Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1975, No. 640, in case of Commonwealth of Pennsylvania v. Hillel Levinson.
James D. Crawford, with him Bernard G. Segal, Eugene A. Spector, and Schnader, Harrison, Segal & Lewis, for appellant.
Walter M. Phillips, Jr., Deputy Attorney General, with him Nancy J. Moore, Assistant Attorney General, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Hoffman, J., concurs in the result. Concurring and Dissenting Opinion by Spaeth, J. Dissenting Opinion by Price, J.
[ 239 Pa. Super. Page 391]
The instant appeal is another controversy arising out of the activities of the January 1974 Philadelphia County Special Investigating Grand Jury.*fn1 Subsequent to return of that entity's Fourteenth Presentment, appellant Hillel Levinson was indicted by the April, 1975 regular Philadelphia County Indicting Grand Jury on various charges. Appellant Levinson contends here that his motion to quash the April 1975 indictment should have been granted below. We agree that on the particular facts of this case the indictment should have been quashed. We therefore reverse that portion of the order dated July 31, 1975 dismissing appellant's Motion to Quash Indictment and Supplemental Motion to Quash Indictment.
[ 239 Pa. Super. Page 392]
The procedural history and validity of the January 1974 Philadelphia County Special Investigating Grand Jury (hereinafter 1974 Investigating Grand Jury)*fn2 has been reviewed and upheld by our Supreme Court in In re Investigation of January 1974 Philadelphia County Page 392} Grand Jury, 458 Pa. 586, 328 A.2d 485 (1974). We therefore need not repeat what has already been recorded there except to note that the 1974 Investigating Grand Jury came into existence as such on January 31, 1974 when Judge TAKIFF, on his own motion, specially charged and indefinitely extended the term of the January 1974 regular Grand Jury of Philadelphia County. The 1974 Investigating Grand Jury was specially charged to conduct an investigation into nine specific areas, including official corruption in the City of Philadelphia, and to continue investigation into matters originally considered by the Special Investigating Grand Jury of June Term, 1972.
Appellant had testified before the June, 1972 Special Investigating Grand Jury on October 12, 1973. On October 30, 1974, and again on March 17, 1975, he was called before the 1974 Investigating Grand Jury and was questioned further concerning allegations that certain architects and engineers desiring contracts with the City of Philadelphia had been solicited to purchase tickets to a dinner given by the Democratic City Committee during the 1972 Presidential Campaign. Based on contradictions between appellant's testimony and that of various other witnesses and on inconsistencies between appellant's testimony before the 1974 Investigating Grand Jury and his testimony before the 1972 Special Investigating Grand Jury, the 1974 Investigating Grand Jury returned its twenty page Fourteenth Presentment recommending bills of indictment, on March 19, 1975.
On the 7th and 8th of April, 1975, appellant moved for leave to present evidence to the regular indicting Grand Jury, for a preliminary hearing, or for an order denying the Special Prosecutor leave to present the recommended bills of indictment to the indicting Grand Jury. These motions were denied by Judge Lord, as was a subsequent motion for certification. Appellant was thereafter indicted, on April 17, 1975, by the April, 1975
[ 239 Pa. Super. Page 393]
indicting Grand Jury.*fn3 Numerous pre-trial motions were then filed. These were denied, by order dated July 31, 1975. On August 1, 1975 appellant was allowed the instant appeal when Judge CHERRY certified three of the issues raised by appellant's pre-trial motions pursuant to § 501(b) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, No. 223, art. V, § 501, 17 P.S. § 211.501 (Supp. 1975-76).*fn4
Appellant's first claim is two-pronged. He contends that he was denied due process of law because he was neither afforded a preliminary hearing prior to his indictment nor granted access to the grand jury minutes of the witnesses against him as a "partial substitute for a preliminary hearing."
Appellant concedes that under the holdings of our Supreme Court in Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764, cert. denied, 404 U.S. 1000 (1971) and Commonwealth v. Columbia Investment Corp., 457 Pa. 353, 325 A.2d 289 (1974) a preliminary hearing prior to indictment is not required when a presentment has been issued by an investigating grand jury. However, he argues that the decision in Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 (1975) alters the holdings in McCloskey and Columbia Investment Corp., supra. We do not agree. Commonwealth v. Mullen, supra, is inapposite because that case deals with the procedure to be
[ 239 Pa. Super. Page 394]
employed where there is a preliminary hearing. Mullen involved interpretation of Pa.R.Crim.P. 141, the rule which defines the rights of a defendant at a preliminary hearing, where a hearing is held. It was held in Mullen that Rule 141 does not limit a defendant who has a preliminary hearing to calling only those witnesses who would offer testimony favorable to his defense. Appellant seeks to expand a rule which allows a defendant to call favorable or unfavorable witnesses at a preliminary hearing into one allowing the introduction of evidence rebutting a prima facie case before the indicting grand jury. While we have taken note of appellant's argument that a preliminary hearing has been recently re-recognized as providing an important protective function, Commonwealth v. Webster, 462 Pa. 125, 337 A.2d 914 (1975), we are unconvinced that Webster or Mullen overrules the holding in Commonwealth v. McCloskey, supra, and in Columbia Investment Corp., supra, that the protective functions of a preliminary hearing are fulfilled by the investigating grand jury and that notice of the charges is provided by its presentment. The record reveals that the presentment issued here was informative and exhaustive, consisting of over twenty pages of documentation and explanation.
The second prong of appellant's argument that he was denied due process by the lack of a preliminary hearing is his claim that he should have been allowed access, prior to trial, to the grand jury testimony of all witnesses who testified against him. We agree with the Commonwealth's claim that this issue was not certified by the court below. We therefore decline to rule on this issue, since it is not properly before us. See note 4, supra.
Appellant also claims that his indictment should be quashed because an "unauthorized person" was present during deliberation and voting on the Fourteenth Presentment. The record reveals that grand juror Leon Karlinski was removed from the 1974 Investigating Grand Jury on March 18, 1975, by order of Judge
[ 239 Pa. Super. Page 395]
BULLOCK.*fn5 This action was taken pursuant to a petition requesting grand juror Karlinski's removal filed by the Office of the Special Prosecutor. On March 19, 1975, the 1974 Investigating Grand Jury, including grand juror Karlinski, met and returned the Fourteenth Presentment, after which Judge BULLOCK's order was received.*fn6 Appellant contends that Mr. Karlinski was an unauthorized person in the grand jury room on March 19, 1975 and that his presence constitutes grounds for quashing the indictment.
Assuming, arguendo, that ex-grand juror Karlinski was a "person other than [a] juror" who was present while the grand jury was deliberating*fn7 or voting, see Pa.R.Crim.P. 209, the court below was still not required to quash the indictment on that basis absent a showing of prejudice to appellant. See, Commonwealth v. Columbia Inv. Corp., supra, Commonwealth v. Kirk, 340 Pa. 346, 17 A.2d 195 (1941) aff'g 141 Pa. Superior Ct. 123, 14 A.2d 914 (1940); Commonwealth v. Bradney, 126 Pa. 199, 17 A. 600 (1889); Commonwealth v. Brownmiller, 141 Pa. Superior Ct. 107,
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A.2d 907, allocatur refused, 141 Pa. Superior Ct. xxxiii (1940); Commonwealth v. Meyers, 62 Pa. Superior Ct. 223 (1916); Commonwealth v. Hegedus, 44 Pa. Superior Ct. 157 (1910).
Appellant impliedly argues that the mere fact of the dismissal raises a presumption of prejudice. Had grand juror Karlinski been dismissed for cause on appellant's motion, we might be constrained to agree; however, on these facts we will not hold that there is a presumption of prejudice. Moreover, appellant has not alleged any particular prejudicial effect. We therefore hold that the mere presence of ex-grand juror Karlinski in the grand jury room on the date in question, although an irregularity or defect, was not fatal to the subsequent indictment. See, Commonwealth v. Evans, 190 Pa. Superior Ct. 179, 154 A.2d 57, cert. denied, 364 U.S. 899, rehearing denied, 364 U.S. 939 (1959).
Appellant's final claim is that the Fourteenth Presentment and the indictment which resulted therefrom is invalid because of the substitution, on January 15, 1975, of six new grand jurors as replacements for original members of the 1974 Investigating Grand Jury who had died or had been excused. Appellant maintains that the substitution was unauthorized, that the substitution allowed the 1974 Investigating Grand Jury to attain a permanence which rendered its actions void, and that, by virtue of the alleged unauthorized character of the substitution, the six substituted grand jurors were unauthorized persons in the grand jury room on March 19, 1975.
A review of the relevant facts pertaining to this claim is essential to an understanding of the appellant's assertions. The facts are that the original complement of the January 1974 Grand Jury was sworn in early January of 1974 and was specially charged on January 31, 1974. Between May 29, 1974 and mid-January, 1975, one grand juror died and Judge TAKIFF temporarily
[ 239 Pa. Super. Page 397]
excused five members of the grand jury.*fn8 The latter action was apparently taken off-the-record. On January 15, 1975, six additional grand jurors were selected, sworn and the entire grand jury was again specially charged. The six additional jurors were chosen from among fifteen members of the original January 1974 ...