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COMMONWEALTH v. COLUMBIA INVESTMENT CORPORATION (09/05/74)

decided: September 5, 1974.

COMMONWEALTH, APPELLANT,
v.
COLUMBIA INVESTMENT CORPORATION



Appeal from order of Superior Court, Oct. T., 1971, No. 9, affirming 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.

COUNSEL

David Richman, Assistant District Attorney, with him Steven H. Goldblatt, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellant.

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

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Eagen. Mr. Justice Manderino joins in this dissenting opinion. Dissenting Opinion by Mr. Justice Nix.

Author: Roberts

[ 457 Pa. Page 355]

The Commonwealth appeals from an order of the Superior Court that affirmed the trial court's quashing of indictments against appellees Columbia Investment Corporation, and two of its officers Herbert Burstein, and Jack Shapiro. The Superior Court held that appellees were "in the status of accused persons" when called to testify before an investigating grand jury. Therefore, according to the Superior Court, appellees were entitled to be warned that while before the grand jury they had the unqualified right to remain silent; that anything they said would be used against them; that they had the right to have counsel present and to consult with counsel; and that if they were indigent, counsel would be provided without charge. See Miranda v. Arizona, 384 U.S. 436, 467-74, 86 S. Ct. 1602, 1624-27 (1966).*fn1 Because they did not receive these warnings,

[ 457 Pa. Page 356]

    the Superior Court affirmed the quashing of the indictments. Commonwealth v. Columbia Investment Corp., 222 Pa. Superior Ct. 30, 292 A.2d 533 (1972).*fn2 This Court granted the Commonwealth's petition for allowance of appeal.*fn3

We conclude that when called before the grand jury, appellees were not "in the status of accused persons." Neither were they in custody. Furthermore, no witness subpoenaed to testify before an investigating grand jury has the right either to refuse to appear or the unqualified right to appear and remain silent. Neither does a witness have the right to have his attorney present during his grand jury appearance. The warning requirement, which appellees urged for the first time on appeal, would be an unprecedented and illogical procedural burden to impose upon an investigating grand jury. Moreover, because appellees do not claim that they were compelled to answer any potentially incriminating questions, we fail to see how they were prejudiced by lack of the warnings they now argue they were entitled to.

I

The District Attorney of Philadelphia on March 30, 1969, petitioned for the convening of an investigating

[ 457 Pa. Page 357]

    grand jury to inquire into alleged "widespread corruption" in programs administered by the Philadelphia Housing Authority. Some developers were specifically named in the petition as having fraudulently secured payments for unperformed construction. Appellees were not among those named.

On October 2, 1969, Burstein and Shapiro were questioned by the district attorney about their connection with Philadelphia Housing Authority programs. After this interview appellees were informed that their answers were unsatisfactory, that they were subject to immediate arrest, that a grand jury was investigating public housing programs, and that they would be subpoenaed to appear before that grand jury.

In response to subpoenas the individual appellees, on October 9, 1969, appeared before the supervising judge. Appellees' counsel requested that he be permitted to accompany Burstein and Shapiro into the grand jury room. The motion was denied. Counsel then asked that appellees be allowed to leave the grand jury room during the course of examination if they required advice whether they should answer a particular question or claim the privilege against self-incrimination. Although this motion was also denied, Judge Sloane then did advise appellees: "Each one of you has a right to have a lawyer, you have a right to consult with him, advise with him, be guided by him. Every aspect of the relationship between lawyer and client must be respected by everybody. And you have a right to confide in your lawyer after you come out of the grand jury room. After you come out of the grand jury room, you have a right to place full confidence in your lawyer -- but in no one else. During the time that you are in the grand jury room, you do not have a lawyer with you. You have a right to say, 'I do not understand the quesion'; 'you have a right to say that you will not answer a question because you think it might

[ 457 Pa. Page 358]

    hurt you if you do, hurt you criminally if you do. And then the onus is on the Court to determine whether that question should be answered.'" Counsel requested no further instructions and none were given. The question before us is whether more was required.

Burstein and Shapiro then appeared before the investigating grand jury and answered various questions. Appellees do not contend that while testifying they were ordered to answer questions which might have tended to incriminate them. On October 14, 1969, the grand jury submitted to the court its seventh presentment recommending indictment of Burstein, Shapiro, and Columbia for false pretense and conspiracy. The indicting grand jury thereafter returned one hundred and fifty-six indictments against the corporate and individual appellees.

The trial court quashed the indictments on the following four grounds. It held that appellees were deprived of their privilege against self-incrimination when, pursuant to subpoenas, they testified before the investigating grand jury. Second, the trial court concluded that appellees were similarly denied their right to counsel. Third, in its view, prior to indictment appellees were entitled to a preliminary hearing. Finally, according to the trial court the presence of a stenographer in the investigating grand jury room violated our rules of criminal procedure.*fn4

In Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764, cert. denied, 404 U.S. 1000, 92 S. Ct. 563 (1971), this Court affirmed the quashing of indictments returned against persons who, prior to testifying before

[ 457 Pa. Page 359]

    this same investigating grand jury, had not been afforded the instruction which Judge Sloane gave these appellees. We held that prior to testifying, a witness must be instructed that he may consult with a lawyer before and after testifying, but not while he is giving testimony. He must also be advised that should any doubt arise whether he may invoke the privilege against self-incrimination in response to a particular question, he and his counsel may come before the court and obtain a ruling on the propriety of refusing to answer. Id. at 143, 277 A.2d at 777. This Court there expressly held that neither the Fifth Amendment nor the Sixth Amendment nor Article I, Section 9 of the Pennsylvania Constitution require that counsel be available at all times to a witness before an investigating grand jury. Id. at 141-42, 277 A.2d at 776-77.

The Superior Court majority attempted to distinguish McCloskey on the ground that "[t]he instant case . . . involves individuals who were not mere witnesses before the grand jury. These individuals were in the status of accused persons about to be recommended for indictment at the time they were compelled to testify." 222 Pa. Superior Ct. at 35, 292 A.2d at 536.

Although appellees allege no prejudice, the Superior Court majority held that the failure of the supervising judge to administer complete Miranda warnings required quashing of the indictments. Id. at 38, 292 A.2d at 537.

We consider four questions: First, were appellees, when called to testify before the investigating grand jury, "in custody"? Second, does any person -- witness, potential defendant, or "virtual defendant" -- have the right to refuse to appear or to appear and remain silent when subpoenaed by an investigating grand jury? Third, were appellees, as the Superior Court majority concluded, "in the status of accused persons"? And finally do any of the other reasons advanced by the trial court justify quashing the indictments?

[ 457 Pa. Page 360]

II

The implications of the Superior Court's holding should be fully understood. If Miranda warnings are constitutionally required when one in the situation of the individual appellees is called before an investigating grand jury, then he must be afforded the presence of an attorney while testifying or be allowed to remain silent when before the grand jury. The Superior Court's interpretation is completely at odds with the rationale of Miranda v. Arizona, supra, and of Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964), and with the historical function of the grand jury.*fn5

This Court in McCloskey categorically rejected the contention that Miranda and Escobedo are applicable to grand jury situations.

"Neither Escobedo nor Miranda were even remotely concerned with right to counsel before an investigating grand jury. The interpretation urged by appellees that counsel be accessible at all times during a witness's appearance is an unwarranted extension of the teaching of these decisions." Commonwealth v. McCloskey, supra, at 142, 277 A.2d at 777. Miranda and Escobedo are aimed at the coercion inherent in "statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, supra, at 445, 86 S. Ct. at 1612.

The United States Supreme Court, through the use of empirical data concerning police tactics designed to break the will of an in-custody accused, clearly indicated that its concern was with custodial interrogation

[ 457 Pa. Page 361]

    and the oppressive tactics and subterfuges employed by police officers seeking to obtain incriminating statements. See id. at 445-59, 86 S. Ct. at 1612-19.*fn6 This Court has consistently applied Miranda only to such in-custody interrogation situations. E.g., Commonwealth v. D'Nicuola, 448 Pa. 54, 292 A.2d 333 (1972); Commonwealth v. Simala, 434 Pa. 219, 252 A.2d 575 (1969); Commonwealth v. Bordner, 432 Pa. 405, 247 A.2d 612 (1968); Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d 765 (1967).

Although our Court has never been reluctant to apply Miranda to custodial interrogation situations, we have never held that testimony before a grand jury, investigating or indicting, is the equivalent of in-custody police interrogation. When confronted with the question of what warnings are necessary before testimony is taken by an investigating grand jury, we formulated a warning specifically designed for the unique situation an investigating grand jury presents. Commonwealth v. McCloskey, supra.

Our reasoning in refusing to extend Miranda to a grand jury witness is entirely consistent with that of the United States Supreme Court. That Court only one year ago observed that "[t]he compulsion exerted by a grand jury subpoena differs from the seizure effected by an arrest or even an investigative 'stop' in more than civic obligation." United States v. Dionisio, 410 U.S. 1, 10, 93 S. Ct. 764, 769 (1973).

The Court quoted Chief Judge Friendly writing for the Court of Appeals for the Second Circuit: "The latter [an arrest or investigative stop] is abrupt, is effected with force or the threat of it and often in demeaning

[ 457 Pa. Page 362]

    circumstances, and, in the case of arrest, results in a record involving social stigma. A subpoena is served in the same manner as other legal process; it involves no stigma whatever; if the time for appearance is inconvenient, this can generally be altered; and it remains at all times under the control and supervision of a court."*fn7 Manifestly, one subpoenaed to testify before a lawfully-constituted grand jury such as this, see Commonwealth ex rel. Camelot Detective Agency, Inc. v. ...


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