No. 564 April Term, 1977, Appeal from the Judgment of Sentence imposed by the Court of Common Pleas of Mercer County, Criminal Division at Nos. 36 (5), (6) July Sessions, 1975.
Charles F. Gilchrest, Sharon, for appellant.
Samuel J. Orr, IV, District Attorney, Mercer, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring statement. Cercone, President Judge, dissents. Jacobs, former President Judge, Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
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This appeal arises from the denial by the court below of appellant's motions for a new trial and in arrest of judgment, following conviction after trial by jury of misapplication of entrusted or government property*fn1 and criminal conspiracy.*fn2 Appellant raises six issues for our consideration, none of which we find meritorious, and we accordingly affirm the judgment of sentence.
On June 4, 1975, the Honorable John Q. Stranahan authorized the convening of an investigating grand jury to inquire into activities of the Pennsylvania Department of Transportation (PennDOT), District 1-4. The grand jury was to deal with "the illegal solicitation of political contributions from persons and corporations desiring to have contracts within the Commonwealth and by private persons through collaboration
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with government employees, to obtain by theft and deception public monies, and similar or related crimes involving official corruption." During its investigation, the grand jury probed the disappearance from the Mercer County maintenance garage of a Case hi-lift, owned by PennDOT.
On July 17, 1975, the grand jury recommended the indictment of appellant and three other individuals in connection with the hi-lift's disappearance. Only one of the three, Joseph Fontana, whose appeal to this court is filed at No. 603 April Term, 1977, was not a PennDOT employee.
We will first address appellant's contentions regarding the grand jury proceedings and ultimate presentments. Appellant asserts that the petition to convene the grand jury was not legally sufficient, that the court below erred in permitting the petition to be buttressed by an in camera hearing, and that his petition to quash should therefore have been granted. In Commonwealth v. Bestwick, 262 Pa. Super. 558, 396 A.2d 1311 (1978) this court, evenly divided, affirmed the judgment of sentence of another PennDOT employee whose conviction stemmed from the same investigating grand jury. This author's opinion in support of affirmance addressed the identical issue here raised and determined it adversely to the appellant's position. Our reasoning applies with equal force in the instant appeal.
Appellant maintains that the order authorizing the grand jury's impaneling did not limit the scope of the investigation with the precision and definiteness required, and in fact authorized an investigation broader in scope than the district attorney requested.
The district attorney's petition stated that his office was "conducting an investigation into allegations of the macing of employees of the Pennsylvania Department of Transportation in Mercer County for political donations." The petitioner asserted that some department personnel had extorted funds from individuals seeking contracts with PennDOT, and that some contract awardees were required to return a
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percentage of their earnings to PennDOT personnel. Non-PennDOT employees, with the help of supervisory personnel, were believed to have formed a paper corporation to collect fees for work never done. The petition stressed that these were not unrelated incidents, but rather were part of a "widespread and systematic scheme by which a large number of ...