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January 19, 1954



Joseph I. Lewis, Cooper, Hunter & Lewis, Pittsburgh, for appellant.

Charles D. Coll, Sp. Deputy Atty. Gen., William H. Colvin, Asst. Deputy Atty. Gen., for appellee.

Before Rhodes, P. J., and Hirt, Ross, Gunther, and Wright, JJ.

Author: Hirt

[ 175 Pa. Super. Page 54]

HIRT, Judge.

On the petition of the Attorney General of Pennsylvania a Special Investigating Grand Jury was summoned to consider allegations to the effect that elected officials and employes of the City of Pittsburgh had cheated and defrauded the city of its property, supplies and labor. The petition accused Thomas E. Kilgallen, President of the City Council, of specific offenses which were submitted to the special grand jury with instructions to resolve the charges. Kilgallen nevertheless was called as a witness to testify before the grand jury which was then investigating his alleged misconduct, along with like charges involving two city employes. Thereupon Kilgallen presented himself before the court and asserting that he in reality was a defendant as to charges submitted to the grand jury, claimed constitutional immunity. The court supported him in his refusal to answer certain specific questions, but Kilgallen, insofar as directed by the court, testified generally before the grand jury. During his examination, upon a renewal of his refusal to testify, Kilgallen was again brought before the court and was directed to answer specific questions notwithstanding his claim of immunity. The Investigating Grand Jury presented Kilgallen for indictment and, at the direction of the court, Attorney General's bills were submitted to the regular Indicting Grand Jury at the February Session, 1951. Six true bills were found against him charging bribery, misdemeanor in office, conspiracy and fraudulent conversion.

Kilgallen moved to quash the indictments and later petitioned the court for leave to take testimony in support

[ 175 Pa. Super. Page 55]

    of his motions to quash. In his petition in each case he referred to the fact that he had testified before the Investigating Grand Jury at the direction of the court over his claim of immunity. And he averred that the record of his testimony so given was made available to the regular Grand Jury at the February Sessions, 1951 and was considered by it in returning the indictments against him. Rules were granted on his petitions to take the testimony of individual grand jurors and to make the record of the proceedings before the Special Investigating Grand Jury as well as of the Indicting Grand Jury available to the court in support of his motions to quash. After hearing, specially set before the court en banc, the rules granted on Kilgallen's petitions were discharged. He has appealed from these orders. According to the opinion filed in these cases the court was about to discharge the rules on appellant's motions to quash the indictments, when he petitioned for leave to take testimony in support of his motions. In fact, under date of February 15, 1953, docket entries in these cases indicate that the rules on the motions to quash had been discharged on that date. In any view there can be no doubt that the court intended the present orders as final disposition, adverse to the defendant, of his motions to quash. We will so consider them.

In general a defendant charged with crime does not have the right of appeal before his trial and conviction, nor thereafter until after final judgment of sentence. But our Supreme Court in entertaining an appeal under unusual circumstances to prevent injustice, where no sentence had been imposed, said: 'this rule should not be held one of universal application.' Commonwealth v. Trunk, 311 Pa. 555, 565, 167 A. 333, 337. The rule is not inflexible and will yield in exceptional cases. Commonwealth v. Ragone, 317 Pa. 113, 176 A. 454. This court has made exception on occasion to the

[ 175 Pa. Super. Page 56]

    rigid application of the rule. Commonwealth v. Haines, 130 Pa. Super. 196, 196 A. 621; Cf. Commonwealth v. Haimbach, 151 Pa. Super. 581, 30 A.2d 653. In Commonwealth v. Edmiston, 30 Pa. Super. 54, we asserted jurisdiction to entertain an appeal where the controlling question involved the validity of an order of the lower court in refusing to quash an indictment. In discussing the question President Judge Rice said: 'The district attorney questions our authority to review the action of the quarter sessions in refusing to quash an indictment. We hold, following the Pennsylvania decisions in which the question has been duly considered, that we have such authority in a proper case. Commonwealth v. Bradney, 126 Pa. 199 [17 A. 600]; Commonwealth v. Hall, 23 Pa. Super. 104. Where, however, the action of the court is purely discretionary it will not be set aside unless there be an abuse of discretion both manifest and flagrant. Rowand v. Commonwealth, 82 Pa. 405; Commonwealth v. Green, 126 Pa. 531 [17 A. 878]; Commonwealth v. Beldham, 15 Pa. Super. 33; Commonwealth v. Sheppard, 20 Pa. Super. 417; Commonwealth v. Brown, 23 Pa. Super. 470. Where the motion to quash was based on an allegation of facts outside of the record proper, our revisory jurisdiction must necessarily be confined to a determination of the question arising upon the latter, taken in connection with the facts or the evidence duly brought upon the record by a bill of exceptions. ...

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