Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal-Trial Division, No. 74-00-0430--January Term, 1974, Dated September 25, 1975. No. 230 October Term, 1976.
Marvin Comisky, J. Richter, Philadelphia, for appellants.
R. Cole, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Van der Voort, J., concurs in the result of this opinion. Price, J., files a dissenting opinion.
[ 241 Pa. Super. Page 248]
This is an appeal from the order of the lower court's supervising judge of Philadelphia's January 1974 Special Investigating Grand Jury, prohibiting appellants, Marvin Comisky and Jerome Richter, attorneys and partners of the law firm of Blank, Rome, Klaus and Comisky, and their firm, from representing more than one of three witnesses who were subpoenaed to appear and give testimony before the Grand Jury.
The three witnesses appeared before the Grand Jury and, on advice of counsel, invoked the privilege against self-incrimination. None of these witnesses was offered or received immunity so as to be an imminent witness against the other two witnesses. Subsequently, the special prosecutor filed a petition in the lower court for the disqualification of appellant-attorneys, alleging the grounds set forth in the following paragraphs:
"6. The January 1974 Special Investigating Grand Jury is currently investigating possible criminal violations by Messrs. Krumbhaar, Higgins and Gordon and others in connection with the awarding of certain architectural contracts by the Philadelphia Board of Education to Hesser-Higgins and Krumbhaar, Inc.
7. Pursuant to this investigation, the grand jury has subpoenaed and heard testimony from Messrs. Krumbhaar, Higgins and Gordon regarding their knowledge of the circumstances surrounding the award of said contracts.
[ 241 Pa. Super. Page 2498]
. Messrs. Krumbhaar, Higgins and Gordon each invoked his privilege against self-incrimination in response to questions concerning each witness's knowledge of or participation in payoffs in return for said contracts and also in response to questions concerning each witness's knowledge of the participation of the remaining two witnesses in payoffs in return for said contracts.
9. The Grand Jury has received information from reliable sources that a public official has participated in an extortionate scheme to influence the award of a Philadelphia School Board architectural contract to Hesser-Higgins and Krumbhaar, Inc.
10. Marvin Comisky, Esquire, and Jerome Richter, Esquire, both partners of the firm of Blank, Rome, Klaus & Comisky, have been retained to represent Hesser-Higgins & Krumbhaar, Inc., a corporation, and Messrs. Krumbhaar, Higgins and Gordon, as individuals."
Appellant-attorneys filed an answer to the petition, asserting that an order granting the petition would effectively:
1. deny the witnesses their constitutional right to counsel of their choice, where no conflict of interest existed;
2. deny the witnesses their right to waive conflict-free counsel;
3. deny appellant-attorneys their (constitutional) right to pursue their profession.
Prior to argument on the petition and answer, the supervising judge held an in-camera session with the special prosecutor who purportedly gave the judge information supporting his petition for disqualification. The ...