Petition for a Writ of Certiorari — Steinberg v. Pennsylvania

Supreme Court brief1971

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COT RRET Oe Menge rt

SRO gram”

IN THE _

Supreme Court of the United States

RIt.ED

No. 4 AUG 2 97h

z : |

i ; * 3 E ROBERI SEAVER, CLERK | |

FRANK M. STEINBERG, Petitioner

COMMONWEALTH OF PENNSYLVANIA, Respondent

PETITION FOR WRIT OF

CERTIORARI TO THE

SUPREME COURT

OF PENNSYLVANIA

DONALD J. GOLDBERG

Counsel for Petitioner

Two Girard Plaza

Philadelphia, Pennsylvania 19102

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA., PA. 19107

Supreme Court, U.S. |

TABLE OF CONTENTS

Page

EE Ss cw UN cb ee HSS oe Cee ee ]

ROS ar i rn a6 ood eke ed Purelg er anes 2

I I 0 9a dia Gyo vin die eae oe aes 2

Constitutional Provision and Rule Involved ........ 3

EE OE sv ececéseckeuaeeaveeeban 5

Reasons for Granting the Writ ................... 7

NE, seo aad oy ao ca Cease Uae ok aTR 12

Appendix—

A. Opinion and Judgment of the Supreme

Court of Pennsylvania ................. 13

Concurring and Dissenting Opinion ...... 42

B. Order of Supreme Court of Pennsylvania

Genyimg Rehearing ...............s.0<: 45

C. Opinion and Judgment of Superior Court

er rer ere 46

D. Opinion and Order of Court of Common

Pleas of Philadelphia County in Common-

wealth v. Stelmberg ..........-0000e-: 47

E. Opinion and Order of Court of Common

Pleas of Philadelphia County in Common-

wealth v. Mc*“'»skey Construction Co. et

ME. Vansak eee re eV eae VE Cee ke 49

TABLE OF CITATIONS

Cases: Page

Coleman v. Alabama, a0 U.S. 1 (1070) ........... 7-9

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

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

TABLE Gf CITATIONS—Continued)

Cases: _ Page

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

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

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

United States Constitution

RE Eo ay ce ava de ee eae eee ees 3

Miscellaneous

“Developments in the Law—Fqual Protection,” note

in 82 Harvard L.R. 1065 (1969) .............. 6

Pennsylvania Rules of Criminal Procedure, 19 P.S.

Appendix—

ee OO aaa Veins e ae ke ore Kes 9

Rule 119 (now Rule 120) ............... 3,9, 10

IN THE

Supreme Court of the United States |

OCTOBER TERM, 1971

NO.

FRANK M. STEINBERG, Petitioner

COMMONWEALTH OF PENNSYLVANIA, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT

OF PENNSYLVANIA

Petitioner, Frank M. Steinberg, prays that a Writ of

Certiorari issue to review the judgment of the Supreme

Court of Pennsylvania entered on May 13, 1971.

OPINIONS BELOW

The opinion of the Court of Common Pleas for Phila-

delphia County is unreported, but a copy is appended at

p. 47. The opinion of the Ccurt of Common Pleas for

Philadelphia County in the companion case of Common-

wealth v. McCloskey Construction Co., et al., is unreport-

ed, but a copy is appended at p. 49. The opinion of

the Superior Court of Pennsylvania is reported at 217 Pa.

Superior Ct. 791, 269 A.2d 146 (1970), and is appended

at p. 46: The opinion of the Supreme Court of Penn-

sylvania is r-vorted at Pa. ——-, 277 A.2d 764 (1971),

and is appended at p. 13.

]

JURISDICTION

The judgment of the Supreme Court of Pennsylvania

was entered on May 13, 1971. A timely petition for rehear-

ing was denied on June 14, 1971. A copy of the judgment

of the Supreme Court of Pennsylvania is appended at

p. 41, and a copy of its ord = respecting rehearing is ap-

pended at p. 45. The jurisdiction of this Court is invoked

under 28 U.S.C. Sec. 1257(3).

QUESTION PRESENTED

Under the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution, may a de-

fendant in a Pennsylvania criminal case be deprived of

the same right to a preliminary hearing guaranteed all

other accused in that state merely because his prosecu-

tion was recommended by an investigating grand jury?

CONSTITUTIONAL PROVISION

AND RULE INVOLVED

United States Constitution, Fourteenth Amendment:

. nor shall any State deprive any person of life,

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

deny to any person within its jurisdiction the equal

protection of the laws.”

Rule 119,! Pennsylvania Rules of Criminal Procedure,

19 P.S. Appendix:

“Rule 119. Rights of parties at Preliminary Hearing

(a) The attorney for the Commonwealth may

appear 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 prelimi-

nary hearing, except as provided in these rules,

and may, if he desires:

(1) Be represented by counsel to act in his

behalf;

(2) Cross-examine witnesses and inspect

physical evidence offered against him;

(3) Testify, call witnesses other than wit-

nesses to his good reputation only, and offer

other evidence in his own behalf, except where

the offense charged is murder, voluntary man-

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

at the time defendant was 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 rernain the

same. Rule 119 is now Rule 120.

slaughter, kidnapping, arson, robbery or bur-

glary; and

(4) Make written notes of the proceedings,

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

expense a stenographer present to make a

record of the proceedings.

is not established at the preliminary hearing, and no

application for continuance, supported by reason-

able grounds, is made by an inierested person, and

no reason for a continuance otherwise appears, the

issuing authority shall aischarge the defendant. No

further proceedings may be had before any issuing

authority on the same cause until the complainant

in the original action has repaid the costs to the per-

son or entity charged therewith. When a defendant

has been discharged as herein provided and is there-

after arrested or summoned before an issuing author-

ity 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 defen-

dant and upon being satisfied that the subsequent

action is substantially the identical cause involved in

the first action, by whatever name it may be called,

quash the proceedings and discharge the defendant

from custody or the obligation of his bond without

costs, or he may permit the prosecution to continue.

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

shall have the right to have counsel assigned to rep-

resent him at the preliminary hearing. Adopted June

30, 1964. Eff. Jan. 1, 1965.”

fs)

STATEMENT OF THE CASE

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 connection with certain offenses said to have been

committed in the field of housing, urban renewal and

public construction. The Court of Common Pleas granted

this petition and specially charged the regular grand

jury of April Term. 1$69 with the investigating function.

Petitioner Frank M. Steinberg was the subject of

the Second Presentment of the investigating grand jury

which recommended that he be prosecuted upon charges

of corrupt solicitation, malfeasance, misfeasance, mis-

conduct in office and violation of the State Adverse

Interest Act. The judge in charge of the investigating

grand jury accepted the presentment and authorized

the District Attorney to submit its recommendations

directly to the next indicting grand jury without first

affording to the accused the customary right to a

preliminary hearing which Pennsylvania law provides.

Upon the return of indictments petitioner filed several

pretrial motions challenging their validity. On July 27,

1970 the Court of Common Pleas of Philadelphia County

(Spaeth, J.) granted petitioner's motion to quash the

indictments on the ground that he had been deprived of

the preliminary hearing to which he was 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 constitu-

tional issue of equal protection” which would be presented

if he were to interpret the rules as the Commonwealth

contended, to requive a preliminary hearing in most

cases, but not where there had been an investigating

grand jury's presentment. (Appendix pp. 65-70.)

In considering the issue, however, Judge Spaeth

said the problem would be to determine what might

be the purpose of classifying criminal prosecutions in

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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 prepara-

tion of a proper defense.” (Appendix p. 68.) 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 Pro-

tection, 82 Harv. L. R. 1065, 1077 et seq. (1969). Without

Stating these tests, it would seem that under any of them

the classifications that would result from accepting

the Commonwealth’s view of the rules would be invalid

as arbitrary and unrelated to the achievement of any

rational purpose.” (Appendix p. 68.)

The Commonwealth appealed to the Superior Court

of Pennsylvania which affirmed without opinion by an

equally divided court on September 25, 1970. (Appendix

p. 46.) The Commonwealth next appealed to the Supreme

Court of Pennsylvania which reversed and held that

the Pennsylvania Rules of Criminal Procedure which

provide the right to a preliminary hearing were not

meant to apply where an investigating grand jury had

recommended the prosecution of the accused. (Appendix

pp. 21-23.) The court met the equal protection issue by

holding that an investigating grand jury’s presentment

was a constitutionally permissible and reasonable al-

ternative to a preliminary hearing. (Appendix pp. 23-33.)

A timely request for reargument was denied on June 14,

1971. This petition followed.

REASONS FOR GRANTING THE WRIT

The Pennsylvania Supreme Court has decided a seri-

ous 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 of 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 recommenda-

ons 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

conducted, it is a “critical stage” at which the accused

must be as fuily represented as at trial. Coleman uv.

Alabama, 399 U. S. 1 (1970). In Coleman the defendants

had been convicted of assault with intent to murder.

Under Alabama law the preliminary hearing is not even

a required step. The prosecutor there may seek an indict-

ment directly from the grand jury without a preliminary

hearing. Moreover, under Alabama law the sole purpose

of a preliminary hearing 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 hearing; they were not represented

by counsel, and the State was not permitted to use

against them at trial anything that occurred at the pre-

liminary hearing. They contended nevertheless that the

Alabama preliminary hearing was a “critical stage” 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

depends, 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.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 examination anc 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 witnesses 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 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 influen-

tial 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

tc 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.” 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

Censtitution 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 Cole-

man lies only in its recognition that where available,

a preliminary 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 testi-

mony favorable 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

contrasted to Alabama practice) a defendant has a right

to a preliminary hearing. Pennsylvania Rules of Criminal

Procedure, 116, 117, 118, 119. 19 P.S. Appendix. More-

over, 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.” Thus, Rule 119° provides that at a preliminary

hearing the defendant:

1) May be represented by counsel to act in his

behalf;

2. Accordingly, any failure to give Coleman retroactive effect

has no meaning to the equal protection issue here.

3. Supra p. 3.

% ee ae ee ee

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

proceeding;

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 accused in Pennsylvania and

declare them ineligible to enjoy the same rights as the

others unless there is good reason for treating them

differently. Commonwea!th 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 constitutional guarantee by the equal protection

clause of the Fourteenth Amendment because it is a part

of the due ‘process of the state,” which must be afforded

equally to all defendants. Silva v. Cox, 351 F.2d 61, 64

(10th Cir. 1965); Guerra v. Rodriguez, 372 F.2d 472,

473 (10th Cir. 1967). (Emphasis supplied.)

It is impossible to discern any reasonable difference

between those accused by an investigating grand jurv

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 day for justice in this land if the rights afforded a

defendant 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

investigating 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 >ermit any participation in the proceedings

by the accused or his counsel. Surely, no one would coun-

tenance 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 accusations, 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 preserved had he a preliminary

hearing? Why should this particular accused face

indictment and trial when the Commonwealth has not

established a prima facie case of his guilt in open Court

at a preliminary hearing at which he is represented by

counsel who may cross-examine and call witnesses? Indeed,

the preliminary hearing in Pennsylvania quite often re-

sults in the discharge of the accused. Moreover, the Com-

monwealth has never argued that it could not grant the

accused here a preliminary hearing, but only that it

need not. Thus, while those “normally” accused in Penn-

sylvania receive a preliminary hearing as of right, those

“specially” accused receive one only if the prosecutor

is willing. In this case the prosecutor was unwilling and

as a consequence petitioner Steinberg was a very real

victim of constitutionally impermissible discrimination.

CONCLUSION

For the reasons set forth above and in the opinions

of the Court of Common Pleas (Appendix pp. 65-70.), this

petition for a writ of certiorari should be granted.

Respectfully submitted,

DONALD J. GOLDBERG

Counsel for Petitioner

APPENDIX

A. OPINION AND JUDGMENT OF SUPREME

COURT OF PENNSYLVANIA.

OPINION OF THE COURT

ROBERTS, J. Filed: May 13, 1971

The Commonwealth here appeals from decisions by an

evenly divided Superior Court! affirming various orders

of the Philadelphia Court of Common Pleas quashing in-

dictments against and suppressing evidence obtained from

the several defendants. This complex appeal involves nu-

merous issues, all of which center on two problems: (1)

whether a criminal proceeding can lawfully be commenced

by an investigating grand jury’s presentment to an in-

dicting grand jury without affording defendant an oppor-

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

to what degree, a subpoenaed witness and potential defend-

ant before an investigating grand jury is entitled to the

assistance of counsel to aid him in asserting his right

against self 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

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

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

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

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

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

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

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

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

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

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

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

based upon an investigating grand jury’s presentment

directly to an indicting grand jury with leave of court

is lawful, even though no preliminary hearing was held.

Concerning the assistance of ccunsel and the right against

self incrimination, while we do not today hold that a

witness is entitled to have counsel present in the hearing

room or that he is entitled to step outside the door ana

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 advised of his rights. This procedure was not

foliowed with refe.ence to certain of the individual ap-

pellees now before us. Accordingly, those indictments in

any way based upon a defendant’s own testimony given

without this warning and in violation of his right against

self incrimination must be quashed.

I. BACKGROUND

The investigating grand jury of “April Term, 1969,

was convened by court order pursuant to a petition sub-

mitted by the Philadelphia District Attorney alleging

various offenses were being or had becn committed with

respect to housing, urban renewal and public construction.

a. Frank M. Steinberg

After hearing numerous witnesses and receiving

voluminous evidence, the investigating grand jury returned

a presentment? on August 18, 1969, requesting that ap-

pellee, Frank M. Steinberg, a former Chairman of the

Philadelphia Housing Authority, be indicted on several

counts.

The court in charge of the investigating grand jury

2. The “second” presentment.

(Sloane, J.) accepted the }resentment, and the district

attorney with leave of court then submitted the recom-

mendations to the September indicting grand jury, which

returned true bills against appellee Steinberg charging

him with malfeasance, misfeasance and nonfeasance in

office; conspiracy; deposit of public money for gains; vio-

lation of the State Adverse Interest Act; practice of

corrupt solicitation; and corrupt solicitation.* All these

indictments were returned without any :omplaint having

been issued or any preliminary arraignment or preliminary

hearing having been held.

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 the other

appellees in this case were also being heard. Steinberg’s

motion to quash was granted on the basis that he had been

deprived of his right to a preliminary hearing, and hence

his motions for suppression of evidence, pre-trial discovery

and severance 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,

recommending indictments against the other appellees on

various charges relating to the construction of an all

purpose municipal sports stadium in Philadelphia costing

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

the presentment.

Defendant Themas Taylor, the district manager of H.

H. Robertson Company, the steel subcontractors for the

stadium, petitioned the court in charge of the investigat-

3. The charges were embodied in Bills No. 879-90, 892-97.

4. See note 1 supra.

5. The “fourth” presentment.

ing grand jury to grant him a preliminary hearing. His

petition 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.)

seeking to restrain the district attorney from presenting

the investigating grand jury’s recommendations to the

indicting grand jury until a preliminary hearing had

been held, or else until certain conditions had been imposed

on the manner in which the evidence was to be presented

to the indicting grand jury. Defendants McCloskey and

Company, 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 defendants

Paul Marzullo, Director of Architecture and Engineering

for Philadelphia, and Harry Blatstein, the stadium co-

ordinator, did likewise on October 6, 1969.

On October 24, 1969, Judge Spaeth entered an order

dismissing defendants’ petition, setting forth his reasons

fer 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. Mc-

Closkey; charges of false pretenses and conspiracy against

McCloskey and Company, Inc.;? charges of conspiracy

against McCormick-Taylor Associates, the stadium archi-

tects; charges of conspiracy against Thomas Taylor;

charges of bribery of government offices and employees,

bribery of servants and employees, extortion, and mal-

feasance, misfeasance and nonfeasance in office against

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

“fourth” presentment.

7. Although the indictment was ayainst “McCloskey Con-

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

name, “McCleskey & Company, Inc.”

Harry Blatstein; charges of malfeasance, misfeasance, and

nonfeasance in office and conspiracy against Paul J.

Marzullo; and charges of conspiracy against H. H. Robert-

son.* The district attorney 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 ootaim money by false pretenses from the

City of Philasieiphia. None of the above indictments were

preceded by e:ilhier a ¢ vmplaint, preliminary arraignment,

or prelirainary bearin..

The Presidcat Judge of the Philadelphia Court of

Common Pleas'" assigned all the foregoing cases to Judge

Spaeth “for ali pre-trial and post-trial motions and trial.”

Various pre-trial moticis 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."!

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

2678, and 2723-24.

9. Bill No. 266.

10. The late Hon. Vincent A. Carroll.

11. The following pretrial motions were fil

“1. Motions to suppress testimony

Filed by:

Paul Marzullo

James Nic Closkey

Thomas Ta_lor

“2. Motion to quash indictments as based on unconstitu-

tional obtained testimony —

Filed by:

James McCloskey

“3. Motions to quash indictments as defective for denial

of a preliminary hearing

Filed by:

Farry Blatstein

Paui Marzullo

McCioskey & Company, Inc.

James McCloskey

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Love AR Rae ee ell CART BARE day Oona 44

Note 1 1—Continued

McCormick-Taylor Associates

H. H. Robertson Company

Thomas Taylor

“4. Motions for change of venue (withdrawn during

argument) .

Filed by:

Paul Marzullo

McCormick-Taylor Associates

Thomas Taylor

“S. Motions for continuance until the Investigating

Grand Jury is discharged

Filed by:

Paul Marzullo

McCloskey & Company, Inc.

James McCloskey

H. H. Robertson Company

Thomas Taylor

“6. Mocions 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 scien-

tific reports

Filed by:

McCloskey & Company, Inc.

James McCloskey

McCormick-Taylor Associates

“8. Motions for bill of particulars

Filed by:

Harry Blatstein

Paul Marzullo

McCloskey & Company, Inc.

James McCloskey

Thomas Taylor

“9. Motion for consolidation of all bills

Filed by:

Commonwealth of Pennsylvania

“10. Motions for severance

Filed by:

Paul Marzullo

McCloskey & Company, Inc.

James McCloskey

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

24, 1969, decision, Judge Spaeth filed four opinions grant-

ing the motions to quash and to suppress testimony of

certain defendants. As to all the stadium defendants,

Judge Spaeth concluded that in light of the intervening

decision of this Court in Commonwealth v. Rose and

Commonwealth ex rel. Magaziner v. Sheriff, 437 Pa. 30,

261 A.2d 586 (1970), the Pennsylvan.a Rules of Criminal

Procedure now required a preliminary hearing in every

criminal case. He therefore determined that the teaching

of the recent decision of the United States Supreme Court

in Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970)

as well as considerations of equal protection and the de-

fendants’ right to counsel necessitated the indictments

be quashed.

H. H. Robertson Company

Thomas Taylor

“11. Motions in re order of proof

Filed by:

McCloskey & Company, Inc.

James McCloskey

H. H. Robertson Company

“12. Motions to quash superseded indictments

Filed by:

McCloskey & Company, Inc.

James McCloskey

McCormick-Taylor Associates

Thomas Taylor

“13. Motions for inspection of grand jury notes of testi-

mony

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”

290

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 Amendment to

the United States Constitution and Article I, Section 9 of

the Pennsylvania Constitution. In another separate 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 assist-

ance 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.'4

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

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

ingly no change with respect to this appellee.

13. See note 1 supra.

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

hearing. Complaints were presented to the Municipal Court

(Dandridge, J.)

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 aitorney and over defendants’ objec-

Il. NECESSITY OF A PRELIMINARY

HEARING

a. Rules of Criminal Procedure

Appellees urge that their indictments are invalid

because they violate the Pennsylvania Rules of Criminal

Procedure which, in their view, establish a comprehen-

sive procedure for the institution of all criminal prosecu-

tions.

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

vided in these rules, all proceedings shall be initiated by

a written complaint, sworn to or affirmed, and subscribed

by affiant.”'* Rule 116 requires that a preliminary

arraignment be held without “unnecessary delay” after

an arrest, at which time the accused is entitled to a

warning of his right to counsel and to bail, if he is

accused of a bailable offense, as well as to his “right to

have a 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 and recording of the hearing, and the rights

of parties at a preliminary hearing.

The issue, simply stated, is whether these Rules of

Criminal Procedure have abrogated the power of a pros-

ecuting official to submit an investigating grand jury

presentment directly, with leave of court, to an indicting

grand jury, a power which was a traditional and estab-

lished exception to the normal procedure of instituting

tions, the court on November 30, 1970, continued the preliminary

hearing, explaining in an accompanying opinion that it did not

with 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.

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

criminal proceedings by criminal complaint and prelim-

inary hearing.'”

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 Commonwealth’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. Magaziner v. Sheriff, supra.

Initially we note that while Judge Spaeth may have

been understandably 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 magistrate and summarily

held defendants on charges of perjury, with no complaint

having been issued or preliminary hearing having been

held. No such situation is now before us.

Nochallenge to a grand jury presentment or the powers

of a special investigating grand jury existed in Rose and

Magaziner. Furthermore, the opinion’s language concern-

ing the Rules of Criminal Procedure stressed that the

Rules applied to common pleas judges sitting as com-

mitting magistrates. The opinion was limited to that

factual situation. Tnis Court in no way there settled the

question of whether the criminal rules pertaining to com-

plaint and preliminary hearing superseded the other his-

torical methods of commencing criminal prosecutions.

While the Rules are silent on special grand jury func-

17. See pp. 25-24 infra.

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 traditionally sanctioned procedure by which a court-

supervised investigating grand jury makes its present-

ment. It would be unreasonable to infer such a drastic

alteration, as urged by appellees, from mere silence in

rules dealing with more commonplace criminal proceed-

ings. The Rules o. Criminal Procedure at present simply

do not concern themselves with this long established prac-

tice, nor do they foreclose any of the other traditional

exceptions'* to proceeding by a preliminary hearing.

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

equal 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

action commences with the appropriate prosecuting offi-

cial’s filing of a complaint.'® Preliminary arraignment

and a preliminary hearing?’ follows. This procedure,

18. See pp. 23-24 infra.

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

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

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

2C It is interesting to note that preliminary hearings were

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

originated not as a means of protecting persons arrested for crime

Age Ee a NOE EAP

which can certainly be viewed as the norm, admitted of

except*ons 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

exercise of official authority would be justified, for ex-

ample, 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.” Common-

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

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

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

Commonwealth v. Coyle, 415 Pa. 379, 396, 203 A.2d 782,

790-91 (1964).

The second exception is when an indicting grand jurv

makes a presentment based on personal knowledge of the

jurors without any bill of indictment having been laid

before 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

constitutiona! law, holds that if a preliminary hearing is

granted it becomes a critical stage in the proceedings,

and the accused is accordingly entltled to the assistance

but rather as an instrument to restrict their indiscriminate re-

lease. For a thorough history of the development of preliminary

hearings in both England and this Commonwealth, see Common-

wealth v. O’Brien, 181 Pa. Superior Ct. 382, 387-97, 124 A.2d 666,

669-73 (1956).

of counsel. They further assert that because Coleman

emphasizes the critical nature of the preliminary hearing,

a procedure whereby some criminal prosecutions are ini-

tiated by hearing and others by investigating grand jury

prcsentments raises a serious question of equal protection,

for in effect two types of defendants have been created:

those entitled to a preliminary hearing and those not

entitled to such a proceeding. Appellees urge that such a

classification is unreasonable and arbitrary because it

permits a district attorney to create a classification at

will, uninhibited by guidelines or restrictions.

We do not agree that these alternative modes of in-

stituting criminal proceedings as they exist in this Com-

monwealth constitute an unreasonable classification. This

Court has elsewhere summarized the origins of a grand

jury’s investigative powers, which have been recognized in

this Commonwealth since 1791.7! It suffices to recall

21. See generally, Hamilton's Appeal, 407 Pa. 366, 383-86,

180 A.2d 782, 790-91 (1962) (dissenting opinion); McNair’s Peti-

tion, 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 agreement

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 (3rd ed. 1940); 1 Pollock & Maitland, The

History of the English Law 136-53, 598-662 (2nd 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

protector of the individual against the crown. The single most

significant manifestation of this change was the Earl of Shaftes-

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

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

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

that while in some states a grand jury’s inquisitorial

capacity is virtually 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 decisional law or the requisite procedure.

“ One of the earliest and most comprehensive discus-

sious of a grand jury was Lloyd & Carpenter's Case, 5 Pa.

L.J. 55, 3 Clark 188 (Ct. of Qtr. Sess. of Phila. 1845),

cited with approval by this Court on many occasions.”

After commenting on the other two extraordinary modes

of procedure,?4 Judge King there observed that an in-

vestigating grand jury is justified where criminal courts

direct the investigation of:

. matters of general public import, which, from

their nature and operation in the entire community,

justify such intervention. The action of the courts

on such occasions, rather bear on things than persons;

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

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

nate prosecution remains the foremost duty of the grand jury

today.

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

uncertain. See Dession and Cohen, The Inquisitorial Functions of

Grand Jur:>s. 41 Yale L.J. 687 (1932); Segal, Spivack and Costilo,

Obtaining a Grand Jury Investigation in Pennsylvania, “5 Temp.

L.Q. 73, 75 (1961). Yet, its inquisitorial 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 503. See

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

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

Investigatory Body, 74 Harv. L. Rev. 590 (1961); Note, Discre-

tionary Power in the Jud:ciary 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 Petitwn, supra at 58, 187 Atl. at

503.

24. See discussion supra pp. 23-24.

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 general than special complaint.

Such as great riots that shake the social fabric,

carrying terror and dismay among the citizens; general

public nuisances affecting the public health and

comfort; multiplied and flagrant vices tending to

debauch and corrupt the public morals, and the like.

In such cases the courts may properly, in aid of in-

quiries directed by them, summon, swear, and send

before the grand jury, such witnesses as they may deem

necessary to a full investigation of the evils intimated,

in order to enable the grand jury to present the

offence and the offenders. But this course is never

adopted in case of ordinary crimes, charged against

individuals. Because it would involve, to a certain

extent, the expression of opinion by anticipation, on

facts subsequently to come before the courts for direct

judgment; and because such cases present none of

those urgent necessities which authorize a departure

from the ordinary course of justice. In directing any

of these investigations, the court act [sic] under

their official responsibilities. ~nd 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 inves-

tigative function that “. ..°. . . this power, which is a

most dciicate one, is never exercised unless urgent neces-

‘sity or . . [where] the public would suffer from delays

incident to ordinary forms of law.’” McNair’s Petition,

supra at 60, 187 Atl. at 504 (brackets in original) (cita-

tions omitted). Such concerns were the prime motivation

underlying the historic requirements in Pennsylvania that

a court be placed in charge of a special investigating grand

jury to regulate the scope of inquiry, by, for example,

ee ae OL DE i

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 Registraiwon 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 re sew

of this Court through the recognized procedure of applying

for a writ of prohibition to prevent an alleged improper

exercise of power or an abuse of discretion by the super-

vising 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 . ry Investigation (No. 1),

332 Pa. 289, 2 A.2d 298 783 (1938) (investigation ap-

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

(investigation approved). See generaily Hamilton Appeal,

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

attached to concurring opinion listing Pennsylvania grand

jury cases).

Moreover, we note that a writ of prohibition is not

the only method by which our Court will review the pro-

priety of the convening and functioning of an investi-

gating grand jury. A convicted defendant who believes

he has been aggrieved by any illegal actions of the inves-

tigating grand jury could obtain appropriate appellate

review in his appeal from judgment of sentence.

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).

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

crucial requirements surrounding the approval of a

grand jury inves) ation:

“A grand jury investigation, because of the

gravity of the undertaking, must have a definite

purpose to discover criminal acts which seriously af-

fect or injize the public generally, which effect, if

permitted to continue, would endanger public safe-

ty . . . or health, demoralize the personal security

of members of the public, or permit systematic crim-

inal depredations 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

discover them. .

“A grand jury’s investigation cannot be a blan-

ket inquiry to bring to light supposed grievances or

wrongs for the purpose of criticizing an officer or

a department of government, nor may it be instituted

without direct knowledge or knowledge gained from

trustworthy information thai criminal conspiracy,

systematic violations of the law or other criminal

acts of a widespread nature prevail, and at least

one or more cognate offenses should exist on which

to base a general investigation. The investigation

cannot be aimed at individuals primarily, as such,

nor at the commission ef ordinary crimes . . . but

should be of maiiers or criminal nature wherein

public officers or the interests of the general public

are involved.

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

indicated, that there exists a system of crime among

public officers, or criminal conspiracies respecting

public business, safety or health, or other criminal

acts affecting thesc functions of a widespread na-

ture, jeopardizing or demoralizing public security

or health, the judge may properly order such inves-

tigation.

“Investigations for purely speculative purposes

are odious and oppressive and should not be tolerated

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

it is to investigate. The court of quarter sessions has

no power to set such an inquiry in motion unless it

has reasonable cause to believe that an ‘investigation

will disclose some criminal misconduct which is

within its jurisdiction to punish.

“The grand jury must not be set upon fruitless

searches, founded upon mere rumor, suspicion or

conjecture. These are proper matters for police

investigation. Before reflection is cast upon the

integrity of public officials a preliminary investiga-

tion by the forces of law charged with the discovery

of crime should be made to determine whether there

is any real foundation. Such jury investigations in-

volve 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 charac-

teristics of an investigating grand jury, we believe it

serves identifiable and legitimate state interests. We

-cannot agree that the omission of a preliminary hearing

for a defendant indicted pursuant to a presentment, when

the extraordinary and limited circumstances?® justify-

26. It has been suggested that the minimum requisites for

obtaining 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 ordi-

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

ing the impaneling of an_ investigating grand jury

existed, in any way prejudices him, or denies him a

greater degree of protection than is available to a defen-

dant in a criminal proceeding instituted by complaint

and preliminary hearing. In comparing the safeguards

afforded by these alternative procedures, we must turn

again to the Rules of Criminal Procedure.

Rule 11927 lists four rights of an accused at a

preliminary hearing: assistance of counsel, cross-

examination of witnesses and inspection of physical

evidence, giving of testimony, and recording the pro-

ceedings at his own expense.

We deal with the right to counsel in Section III of

this opinion and accordingly defer a discussion of that

subject.

As to recording the proceedings, a record was made

of the special grand jury investigation here involved.

Each witness is entitled to his own testimony. Further-

more, shouid any of the other evidence before the inves-

tigating grand jury be material to the impeachment of

Commonwealth witnesses at trial, we will not presuppose

that the trial court would not adequately protect any

rights a defendant might have to utilize such evidence.”*

Likewise, the other preliminary hearing advan-

‘tages allegedly denied defendants are illusory. In Com-

monwealth v. Dessus, 423 Pa. 177, 181, 224 A.2d 188, 191

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) infor-

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

trustworthy source. See Segal, Spivack, and Costilo, supra note 21

at 79.

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

the rules pertaining to preliminary arraignment and preliminary

hearing 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.

(1966), we held that an indictment based solely on hear-

say testimony was valid. That being the case, an accused's

opportunity to cross-examine at a preliminary hearing

is severely restricted. We believe that the policy con-

siderations justifying the impaneling of a special inves-

tigating grand jury when ordinary law enforcement

procedures are no longer capable of dealing with the prob-

lem as outlined above justifies this “curtailment”, if

indeed it is one, of an accused’s cross-examination oppor-

tunity. Cf. California v. Green, 399 U.S. 149, 90 S.Ct.

1930 (1970).

Additionally, in view of the limited quantum of evi-

dence necessary to bind a defendant over, and a defen-

dant’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 intro-

duced by the Commonwealth are more than adequately

baianced in the context of an indictment arising out of a

grand jury investigation. In the latter situation, a defen-

dant 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 beiore

us discloses, a presentment is a rather complete sum-

mary of the grounds on which the investigating grand

jury is making its recommendation, and includes descrip-

tions of both the physical evidence and testimony that

prompts its action.

It has been urged by various appellees that the

proper procedure required by both the criminal rules

and considerations of equal protection is that subsequent

to the investigating grand jury presentment, a complaint

should be issued and preliminary hearing held before

the matter is submitted to an indicting grand jury. To

accede to appellees’ request would merely be subjecting

the administration of criminal justice to another super-

fluous layer of delay and imposing an unwise burden

upon our juuicial 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 jurisdictions, and is strictly regulated in the

scope of its inquiry. The rights of an accused will cer-

tainly be as well protected before an investigating grand

jury as during a preliminary hearing. Both are conducted

before persons not necessarily schooled in the law, and

hearsay evidence can serve as the basis for the present-

ment as well as the binding over at a preliminary hearing.

At least in the investigating grand jury context, the

procedure is subject to supervision by a court.

Finally, we do not view Coleman v. Alabama, supra,

as compelling a different result. Coleman did not decide

that a preliminary hearing was constitutionally re-

quired; it held that when an accused has a preliminary

hearing, he is entitled to counsel. This Court has ruled

Coleman to be non-retroactive in Commonwealth v.

James, 440 Pa. 205, 269 A.2d 898 (1970). Moreover,

Coleman made clear that appellate review of the denial

of counsel at a preliminary hearing was subject to the

harmless error test of Chapman v. California, 386 U.S.

18, 87 S.Ct. 824 (1967). 399 U.S. at 11, 90 S.Ct. at 2004.

As will appear more fully below, we apply an analogous

test, for relief is denied only to those appellees now before

us whose indictments were not based in part on self-

incriminatory statements made before the investigating

grand jury without sufficient warning from the court.

In sum, an investigating grand jury presentment

is a constitutionally permissible and reasonable alterna-

tive to a preliminary hearing. We turn now to a wit-

ness’s right to the assistance of counsel and privilege

against self incrimination during his appearance before

an investigating grand jury. .

Il. RIGHT TO COUNSEL AND RIGHT AGAINST

SELF INCRIMINATION BEFORE AN

INVESTIGATING GRAND JURY

When the five individual appellees were subpoenaed

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 alternative that he be allowed to consult

with counsel at will outside the door. These motions

were properly refused. The court then _ instructed

defendants as to their duties as witnesses. The relevant

portions of these instructions are set forth in the mar-

gin.*9

29. The record in this appeal reveals the following:

To Mr. McCloskey:

“THE COURT: Now, here, too, gentlemen, you are repre-

sented by very able counsel, Mr. Gittis. You have a right,

each of you—both of you—to talk to Mr. Gittis before you

go into the Grand Jury room, and you confide in Mr.

Gittis after you come out—but with nobody else—not

even your wives.

* * * * *

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

him or his associate before you go into the Grand Jury

room, and after you come out, but not while you are

there.”

To Mr. Marzullo:

“THE COURT: Mr. Marzullo, I will tell you what, most

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

that is, you certainly have a right to have a lawyer—and

you have one, and a good one. You have a right to consuit

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 in-

cludes you wife.

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

in the Grand Jury room.”

To Mr. Taylor:

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

appellees were entitled under the Fifth and Sixth

Amendments to consult with their lawyers outside the

grand jury room during their testimony. He based his

ruling on the United States Supreme Court decisions

in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602

(1968) 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. lanniello, 21 N.Y.2d 418,

935 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

concerned with right to counsel before an investigating

grand jury. The interpretation urged by appellees that

counsel be accessible at all times during a witness's ap-

pearance is an unwarranted extension of the teaching

of those decisions. As to Ianniello, we believe it supports

the result we reach today, as appears more fully below.

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

“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 ‘» 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 proceed-

ing.

To Mr. Blatstein:

“THE COURT:

“As you know, Mr. Blatstein, you 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 caution-

ary instructions.

510 (1957), the Jast 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 constitutional right, on being represented by his

counsel... . When... charges are made in a

criminal proceeding, he then may demand the presence

of his counsel for his defense.” Id. at 333, 77 S.Ct. at

O13.

It would be a= serious interruption and = impair

continuity in a grand jury investigation if witnesses

were permitted 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 privilege against

self incrimination, “. . . a privilege available in inves-

tigations as well as in prosecutions.” Id. at 333, 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

jurv’s freedom of orderly inquiry and a witness's right

to exercise his privilege against self incrimination know-

ingly and intelligently, we believe that proper procedure

is for the court supervising the investigating grand jury

to instruct 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 i<« being

interrogated, or should he be doubtful as to whether he

can properly refuse to answer a particular question,

the witness can come before the court accompanied by

counsel and obtain a ruling as to whether he should

answer the question.

Such a warning gives full recognition to the delicate

position of a witness before an investigating grand

—E

jury.*”) He has been summoned to testify, and he is

subject to contempt proceedings should he refuse to

testify without justification.*! The question of when a

witness has “reasonable cause to apprehend danger”

and hence can exercise his right against self incrimina-

tion is not always clear.*? As was stated in Jones v.

United States, 342 F.2d 863 (D.C. Cir. 1964):

“If... [a witness] answers incriminating

questions he may make certain, as Short did, that

he will be indicted. And testimony before the grand

jury may be used, though Short’s was not, to impeach

his testimony at trial. If he refuses to testify at all,

or to answer some questions on the ground that

answers might incriminate him, the grand jury may

draw conclusions. If he refuses to answer questions

that are not incriminating, he may be guilty of

contempt.” Id. at 868 (Edgerton, J., joined by

Bazelon, C.J., and Fahv and Wright, !J.).*%

Determining what is an incriminating statement

is not always clear to a layman. We thus conclude that

a subpoenaed witness who has given testimony before

an investigating grand jury without the above warning

has been denied his right against sc!" 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

before an investigating grand jury be allowed to consult

with his attorney outside the hearing room after each

30. See generaily, Meshbesher, Righi to Counsel Betore Grand

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

31. See, e.g., United States v. Testa, 326 F.2d 730 (2rd 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.

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 lIannie!lo in

fact had not been deprived of any right to consult with

his lawyer. See 21 N.Y.2d at 421, 235 N.E2d at 441.

Judge Brietel then observed that “[c]ourts have a_par-

ticular responsibility to prevent unfairness in Grand

Jury proceedings, for the Grand Jury is an ‘arm of the

court ~. Id. at 424, 235 N.E.2d at 443 (emphasis added).

The court further pertinently noted that if a witness 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 colorable claim of testimonial

privilege is presented, and can inform the defendant

of the extent of his immunity from prosecution for

prior offenses. Where a witness persists in raising

objections which are palpably not in good faith, the

judge may compel him to desist from this course

under the sanctions of contempt proceedings.” Id.

at 425, 235 N.E.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 investigating 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 objection.

Consequently, we must now consider the proper

remedy."

IV. THE PROPER REMEDY

Even though a witness was not given the proper

warning, we would not disturb a later indictment unless

the presentment and subsequent indictment were based.

in part, on the self-incriminatory testimony of the defen-

dant.

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

come before the court during his testimony, our review

of the second presentment discloses that it is not based

on any testimony tlit appellee Steinberg might have

given,*® but rather on the records of the Philadelphia

Housing Authority, produced uiider subpoena, evidence

submitted by the district attomncy’s office, and the tes-

timony of Hope B. Winborne, Chief of Construction of

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 pretrial 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.

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.

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 inaictments were based on the fourth

presentment of the investigating grand jury. Our exami-

nation of that presentment discloses that the recommenda-

tions concerning each of these appellees weré cféarly ~

based in part on their incriminating testimony before the

investigating grand jury. We therefore conclude that

their indictments 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

if some irregularity existed in the procurement of the

indictments, to quash is not the proper remedy.

This Court has made it clear that in certain circum-

stances, a constitutional violation 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 be-

fore the grand jury, testified under judicial compulsion

in violation of his rights pursuant to’ the Fifth Amend-

ment and Article I, Section 9 of the Pennsylvania

Constitution against self incrimination, ,his indictment

should be quashed. Mr. Justice Chidsey there stated for

six members of the Court that:

“It is true, as stated by the Superior Court in

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

heard irrelevant testimony, Com. v. Spallone, 154

Pa. Superior 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 evidence 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 around of violation of the accused's

constitutional rijhis 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 .oday on this issue. Defendants McCloskey,

Taylor and Marzullo were on notice that the inves-

ligating grand jury was inquiring into the stadium proj-

ect. They were judicially compelled to testify without

sufficient warning or protection concerning their right

against self incrimination. The resulting presentment

and indictments were based in part on this constitutionally

impermissible testimony, and hence must be quashed.

V. CONCLUSION

Accordingly, for the reasons set forth above: the

orders of the Superior Court affirming the orders of the

Philadelphia Court of Common Pleas of July 27, 1970,

quashing the indictments against Harry Blatstein,

Frank M. Steinberg, McCormick-Taylor Associates, Mc-

Closkey & Company, Inc., and H. H. Robertson Company

are reversed and the records remanded for further pro-

ceedings; 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. Marzullo, and Tho-

mas Taylor are affirmed.

Mr. Justice Eagen filed a concurring and dissenting

opinion in which Mr. Justice Jones joins.

MR. JUSTICE COHEN did not participate in the

decision of this case.

CONCURRING AND DISSENTING OPINION

Viled: May 13, 1971

KAGEN, J.

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 Rules of Criminal Procedure nor constitutional due

process. However, | 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 outside

the grand ju.. room during his testimony. | agree com-

pletely with Judge Spacth in the court of original jurisdic-

tion that such a denial violates the individual's right

guaranteed by the Fifth and Sixth Amendments.

A person accused of crime must be afforded the assis-

tance of counsel during every “critical stage” in the prosecu-

tion 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 reading of the

limited record before us is convincing to me that the indi-

viduals here involved were “accused” in a very real sense

when they testified before the grand jury. Moreover, they

were at least potential defendants; their testimony was com-

pelled 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 consultation with

counsel before answering any questions.

Additionally, a witness before a grand jury need not

answer anv incriminating questions. Resolution of the scope

of the privilege against self-incriminaticn and the applica-

bility of the waiver doctrine on a question-by-question

basis frequently presents a difficult problem. I cannot see

how an untrained laymen can be expected to possibly dis-

cern 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 counsel

is to render his right under the Fifth Amendment meaning-

less,

Aside from every other consideration, fundaraental

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

possibility of coercion, intimidation and overreaching. One

commentator pointedly described the situation thusly:

“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 ques-

tions and risk having his answers used against him at

a trial or claim the Fifth Amendment. creating sus-

picion in the eyes of the jurors and risking a contempt

charge. In this atmosphere, the proceeding takes on

the attributes of a Star Chamber.

“There is no comparable institution in our entire

society which sanctions secret interrogation of a person

‘legally’ denied access to counsel.” Neshbesher, Right

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

(1966).

Finally, an inconsistency in the reasoning of the

majority opinion must be ncted. 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

Ad.

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 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 | also say that, while I agree

that courts and their agencies should persistently strive

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.

6B. ORDER OF SUPREME COURT OF PENNSYL-

VANIA RESPECTING REHEARING.

ORDER ON PETITION FOR REARGUMENT

14 June 1971.

Petition denied.

s/ Per Curiam.

OPINION AND JUDGMENT OF SUPERIOR

COURT OF PENNSYLVANIA,

OPINION Per Curiam, September 25, 1970: The six

judges who heard this appeal being equally divided, the

order of the court below is affirmed.

HOFFMAN, J., absent.

D. OPINION AND ORDER OF COURT OF COM-

MON PLEAS IN COMMONWEALTH VV. STEIN-

BERG

MEMORANDUM

SPAETH, J.

On August 18, 1969, the Investigating Grand Jury

of April Term, 1969, returned its Second Presentment,

asking that defendant be indicted for various offenses.

The Court in charge of the Investigating Grand Jury

accepted the Presentment, whereupon the District Attor-

ney presented to the September Grand Jury, and the Grand

Jury returned, the following bills against defendant: Bills

Nos. 879 and 880, charging malfeasance, misfeasance, and

nonfeasance in office; Bill No. 881, charging conspiracy;

Bill No. 882, charging deposit of public money for gains;

Bills Nos. 883-886, charging malfeasance, misfeasance,

and nonfeasance in oifice; Bills Nos. 887-890, charging

violation of State Adverse Interest Act; Bill No. 892,

charging practice of corrupt solicitation; and Bills Nos.

893-897, charging corrupt solicitation. No complaint

was issued against defendant, nor was a preliminary

arraignment or preliminary hearing held.

Defendant has moved to quash the indictments as

defective for lack of a complaint, preliminary arraign-

ment, and preliminary hearing. During the week of June

22 the motion was argued with similar motions in other

cases involving other defendants.* The Court has today

filed an opinion in these other cases holding that the

other defendants’ motions must be granted. Defendant’s

motion will be granted for the reasons stated in that

opinion.

*Commonwealth v. McCloskey Construction Co., et al., Octo-

ber Term, 1969, Bills Nos. 2416-21; 2674-80; January Term, 1970,

Bill No. 266. Infra p. 49.

Defendant's motion assigns other reasons why it

should be granted. When the motion was argued, the

Assistant District Attorney was not prepared to respond

to these other reasons and so was given leave to file a

supplemental brief. He has not done sc, and the other

reasons have not been considered.

In addition, defendant has filed a motion to suppress

evidence obtained through a search and seizure, a motion

for separate trials on the indictments .°turned against

him, and a motion for pre-trial discovery. The motions

for separate trials and for pre-trial discovery have been

rendered moot by the decision to grant the motion to

quash the indictments. With respect to the motion to

suppress: No brief has been submitted on behalf of the

Commonwealth opposing the motion. A supplemental

brief filed by defendant’s counsel in the form of a letter

to the Court indicates that defendant’s counsel is under

the impression that the Commonwealth’s answer to the

motion shows that none of the evidence seized has been

or will be used against defendant. Under these circum-

stances, the motion to suppress will also be considered

moot.

ORDER

AND NOW, July 27, 1970, defendant’s motion to

quash the indictments is granted. Defendant’s motions to

suppress evidence, for separate trials, and for discovery

are dismissed as moot.

/s/ SPAETH

Filed: July 27, 1970 J.

E. OPINION AND ORDER OF COURT OF COM-

MON PLEAS IN COMMONWEALTH Y¥. Me-

CLOSKEY CONSTRUCTION CO., ET AL.

OPINION AND ORDER

Filed: July 27, 1970

SPAETH, J.

NATURE OF THE CASE

This case is before the Court on motions to quash

the indictments, defendants alleging that the denial of

a preliminary hearing prior to indictment was a violation

of the Pennsylvania Rules of Criminal Procedure.

HISTORY OF THE CASE

On September 4, 1969, the Investigating Grand Jury

of April Term, 1969, returned its Fourth Presentment,

which asked The Honorable Joseph Sloane, in charge of

the Investigating Grand Jury, to direct the District

Attorney “to present to an indicting Grand Jury appro-

priate bills of indictment” charging defendants with

various offersses incident to the construction of a sports

Stadium in Philadelphia. (Fourth Presentment, p. 41.)

Judge Sloane accepted the Presentment and Stated that

“it will be submitted in indictments . . . to a subsequent

indicting grand jury”. (Proceedings of September 4,

1969, relating to the Fourth Presentmert of the Inves-

tigating Grand Jury of April Term, 1969, p. 3.)

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

Company filed a petition with this Court, in charge

of the October Grand Jury, asking, generally, that this

Court stay the District Attorney from presenting bills

of indictment against it to the October Grand Jury

until the District Attorney 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 evidence should be presented to the

October Grand Jury. Similar petitions were filed 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

defendants’ petitions, stating its reasons in an opinion

accompanying the order. In re Peticion of H. H. Robert-

son Company, 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 Company and

James McCloskey with conspiracy; Bill No. 2417, charging

McCormick- Taylor Associates with conspiracy; Bill No.

2416, charging Thumas Taylor with conspiracy; Bill No.

2677, charging Harry Blatstein with bribery of govern-

mental 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 non-

feasance in office; Bill No. 2674, charging Paul J.

*The indictinents 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.

Marzullo with malfeasance, misfeasance and _ non-

feasance in office, Bill No. 267.5. charging him 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,

McCleskey 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 construc-

tion cf the stadium]”.

On April 22 The Honorable Vincent A. Carroll,

President Judge, assigned the foregoing indictments to

this Court “for all pre-trial and post-trial motions and

trial”. After conference with the Assistant District At-

torney and defense counsel. the Court ordered: that all

pre-trial motions either by the Commonwealth or by any

defendant must be filed by June 1; that briefs in support

of the motions must be filed by June 15; and that argu-

ment on the motions would be heard during the week of

June 22. At a second conference the order in which the

motions should be argued was agreed won by the Assistant

District Attorney and defense counsel, and the agreement

was approved by the Court. In accordance with the agree-

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

on June 29. Among the motions thus argued were defen-

dants’ motions to quash the indictments as defective

because defendants had received no preliminary hearing.

Thus, defendants ask the Court to reverse its decision

of October 24, which held that defendants were not en-

titled to a preliminary hearing.

EDS WP SOREN paras Do hath a)

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

decided 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 prelimi-

nary hearing. (Pages 31-38 of the Court’s opinion of

October 24, 1969, in In re Petition of H. 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 Commonwealth 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 decision. The Court cannot but

confess to some rueful feelings that this should be neces-

sary. Perhaps the Court should have foreseen the

decisions. In the criminal law, one cannot 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 Magaziner.

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 of

the assistant district attorney

sat as committing magistrate 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

PSA i

bb aed ie La edi DRE

issued, and no preliminary hearing was ever held.

(437 Pa. at 33, 261 A.2d at 587.)

The grand jury approved an indictment 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

unnecessary because Rose knew of the specific

charges against him and that the court’s action itself

constituted a preliminary hearing. (437 Pa. at 33, 261

A.2d at 587.)

On appeal allcwed 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

stockholders’ action and testified that certain statements

at a stockholders’ meeting 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

assumed the role of a committing magistrate and

held 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

Magaziner’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 Cri:ninal Procedure speak in clear,

inclusive terms. Nothing in them suggests that they do

not apply to common pleas judges who sit as com-

ritting magistrates. Therefore, we hold that common

pleas 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

proceedings shall be initiated by a written com-

plaint,” and until other rules carve out exceptions,

the reference to “all” must be taken literally.' It is no

answer that the particular defendant already has

notice of the charges against him. Notice or knowl-

edge 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 rele-

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 pro-

vides that criminal proceedings may be instituted by a written com-

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

types of cases, and by citation for specified summary offenses. Rule

118 provides that “{w]|hen a defendant has been arrested without a

warrant, he shall be taken without unnecessary delay before the

proper issuing authority where a complaint shall be filed against

him. . . . If the complaint charges a court case, the defendant

shall be given an immediate preliminary arraignment. . . . If the

complaint charges a summary offense, the defendant shall be given

an immediate trial. . . .” Rule 119 provides that “[a]t the pre-

liminary arraignment, the issuing authority shall . . . inform the

defendant . . . [o]f his right to have a preliminary hearing. .. .”

Thus there have been stylistic changes, with some consequent re-

numbering cof the rules, but the requirements of complaint, pre-

liminary arraignment, and preliminary hearing, insisted upon in

Rose, have not been modified.

vant facts. Rule 104, 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--ase 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 exceptions 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 bas-

tardy charge was itself the preliminary hearing on

the perjury charge. It is difficult: to uphold such an

action as a valid preliminary hearing when Rose did

not even know that it was such. As far as he knew,

he was only being charged with fornication and has-

tardy. If he had known that the trial was also a

preliminary hearing on a perjury charge, he might

have taken certain steps and called various witnesses

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 had known of that charge.

Since no written complaint was filed against

Magaziner, the procedure followed was defective.

The procedure was likewise defective in the Rose

action because 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 particulars insisted upon by the

Supreme Court has been violated. there has been no

complaint issued against any defendant pursuant to

Rules 102 and 104; there has been no preliminary ar-

raigninent 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 distinctions

as exist are of no substance.

The first distinction that the Assistant District

Attorney suggests is that defendants have no need of a

complaint. preliminary arraignment. and preliminarn

hearing because they are fully informed by the Inves-

ligating Grand Jurvs Fourth Presentment of the

charges against them. This distinction does not exist

as a matter of fact; and if it did. it would be immatenal

The distinction does not exist as a matter of fact

because the Fourth Presentment is in narrative form

and its statements are conclusions denved from testumonvy.

a transcript of which the Commonwealth has refused to

release (bevond releasing to each individual defendant a

transcript of what he testified to the Investigating Grand

Jury). On the Magaziner appea] 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, it would be immaterial.

Although Magaziner had had a preliminary hearing. still

the indictment against him was quashed. the Supreme

Court stating that “[sJince no written 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 Com-

monwealth made the same argument that it makes here:

no complaint. preliminary arraignment. or preliminary

hearing were necessary because the defendant knew the

charges against him. The Superior Court accepted the

arZuMENt. 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 afecting the

fairness of the proceedings against the accused. The

purpose of requiring a sworn complaint is to :nform

an accused of the specific nature of the charge agsinst

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 counse]

and to a preliminary hearing. Rule 116¢.. The re-

guirement of Rule 116g»1, that prelim u.arv

heanngs shal] not be held less than three davs 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 th: *udge who sits as committing magis

trate. 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 avaliable [footnote omitted]. 214

Pa. Super. at 55-56. 251 42d at 818.

proceed “io determine on a case-by-case basis whether

a particular defendant had the information that would

el heal NR ka

have been included in a complaint”, and that the rules

must be followed “precisely”. 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 Rose because they regarded both Rose’s and

Magaziner’s appeals as interlocutory. In dissenting, how-

ever, Mr. Justice Roberts said:

While I am in complete agreement with the

majority's interpretation of our Rules of Criminal

Procedure, I must respectfully dissent from the

majority's disposition of these two appeals. In my

opinion, both appeals should be quashed as inter-

locutory.

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 never be

required to enforce compliance, since the Common-

wealth 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.

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 1ts 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 D. & C. 2d 209, 210-12

(Crim. Co. Schuylkill Co. 1968), as follows:

(T]he matter of the presentation of the

district attorney’s bill is a long established and

an ancient right in the criminal law of the Com-

monwealth of Pennsylvania. Before the court

could determine that the Pennsylvania Rules of

Criminal Procedure abolish such a procedure, it

would have to be satisfied that the rules specif-

ically intend to abolish this method of procedure

in criminal matters. [Further quotation fol-

lowed. ]

Nevertheless, however persuasive this reasoning may once

have been, it can no longer be accepted.

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 had testified before him. There was no reference in

the rules to this procedure. Thus it was natural to conclude

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

Sessions to sit as committing magistrates on offenses

committed in the courtroom. This is neither in-

tended by the Rules of Criminal Procedure nor con-

sistent with their stated goals of simplicity in proce-

dure, fairness in administration and the elimination

of unjustifiable expense and delay. (2i4 Pa. Super.

at 56, 251 A.2d at 818.)

The Supreme Court, however, as appears from the pas-

sage 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 preciseiy. (437 Pa. at 35, 261

A.2d at 588.)

If nothing in the ruijes suggests that they do not apply

to one established procedure unmentioned by the rules—

common pleas judges sitting as committing magis-

trates—, nothing in the rules suggests that they do not

apply to 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

procedure; until excep‘ions 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 presiminary hearing held pursuant to Ruies 116(g),

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

The only question remaining, therefore, is whether

proceeding on a district attorney's bill without complaint,

preliminary arraignment, and preliminary hearing, is a

procedure recognized by the rules as an exception carved

out of the general requirement of Rules 102 and 104;

and the auswer to the question is that it is not.

The rules governing the institution of criminal

proceedings 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

anywher+ in the rules possibly pertinent to the present

proceediiig is in Rule 212, which is the first rule of the

chapter concerning the indictment, and is entitled “Defini-

tions.” Rule 212(c) defines a “presentment” as “a formal

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

monwealth’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 proceedifgs should proceed from com-

plaint to preliminary arraignment to preliminary hear-

ing. This is so because nothing in Rules 102, 104, 116,

117, 1:6, and 119 interferes with the investigating

grand jury as a legal institution, nor diminist.es its tra-

ditional powers in any way. An investigating grand jury

may contijue to investigate, and upon concluding its

invesugation, may submit a presentment formally

accusing a person of crime and recommending that he

be indicted. The rules, as construed in Rose, only require

that befor: che accused may be indicted, a complaint

must he fileu, and a preliminary arraignment and a

preliminary hearing must be held.

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

It is true that this leaves for consideration the

clause in Rule 212(c), that a presentment is an accusa-

tion “submitted 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 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. However this

may be, the slight untidiness created by the reference 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

complaint, preliminary arraignment, and _ preliminary

hearing. To do so would be in defiance both of the logic

of Rose and of the notably forceful statements made there

by Mr. Justice Cohen, ihat 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 circumvented” (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 consolida-

tion and on motions by various of defendants for sever-

ance, a bill of particulars, and discovery. Repeatedly

during this argument factual issues arose, the Common-

wealth cach 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 statement by the Investigating Grand

Jury of the conclusions at which it arrived as a result

of the testimony that it received. To be sure, the Present-

ment appears to be a full statement, the Investigating

Grand Jury going to considerable trouble to explain why

it arrived at the conclusions it did, and sometimes quoting

excerpts of the testimony that it received. These facts,

however, do not resolve the issue presently before the

Court, which was stated during 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 [ie., a pre-

liminary hearing], and they have been deprived of it

for no reason.

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 Common-

wealth 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.

x a x

They may have an Indictment No. 107 which

appears from the presentment to be based on Facts

A, B, C, D, E and F, and yet when I get into that court-

room 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.

eee ee te ee en

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 [i.e., complaint, preliminary

arraignment, and preliminary hearing]. It is entirely

available tc them. It has always been entirely avail-

able to them.

. . . The rules seem to have all been centered

upon the fact that there were going to be proceed-

ings 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

Commonwealth set forth in its presentment because

what the Commonweaith has given you is its conclu-

sion 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

probably 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 knowing 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 was complicated

by the fact that no preliminary hearing had been heid,

remains, and it illustrates the fact that if Rose is accepted

as meaning just what it says it means, “a clear and simple

procedure” will ensue (437 Pa. at 35, 261 A.2d at 588),

whereas if Rose is held for some reason not to be applica-

ble to the present case, an uncertain and difficult proce-

dure 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, 132 A.2d 265 ( 1957), and Commonweaith

ex rel. Walls v. Maroney, 416 Pa. 290, 294, 205 A.2d

862, 864 (1965), for the proposition that there is no con-

stitutional right to a preliminary hearing. Thus in O’Brien

it was said: “It is also settled that one has no constitu-

tional right to be present 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 qualifica-

tion is significant to the decision of 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 preliminary

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 pre-

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

defendants did have a preliminary hearing; they were

not represented by counsel; and the State was not per-

mitted 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 assis-

tance 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

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 essen-

tial to protect the indigent accused against an erro-

neous or improper prosecution. First, the lawyer's

skilled examination and cross-examination of wit-

nesses may expose fatal weaknesses in the State’s

case that may lead the magistrate to refise 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 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 argu-

ments for the accused on such matters as the neces-

sity 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

97. (38 U.S.L.W. at 4537-38.)

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 :he defendants were

entitled to counsel at the preliminary hearing, although

they did so with varying degrees of emphasis. Mr. Justice

Stewart and The Chief Justice dissented.

It has been seen in the preceding section of this

opinion that under Pennsylvania practice (as contrasted

to Alabama practice) a preliminary hearing is required.

Commonwealth v. Rose, supra. Accordingly, the only

problem created by Coleman so far as Pennsylvania prac-

tice is concerned will be to ensure representation of the

accused at the preliminary hearing. Suppose, however,

that the Commonwealth 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 investigating grand jury’s presentment

and a district attorney’s bill. A serious constitutional ques-

tion 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 protcction of the

laws.”?

In considering this question it would be immatenal

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 i

California, 372 U.S. 353 (1963, ‘holding invalid as 2

denial of equal protection a California rule of criminal pro

cedure). The problem would be to determine what might

be the purpose of classifying criminal prosecutions in such

a way that sometimes an accused would receive a prelimi-

nary hearing and sometimes he would not, particularly

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 receive a preliminary hearing would be

deprived of many significant opportunities that those whe

did receive a preliminary hearing would enjoy. the oppor-

tunity to “expose fatal weakness in the States cas . to

“fashion a vital impeachment tool”: to “preserve tesumon;

favorable to the accused”: and to “discover the case the

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

proper defense.” (38 U.S.L.W. at 4537-35.

In determining the possible purpose of a classification.

the courts have developed various tests. See. Sote. Develo;

ments in the Law—Equal Protection. 82 Harv.L.R. 1%

1077 et seq. (1969). Without stating these tests. it ; would

MT S|

result from accepting the Commonwealth s view of t

rules would be invalid as arbitrary and unrelated to t

achievement of any rational purpose.

At least two classifications would result. The &rst

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

composed of most persons accused of crime. who “ould

receive a preliminary hearing and hence enjoy the opper-

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

hand, a class composed of such persons as defendants. whe

had been accused by an investigating grand jun and

indicted upon a district attorney's bil] without 2 prelimi

nary hearing. There would seem to be no reason for jack

a classification. The second classification would be within

—_

fe)

—

.>*

* =

m oO. N

Sane te

SPOT PATE OT WREOAEEY MALY Brin

tne class composed of persons like defendants. Under the

Commonwealth view of the rules. a district attomev

would not be precluded from choosing to proceed against

some of such persons via complaint—preliminary arraign-

ment—nreliminary hearing. Indeed. in the present case the

Commonwealth has never argued that it could not grant

defendants a preliminan hearing but only that it need not.

There would seem to be no reason for permutung a district

attorney thus to create a classification at will. uninhibited

ov any guidelines or restrictions. In the present case. for

xample. what would be the purpose of a classification be-

‘vy

ot i.

I C

meen. on the one hand. those of lants that the

r r a -- } - r , 4 o> _- -- . “4

uistnct Attorney chose to proceed against via complaint—

preurmunar arralgnment—prelminan nearing. and on the

einer hanc those of defendants that he chose to proceed

‘y

nim to circumvent the

eferndant

s ulung from the Cam-

Rose and of the rules would be valid

note that decision

against on a district attorneys vill H there were some-

ung that 4 district attorneys had to fear from a prelimi-

mary heanng. with respect to a pardcular defendant. such

rl ] 7

».

a view of the rules would permi

| r

ie)

base

[ay

co.

aed

1 w

hee

—

woud Involve a Serious consdtugoenal quesdon. If a court

im, COMStruing a Statute and a rule has the force of a star-

Jté is confronted with 4 serious constitutional guestion.

should if possible adopt thar construction of the statute

that will avoid the constitutional question. Se. €.g.. Com-

monuealth 1. Janoff and Haugh. Supreme Court of Penn-

svivanie. January Term. 1970. No. 673. opiruon by Mr.

justice Roberts. Julv 2. 1970 Actordingly. if there is an

ambiguity in the rules. this Court should corstrue the rules

as requiring a preliminary hearing

3. Summary and conclusion

The Pennsvivania Rules of Criminal Procedure do not

reler to prosecutions initiatec by a district attorney's bill

Accordingly. the Schuvlkill County Court in Common-

ueaith 1. Spencer and this Court in In re Petition of H.H

’

Robertson Company concluded 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

rulesnoted 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 prosecution by complaint to preliminary

arraignment to preliminary hearing. The rules do not note

a specific exception for cases in which an investigating

grand jurv 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 accusa-

tion by presentment, the district must proceed as in the

usual case: by complaint. preliminary arraignment, and

preliminary hearing.

This conclusion is supported by the decision of the

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-

svlvania 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 held.

ORDER

AND NOW, July 27, 1970, defendants’ motions to

quash the indictments are granted.

/s} SPAETH

Filed: July 27, 1970

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.