Appeals from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1969, Nos. 2738, 2744, 2747, 2755, 2764, 2766, 2768, 2770, 2772, 2774, 2775, 2776, 2779, 2780, 2783, 2788, 2791, 2795, 2796, 2803, 2804, 2805, 2809, 2811, and 2813, in case of Commonwealth of Pennsylvania v. Sander L. Field.
Donald J. Goldberg, with him Louis Lipschitz, for appellant.
James T. Ranney, Assistant District Attorney, with him David Richman, Assistant District Attorney, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.
[ 231 Pa. Super. Page 56]
This is an appeal from judgments of sentence entered after a jury trial in which the appellant was convicted on 26 separate indictments charging him with violations of The Pennsylvania Securities Act,*fn1 and three indictments charging him with fraudulent practices and fraudulent conversion in connection with stock. Motions in arrest of judgment were granted by the court below on one of the Securities Act violations and on all three of the fraud convictions. On the remaining 25 convictions, the appellant was sentenced to pay a fine of $1,000 on each conviction, and from these sentences he appeals.
For the reasons stated hereinafter, we find it unnecessary to examine the merits of the case against appellant and rule that all indictments in this case must be quashed.
In 1969, the District Attorney of Philadelphia petitioned the court to convene a Special Investigating Grand Jury to examine "widespread corruption, malfeasance, fraud, bribery, extortion, blackmail and other criminal activity in the operation of various public offices, departments, boards, commissions, authorities and agencies involved in the City of Philadelphia's urban renewal efforts . . . ."*fn2 The appellant, Sander Field, a member of the City Planning Commission and Chairman of the Board of Directors of Citizens Bank of Philadelphia, was called to testify before this grand jury in April of 1969. His testimony concerned three areas not hereunder consideration and an alleged "series of fraudulent stock dealings . . . to the detriment of the shareholders of Citizens Bank."*fn3
[ 231 Pa. Super. Page 57]
Prior to his testimony, the appellant was brought before Judge Sloane for the administration of oath and at this time he was not advised of his rights before the grand jury as required by the Court in the decision in Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764, cert. denied, 404 U.S. 1000 (1971). The appellant contends that this failure to advise him of his rights requires that the indictments against him be quashed. The Commonwealth, on the other hand, argues that the testimony of the appellant did not contribute to the grand jury presentment; and therefore, under the McCloskey decision the indictments remain valid.
The Court in Commonwealth v. McCloskey, supra, in speaking of a witness's right to exercise his privilege against self-incrimination knowingly and intelligently, set forth the following rule: "[W]e believe that proper procedure is for the court supervising the investigating grand jury to instruct a witness when administering the oath that while he may consult with counsel prior to and after his appearance, he cannot consult with counsel while he is giving testimony. However, the witness should also be informed 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, the witness can come before the court accompanied by counsel and obtain a ruling as to whether he should answer the question." Id. at 143, 277 A.2d at 777.
The Court stated as the proper remedy: "[T]hose 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." Id. at 120, 277 A.2d at 766.
Our decision in this case turns upon an interpretation of the language "in any way based." The Commonwealth would have this phrase read narrowly to require a ...