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COMMONWEALTH PENNSYLVANIA v. JOSEPH BROCCO (01/26/79)

decided: January 26, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH BROCCO, APPELLANT



No. 2130 October Term, 1976, Appeal from the Judgment of Sentence entered on June 21, 1976, by the Court of Common Pleas of Philadelphia County, Criminal Trial Division, Nos. 1939-1942, 2071, 2273-2274, 2278, March Term. 1975.

COUNSEL

Nicholas A. Clemente, Philadelphia, for appellant.

Bernard L. Siegel, Deputy Attorney General Philadelphia, for Com., appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Jacobs, former President Judge, Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 263 Pa. Super. Page 56]

The instant appeal is another in the long series of cases arising out of the activities of the January 1974 Philadelphia County Investigating Grand Jury. Appellant was charged in five separate indictments with conspiracy to commit perjury before the grand jury,*fn1 conspiracy,*fn2 solicitation to commit perjury*fn3 (three counts), theft by unlawful taking*fn4 (nine counts) and forgery*fn5 (fifty counts). He was acquitted of one count of forgery. The court imposed five consecutive sentences of one to two years on one count of each indictment and suspended sentence on the remaining counts for those indictments consisting of multiple counts.

Portions of the factual history will be set forth in more detail in the course of discussion of appellant's thirteen

[ 263 Pa. Super. Page 57]

    assignments of error on which this appeal is based. Briefly, however, the facts are as follows. During the period from 1973 to 1975, appellant was employed as the superintendent of the Pennsylvania Department of Transportation (PennDOT) in the Philadelphia area. In his role as superintendent, appellant was in charge of submitting the pay records of the employees under his supervision to the appropriate office. From 1973 to 1975, appellant submitted fraudulent overtime records for five men under his supervision. Under the usual procedure, separate checks were issued for the regular pay of the employees and a different check for their overtime pay. The employees then came to the office in which appellant worked to receive their checks. The Commonwealth presented the five men who testified that they had not performed the work for which the overtime checks had been issued and had only received a few of the overtime checks that had been issued to them. They further testified that they endorsed the few checks that they had received and then turned them over to appellant. Finally, they testified that they had never received nor endorsed the majority of checks that had been issued in their names. Additional evidence established that appellant had forged the signatures of the employees on these additional checks and then used other employees to cash them.

The Commonwealth also presented evidence of a second interlocking conspiracy. At appellant's request, the five PennDOT employees were summoned to a meeting with appellant's attorney. At the meeting, appellant instructed them to testify that they had given him permission to cash the overtime checks on their behalf. The employees testified to this effect before the grand jury, but later admitted the falsity of their testimony.

After post-trial motions, appellant brought this appeal alleging thirteen assignments of error.*fn6 After a reviewing

[ 263 Pa. Super. Page 58]

    the record we conclude that twelve of the assignments are without foundation. However, for reasons stated herein, we remand for a hearing regarding appellant's Pa.R.Crim.P. 1100 claim. Although appellant has raised numerous assignments of error, we deem only certain worthy of extensive discussion.*fn7

I.

Appellant's first assignment is that the investigating grand jury was without power or jurisdiction to investigate the crimes for which he was convicted. As mentioned, appellant was indicted pursuant to a presentment by the January 1974 Philadelphia Investigating Grand Jury. Without expounding at length upon the history of this grand jury, it will suffice to state that it was convened in 1972 and re-convened in 1974 to investigate corruption in the Philadelphia area involving Commonwealth and Philadelphia city officials and employees. In convening the grand jury, Judge Takiff delineated eight specific areas for investigation.*fn8

[ 263 Pa. Super. Page 59]

Appellant contends that because the charges against him arose out of the investigation of PennDOT, and because PennDOT was not one of the eight enumerated areas of investigation, the grand jury exceeded its jurisdiction in investigating that agency and the judgment against him should be set aside and the indictments quashed. We find this contention to be wholly untenable.

In convening the grand jury, Judge Takiff charged the jurors with the task of investigating charges of corruption among government employees. In this respect, Judge Takiff delineated those areas in which evidence of specific instances of corruption was known. However, in addition to the eight enumerated areas of corruption, he concluded that corruption may exist in areas known only by the participants. Accordingly, he invested the grand jury with authority to investigate the enumerated areas of known corruption "and other cognate matters" which may as yet be unknown. Thus, we conclude that because the activities of appellant involved corruption by government officials, it was a "cognate" matter within the parameters of Judge Takiff's order. Accordingly, the grand jury did not exceed its jurisdiction in this particular case.

Appellant contends, however, that even if the investigation into the present scheme falls within the parameters of Judge Takiff's charge regarding "cognate matters," such a charge amounted to an open-ended authorization to unleash the "inquisitorial" powers of the grand jury. With this contention, we cannot agree.

[ 263 Pa. Super. Page 60]

In delineating the scope of a grand jury investigation, the rule in this ...


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