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COMMONWEALTH v. FUDEMAN (05/28/59)

May 28, 1959

COMMONWEALTH
v.
FUDEMAN, APPELLANT.



Appeal, No. 348, Jan. T., 1958, from order of Superior Court, Oct. T., 1958, No. 219, affirming order of Court of Oyer and Terminer and Quarter Sessions of the Peace of Berks County, March T., 1958, No. 39, in case of Commonwealth v. Alexander Fudeman. Order affirmed; reargument refused July 10, 1959. Same case in Superior Court: 186 Pa. Super. Ct. 547. Proceedings on petition to quash indictment. Petition by defendant to quash indictment dismissed, before SHANAMAN, P.J., and READINGER, J. Defendant appealed to Superior Court which quashed the appeal, opinion per curiam, dissenting opinions by GUNTHER and WATKINS, JJ. Appeal by defendant to Supreme Court allowed.

COUNSEL

Jacob Kossman, with him Samuel R. Liever, for appellant.

Victor Wright, Deputy Attorney General, with him Thomas D. McBride, Attorney General, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones and Cohen, JJ.

Author: Bell

[ 396 Pa. Page 237]

OPINION BY MR. JUSTICE BELL

Defendant appealed from an Order of the Quarter Sessions Court which dismissed his petition to quash an indictment charging him with extortion and levying blackmail. Defendant appealed to the Superior Court which quashed the appeal. An allocatur was allowed by this Court.

Defendant seeks to support his appeal by alleging that there were unauthorized and prejudicial communications between members of the Grand Jury and a member of the State Police who investigated the alleged crimes, and because the indictments were signed by the Attorney General instead of by the District Attorney. We shall discuss these in their inverse order.

The Attorney General was requested by the entire Common Pleas Court of Berks County to investigate these alleged crimes. Moreover, the District Attorney of Berks County voluntarily agreed that the Attorney

[ 396 Pa. Page 238]

General should conduct the prosecutions in their entirety, and the Attorney General did actually conduct them with the cooperation of the District Attorney.

There is no doubt that under the common law and the statutory*fn1 and decisional law of Pennsylvania, the Attorney General has the power and, under certain circumstances, the duty to investigate any violations or alleged violations of the laws of the Commonwealth and to supplement and supervise a Grand Jury, and he may, under proper circumstances, supersede or act in conjunction with a district attorney.

In Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892, the Court pertinently said (pages 200-201): "'We conclude from the review of decided cases and historical and other authorities that the Attorney General of Pennsylvania is clothed with the powers and attributes which enveloped Attorneys General at common law, including the right to investigate criminal acts, to institute proceedings in the several counties of the Commonwealth, to sign indictments, to appear before the grand jury and submit testimony, to appear in court and to try criminal cases on the Commonwealth's behalf, and, in any and all these activities to supersede and set aside the district attorney when in the Attorney General's judgment*fn2 such action may be necessary.'

"These vast powers of the Attorney General were further recognized in our opinions in Dauphin County Grand Jury Proceedings No. 1, 332 Pa. 289, 298, 2 A.2d 783; in Dauphin County Grand Jury Proceedings No. 3, 332 Pa. 358, 362, 2 A.2d 809; in Margiotti Appeal, 365 Pa., [330], and in Com. ex rel. Margiotti v. Orsini, 368 Pa., [259], in each of which we reiterated

[ 396 Pa. Page 239]

    that the Attorney General may supplement and supervise a grand jury and may under proper circumstances supersede or act in conjunction with a district attorney; and then said: '... and it is his duty to do so if he believes the government is to be hindered in the lawful conduct of its affairs to the detriment of the security, peace and good order of the State ....'

"It is obvious therefore that the powers and duties of an Attorney General as chief law enforcement officer of the Commonwealth, derived as they are from both statute and the common law, are wide and vast."

There is absolutely no merit in this contention of the defendant, i.e., that the indictments were void because they were signed by the Attorney General.

The facts in connection with defendant's other contention are as follows: Prior to the reconvening of the December 1957 Grand Jury, one of its members approached another member and allegedly attempted to influence and prejudice the latter in favor of the defendant. The juror who was approached communicated the facts to the Court below, as a result of which the Pennsylvania State Police during their investigation interviewed the juror who had been approached.

The following day, prior to the reception of evidence by the Grand Jury, and prior to its deliberations, the jurors were examined as on voir dire by the Deputy Attorney General in open Court. All of the jurors stated that they would consider nothing but the evidence which would be presented to them in the Grand Jury room. A person can be indicted by a majority of a Grand Jury,*fn3 which is not required, as is a Petit Jury, to act unanimously.

[ 396 Pa. Page 240]

We consider this contention of the defendant in the light of the following pertinent principles. In Commonwealth v. O'Brien, 389 Pa. 109, 132 A.2d 265, an appeal was taken from the Superior Court which had affirmed an Order of the Court of Quarter Sessions of Montgomery County refusing to quash an indictment brought against the defendant. Defendant contended that a Grand Jury cannot indict, without special permission of Court, a person who is not present at a preliminary hearing. This Court stated that the Superior Court should have quashed the appeal, and in our opinion dismissing the appeal, said (pages 110-111): "Unless a bill of indictment is defective on its face, when a defendant moves to quash an indictment prior to trial, and his motion is denied by the trial court, the court's order is interlocutory and hence, not appealable. Petition of Quay, 189 Pa. 517, 542, 42 A. 199."

Defendant relies upon several decisions of the Supreme Court of the United States as to communications with a petit jury during a trial*fn4 which are inapposite, and upon Commonwealth v. Kilgallen, 379 Pa. 315, 108 A.2d 780, which we shall discuss. In Commonwealth v. Kilgallen, this Court quashed a bill of indictment for bribery because the Grand Jury, in the course of its consideration of the bill, had before it, in violation of Art. III, § 32 of the Constitution of Pennsylvania, defendant's prior compulsory self-incriminating testimony. The Court reaffirmed the general rule that no appeal lies from the refusal of a motion to quash an indictment, unless it is defective upon its face, but held that there may be exceptions, and such exceptions

[ 396 Pa. Page 241]

    would be recognized "in exceptional cases and to safeguard basic human rights."

It is clear that no basic human right of this defendant has been violated or prejudiced.

Mr. Justice MCBRIDE took no part in the consideration or decision of this case.

Disposition

The Order of the Superior Court quashing this appeal is affirmed.

CONCURRING OPINION BY MR. CHIEF JUSTICE JONES:

I concur in the judgment of this Court but, in so doing, I wish to make plain my disagreement with certain matter in the majority opinion which I consider not only erroneous but unnecessary to the present decision.

In Margiotti Appeal, 365 Pa. 330, 341, 75 A.2d 465, by way of dissent, I expressed my considered opinion that the Attorney General of Pennsylvania possesses no power (common law or otherwise) to supersede of his own motion an elected county district attorney in any instance. To that view, I still unwaveringly adhere. The opposite conception, upon which the majority opinion in Margiotti Appeal, supra, was based, had its genesis in extensively expressed but nonetheless palpably mistaken dicta in Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 188 A. 524. Whether the Attorney General of the Commonwealth possessed power to supersede of his own motion a local district attorney was in no way involved in that case. The supersession by the Attorney General of the local district attorney in the Minerd case was pursuant to the written request of the judges of the Court of Common Pleas of Fayette County, acting under their statutory power so to proceed: See Section 907 of The Administrative

[ 396 Pa. Page 242]

Code of April 9, 1929, P.L. 177, 71 PS § 297, and also Commonwealth ex rel. Minerd v. Margiotti, supra, at pp. 19-20.

An elected county district attorney was wholly unknown to the common law. The sole prosecuting officer in England was the Attorney General who, from time to time and in place to place, appointed members of the bar to conduct the prosecution of criminal trials as occasion required. The office of elected county district attorney became a part of Pennsylvania's governmental organization by the Act of May 3, 1850, P.L. 654, and was thereafter confirmed and ordained by the Constitution of 1874 (Art. XIV, Sections 1 and 2) in effect to this very day. By what process of ratiocination the idea was arrived at that the Attorney General of Pennsylvania - a purely personal appointee of the Governor - possesses a common law power to supersede of his own motion a statutorily created and constitutionally recognized elected officer, it is utterly impossible for me to comprehend.

In any event, the whole fallacious notion, which ascribed plenary power to the Attorney General of Pennsylvania by virtue of the common law, in respect of elected county district attorneys, was effectively repudiated by the legislature in 1939. The year before, in an effort to give statutory effect to what had been gratuitously opined in Commonwealth ex rel. Minerd v. Margiotti, supra, the General Assembly, in special session, passed the Act of July 30, 1938, P.L. 17 (Act No. 3) entitled, "An Act Defining the relative powers of the Attorney General and of district attorneys in investigations or proceedings in the criminal courts. ..." The Act was at once brought to this court for construction. And, two months later (October 3, 1938), this court held (see Dauphin County Grand Jury Investigation Proceedings (No. 3), 332 Pa. 358, 2 A.2d

[ 396 Pa. Page 243809]

) that the power reposed in the Attorney General by the Act of 1938 was the same power possessed by him under the common law as ascribed to him by the dicta in Commonwealth ex rel. Minerd v. Margiotti, supra. The opinion expressly so declared as follows: "It is obvious, then, that Act No. 3 merely confirms in statutory form the possession by the Attorney General of a power which had theretofore been enjoyed by him under the usage and traditions of the common law." Thus, what had been deemed in the Minerd case, supra, as a common law power of the Attorney General with respect to his right to supersede elected district attorneys became by the Act of 1938 a part of the statute law of the State.But (and this is of paramount importance), at the very next session of the General Assembly, the Act of 1938 was "repealed absolutely" by the Act of March 20, 1939, P.L. 8 (being Act No. 7). So, what of the common law had, for a very brief period, been statutorily adopted was, by positive and unmistakable legislative fiat, deliberately denounced as being any part of the law of this State.

The erroneous conception with respect to the power of the Attorney General over elected district attorneys, which first crept into the jurisprudence of this State in 1936 by way of patent dicta, should be laid at rest, once and for all, and not reiterated from time to time.

It is all the more regrettable that, in the present instance, the majority opinion repeats the quotations (which originally emanated from the Minerd case), as support for the action of the Attorney General in this case, when what the Attorney General actually did here was merely to comply, as he was bound to do, with the request of the judges of the Court of Common Pleas of Berks County, acting pursuant to the authority conferred upon them by Section 907 of The Administrative Code of 1929, supra. The majority opinion itself implicitly

[ 396 Pa. Page 244]

    so recognizes wherein it states that - "The Attorney General was requested by the entire Common Pleas Court of Berks County to investigate these alleged crimes. Moreover, the District Attorney of Berks County voluntarily agreed that the Attorney General should conduct the prosecutions in their entirety, and the Attorney General did actually conduct them with the cooperation of the District Attorney."

Such was the lawful badge of the Attorney General's authority which he rightly exercised in this case; and, for that reason, I concur in the judgment of this court.

ING OPINION BY MR. JUSTICE MUSMANNO:

On November 8, 1954, this Court rang the Liberty Bell of Constitutional Guarantees by holding that an indictment which was obtained through unconstitutional methods was quashable before trial. In order to prove the unconstitutional methods which had been employed by the Commonwealth in obtaining its indictment, the defendant presented evidence of irregularities and improprieties in the grand jury room. The Commonwealth, in opposition, argued that all grand jury proceedings were secret and could not be used as a basis for attacking an indictment. But in an opinion written by our late revered colleague Justice CHIDSEY, this Court said: "While grand juries take an oath to keep their counsels secret and their deliberations are legally sealed from divulgence, the so-called secrecy rule does not prevent it being shown that the defendant's rights were violated by the introduction of testimony in direct contravention of constitutional inhibitions ... The impenetrability of grand jury proceedings is subject to exceptions and we think that the instant case presents a justifiable exception. If appellant's

[ 396 Pa. Page 245]

    constitutional safeguards were ignored as contended, it was a flagrant transgression of the letter and spirit of our organic law."*fn1

That brave statement assured all lovers of liberty that due process of law in Pennsylvania was not a mere phrase. However, the reverberations of the liberty bell of November, 1954, which were so reassuring and comforting at the time, have now become a hollow echo. In the whole Majority Opinion filed today in the present case, one cannot find a suggestion of the courageous utterance made by Justice CHIDSEY; one strains one's ears in vain to hear even a tinkle of the carillon of constitutional rights proclaimed less than five years ago. In that time this Court has decided to ignore its own precepts, rebuff its own pronouncements, and spurn its own teachings.

Let us see what this case before us is about. On September 11, 1957, Judge WARREN K. HESS of Berks County wrote a letter to the Attorney General of the Commonwealth asking that he "assign members of the Pennsylvania State Police to investigate conditions in the City of Reading and take action as may be warranted after investigation."

The Attorney General did assign state police to investigate alleged rackets in Reading, and, as a result of the investigation, the defendant in this case, Alexander Fudeman, was arrested and charged with unlawfully intimidating and extorting money from one Charles Schwambach. Judge HESS then, sitting as a committing magistrate, bound over the defendant for action by the March, 1958 Grand Jury. However, several weeks later the District Attorney of Berks County and the Attorney General of the Commonwealth petitioned the Court of Quarter Sessions of Berks County

[ 396 Pa. Page 246]

    to recall the December Grand Jury which had already been discharged on November 29, 1957.

On January 24, 1958, the grand jury was reconvened and it indicted the defendant. Following the indictment, the defendant learned that improper communications had been exchanged between members of the grand jury about the case, and that a state policeman had talked to one of the grand jurors. He at once petitioned the court to quash the indictment on these and other grounds. The court refused the motion, and the defendant appealed to the Superior Court which declined to hear the case on its merits, averring that the appeal was based on an interlocutory order. We granted allocatur.

The charge made by the defendant that the grand jury of Berks County had been tampered with was a serious one indeed. As recently as 1956 the Supreme Court of the United States said in the case of Remmer v. United States, 350 U.S. 377: "In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties."

Of course a grand jury is entitled to the same protection thrown around a petit jury. The highest Court of the land said on this subject: "The institution of the grand jury ... is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation, ... 'from an open and public accusation of crime, and from the trouble, expense, and anxiety of a public trial before a probable cause is established ...'" (Ex parte Bain, 121 U.S. 1.)

[ 396 Pa. Page 247]

In the case at bar the Commonwealth saw nothing alarming in the concept of a grand jury being subjected to improper influence. In his petition to quash the indictment, the defendant averred that: "In violation of his Constitutional rights under the United States Constitution and under the Constitution and law of the Commonwealth of Pennsylvania certain members of the Grand Jury had unauthorized communications and contacts with each other in connection with the case prior to the Grand Jury deliberations which were harmful to him and deprived him of a fair and impartial hearing on his matters pending before the Grand Jury."

To this grave charge, the Commonwealth replied: "Admitted, that certain members of the Grand Jury had unauthorized communications and contacts with each other in connection with the case prior to the Grand Jury deliberations. The remaining averments in Paragraph 5 of the Petition are conclusions of fact and of law which require no answer."

The defendant charged further: "Petitioner further avers that a state policeman interviewed at least one of the Grand Jurors prior to the date set for deliberations which deprived him of a fair and impartial ...


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