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PENNSYLVANIA CRIME COMMISSION v. NACRELLI. PENNSYLVANIA CRIME COMMISSION V. MCNICHOL. PENNSYLVANIA CRIME COMMISSION V. EYRE. PENNSYLVANIA CRIME COMMISSION V. DICKEY (05/02/72)

decided: May 2, 1972.

PENNSYLVANIA CRIME COMMISSION
v.
NACRELLI. PENNSYLVANIA CRIME COMMISSION V. MCNICHOL. PENNSYLVANIA CRIME COMMISSION V. EYRE. PENNSYLVANIA CRIME COMMISSION V. DICKEY



Original jurisdiction in cases of The Pennsylvania Crime Commission v. John H. Nacrelli, The Pennsylvania Crime Commission v. Harry A. McNichol, The Pennsylvania Crime Commission v. Joseph L. Eyre and The Pennsylvania Crime Commission v. Samuel R. Dickey.

COUNSEL

Russell M. Coombs, Deputy Attorney General, for petitioner.

Melvin Levy, with him Levy and Levy, for respondent, Nacrelli.

Robert E. J. Curran, with him Kassab, Cherry, Curran and Archbold, for respondent, McNichol.

Vincent Labrasca, with him Fronefield, deFuria and Petrikin, for respondent, Eyre.

Alvin S. Ackerman, for respondent, Dickey.

Carmen P. Belefonte, with him John W. Nilon, Jr., and Kassab, Cherry, Curran and Archbold, of counsel for respondents.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer. Dissenting Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Rogers.

Author: Kramer

[5 Pa. Commw. 551 Page 554]

This case comes before us within the purview of the original jurisdiction of this Court, granted by Section 401(a)(2) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, 17 P.S. § 211.401(a)(2).

The matter was instituted in this Court by the filing of a Petition for a Rule to Show Cause why the four Respondents herein should not be ordered to testify before the Pennsylvania Crime Commission (Commission). An Answer containing New Matter was filed by each of the Respondents to the Commission's Petition. Thereafter Stipulations of Fact were entered into between each of the Respondents and the Commonwealth, and were filed with this Court. Each Stipulation contains a statement wherein the parties agreed that the Stipulations contain all matters of fact the parties deem necessary for this Court to make a determination on whether each of the Respondents should be ordered by this Court to appear before the Crime Commission for the purpose of testifying in response to a Subpoena issued by the Commission to each of the Respondents.

The Stipulations are extensive. Although the Stipulations for Respondents John H. Nacrelli, Joseph L.

[5 Pa. Commw. 551 Page 555]

Eyre and Samuel R. Dickey are identical, the Stipulation for Respondent Harry A. McNichol differs somewhat from the others. We adopt the Stipulation of Facts as this Court's Findings of Fact, and we set forth, in substance, those findings in the following enumerated paragraphs, which have been subdivided so as to show the differences between the sets of Stipulations.

Findings of Fact

As related to Respondents Nacrelli, Eyre and Dickey, we find the following facts:

1. The Commission is conducting an investigation, which the Commission asserts to be under the authority of the Act of July 31, 1968, P.L. (Act No. 235), 71 P.S. Sections 62, 179 and 307-7. The Commission seeks to investigate organized and other criminal activities, their prevention and control; the administration of justice, criminal infiltration and operation of businesses; and the relationship among persons involved in criminal activities, public officials and private associations, in Pennsylvania and, in particular, in the City of Chester, the County of Delaware generally, and surrounding areas.

2. A public hearing was held by the Commission on September 8, 1971 (First Hearing), at the Sheraton Hotel in Philadelphia. This hearing was held in a large hall attended by and with facilities for television, radio, cameramen, press and reporter coverage, and with the public invited and attending. At this hearing, the Commission proceedings commenced with a statement by its Chairman that the Commission was holding hearings upon charges of protected gambling operations and bail-bond racketeering in Delaware County.

3. On or about September 24, 1971, Commission agents served the Respondents with subpoenas*fn* duly

[5 Pa. Commw. 551 Page 556]

    issued by the Commission. (Copies of those subpoenas and affidavits of their service are attached to the respective petitions as exhibits.)

4. The subpoenas sought the personal appearances of the Respondents before the Commission on October 4, 1971 (Second Hearing), at the Villanova University Law School, to testify in a hearing to be held by the Commission as part of the said investigation.

5. On October 4, 1971, the Commission held a hearing at the time and location specified, in furtherance of the investigation, but the Respondents failed to appear. The attorneys who represent them in this Court appeared, stated they represented the Respondents, and that Respondents would not appear at the hearing.

6. Preceding the said Second Hearing, the Commission had privately interviewed informers and proposed witnesses, in some instances without the knowledge and in no instance with the participation of the Respondents.

7. Preceding the said Second Hearing, the Commission had held private hearings, in some instances without the knowledge and in no instance with the participation of the Respondents, at which times sworn testimony was taken relating to alleged criminal conditions in Delaware County, allegedly involving the Respondents, but none of such testimony is available to Respondents upon request, in this case.

[5 Pa. Commw. 551 Page 5578]

. Before and after the said Second Hearing, the Chairman and attorneys of the Commission made statements to the press, knowing that the same might be published in metropolitan and suburban newspapers and throughout Delaware County.

9. The Commission scheduled and held a public hearing in a moot court room at Villanova Law School on October 4, 1971. The Commission purported to subpoena the Respondents to appear at the said hearing. The Respondents were given no notice of the purpose of their appearance nor the basis or scope of their proposed interrogation except to the extent, if any, that such notice was given in the subpoenas and the preliminary statement of the Chairman which had preceded the hearing of October 4, 1971.

10. The said Second Hearing was attended by and with facilities for television, radio, cameramen, press and reporter coverage and with the public invited and attending.

11. At the said Second Hearing, the Commission commenced its proceedings with the statement by its Chairman referred to above, said statement being made in the presence of television, radio and press representatives.

12. The Commission in some instances has held private hearings when it has taken testimony from alleged informers.

The Stipulation between the Commission and Respondent McNichol was substantially the same insofar as the twelve findings of fact set forth above are concerned. Therefore, all twelve of those findings are included in the findings of fact as they relate to Respondent McNichol. In addition to those twelve findings, the following additional findings are necessary, as they relate to Respondent McNichol.

13. Private hearings were held by the Commission on August 11, 12, 18, 19, 30 and October 1, 1971, for

[5 Pa. Commw. 551 Page 558]

    the purpose of hearing witnesses relating to the Delaware County investigation.

14. Prior to these hearings (paragraph 13 above), most witnesses had been privately interviewed to determine what information they had relevant to the Commission's investigation. Some witnesses were invited to attend, and others were subpoenaed.

15. The testimony produced at the private hearings was not made available to the public at large, but the substance of some parts subsequently appeared in the news media.

16. The news media reported the witnesses' testimony as relating to gambling operations and bail-bond racketeering in the County of Delaware.

17. McNichol's name was not mentioned by any witness in either the private or public hearings.

McNichol was not interviewed prior to his being subpoenaed on September 24, 1971, for a public hearing, nor has he been interviewed since.

18. The fact that McNichol was subpoenaed was released to the press and appeared on the front pages of certain Sunday newspapers.

19. McNichol was then a candidate for re-election as a County Commissioner in the general election to be held on November 2, 1971.

20. McNichol, through his attorney, sent notice on September 29, 1971, by telegram, to the Attorney General stating his intention to appear in Commonwealth Court Chambers on September 30, 1971, to present a Petition to Quash the subpoena. That afternoon the attorney was called by a member of the press inquiring into the reason for and contents of the said Petition.

21. On the morning of September 30, 1971, before such time as the Petition was filed, the Philadelphia Inquirer printed a front-page story, relating to the said Petition to Quash, and quoted the Attorney General's

[5 Pa. Commw. 551 Page 559]

Office as characterizing the Petition as a "delaying tactic."

22. Prior to his appearance in Chambers on September 30, 1971, McNichol's attorney was met by television, radio and press representatives. Television coverage was given, on the three major television stations in the metropolitan Philadelphia area, to McNichol's attorney and McNichol (who was not present), with a filmed account of the filing of McNichol's Petition to Quash the subpoena.

23. Upon appearing at the Villanova University Law School on October 4, 1971, McNichol's attorney was again encountered by television, radio and press representatives. Television coverage was again given by the three major television stations to McNichol's attorney and McNichol (who was not present), with a filmed account of the assertion of McNichol's alleged Constitutional rights.

24. In most instances the Commission conducts private interviews and holds private hearings to determine whether the testimony of a proposed witness is relevant to their investigation.

Discussion

All four cases were joined for argument, and all four Respondents filed one joint Brief. The Respondents present three arguments to this Court. First, they argue that the statute, Act of July 31, 1968, P.L. (Act No. 235), amending the Administrative Code, Act of April 9, 1929, P.L. 177, 71 P.S. §§ 62, 179 and 307, which created the Pennsylvania Crime Commission, is an unconstitutional delegation of legislative power. Secondly, Respondents assert that the Commission exercises accusatory powers and therefore must follow the accepted standards of due process of law under the Constitution applicable to accusatory proceedings. Thirdly, Respondents argue that to enforce a subpoena

[5 Pa. Commw. 551 Page 560]

    ad testificandum the Commission has a burden to show that the requested testimony of Respondents is pertinent and materially relevant to its investigation.

Prior to a discussion and disposition of the issues presented, we first must determine the nature of the Commission. It was established as an administrative commission within the Department of Justice (71 P.S. 62). Its membership consists of the Attorney General, who serves as Chairman, and four additional Commissioners appointed by the Governor (71 P.S. 179(a)).

Section 923 of the Administrative Code, supra, 71 P.S. 307-7, sets forth the powers and duties of the Commission, which include the following:

"The Pennsylvania Crime Commission shall have the power and its duty shall be:

"(1) To inquire into the causes of crime and delinquency, measures for their prevention, the adequacy of law enforcement and the administration of justice.

"(2) To develop standards and make recommendations for actions which may be taken by the State and local governments to prevent, reduce and control crime and increase respect for law, including, but not limited to, improvements in training of law enforcement personnel, improvements in techniques, organization and administration of law enforcement activities, improvements in the administration of justice, and rehabilitation techniques.

"(3) To investigate all crime generally, and shall have the power to investigate specifically but not limited to any relationship between any combination of persons involved in the commission of crimes on one hand, and any government or political unit, or any association, organization, trade business constituting a part or, doing business within the Commonwealth, and to gather evidence of the existence of organized or syndicate crime in the Commonwealth.

[5 Pa. Commw. 551 Page 561]

"(4) To investigate all fields of organized or syndicate crime.

"(5) To carry out continued research and planning to improve the quality of criminal justice.

"(6) To make a detailed written report of every completed investigation which may include recommendation for legislative or administrative action."

The Commission was given authority under the Statute to issue subpoenas in connection with its investigations which at 71 P.S. § 307-7(9) reads as follows: "To require the attendance and testimony of witnesses and the production of documentary evidence relative to any investigation which the commission may conduct in accordance with the powers given it. Such subpoenas shall be signed by the chairman, the executive director and two commissioners and shall be served by any person authorized to serve subpoenas under the laws of the Commonwealth. Upon failure of any person, so ordered to testify or to produce evidence, the Commission may invoke the aid of any Court of Common Pleas of the county wherein the person is summoned to appear or the county wherein the person is served with a subpoena."

The concurrent jurisdiction of this Court with that of the Common Pleas Courts, under the provisions of the Appellate Court Jurisdiction Act, supra, 17 P.S. § 211.502(a)(2) was determined by the Pennsylvania Supreme Court in the recent case of In Re: The Petitions of the Pennsylvania Crime Commission, et al., not yet reported, but filed December 29, 1971 (at Nos. 11, 12, ...


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