requiring the matter

to be taken to the presiding Justice, the proceeding is

expedited and the danger of stalling tactics reduced.

The judge can rule on questions of pertinency, after

argument of counsel. He can determine whether a

eolorable claim of testimonial privilege is presented,

and can inform the defendant of the extent of his im-

munity from prosecution for prior offenses. Where a

ene ner ee ee ee ee

Opinion of the Supreme Court 73

witness persists in raising objections which are pal-

pably not in good faith, the judge may compel him to

desist from this course under the sanctions of contempt

proceedings.”’

Id. at —, 235 N. KE. 2d at 443-44.

We reiterate our belief that to allow a witness to leave

the grand jury room and consult with his attorney at the

door prior to responding to every question would cause

undue delay and all but terminate the institution of the in-

vestigating grand jury. Such a procedure, which would not

be subject to any court supervision, would be an invitation

to evasive and stalling tactics. The standards we today

institute are manifestly distinguishable in that they require

a court to scrutinize the witness’s refusal to answer. If the

witness persists in interrupting the grand jury proceedings

in palpable bad faith and without presenting any colorable

claim of testimonial privilege, the court can bring a halt to

such tactics. This essential element of judicial supervision

would not be available were a witness permitted at will to

consult with his attorney for an indefinite period of time

after every question, no matter how unmeritorious his ob-

jection.

[540-27-a]

Consequently, we must now consider the proper

remedy.**

34. The Commonwealth raised the argument that Judge Spaeth,

being a court of coordinate jurisdiction, was without power to

“overrule” Judge Sloane on the question of preliminary hearings

and right to counsel. The cases were assigned to Judge Spaeth for

all pre-trial motions. The preliminary hearing issue was never pre-

sented to Judge Sloane, for no presentments or indictments had yet

been made. Furthermore, the factual contexts were distinct and

the records and posture of the cases were totally different.

Li lateral SB

CEN et ee Le el Pee

a

‘RRBs aa Tati Ua acter Mie Sa,

74 Opinion of the Supreme Court

IV. THE, PROPER REMEDY.

Even though a witness was not given the proper warn-

ing, we would not disturb a later indictment unless the

presentment and subsequent indictment were based, in part,

on the self-incriminatory testimony of the defendant.

[540-28]

In the present case, appellee Blatstein received the

proper warning.” As to appellee Steinberg, although the

record does not indicate whether he was advised he could

ome before the court during his testimony, our review of

the second presentment discloses that it is not based on any

testimony that appellee Steinberg might have given,** but

rather on the records of the Philadelphia Housing Author-

ity, produced under subpoena, evidence submitted by the

district attorney ’s office, and the testimony of Hope B. Win-

borne, Chief of Construction of the Department of Licenses.

Consequently, neither of these appellees is entitled to

relief.

However, appellees Thomas Taylor, Paul J. Marzullo,

and James C. McCloskey were all given an insufficient

warning, and their indictments were based on the fourth

presentment of the investigating grand jury. Our examina-

tion of that presentment discloses that the recommenda-'

tions concerning each of these appellees were clearly based

in part on their incriminating testimony before the investi-

gating grand jury. We therefore conclude that their in-

dictments must be quashed and their testimony suppressed.

The Commonwealth refers us to this Court’s decision

in Commonwealth v. Dessus, supra, and argues that even

35. See note 29, supra.

36. The record discloses that Steinberg respectfully declined to

give any testimony before the April, 1969, investigating grand jury,

other than his name and address.

Opinion of the Supreme Court 75

if some irregularity existed in the procurement of the in-

dictments, to quash is not the proper remedy.

This Court has made it clear that in certain cireum-

stances, a constitutional viclation in securing the indict-

ment will necessitate that the indictment be quashed. In

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

(1959), we held that where a witness appeared before the

[540-29]

grand jury, testified under judicial compulsion in violation

of his rights pursuant to the Fifth Amendment and Article

I, Section 9 of the Pennsylvania Constitution against self

incrimination, his indictment should be quashed. Mr. Jus-

tice Chidsey there stated for six members of the Court that:

‘Tt 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. Supe-

rior Ct. 290, 35 A. 2d 731; or hearsay evidence, Com.

v. Stoner, 70 Pa. Superior Ct. 365, affirmed 265 Pa.

139, 108 A. 624: or incompetent witnesses, Com. v.

Padden, 160 Pa. Superior Ct. 269, 50 A. 2d 722, will

not invalidate an indictment where other proper evi-

dence was adduced before it . . .’. But we know of

no case in this jurisdiction that denies the right to

challenge 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.’

Id. at 325-26, 108 A. 2d at 785 (emphasis added).

The principle of Kilgallen is still valid and dictates our

result today on this issue. Defendants McCloskey, Taylor

and Marzullo were on notice that the investigating grand

eveeencrr ROPER IVT NES

eer

ot Re ee

76 Opinion of the Supreme Court

jury was inquiring into the stadium project. They were

judicially compelled to testify without sufficient warning

or protection concerning their right against self inerimina-

tion. The resulting presentment and indictments were

based in part on this constitutionally impermissible testi-

mony, and hence must be quashed.

[540-30]

V. CONCLUSION.

Accordingly, for the reasons set forth above: the

orders of the Superior Court affirming the orders of the

Philadelphia Ccurt of Common Pleas of July 27, 1970,

quashing the indictments against Harry Blatstein, Frank

M. Steinberg, McCormick-Taylor Associates, McCloskey &

Company, Inc., and H. H. Robertson Company are reversed

and the records remanded for further proceedings; the

orders of the Superior Court affirming the orders of the

Philadelphia Court of Common Pleas of July 27, 1970,

quashing indictments and suppressing evidence against

James C. McCloskey, Paul J. Marzull , and 'l‘homas Taylor

are affirmed.

Mr. Justice Eagen filed a concurring and dissenting

opinion in which Mr. Justice Jones joins.

Mr. Justice Couen did not participate in the decision

of this case.

Opinion of the Supreme Court ee

CONCURRING AND DISSENTING OPINION OF

JUSTICES EAGEN AND JONES OF THE

SUPREME COURT OF PENNSYLVANIA.

[540]

IN THE

SUPREME COURT OF PENNSYLVANIA

Eastern District.

No. 157 January Term, 1971.

APPEALS From Orpvers Datep SEPTEMBER 25, 1970, or Svu-

PERIOR Court as oF OctoserR TERM, Nos. 1377 To 1384.

COMMONWEALTH OF PENNSYLVANIA,

Avpellant

Vv.

JAMES McCLOSKEY, HARRY BLATSTEIN, McCOR-

MICK TAYLOR ASSOCIATES, H. H. ROBERTSON

COMPANY, PAUL MARZULLO, FRANK M. STEIN-

BERG, THOMAS TAYLOR, McCLOSKEY & COM-

PANY, INC.

CONCURRING AND DISSENTING OPINION.

Eacen, J. Filed: May 13, 1971

I agree with the conclusion of the majority that the

denial of a preliminary hearing to the individuals and cor-

porations indicted in this case violated neither the Pennsyl-

vania Ruies of Criminal Procedure nor constitutional due

process. However, I strongly disagree with the majority’s

ruling that an individual who is compelled to appear and

testify before a grand jury may constitutionally be denied

the opportunity of consulting with his legal counsel out-

side the grand jury room during his testimony. I agree

completely with Judge Spaeth in the court of original

78 Opinion of the Supreme Court

jurisdiction that such a denial violates the individual’s

rights guaranteed by the Fifth and Sixth Amendments.

A person accused of crime must be afforded the as-

sistance of counsel during every ‘‘critical stage’’ in the

prose-

[540-2]

cution process. Admittedly a witness before a grand jury

is not an ‘‘accused’’ in a technical sense. However, the

law should consider the realities of the situation and a read-

ing of the limited record before us is convincing to me that

the individuals here involved were ‘‘accused’’ in a very

real sense when they testified before the grand jury. More-

over, they were at least potential defendants; their testi-

mony was compelled and eventually they were indicted at

least in part on what they themselves were compelled to

disclose. Under such circumstances, they were entitled to

the minimum protection of having the opportunity of con-

sultation with counsel before answering any questions.

Additionally, a witness before a grand jury need not

answer any incriminating questions. Resolution of the

scope of the privilege against self-incrimination and the

applicability of the waiver doctrine on a question-by-ques-

tion basis frequently presents a difficult problem. I cannot

see how an untrained layman can be expected to possibly

discern whether or not an answer to a particular question

will subject him to the danger of incrimination. To deny

him the opportunity of adequate consultation with his coun-

sel is to render his right under the Fifth Amendment

meaningless.

Aside from every other consideration, fundamental

fairness, which is the cornerstone of due process, mandates

that the opportunity of such assistance be afforded. The

secret proceeding before a grand jury is pregnant with the

Opinion of the Supreme Court 79

possibility of coercion, intimidation and overreaching.

One commentator pointedly described the situation thusly :

[540-3]

‘‘A potential defendant who is brought before the

Grand Jury without an attorney at his side is almost

helpless. He is faced with a barrage of questions,

often improper in the normal judicial setting, thrown

at him by a group of reasonably intelligent citizens

excited at the prospect of playing both lawyer and

detective. This torrent of interrogation is, of course,

directed by a skilled prosecutor capable of utilizing

the Grand Jury as the tool to obtain incriminating

evidence from the mouth of a nervous witness. The

upset and confused witness does not know whether to

respond to the questions and risk having his answers

used against him at a trial or claim the Fifth Amend-

ment, creating suspicion in the eyes of the jurors and

risk.ng a contempt charge. In this atmosphere, the

proceeding takes on the attributes of a Star Chamber.

There is no comparable institution in our entire so-

ciety which sanctions secret interrogation of a person

‘legally’ denied access to counsel.’’ Meshbesher, Right

to Counsel Before Grand Jury, 41 F. R. D. 189, 190 (1966).

(1966).

Finally, an inconsistency in the reasoning of the

majority opinion must be noted. On the one hand, the

opinion states that if a witness were permitted to leave

the grand jury room to consult with counsel this ‘‘would

be a serious interruption and impair continuity in a grand

jury investigation.’’ But in the next breath the opinion

states that if a witness is confronted with a question which

tends toward incrimination he may ‘‘come before the court

80 Opinion of the Supreme Court

and obtain a ruling as to whether or not he should answer

the question.’’? Apparently in the minds of the majority

the last mentioned procedure would not constitute a

‘‘serious interruption’’ of the grand jury investigation.

In this connection may I also say that, while I agree

that courts and their agencies should persistently strive

[540-4]

towards the objective of increased efficiency, such efficiency

should always be within legal limits and ‘‘should never

be made the end goal of a system dealing with life and

liberty.”’

Mr. Justice Jones joins in this opinion.

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