# Petition for a Writ of Certiorari — Steinberg v. Pennsylvania > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0103%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 404 U.S. 1000 ## Text COT RRET Oe Menge rt SRO gram” y A £ 3 Ld g | | 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 v. 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 1 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 ii IN THE Supreme Court of the United States | OCTOBER TERM, 1971 NO. FRANK M. STEINBERG, Petitioner v. 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. ] 2 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? 3 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. 4 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. (c) If a prima facie case of the defendant’s guilt is not established at the preliminary hearing, and no application for continuance, supported by 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 Oe ee Se aries! Rie PRE, SP RES OP BAY Re aA ieee er eee Oe ee le a) 6 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. 7 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 8 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. 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 10 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 11 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. 12 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 13 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). 14 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. 15 (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. 16 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.” 17 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 aw ates Aosta Saat REO te seta i Abeta : Love AR Rae ee ell CART BARE day Oona 44 18 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 19 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- 21 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. ee 22 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. 23 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 24 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). 25 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 26 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. 27 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 28 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). 29 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 30 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 31 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. 32 (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 33 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. . 34 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: 35 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. 36 510 (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 37 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. 38 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 39 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. 40 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 4] 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. 42 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- 43 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. 45 6B. ORDER OF SUPREME COURT OF PENNSYL- VANIA RESPECTING REHEARING. ORDER ON PETITION FOR REARGUMENT 14 June 1971. Petition denied. s/ Per Curiam. 46 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. 47 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. 48 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. s 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. 49 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 50 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. 51 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) 52 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 33 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 54 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. 55 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 56 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 Di 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 58 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: 59 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- x 60 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, 61 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. 62 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, | . | 63 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 64 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.) 65 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 66 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 67 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.”? 68 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 unre [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0103%3A1. Public record. Not legal advice.