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COMMONWEALTH v. COHEN (03/24/72)

decided: March 24, 1972.

COMMONWEALTH
v.
COHEN, APPELLANT



Appeals from orders of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1969, Nos. 2887 to 2891, inclusive, in case of Commonwealth of Pennsylvania v. Sylvan M. Cohen.

COUNSEL

W. Bradley Ward, with him Abraham L. Shapiro, and Schnader, Harrison, Segal & Lewis, for appellant.

James D. Crawford, Deputy District Attorney, with him Martin H. Belsky and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Spaulding, and Cercone, JJ. (Hoffman, J., absent). Opinion by Cercone, J. Spaulding, J., joins in this opinion. Watkins, Montgomery, and Jacobs, JJ., concur in the result. Wright, P. J., would affirm the order below. Hoffman, J., took no part in the consideration or decision of this case.

Author: Cercone

[ 221 Pa. Super. Page 246]

These appeals by Sylvan M. Cohen are companion to that of the case of Commonwealth v. National Land and Investment Company, 221 Pa. Superior Ct. 144, 289 A.2d 101 (1972). Cohen, officer of National Land and Investment Company, was also indicted on charges recommended by the April 1969, Investigating Grand Jury impaneled on petition of the District Attorney of Philadelphia to investigate, inter alia, the 1500 Market Street Project in that City.*fn1 The indictments against Cohen consisted of two charges of false pretense and two charges of false financial statements based on the same December 20, 1968 and January 30, 1969, transactions

[ 221 Pa. Super. Page 247]

    which constituted the basis of the recommendations and indictments against National Land and Investment Company. In addition, Cohen was indicted, pursuant to the investigating grand jury's recommendation, of the crime of conspiring with Stephen Altman,*fn2 another company officer, to cheat and defraud the Redevelopment Authority and owners of real estate in the 1500 Market Street Project.

Cohen moved to quash the indictments brought against him and to suppress the use of his testimony before the investigating grand jury. These motions were based on the contention, inter alia, that his testimony before the investigating grand jury was tainted by the failure of the court supervising the investigation to advise him of his Fifth Amendment privilege to remain silent in the face of incriminating questions and of his Sixth Amendment privilege to have the advice of counsel. The lower court did not agree and refused to quash the indictments. It certified as appropriate for appeal to this court under Section 501 of the Appellate Court Jurisdiction Act of 1970, 17 P.S. Section 211.501, that part of its order dealing with the admissibility of appellant's testimony before the grand jury and the denial of a motion to quash because of that admissibility. However, appellant Sylvan M. Cohen has not so limited his appeals to this court, but has also presented to us the argument that the indictment based on the investigating grand jury's recommendation improperly denied him his right to a preliminary hearing because the recommendations of the investigating grand jury were beyond the scope of its authority.

With respect to the issue certified to us on appeal as to this individual appellant Sylvan Cohen, there was a violation of his constitutional rights in the presentation

[ 221 Pa. Super. Page 248]

    of his testimony before the investigating grand jury, which violation invalidated that testimony and prevented its use as the basis for the indicting grand jury's finding of a true bill against him. The issue certified to us for a ruling is stated by the lower court in its certification to be: ". . . the failure of the judge supervising the investigating grand jury to specifically instruct the defendant that should a problem arise while he is being interrogated or should he be doubtful as to whether he can properly refuse to answer a particular question, he can come before the Court accompanied by counsel and obtain a ruling as to whether he should answer the question." It is our determination that appellant was entitled to such instructions and that he had not waived his right to them.

In Commonwealth v. Kilgallen, 379 Pa. 315, 108 A.2d 780 (1954), it was held that where a witness appeared before the grand jury, testified under judicial compulsion in violation of his rights pursuant to the Fifth Amendment and Article I, Section 9 of the Pennsylvania Constitution against self-incrimination, his indictment should be quashed. Mr. Justice Chidsey there stated: ". . . we know of no case in this jurisdiction that denies the right to challenge the validity of an indictment on the ground of violation of the accused's ...


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