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COMMONWEALTH PENNSYLVANIA v. WILLIAM J. KELLY (11/22/76)

decided: November 22, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM J. KELLY, APPELLANT



No. 1074 OCTOBER TERM, 1976 Appeal from the Orders and Judgment of the Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County, March Term, 1975, at Nos. 2381/2385.

COUNSEL

Alfonso A. Tumini, Philadelphia, with him Anthony D. Pirillo, Jr., Philadelphia, for appellant.

E. Rendell, Philadelphia, with him Maryann D. Conway, Assistant Attorney General, and Walter M. Phillips, Jr., Deputy Attorney General, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Cercone, J., joins.

Author: Jacobs

[ 245 Pa. Super. Page 356]

A jury trial in August 1975, resulted in the conviction of appellant on three counts of perjury,*fn1 one count of bribery,*fn2 and one count of obstructing the administration of the law.*fn3 Following the denial of post-trial motions, appellant was sentenced to a prison term of three to twenty-three months on the perjury counts. This appeal followed. We affirm.

Portions of the factual history of this case will be set forth in more detail in the course of the seriatum discussion of appellant's nine assignments of error upon which this appeal is based. Briefly, however, the facts are these: The ongoing Pennsylvania Crime Commission investigation of corruption in Philadelphia resulted in charges that appellant, a police officer, had received sums of money a number of times in 1973 from one Joseph Anthony Narcise, in exchange for which appellant would refrain from interfering with a gambling operation of which Narcise was a part. The obstruction

[ 245 Pa. Super. Page 357]

    charge alleged that in September, 1973, appellant and Narcise became suspicious of an undercover agent, Andrew Marrese, who was posing as a gambler, and arranged to have the agent arrested and thus blow his cover. One of the perjury counts charged appellant with making false statements under oath before Municipal Court Judge Melton who then issued a search warrant which led to the arrest of the undercover agent. Appellant was also charged with two counts of perjury as a result of his testimony before the January, 1974, Special Investigating Grand Jury, wherein he reasserted the facts sworn to in the search warrant affidavit, and denied any prior dealings with Narcise.

Appellant's first contention is that he was denied the opportunity to effectively cross-examine certain prosecution witnesses, in that, following the witnesses' testimony on direct examination, the trial court refused to order the Commonwealth to turn over to appellant the complete, unedited transcripts of the prior testimony of these witnesses before the investigating grand jury. Instead, the trial judge reviewed the unedited transcripts and ordered that they be turned over to appellant, after deleting only those portions of the testimony which dealt with other investigations then being conducted, and which were completely unrelated to appellant. We believe that the course taken by the trial judge was proper.

In recent years, the veil of secrecy surrounding grand jury proceedings has been more easily parted when and where the interests of justice required. This is true in the case of an investigating grand jury as well as an indicting grand jury, and it is now settled that "[a]t trial, the accused, if he desires, will have the benefit of relevant portions of recorded testimony [before the investigating grand jury] for purposes of impeachment.

[ 245 Pa. Super. Page 358]

. . ." Commonwealth v. Columbia Investment Corp., 457 Pa. 353, 369, 325 A.2d 289, 297 (1974) (citation omitted) (emphasis added).

Appellant complains that his counsel should have been permitted to determine which portions of the prosecution witnesses' prior testimony were relevant, not the trial judge, and cites Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), for the proposition that an in camera review by the trial judge of transcripts of the prosecution witnesses' testimony before the grand jury is not a desirable means of determining what parts of their testimony the accused is entitled to see. We would point out that the Court was referring in that instance, to an inspection to determine whether or not the witnesses' grand jury testimony was inconsistent with testimony given on direct examination at trial. In the case at bar, that task was in fact left to appellant's counsel, since the trial judge merely deleted statements of the witnesses concerning investigations unrelated to appellant, which were wholly collateral to appellant's trial, and in any event improper subjects for impeachment. While we have stated that when a timely request is made for a pre-trial statement of a Commonwealth witness, the judge has a duty to review that statement, and make available to the defendant the relevant portions of that statement, Commonwealth v. Robinson, 229 Pa. Super.Ct. 131, 324 A.2d 441, allocatur refused, 229 Pa. Super. xxxv (1974), this is indeed a far cry from saying that an accused is entitled to any and all prior statements a prosecution witness may have made, regardless of whether or not it involved the accused's case, or some unrelated case.

The prior statements with which we are here concerned were made before a special grand jury which was

[ 245 Pa. Super. Page 359]

    investigating corruption in Philadelphia. This investigation was in process at the time of trial, and we believe that to have revealed testimony involving other investigations which were still being conducted would have jeopardized these investigations, and possibly could have endangered the lives of numerous undercover agents then at work in the Philadelphia area. While the trial judge recognized this obvious need for some secrecy, he also made certain that appellant was provided with transcripts of any prior statements made by prosecution witnesses insofar as they concerned appellant. Since such statements are the only ones to which any defendant is entitled, we fail to see how appellant was in any way hindered in conducting his defense.

Appellant's second assignment of error is that the trial judge improperly admitted certain hearsay evidence. This contention is without merit. Appellant objects to the testimony of Andrew Marrese, the undercover policeman, concerning a conversation Marrese had with the aforementioned gambler, Joseph Narcise, in which Narcise told Marrese about making payoffs to the police. (Printed Record at 374a). The trial judge admitted the testimony concerning that conversation as coming within the well-established co-conspirator exception to the hearsay rule, Commonwealth v. Holloway, 429 Pa. 344, 240 A.2d 532 (1968), on the basis that appellant and Narcise had conspired together to facilitate the gambling operation and obstruct the investigation into that operation.

The admissions of a co-conspirator may come into evidence as an exception to the hearsay rule even though the co-conspirator is not on trial and even if no party is formally charged with conspiracy. Commonwealth v. Garrison, 398 Pa. 47, 157 A.2d 75 (1959). Of course, a conspiracy must first be proved prior to invoking

[ 245 Pa. Super. Page 360]

    the hearsay exception, but the standard by which the conspiracy must be shown is a fair preponderance of the evidence, rather than beyond a reasonable doubt. In addition, the judge, not the jury, determines whether or not proof of a conspiracy is strong enough to trigger the hearsay exception. Commonwealth v. Hirsch, 225 Pa. Super. 494, 311 A.2d 679 (1973).

The testimony of Joseph Narcise, prior to Marrese's testimony, was more than sufficient, if believed, to prove to the trial judge that appellant and Narcise had conspired together, and that the conspiracy was ongoing at the time Narcise made the statements to the undercover agent, Marrese. Thus, the testimony came within a recognized exception to the hearsay rule and was properly admitted.

The third argument raised by appellant is that, in regards to the arrest of Andrew Marrese, the alleged purpose of which was to blow Marrese's cover, appellant was charged under the wrong section of the Crimes Code, in that he was charged with obstructing the administration of the law,*fn4 whereas he argues that he should have been charged with official oppression.*fn5 Although

[ 245 Pa. Super. Page 361]

    it appears that appellant waived this issue by failing to raise it in pretrial applications, Pa.R.Crim.P. 304(e), it is in any event without merit. While the arrest of the undercover agent, Marrese, would certainly be included in the crime of official oppression, the arrest was allegedly merely a means to an end, that being the hindrance of the investigation into the gambling operation. Therefore, we believe that the crime of obstruction of the administration of the law more completely and accurately covers the prohibited conduct with which appellant was charged.

Appellant raises as a fourth assignment of error the admission over objection, of certain portions of his testimony before the grand jury during the course of which he had allegedly perjured himself, on the basis that the testimony was coerced and therefore inadmissible. As an employee of the city of Philadelphia, appellant was subject to a provision in the Home Rule Charter which requires city employees to cooperate in official investigations under the threat of losing their jobs if they failed to do so. It is clear that statements made under threat of being discharged are the products of coercion and are therefore inadmissible at trial. Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975).

However, the presiding judge at the grand jury proceedings never gave the Home Rule Charter warnings to appellant. Instead, appellant, along with a number of other witnesses, was advised of his right against self incrimination, and told that, if the need arose, and an employee

[ 245 Pa. Super. Page 362]

    of Philadelphia claimed this constitutional privilege, the judge would give them additional instructions, but he would not do so unless the privilege was claimed. We fail to see how appellant was coerced inasmuch as the Charter warnings were never given.

While appellant may contend that the very existence of the provisions in the Home Rule Charter had the effect of coercing his testimony, this argument must be rejected since appellant did in fact claim the privilege against self incrimination in response to two separate questions posted in the grand jury proceedings. Despite these claims of privilege, the Home Rule Charter warnings were never given to appellant, thus we believe that his testimony was voluntarily given, not the product of coercion, and therefore properly admitted as evidence in his perjury trial. The United States Supreme Court in United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976), held that even if a party should not have been compelled to testify before a grand jury, if that party did in fact testify, and did so falsely, the compelled testimony would not be suppressed in a subsequent perjury trial, even if it would have been suppressed in a trial for the crimes with which the testimony was concerned. Since we find that appellant's testimony was not a product of coercion, we find it unnecessary to decide whether or not United States v. Mandujano, supra, is the law in this Commonwealth.

Appellant raises as a fifth assignment of error the admission of a police property receipt and two police reports. Appellant asserts that these items were not properly qualified as business records.*fn6 We cannot

[ 245 Pa. Super. Page 363]

    agree. Contrary to the argument of appellant, a witness called for the purpose of qualifying a business record need not have any personal knowledge of the facts which are reported in the particular records. In the case at bar, the qualifying witness, a Lt. Cole, testified that the complained of records were (1) prepared in the regular course of police business, (2) at or near the time of the reported incident, and (3) that although he didn't remember the particular incident with which the reports were concerned, his signature as reviewing officer was on the report. (Printed Record at 262a-264a). We conclude that these reports were properly qualified as business records.

The sixth contention made by appellant in this appeal is in regards to the trial court's charge to the jury, which appellant contends was ...


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