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COMMONWEALTH v. BRUNO ET AL. (06/11/64)

June 11, 1964

COMMONWEALTH
v.
BRUNO ET AL., APPELLANTS.



Appeals, Nos. 60 to 67, inclusive, April T., 1964, from judgments of Court of Quarter Sessions of Allegheny County, Jan. T. 1961, Nos. 545, 546, 547, 548, 549, and 551, in case of Commonwealth of Pennsylvania v. O. B. Bruno et al. Judgments of sentence on extortion affirmed; judgment reversed as to misdemeanor in office.

COUNSEL

Harold Gondelman, with him Louis C. Glasso, for appellants.

William Claney Smith, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Montgomery

[ 203 Pa. Super. Page 545]

OPINION BY MONTGOMERY, J.

These appeals by the defendants below from judgments of sentence following verdicts of guilty are based on the following indictments, identified by the number assigned to them at the 1961 January Session of the Quarter Sessions Court of Allegheny County:

(54) O. B. Bruno - seven counts of extortion and one of misdemeanor in office during 1958.

(546) O. B. Bruno and Orest Panza - extortion in 1958.

(547) William Neff - twelve counts of extortion in 1957.

(548) William Neff - eight counts of extortion and one count of misdemeanor in office in 1958.

(549) William Neff and Sam Ianuzzi - eight counts of extortion and one of misdemeanor in office in 1956.

(551) Stephen Zielinski - eight counts of extortion and one of misdemeanor in office in 1958.

The appellants were councilmen of the Borough of Sharpsburg, Allegheny County, when they allegedly committed the crimes charged aforesaid. The charges arose from transactions relating to the delivery of coal to the borough power plant under its contracts with Frank Panza.

Motions to quash the indictments were refused prior to trial and appeals from such actions were taken to this Court; but they were quashed as interlocutory. The same questions sought to be raised in those appeals are now before us and will be discussed initially. Appellants contend the indictments should have been

[ 203 Pa. Super. Page 546]

    quashed because (1) they were not returned at the next term of court following the preliminary hearing; (2) the informations on which they were based fail to set forth the exact dates of the alleged acts of extortion and the precise amounts of money extorted; and (3) the informations on which they were predicated were signed by a private prosecutor on information received, without stating that he believed the facts to be true to the best of his knowledge.

(1) The court did not err in refusing to quash the indictments on the ground that they had not been returned at the next term of court following the preliminary hearing before the committing magistrate. The informations were dated September 19, 1963, and the preliminary hearing was held September 29, 1960. The committing magistrate sent them to the district attorney promptly; but they were not presented to a grand jury until that of January, 1961, which returned the indictments. Appellants contend that they were denied a substantial right, viz., the right to challenge the array of the January, 1961 grand jury, since they did not have notice of the fact that it was to consider the matters. However, they made no effort to challenge the array of the grand jury prior to trial, and they have not set forth in what manner they have been prejudiced. This same argument has been advanced under similar circumstances in other cases and has been rejected. It has been advanced in cases where the indictments were returned by a grand jury in session at the time of the transmission of the informations by the committing magistrate (a pending grand jury). Commonwealth v. Bozzi, 178 Pa. Superior Ct. 224, 116 A.2d 290 (1955); Commonwealth v. Magid and Dickstein, 91 Pa. Superior Ct. 513 (1927).It also had been considered in cases where grand jury action was postponed and the indictments were returned by a subsequent grand jury. Commonwealth v. Gross, 161 Pa. Superior Ct. 613,

[ 203 Pa. Super. Page 54756]

A.2d 303 (1948); Commonwealth v. Weiner, 101 Pa. Superior Ct. 295 (1930). In some of those cases the fact of notice to the defendants of when their cases were to be considered by the grand jury was disputed. However, lack of notice has been held not to be prejudicial in itself because the defendant is privileged to challenge the array and formation of the grand jury at any time until a plea is entered or a jury sworn. Commonwealth v. Gross, supra. Therefore, in the present case, in the absence of any prejudice being shown and any attempt being made to challenge the array of the January, 1961 grand jury, we also must hold this contention to be without merit.

(2) Appellants complain further that the informations on which the indictments were found were insufficient in that they contained blanks in relation to the precise amounts of money allegedly extorted and the precise dates on which they received the illegal payments. The informations charge that the defendants received money "in regular monthly payments beginning in ..., 1956, and continuing thereafter up to and including October 1958." Regardless of the omissions in the informations, the appellants entered bail for their appearances in court after they had had a preliminary hearing, and they did not object in any way to the preliminary proceedings until after they had been indicted. Therefore, they must be held to have waived any irregularities in the proceedings before the committing magistrate and cannot thereafter complain of the inadequacy of the informations. See Commonwealth v. Evans, 190 Pa. Superior Ct. 179, 154 A.2d 57 (1959), affirmed 399 Pa. 387, 160 A.2d 407 (1960), ...


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