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COMMONWEALTH PENNSYLVANIA v. JACK BESTWICK (12/29/78)

decided: December 29, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
JACK BESTWICK, APPELLANT



No. 119 April Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Mercer County, at No. 36(9) July Sessions, 1975.

COUNSEL

Timothy L. McNickle, Grove City, for appellant.

David B. Douds, Assistant District Attorney, Hermitage, for Com., appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price, J., files an opinion in support of affirmance in which Jacobs, P. J., joins. Spaeth, J., files an opinion in support of affirmance. Hester, J., files an opinion in support of reversal in which Cercone and Van der Voort, JJ., join. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 262 Pa. Super. Page 561]

The six Judges who decided this appeal being equally divided the judgment of sentence is affirmed.

PRICE, Judge, in support of affirmance:

This appeal arises from denial in the court below of appellant's motions in arrest of judgment and for a new trial. Appellant, an assistant superintendent at the District 1-4 office of the Pennsylvania Department of Transportation (PennDOT), was convicted of violating Pennsylvania's "anti-macing act."*fn1 Appellant raises five alleged errors on

[ 262 Pa. Super. Page 562]

    appeal for our consideration. For the reasons stated herein, we would affirm the judgment of sentence.

Appellant first asserts that the lower court erred in failing to grant his motion to dismiss the presentments of the investigating grand jury, out of which his conviction culminated, and in failing to quash the indictments on the basis that the petition requesting the grand jury was not self-sustaining and did not contain the required factual specificity. In order to answer this assertion, it is first incumbent upon us to review the district attorney's petition in detail.

On June 2, 1975, the district attorney of Mercer County filed his petition, which stated that his office had been "conducting an investigation into allegations of the macing of employees of the Pennsylvania Department of Transportation in Mercer County for political donations." The petition asserted that PennDOT supervisory personnel had extorted funds from persons seeking contracts with PennDOT, see 18 Pa.C.S. § 3923, and that contract awardees were thereafter required to return a percentage of their earnings to PennDOT personnel. With the aid of PennDOT supervisory personnel, other individuals were alleged to have formed a paper corporation and to have received payments for work never performed. See 18 Pa.C.S. § 3922. The petition asserted that investigation had already disclosed that these were not single, unrelated incidents, but were

[ 262 Pa. Super. Page 563]

    part of a "widespread and systematic scheme by which a large number of persons ha[d] conspired to obtain money and property for themselves and/or the Democratic Party." See 18 Pa.C.S. § 903.

The petition further asserted that the alleged criminal activity affected the community; that the proper administration of the government was hampered; that public employees were demoralized by the actions alleged; and that the effectiveness of government operation was undermined. The petition pointed out that the allegations indicated "systematic depredations by public officers," and that the public as a whole, rather than single individuals, was victimized; public confidence in governmental integrity was endangered. The petitioner contended that normal processes of law could not accommodate the investigation, and that the grand jury's subpoena power appeared essential, since documentary evidence was held and controlled by those who committed the offenses, certain persons involved refused to cooperate with the state police, and, due to fear of reprisal, witnesses were generally reluctant to assist in the investigation.

The petition stated that the material contained therein was derived from statements given to state police investigators, to the "Gleason Committee,"*fn2 and to investigators of other legislative and executive departments. The petition concluded:

"Your Petitioner believes that after a grand jury investigation there will be enough evidence to obtain at least one indictment on each of the above named specific offenses. In order to protect the rights of those persons involved in the above named offenses, your petitioner has refrained from inserting names in this petition. Your Petitioner is prepared, however, to present documentary evidence to the Court, if the Court so desires, in support of

[ 262 Pa. Super. Page 564]

    the above charged offenses. Said documents and evidence would include the names of the alleged actors and victims, as well as the facts and circumstances surrounding the commission of the offenses."

On June 3, 1975, the Honorable John Q. Stranahan conducted an in camera hearing to determine the propriety of convening the investigative grand jury and to garner specific information in support of the petition. Assistant District Attorney John Garhart stated that the activity to be investigated spanned a three-year period. Cash payments were made by a number of private contractors to PennDOT personnel, and signed statements of those contractors were read into the record. Mr. Garhart stated that the funds were not believed to be going into Mercer County Democratic Committee coffers, because its books did not reflect such contributions. It was therefore believed that the money was being kept by individuals or was being forwarded to the state committee. Several of the contractors made statements that their money was taken by a conduit to appellant, or that named PennDOT supervisory personnel approached them to reveal what appellant was currently demanding. One individual stated that he was informed that unless he paid the requested amount, at appellant's direction, his equipment would be the last to be used by PennDOT for service. Another contractor was approached by appellant for a contribution, and decided to make the payment because he felt he would lose work otherwise.

In many of the statements presented to the court, appellant's name appeared. Several other names were mentioned repeatedly. One contractor was told that the money was destined for Harrisburg. Several contractors believed that PennDOT personnel who approached them were being pressured from higher up in the party system.

On the basis of the petition and in camera proceeding, the grand jury was convened. The court order stated in part:

"The grand jury investigation is necessary to discover what may be criminal acts which seriously affect and injure the public and to obtain evidence leading to the

[ 262 Pa. Super. Page 565]

    indictment and prosecution of persons who have committed specific crimes within the statutory period and within the jurisdiction of the court. Such crimes may include: the illegal solicitation of political contributions from persons and corporations desiring to have contracts within the Commonwealth and by private persons through collaboration with government employees, to obtain by theft and deception public monies, and similar or related crimes involving official corruption."

As justification for granting the Commonwealth's petition, the opinion of the court below, authored in compliance with Pa.R.A.P. 1925(a), states:

"Following the hearing, the Court issued an order granting the petition of the District Attorney. The Court authorized and approved the investigation only after concluding that widespread corruption and systematic violations of the penal laws of the Commonwealth prevailed in Mercer County, District 1-4, Office of PennDOT, all of which demoralized the community, created disrespect for laws, undermined public confidence in government, and jeopardized public safety. Finding that the ordinary processes of law were inadequate to cope with the situation, the Court determined that the convening of a special investigating grand jury was justified."

Following its investigation, the grand jury returned presentments recommending that appellant be indicted for bribery, macing, extortion, and conspiracy. Prior to submission of these presentments to the indicting grand jury, appellant filed petitions to dismiss the presentments and to grant a preliminary hearing, at the time making his first assertion that the investigating grand jury was improperly convened. Those motions denied, appellant was indicted and subsequently filed his motion to quash. Finally, post-trial, appellant again asserted his argument that the grand jury was improperly empanelled.

The investigating grand jury is an unusual mode of instituting criminal proceedings. In the majority of criminal cases, an action commences with a complaint filed by the

[ 262 Pa. Super. Page 566]

    appropriate prosecuting official. Preliminary arraignment and a preliminary hearing are then conducted. This procedure, however, has not been without exception in Pennsylvania. See Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764 (1971). As early as the comprehensive opinion in Lloyd and Carpenter's Case, 5 Pa.L.J. 55, 3 Clark 188 (Ct. of Qtr. Sess. of Phila.1845), Judge King noted that, when dealing with investigating grand juries, strict safeguards are necessary because, except in an exceptional case, a defendant should not be deprived of having a preliminary hearing and a known accuser. Because of its uniqueness, Pennsylvania appellate courts have stated that "this power, which is a most delicate one, is never exercised unless under urgent necessity or . . . [where] the public would suffer from the delays incident to ordinary forms of law." McNair's Petition, 324 Pa. 48, 60, 187 A. 498, 504 (1936). The McNair court expanded on this proposition:

"A grand jury investigation, because of the gravity of the undertaking, must have a definite purpose to discover criminal acts which seriously affect or injure the public generally, which effect, if permitted to continue, would endanger public safety [citations omitted] or health, demoralize the personal security of members of the public, or permit systematic criminal depredations by public officers [citations omitted]. Such matters require immediate attention so that these evils may be suppressed. The criminal acts subject to investigation must be such that the ordinary process of the law is inadequate to cope with or discover them [citation omitted]." McNair's Petition, supra, 324 Pa. at 60-61, 187 A. at 504.

In Dauphin County Grand Jury Investigation Proceedings (No. 1), 332 Pa. 289, 2 A.2d 783 (1938), the supreme court emphasized that a trial court must have definite information that criminal acts have been committed and at least one or more offenses exist upon which to ground a general investigation. The supreme court granted the district attorney leave to amend or supplement his originally filed petition. The first petition was flawed because it did not contain

[ 262 Pa. Super. Page 567]

    allegations of when or where the criminal acts occurred, thus rendering it impossible for the court below to determine whether the statute of limitations or the court's jurisdiction presented any roadblocks to the investigation. The court further recognized that the petition need not set forth in detail the evidence upon which the Commonwealth relies, but must, at a minimum, delineate the specifics of one crime charged as part of the system of related criminal activity.

Appellant argues that the petition in this case contained none of the required specifics, and states further that a petition must be self-sustaining, citing Grand Jury Investigation of Western State Penitentiary, 173 Pa. Super. 197, 96 A.2d 189 (1953).*fn3 Admittedly, the petition in this case is devoid of specifics. However, the district attorney explained in the petition his failure to present details therein, and asserted his ability to provide them at the court's request. Our research unveils no case law or rule of court which prohibits the court from utilizing an in camera hearing to supplement a petition for the convening of an investigating grand jury. And further, we are satisfied that the petition and record of the hearing, when read together, were clearly adequate, under legal precedent, to authorize the lower court's order.*fn4

[ 262 Pa. Super. Page 568]

While it is true that a grand jury investigation cannot be used simply to review the quality of administration in government agencies, Grand Jury Investigation of Page 568} Western State Penitentiary, supra, or to look into negligent or poor administration of government agencies, Philadelphia County Grand Jury Investigation Case, 347 Pa. 316, 32 A.2d 199 (1943), it clearly can be utilized to investigate alleged illegalities in a state agency or local governmental unit. Dauphin County Grand Jury Investigation Proceedings (No. 1), supra.

Without question, the criteria enumerated in Lloyd and Carpenter's Case, supra, have been satisfied in the instant case. Specifically, the integrity of a state governmental agency and all those dealing with it is of vital concern to the community. Although individuals have been victimized, the taxpayer and citizens are even more jeopardized when situations such as the one with which we are here concerned are permitted to flourish. In Dauphin County Grand Jury Investigation Proceedings (No. 1), supra, it was stated that "conditions should be such as to make it reasonably impossible to obtain evidence without the aid of the grand jury." Id. 332 Pa. at 307, 2 A.2d at 792. The district attorney stated at the hearing that the subpoena power of the grand jury was greatly needed in this case, since so many contractors who were approached feared reprisal and accordingly hesitated to cooperate. The scope of the investigation was sufficiently circumscribed by the information presented at the hearing. The lower court judge delineated the scope in his order as

"the illegal solicitation of political contributions from persons and corporations desiring to have contracts within the Commonwealth and by private persons through collaboration with government employees, to obtain by theft and deception public monies, and similar or related crimes involving official corruption."

Further, it was clear from the statements read that the alleged crimes occurred within Mercer County, and, that the statute of limitations had not run on the offenses. Appellant was ultimately convicted for acts occurring in the winter of 1972-73, and was indicted on September 5, 1975, well within the six year period of limitations. See the Act

[ 262 Pa. Super. Page 569]

    of March 31, 1860, P.L. 427, § 77 (19 P.S. § 211),*fn5 as amended. Finally, we are satisfied that the district attorney adequately established that the specific crimes alleged were part of a system of illegalities and instances of official vice and corruption. Commonwealth ex rel. Camelot Detective Page 570} Agency, Inc. v. Specter, 451 Pa. 370, 303 A.2d 203 (1973), rather than isolated, unrelated incidents, and thus, were ideally addressed by an investigating grand jury.

Appellant next argues that the court below erred in permitting one witness, Peter Hoobler, to testify to the "gist" of a conversation that he had with appellant in the fall or winter of 1972-73. During 1969-70, Mr. Hoobler began leasing a truck to PennDOT for snow removal. In 1972, he was approached by someone other than appellant to contribute to the Democratic Party from five to ten percent of the income from an earlier contract with PennDOT. When his truck was not called out much in 1972 for snow removal, Mr. Hoobler went to speak with the superintendent of District 1-4. Finally, Mr. Hoobler went to appellant, and after this meeting, he contributed $100.00 in cash to a conduit to be delivered to appellant.

The following was part of Mr. Hoobler's testimony on direct examination:

"Q. Do you remember what you said to him [Appellant Bestwick], if anything?

A. I believe it was along the same words that I said ...


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