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decided: June 22, 1972.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1969, Nos. 2158 and 2204, in case of Commonwealth of Pennsylvania v. Columbia Investment Corporation, Herbert Burstein and Jack Shapiro.


James D. Crawford, Deputy District Attorney, with him Deborah E. Glass and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.

George P. Williams, III, with him Schnader, Harrison, Segal & Lewis, for appellees.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Dissenting Opinion by Montgomery, J. Wright, P. J., and Watkins, J., join in this dissenting opinion.

Author: Hoffman

[ 222 Pa. Super. Page 31]

On March 30, 1969, the District Attorney of Philadelphia filed a petition requesting a grand jury investigation into a variety of areas in which municipal corruption was alleged to exist. In April of 1969 the grand jury was convened under special order of the Court of Common Pleas of Philadelphia.

The District Attorney's petition charged that there was "widespread corruption" in a series of programs of the Philadelphia Housing Authority. Included in these programs was the "Used House" program, under which existing dwellings were renovated and rehabilitated to provide living quarters for low income families. The petition alleged that a number of developers engaged in rehabilitating old houses, under contract with the Housing Authority, had fraudulently secured payment for the building and rehabilitation of exterior walls. Some of these developers were specifically identified,

[ 222 Pa. Super. Page 32]

    but appellees were not referred to by name in the petition. The petition did assert, in Paragraph 13, that the specific instances of fraud which it described were "part of a system of similar or related crimes . . . whereby numerous developers and contractors, and personnel of the Housing Authority, some of whom to your Petitioner are unknown, conspired to defraud the Philadelphia Housing Authority . . . ."

On October 2, 1969, appellees Burstein and Shapiro were called to the office of the District Attorney where they were questioned about their acts in connection with the public housing program then under the scrutiny of the District Attorney's office. Appellees were told by members of the District Attorney's office that their answers to the questions asked were not satisfactory, and that they were subject to immediate arrest. They were informed of the pending grand jury proceedings, the nature of those proceedings, and they were warned that their testimony would be recorded for further use in court.

On October 9, 1969, appellees Burstein and Shapiro appeared before the Honorable Joseph Sloane, who was supervising the investigating grand jury. Judge Sloane informed appellees that while they were in the grand jury room, they had a right not to answer any question they did not understand, or which they thought would hurt them criminally. In the latter case, they were told that they would be brought before the court, who would decide if the question or questions must be answered.

The appellees were then taken before the investigating grand jury, and they answered various questions that were put to them by the Assistant District Attorney. Five days later on October 14, 1969, the grand jury presented its Seventh Presentment, which recommended that appellees Columbia Investment Corporation,

[ 222 Pa. Super. Page 33]

Burstein, and Shapiro be indicted for false pretense and conspiracy on account of fifty-eight allegedly defective and unbuilt walls.

Upon receiving the Seventh Presentment, Judge Sloane directed that the Presentment and bills of indictment based upon it be submitted to an indicting grand jury. Pursuant to that direction the District Attorney submitted the present bills to the October, 1969, grand jury, which returned one hundred fifty-six indictments against appellees. The only evidence presented against appellees before the indicting grand jury was the reading of the Seventh Presentment by a detective representing the District Attorney's office.

Appellees contend that prior to their appearance before the investigating grand jury they had been classified as more than mere potential defendants, that they were in fact targets of the prosecution. They argue that it was therefore improper for the presiding judge not to warn them of certain fundamental rights which they possessed under the decisions of the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966), and Escobedo v. Illinois, 378 U.S. 478 (1964).


At the time appellees appeared before the investigating grand jury they had already been confronted by members of the District Attorney's office in regard to their alleged illegal activities. They had been questioned by the District Attorney's office and threatened with arrest. The Commonwealth in its brief admits that "[f]rom the tenor of the questions asked both appellees at that time [during the questioning by the Assistant District Attorney at the grand jury proceedings] it is clear that the grand jury was in possession of virtually all (if not all) of the aforementioned information,*fn1

[ 222 Pa. Super. Page 34]

    and that none of this information was obtained from appellees." Thus, it is clear that at the time of their appearance before the investigating grand jury, appellees were not merely witnesses, but rather in the status of accused persons.

The Commonwealth contends that the recent decision by our Supreme Court in Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764 (1971), is dispositive of all the issues that are ...

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