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COMMONWEALTH PENNSYLVANIA v. JAMES D. BARGER (06/29/77)

decided: June 29, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES D. BARGER, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. ROY O. WELLENDORF, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. CHARLES J. BUCHINSKY, APPELLANT



No. 167 March Term, 1977 Appeals from the Orders of the Court of Common Pleas of Dauphin County, dated May 6, 1976, to Nos. 447, 448, 449, 450 and 451 Criminal Division 1976.

COUNSEL

John Rogers Carroll, Philadelphia, for appellant at No. 171.

Smith Barton Gephart, Harrisburg, for appellant at No. 169.

Arthur L. Goldberg, Harrisburg, for appellant at No. 167.

Edwin W. Frese, Jr., Chief Deputy District Attorney, Harrisburg, with him LeRoy S. Zimmerman, District Attorney, Harrisburg, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Jacobs

[ 249 Pa. Super. Page 63]

The precise issue before us on this interlocutory appeal is whether an allegation that officials of the Pennsylvania State Police agreed to omit information as to the drinking of state troopers from the narrative section of the Pennsylvania State Police accident reports charges a crime sufficient for the convening of an investigating grand jury, a presentment charging such officials with conspiracy and solicitation to tamper with public records, and informations charging the same offenses. For the reasons hereinafter set forth, we affirm the orders of the lower court and remand for further proceedings.

For the purpose of this appeal, the history of this case is essentially undisputed. On March 28, 1974, appellant Charles J. Buchinsky, then the Director of the Bureau of Patrol of the Pennsylvania State Police, issued an oral directive that thereafter it was to be the policy of the Pennsylvania State Police to omit from Paragraph 68 of their accident reports any reference to the consumption of alcoholic beverages on the part of state troopers on duty who were involved in motor vehicle accidents.*fn1 This directive was issued at a Troop Commander's meeting held at the Pennsylvania State Police Academy in Hershey, Pennsylvania, and in the presence of appellant James D. Barger, then the Commissioner of the Pennsylvania State Police. On September 5, 1975, the District Attorney of Dauphin County petitioned the lower court to convene a special investigating grand jury. The lower court granted the petition on September 10, 1975, and the investigating grand jury was convened pursuant to that order on November 6, 1975. On January 13, 1976, the special investigating grand jury filed its first and final presentment which recommended,

[ 249 Pa. Super. Page 64]

    among other things, that appellant Buchinsky be prosecuted for committing the crimes of criminal conspiracy*fn2 and criminal solicitation*fn3 to tamper with public records or information;*fn4 that appellant Barger be prosecuted for committing the crimes of criminal conspiracy to tamper with public records or information and perjury;*fn5 and that appellant Wellendorf be prosecuted for committing the crime of perjury. By per curiam order dated January 15, 1976, the Dauphin County Court of Common Pleas directed the District Attorney to prepare and file informations consistent with the recommendations of the presentment of the special investigating grand jury. The appropriate informations were filed on February 10, 1976. Numerous motions and applications for pre-trial relief were thereafter filed by each of the appellants. By order dated May 6, 1976, the lower court issued orders covering each of the appellants' pre-trial motions and applications. The lower court specifically denied each appellant's application in the nature of a motion to dismiss the information and abandon prosecution. On May 12, 1976, all three appellants filed motions for pre-trial certification of a controlling question of law. The lower court certified the above issue on May 21, 1976. We allowed this interlocutory appeal by order dated June 30, 1976, pursuant to ยง 501(b) of the Appellate Jurisdiction Act.*fn6

I

Limiting our analysis, as we must, to the precise issues presented by the question certified to our court, we must first determine whether the convening of the special

[ 249 Pa. Super. Page 65]

    investigating grand jury was a proper procedure in which to commence the criminal prosecutions in this case. At the outset it is important to note that a special investigating grand jury serves as alternative for the normal methods of commencing criminal prosecutions in our Commonwealth.*fn7 Through its use the attendant procedural protections of a preliminary arraignment and preliminary hearing are not available to an accused. Commonwealth v. Field, 231 Pa. Super. 53, 331 A.2d 744 (1974). Thus, the rule has evolved in Pennsylvania that the power to convene an investigating grand jury "is a most delicate one, [which] is never exercised unless urgent necessity or . . . [where] the public interest would suffer from delays incident to ordinary forms of law." McNair's Petition, 324 Pa. 48, 60, 187 A. 498, 504 (1936).

Our Supreme Court in McNair's Petition, supra, first set forth the requirements that must be met to justify the convening of a special investigating grand jury. Citing Judge King in Lloyd & Carpenter's Case, 5 Pa.L.J. 55, 58, 3 Clark 188, 192 (Ct. of Qtr. Sess. of Phila. 1845), the McNair Court established the following seven criteria:

"(1) such an investigation must have a definite purpose to uncover criminal acts which seriously affect or injure the public generally; (2) the investigation may not be aimed at individuals nor at the commission of ordinary crimes, but should be matters of a criminal nature wherein public officers or the interests of the general public are involved; (3) the ordinary processes of the law must be inadequate to cope with or discover such offenses; (4) the acts just be part of a criminal conspiracy systematic, or of a widespread nature; (5) at least one or more cognate offenses must exist upon which to base the general investigation; (6) the criminal acts being investigated must require immediate attention; and (7) the court must have reasonable cause from direct knowledge or knowledge gained

[ 249 Pa. Super. Page 66]

    from trustworthy information to believe that an investigation will disclose some criminal conduct which is within the competence of the grand jury to investigate and within the jurisdiction of the court to punish. 324 Pa. at 61-62, 187 A. at 504-05."

See In re Investigation of January 1974 Philadelphia County Grand Jury, 458 Pa. 586, 600, 328 A.2d 485, 491 (1974). Thus the rule evolved in Pennsylvania*fn8 that only when the McNair standards were met could a special investigating grand jury be properly convened. Unlike investigating grand juries in some states, the freedom of the grand jury to investigate in our state was, and ...


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