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decided: July 19, 1978.


No. 533 January Term, 1976, Appeal from the Judgment of the Superior Court of Pennsylvania, at No. 1934 October Term, 1975 which affirmed the Order of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, at No. 640 April Term, 1975


Edward G. Rendell, 1st Asst. to Sp. Prosecutor, Bernard L. Siegel, Philadelphia, for appellant.

Schnader, Harrison, Segal & Lewis, Bernard G. Segal, James D. Crawford, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Roberts, J., filed a dissenting opinion in which O'Brien, J., joins. Pomeroy, J., filed a dissenting opinion in which O'Brien, J., joins.

Author: Manderino

[ 480 Pa. Page 277]


This is an appeal by the prosecution from an order of the Superior Court of Pennsylvania quashing an indictment against defendant, Hillel Levinson, (appellee). Commonwealth v. Levinson, 239 Pa. Super. 387, 362 A.2d 1080 (1970). The indictment resulted from the presentment of an investigating grand jury on which six grand jurors had been substituted more than a year after the grand jury was sworn and had begun to hear evidence against appellee.

Appellee Levinson, the Managing Director of the City of Philadelphia, was the subject of the Fourteenth Presentment of the January 1974, Special Investigating Grand Jury. The Fourteenth Presentment recommended his indictment on charges arising out of allegations that he solicited certain architects doing business with the City of Philadelphia to buy tickets to a large public dinner given by the Democratic City Committee during the 1972 presidential campaign, and out of allegations that his grand jury testimony concerning the alleged solicitations was inconsistent and incorrect.

Levinson moved to quash the indictment returned by the indicting grand jury which acted, in part at least, upon the Fourteenth Presentment. Following the disposition of various preliminary motions not relevant here, the trial court refused Levinson's motion to quash. Appellee then orally moved for certification of three questions pursuant to Section

[ 480 Pa. Page 278501]

(b) of the Appellate Court Jurisdiction Act of 1970, 17 P.S. § 211.501(b). The motion for certification was granted and the appeal was allowed by the Superior Court. The Superior Court reversed the trial court's order and quashed the indictment on the ground that the substitution of six grand jurors, more than one year after the investigating grand jury had been sworn, and at a time when the number of grand jurors still sitting equaled seventeen (two more than needed for a quorum), was unauthorized, and therefore invalidated the Fourteenth Presentment and consequent indictment.

The prosecution petitioned this Court for leave to appeal. We granted the petition and this appeal followed. We affirm.

The original complement of the January 1974 Grand Jury, consisting of twenty-three members, was sworn early in January of 1974. The jury was specially charged on January 31, 1974, to conduct an investigation into nine specific areas, including corruption in the government of the City of Philadelphia, and to continue the investigation into matters originally considered by the Special Investigating Grand Jury of June Term, 1972.

Between May 29, 1974, and mid-January, 1975, one grand juror died and five others were temporarily excused from service. On January 15, 1975, the five temporarily excused grand jurors were permanently excused, six additional grand jurors were selected and sworn, and the entire grand jury, as reconstituted, was again specially charged. The reconstituted 1974 Investigating Grand Jury then continued its investigation and proceedings. Thereafter, two more of the original jurors were excused without substitution. At the time it returned the Fourteenth Presentment recommending appellee's indictment, the grand jury consisted of fifteen members of the original panel of twenty-three plus the six members added in January of 1975.

The allegations of error raised by appellee in the trial court, and which were specified in the order granting appellee's motion for certification under Section 501 of the Appellate

[ 480 Pa. Page 279]

Court Jurisdiction Act of 1970, 17 P.S. § 211.501(b), are as follows:

"(a) The denial to defendant of either a preliminary hearing or access to grand jury minutes of the witnesses against him constitutes a plain denial of equal protection of the law;

(b) The substitution on January 15, 1975, of six new grand jurors for six grand jurors sworn on January 2, 1974 was unauthorized under the laws of Pennsylvania; and

(c) Former Grand Juror Karlinski was an unauthorized person in the grand jury on March 19, 1975 when the Fourteenth Presentment against defendant was voted."

As previously noted, the Superior Court reversed the trial court and ordered the indictments quashed on the basis of its analysis of allegation number two above. Because we agree with the Superior Court's disposition of the case on this basis, we do not address the other questions raised.

The prosecution raises several arguments in support of its position that the indictment should not have been quashed. Initially, it contends that the addition of the six new members to the investigating grand jury on January 15, 1974, was authorized by the Act of March 31, 1860, P.L. 427, § 41 (17 P.S. § 1152 and § 1233). Secondly, the prosecution argues that even if the addition of the six was not authorized by statute, the supervising judge had inherent discretionary power to add members to the grand jury, and therefore the presence of the additional six members was not unlawful. Furthermore, according to the prosecution, the substituted grand jurors should be afforded de facto legitimacy even if their substitution was unlawful.

Alternatively, the prosecution contends that if the addition of these six members was unlawful because not authorized by statute, nor by the supervising judge's discretionary powers, nor by their being given de facto authority, the presentment was not defective because the defendant has not shown that he was prejudiced by the inclusion of these six in the deliberations, or that even if the addition of the six was unlawful, and even if the presentment was defective,

[ 480 Pa. Page 280]

    this defect was cured by the subsequent independent action of the indicting grand jury.

The Act of March 31, 1860, P.L. 427, § 41 (17 P.S. §§ 1152 and 1233) provides as follows:

"All courts of criminal jurisdiction of this commonwealth shall be and are hereby authorized and required, when occasion shall render the same necessary, to order a tales de circumstantibus, either for the grand or petit jury, and all talesmen shall be liable to the same challenges, fines and penalties as the principal jurors: Provided, That nothing herein contained shall repeal or alter the provisions of an act passed April 20, 1858, entitled 'An act establishing a mode of drawing and selecting jurors in and for the city and county of Philadelphia.'"

(This Act has been partially suspended: insofar as it applied to petit juries it has been replaced by Rules 1109 and 1125(3) of the Pa.R.Cr.P.) This statute, argues the prosecution, ". . . authorized the addition of members of the investigating grand jury, when the ability to form a quorum was seriously endangered by vacancies created through death or dismissal for cause."

The Superior Court correctly concluded that the Act does not provide authority for the substitution. The statutory material cited is clearly inapplicable to a situation such as the one presented here. The statute authorizes the calling of additional persons when the number originally constituting the panel from which the jurors are to be selected dwindles, either because of challenges or other circumstances, to such a point that it becomes too small in number to supply sufficient jurors to make the required twenty-three. The Act authorizes the calling of "talesmen" when "necessary" to provide a sufficiently large panel from which to select the twenty-three members of the grand jury. As stated in Williams v. Commonwealth, 91 Pa. 493 at 500 (1879):

"If all the jury do not attend, or if so many be challenged and drawn that there do not remain a sufficient number to make a jury there are at common law [several writs for

[ 480 Pa. Page 281]

    filling the panel], or by statute, the plaintiff may pray a tales de circumstantibus. . ...

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