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COMMONWEALTH v. MCCLOSKEY (05/13/71)

decided: May 13, 1971.

COMMONWEALTH, APPELLANT,
v.
MCCLOSKEY



Appeal from order of Superior Court, Oct. T., 1970, Nos. 1377 to 1384, inclusive, affirming order of Court of Common Pleas, Criminal Division, of Philadelphia, Nos. 2416 to 2421, inclusive, Oct. T., 1969, 266, Jan. T., 1970, 2674 to 2679, inclusive, Oct. T., 1969, 2723 and 2724, Oct. T., 1969 and 879 to 897, inclusive, Sept. T., 1969.

COUNSEL

Arlen Specter, District Attorney, with him James D. Crawford, Deputy District Attorney, and John Rogers Carroll, Special Assistant District Attorney, for Commonwealth, appellant.

Howard Gittis, with him Steven A. Arbittier, and Wolf, Block, Schorr and Solis-Cohen, for appellees.

Thomas J. Mullaney and John T. Clary, for appellee.

James Francis Lawler, with him Ostroff & Lawler, for appellee.

Henry T. Reath, with him Robert L. Pratter and Duane, Morris & Heckscher, for appellee.

Jacob Kalish, with him Louis M. Natali, Jr., and Dilworth, Paxson, Kalish & Levy, for appellee.

John Patrick Walsh, David N. Savitt and Walsh and Savitt, for appellee.

Donald J. Goldberg, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the decision of this case. Concurring and Dissenting Opinion by Mr. Justice Eagen. Mr. Justice Jones joins in this opinion.

Author: Roberts

[ 443 Pa. Page 119]

The Commonwealth here appeals from decisions by an evenly divided Superior Court*fn1 affirming various orders of the Philadelphia Court of Common Pleas

[ 443 Pa. Page 120]

    quashing indictments against and suppressing evidence obtained from the several defendants. This complex appeal involves numerous 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 indicting grand jury without affording defendant an opportunity for a preliminary hearing; and (2) whether, or to what degree, a subpoenaed witness and potential defendant 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 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 counsel 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 and 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 followed with reference to certain of the individual appellees 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

[ 443 Pa. Page 121]

    submitted by the Philadelphia District Attorney alleging various offenses were being or had been 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*fn2 on August 18, 1969, requesting that appellee, 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 (Sloane, J.) accepted the presentment, and the district attorney with leave of court then submitted the recommendations to the September indicting grand jury, which returned true bills against appellee Steinberg charging him with malfeasance, misfeasance and non-feasance in office; conspiracy; deposit of public money for gains; violation of the State Adverse Interest Act; practice of corrupt solicitation; and corrupt solicitation.*fn3 All these indictments were returned without any complaint 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.*fn4

[ 443 Pa. Page 122]

    b. The Stadium Cases

The same April, 1969, investigating grand jury returned a separate presentment*fn5 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 Thomas Taylor, the district manager of H. H. Robertson Company, the steel subcontractors for the stadium, petitioned the court in charge of the investigating 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 coordinator, did likewise on October 6, 1969.

On October 24, 1969, Judge Spaeth entered an order dismissing defendants' petitions, setting forth his reasons for his action in an opinion, In re Petition of H. H. Robertson Company, September Term, 1969, Miscellaneous No. 7540. The district attorney then presented

[ 443 Pa. Page 123]

    evidence*fn6 against the stadium defendants to the October indicting grand jury, which returned the following bills: charges of false pretenses and conspiracy against James C. McCloskey; charges of false pretenses and conspiracy against McCloskey and Company, Inc.;*fn7 charges of conspiracy against McCormick-Taylor Associates, engineering consultants to the stadium architect; charges of conspiracy against Thomas Taylor; charges of bribery of government offices and employees, bribery of servants and employees, extortion, and malfeasance, misfeasance and nonfeasance in office against Harry Blatstein; charges of malfeasance, misfeasance, and nonfeasance in office and conspiracy against Paul J. Marzullo; and charges of conspiracy against H. H. Robertson.*fn8 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*fn9 charging Thomas Taylor, H. H. Robertson Company, McCormick-Taylor Associates, McCloskey & Company, Inc., James McCloskey and Paul Marzullo with conspiracy to obtain money by false pretenses from the City of Philadelphia. None of the above indictments were preceded by either a complaint, preliminary arraignment, or preliminary hearing.

The President Judge of the Philadelphia Court of Common Pleas*fn10 assigned all the foregoing cases to Judge Spaeth "for all pre-trial and post-trial motions

[ 443 Pa. Page 124]

    and trial." Various pre-trial motions requesting, inter alia, the suppression of evidence, the quashing of indictments, and severance were filed, and arguments were heard during the week of June 22, 1970.*fn11

[ 443 Pa. Page 125]

On July 27, 1970, in a departure from his October 24, 1969, decision, Judge Spaeth filed four opinions granting

[ 443 Pa. Page 126]

    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 Pennsylvania 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 defendants' right to counsel necessitated the indictments be quashed.

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 violation 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 supressed because their Sixth Amendment right to effective assistance of counsel at a critical stage had been denied. Finally, as noted above,*fn12 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

[ 443 Pa. Page 127]

    by an equally divided court on September 25, 1970.*fn13 This consolidated appeal followed.*fn14

II. 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 comprehensive procedure for ...


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