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January 14, 1955


Appeals, Nos. 97 to 109, inclusive, April T., 1954, from judgments of Court of Quarter Sessions of Allegheny County, March T., 1952, Nos. 654, 711 to 714, inclusive, 645, 675, 676, 677, 742, 743, 651 and 686, in cases of Commonwealth of Pennsylvania v. Guy Russo; Same v. Alan Tanser; Same v. Martin J. Scanlon, and Same v. Bernard J. McArdle. Judgments reversed; reargument refused January 31, 1955.


S.V. Albo, Pittsburgh, for appellants.

W.H. Colvin, Deputy Attorney General, with him Frank F. Truscott, Attorney General, Charles D. Coll and Harry A. Estep, Special Deputy Attorneys General, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright and Ervin, JJ. (woodside, J., absent).

Author: Hirt

[ 177 Pa. Super. Page 474]


The appeals of the four defendants from their convictions and sentences in the court below were argued together before us. Although the defendants were tried separately, the charges against them had much in common on the facts and the law. For this reason their appeals may be disposed of appropriately in this one opinion.

The appellants were police officers of the City of Pittsburgh assigned to a special detail known as the "Vice Squad". Their duties in the main were to apprehend and prosecute homosexual perverts found principally in the rest rooms of theaters, hotels or other public buildings, for the most part in downtown Pittsburgh. The officers worked in pairs at night and always

[ 177 Pa. Super. Page 475]

    in plain clothes. Arrests were made of offenders who solicited the officers to commit sodomy as well as those who on occasion were observed in the act of committing that offense.

Responding to an aroused public opinion in the City of Pittsburgh, the Attorney General of the Commonwealth petitioned the Court of Quarter Sessions of Allegheny County for the calling of a Special Investigating Grand Jury. As one of the grounds alleged, the Attorney General's petition charged that there existed a relationship between police operations and the protection of vice in the City of Pittsburgh. In September 1950 a special grand jury was summoned and convened in response to the petition and, within the field of the matters given it in charge by the court, an investigation of the activities of the officers composing the Vice Squad of the Pittsburgh Police Department was made. Thereafter on January 2, 1952, the grand jury made a presentment recommending the indictment of these four appellants, as well as other police officers, for perjury. This recommendation, as to the present appellants was made upon findings by the grand jury that they had made arrests of alleged homosexuals, charging them with solicitation to commit sodomy; that before the committing magistrate, the arresting officer in each instance had made out a prima facie case by his sworn testimony stating unequivocally that the prisoner, under circumstances related by the officer, had solicited the commission of sodomy upon him. It was also found that when subsequently called before a regular indicting grand jury the officers changed their testimony in essential respects and, usually on an admission by the arresting officer that there was not enough evidence to make out a case against the alleged sodomist, the grand jury ignored the bills. Motions to quash the presentment, insofar as it recommended

[ 177 Pa. Super. Page 476]

    indictment of these appellants for perjury, was refused by the lower court. Application was then made to the Supreme Court of Pennsylvania for a Writ of Prohibition which also was, on March 20, 1952, denied. Thereupon indictments were drawn charging each of these appellants not only with perjury but, in separate bills, with obstructing public justice although the investigating grand jury had made no recommendation for prosecutions on this additional charge.

We are unable to agree that the defendants were deprived of constitutional rights in the proceedings leading up to their indictment. They contend that they had no notice that the charges against them would be submitted to the 1952 March grand jury. The Attorney General in the lower court stated that notice was given them on March 6, 1952. However that may be, in June 1952 motions to quash all of the bills of indictment returned by the grand jury against defendants McArdle and Scanlon, were refused by the lower court without prejudice. And as the charges against each of the present four defendants came on for trial new motions to quash were filed, all of which were refused.

In each instance, the indictment for obstructing public justice was based upon the alleged false testimony of the police officer before the indicting grand jury. Although indictments for that offense were not specifically recommended in the presentment, yet the activities of the Vice Squad was one of the subjects specifically submitted to the special grand jury for investigation. The indictments for obstructing public justice were submitted to the indicting grand jury as Attorney General's Bills specifically, in each instance, with leave of court as ...

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