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COMMONWEALTH PENNSYLVANIA v. JACK BESTWICK (05/30/80)

decided: May 30, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
JACK BESTWICK, APPELLANT



No. 56 March Term, 1979, Appeal from Order of the Superior Court at No. 119 April Term, 1978, Affirming Order of the Court of Common Pleas, Criminal, of Mercer County, at No. 36 (9) July Sessions, 1975

COUNSEL

Timothy L. McNickle, McBride & McNickle, Grove City, for appellant.

David B. Douds, Asst. Dist. Atty., Mercer, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.

Author: O'brien

[ 489 Pa. Page 606]

OPINION OF THE COURT

Appellant, Jack Bestwick, was convicted by a jury of macing. Post-verdict motions were denied and appellant was sentenced to pay a fine of $300 and a prison term of three months to one year. The Superior Court affirmed by an equally divided court. Commonwealth v. Bestwick, 262 Pa. Super. 558, 396 A.2d 1311 (1978). We granted appellant's petition for allowance of appeal.

Appellant's conviction was based on the testimony of Philip Hoobler. Since 1969 or 1970, Hoobler had leased his truck to the Pennsylvania Department of Transportation in Mercer County during snow removal season. During the winter of 1972-73, Hoobler's truck was not being used for snow removal. Hoobler talked to appellant, assistant superintendent for PennDOT in Mercer County, who informed Hoobler that unless he contributed to the Democratic Party, his truck would not be used for snow removal. Hoobler sent $100 in cash to appellant on two separate occasions.

I.

Appellant first argues that the trial court erred in refusing to grant his petition to dismiss the presentments of the Special Investigating Grand Jury and in refusing to quash the indictments because the Commonwealth's petition requesting the Investigating Grand Jury was not self-sustaining and further failed to aver sufficient facts necessary to impanel the Grand Jury. The facts are as follows.

On June 2, 1975, the District Attorney of Mercer County petitioned the Court of Common Pleas to impanel an Investigating Grand Jury to investigate allegations of macing by supervisory personnel of PennDOT. The petition stated, inter alia :

"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

[ 489 Pa. Page 607]

    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 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 court, after considering the allegations of the petition, ordered an in camera hearing. A hearing was held the same day. The Commonwealth provided the documentation alluded to in its petition and the court ordered impanelment of the Special Investigating Grand Jury.

During the summer of 1975, the Investigating Grand Jury conducted its investigation and subsequently made presentments to the Court of Common Pleas, recommending, inter alia, that appellant be indicted for bribery, macing, extortion and conspiracy. Appellant then filed a petition to dismiss the presentments and a petition requesting a preliminary hearing. Both motions were denied.

Appellant was indicted in September of 1975. Appellant filed a motion to quash the indictments, alleging the same errors that were set forth in his motion to dismiss the presentments. The court denied the motion. Appellant was convicted of macing in a December, 1975 jury trial.

In Commonwealth v. McCloskey, 443 Pa. 117, 137 n. 26, 277 A.2d 764, 774 n. 26, cert. denied, 404 U.S. 1000, 92 S.Ct. at 559, 560, 563, 30 L.Ed.2d 552 (1971), we stated:

"It has been suggested that the minimum requisites for obtaining a grand jury are: (a) the subject matter of the investigation must affect members of the community as a whole, rather than as individuals; (b) the investigation must be aimed at conditions and not primarily at individuals; (c) the ordinary processes of the law must be inadequate to cope with the problems; (d) the investigation must have a defined scope, be aimed at crimes, and supported by information indicating the existence of a

[ 489 Pa. Page 608]

    system of related crimes or a widespread conspiracy; (e) information as to the crimes must come from direct knowledge or a trustworthy source."

Accord, McNair's Petition, 324 Pa. 48, 187 A. 498 (1936).

Appellant argues that the District Attorney's petition requesting impaneling of a Special Investigating Grand Jury was defective, thus requiring the quashing of its presentments, for the following reasons: (1) the petition failed to demonstrate that the ordinary processes of law were inadequate to cope with the situation; (2) the petition failed to allege the time and place of the specific violations of the law and the names of those involved, and (3) the petition failed to show it was aimed at conditions and not individuals. We will discuss each point seriatim.

The petition requesting impaneling of an investigative grand jury averred:

"The ordinary processes of law are inadequate to cope with this investigation and an investigative grand jury is necessary to procure a full and complete investigation for the following reasons:

"1. The subpoena power inherent in the grand jury process is necessary because:

"(a) Documentary evidence concerning the culmination of the above named offenses is in the possession and control of persons alleged to be involved in these offenses.

"(b) Certain individuals involved in this probe have refused to be interviewed by members of the Pennsylvania State Police.

"(c) Subpoena power if necessary to secure documents and exemplars in the possession of private contractors doing business with the Department of Transportation.

"(d) Due to the nature of the crimes and fear of reprisals, there is a general reluctance of witnesses to come forward with information.

"2. Normal investigative methods have proven ineffective. Witnesses and suspects have declined to cooperate

[ 489 Pa. Page 609]

    with the State Police or have made themselves unavailable to investigators."

Appellant believes that In re: Investigation of the City of Harrisburg, 91 Dauph. 54 (1969) supports his argument that the instant petition was defective as to the inadequacy of the normal process to deal with the problem there. The petition alleged the need for subpoena power to compel testimony and produce documents to investigate fiscal appropriation. The court held that an averment for need of subpoena power, as an abstract principle, does not demonstrate the requisite conditions. However, as stated in one law review article:

"It would seem to be the proper conclusion that where the other requisites for a grand jury investigation are present, and where the prosecuting officer is greatly handicapped in a particular investigation by the reluctance of witnesses to come forward with information, the courts should give considerable weight to this factor in determining whether to grant a petition for a grand jury investigation." Segal, Spivack & Costilo, Obtaining A Grand Jury Investigation in Pennsylvania, 35 Temp.L.Q. 73, 89-90 (1961) (hereinafter Segal, Spivack & Costilo).

Here, the prosecutor did more than allege an abstract need for subpoena power; he alleged, inter alia, that it was practically impossible to obtain the required facts because of reluctance of witnesses to cooperate with the investigation. We thus find no merit in appellant's argument.

Appellant next believes the petition insufficient as a matter of law because it failed to state the time and place of the violations of law and the names of those involved. The petition itself did not meet the above stated requirement. The petition, however, did state that these facts were omitted to protect the rights of the parties involved; the prosecutor was willing to provide, at an in camera hearing, documentary evidence in support of its allegations. Such a hearing was held where the prosecutor read into evidence signed statements of fourteen witnesses, given to investigating agents of the Pennsylvania Department of Justice,

[ 489 Pa. Page 610]

    which set forth the time and place of the specified offenses and the names of the individuals involved. After said hearing, the court granted the petition and ...


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