Commonwealth v. Columbia Investment Corp.

325 A.2d 289, 457 Pa. 353, 1974 Pa. LEXIS 846

• Court: Supreme Court of Pennsylvania
• Decided: September 5, 1974
• Docket: Appeal, 162
• Status: Published

Opinions

Opinion by

Mr. Justice Roberts,

The Commonwealth appeals from an order of the Superior Court that affirmed the trial court’s quashing of indictments against appellees Columbia Investment Corporation, and two of its officers Herbert Burstein, and Jack Shapiro. The Superior Court held that appellees were “in the status of accused persons” when called to testify before an investigating grand jury. Therefore, according to the Superior Court, appellees were entitled to be warned that wMle before the grand jury they had the unqualified right to remain silent; that anytMng they said would be used against them; that they had the right to have counsel present and to consult with counsel; and that if they were indigent, counsel would be provided without charge. See Miranda v. Arizona, 384 U.S. 436, 467-74, 86 S. Ct. 1602, 1624-27 (1966).¹ Because they did not receive these warnings, the Superior Court affirmed the quashing of the indictments. Commonwealth v. Columbia Investment Corp., 222 Pa. Superior Ct. 30, 292 A.2d 533 (1972).² This Court granted the Commonwealth’s petition for allowance of appeal.³

We conclude that when called before the grand jury, appellees were not “in the status of accused persons.” Neither were they in custody. Furthermore, no witness subpoenaed to testify before an investigating grand jury has the right either to refuse to appear or the unqualified right to appear and remain silent. Neither does a witness have the right to have his attorney present during his grand jury appearance. The warning requirement, which appellees urged for the first time on appeal, would be an unprecedented and illogical procedural burden to impose upon an investigating grand jury. Moreover, because appellees do not claim that they were compelled to answer any potentially incriminating questions, we fail to see how they were prejudiced by lack of the warnings they now argue they were entitled to.

I

The District Attorney of Philadelphia on March 30, 1969, petitioned for the convening of an investigating grand jury to inquire into alleged “widespread corruption” in programs administered by the Philadelphia Housing Authority. Some developers were specifically named in the petition as having fraudulently secured payments for unperformed construction. Appellees were not among those named.

On October 2,1969, Burstein and Shapiro were questioned by the district attorney about their connection with Philadelphia Housing Authority programs. After this interview appellees were informed that their answers were unsatisfactory, that they were subject to immediate arrest, that a grand jury was investigating public housing programs, and that they would be subpoenaed to appear before that grand jury.

In response to subpoenas the individual appellees, on October 9, 1969, appeared before the supervising judge. Appellees’ counsel requested that he be permitted to accompany Burstein and Shapiro into the grand jury room. The motion was denied. Counsel then asked that appellees be allowed to leave the grand jury room during the course of examination if they required advice whether they should answer a particular question or claim the privilege against self-incrimination. Although this motion was also denied, Judge Sloane then did advise appellees: “Each one of you has a right to have a lawyer, you have a right to consult with him, advise with him, be guided by him. Every aspect of the relationship between lawyer and client must be respected by everybody. And you have a right to confide in your lawyer after you come out of the grand jury room. After you come out of the grand jury room, you have a right to place full confidence in your lawyer — but in no one else. During the time that you are in the grand jury room, you do not have a lawyer with you. You have a right to say, ‘I do not understand the quesion’; ‘you have a right to say that you will not answer a question because you think it might hurt you if you do, hurt you criminally if you do. And then the onus is on the Court to determine whether that question should be answered.’ ” Counsel requested no further instructions and none were given. The question before us is whether more was required.

Burstein and Shapiro then appeared before the investigating grand jury and answered various questions. Appellees do not contend that while testifying they were ordered to answer questions which might have tended to incriminate them. On October 14, 1969, the grand jury submitted to the court its seventh presentment recommending indictment of Burstein, Shapiro, and Columbia for false pretense and conspiracy. The indicting grand jury thereafter returned one hundred and fifty-six indictments against the corporate and individual appellees.

The trial court quashed the indictments on the following four grounds. It held that appellees were deprived of their privilege against self-incrimination when, pursuant to subpoenas, they testified before the investigating grand jury. Second, the trial court concluded that appellees were similarly denied their right to counsel. Third, in its view, prior to indictment appellees were entitled to a preliminary hearing. Finally, according to the trial court the presence of a stenographer in the investigating grand jury room violated our rules of criminal procedure.⁴

In Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764, cert. denied, 404 U.S. 1000, 92 S. Ct. 563 (1971), this Court affirmed the quashing of indictments returned against persons who, prior to testifying before this same investigating grand jury, had not been afforded the instruction which Judge Sloane gave these appellees. We held that prior to testifying, a witness must be instructed that he may consult with a lawyer before and after testifying, but not while he is giving testimony. He must also be advised that should any doubt arise whether he may invoke the privilege against self-incrimination in response to a particular question, he and his counsel may come before the court and obtain a ruling on the propriety of refusing to answer. Id. at 143, 277 A.2d at 777. This Court there expressly held that neither the Fifth Amendment nor the Sixth Amendment nor Article I, Section 9 of the Pennsylvania Constitution require that counsel be available at all times to a witness before an investigating grand jury. Id. at 141-42, 277 A.2d at 776-77.

The Superior Court majority attempted to distinguish McCloskey on the ground that “[t]he instant case . .. involves individuals who were not mere witnesses before the grand jury. These individuals were in the status of accused persons about to be recommended for indictment at the time they were compelled to testify.” 222 Pa. Superior Ct. at 35, 292 A.2d at 536.

Although appellees allege no prejudice, the Superior Court majority held that the failure of the supervising judge to administer complete Miranda warnings required quashing of the indictments. Id. at 38, 292 A.2d at 537.

We consider four questions: First, were appellees, when called to testify before the investigating grand jury, “in custody”? Second, does any person — witness, potential defendant, or “virtual defendant” — have the right to refuse to appear or to appear and remain silent when subpoenaed by an investigating grand jury? Third, were appellees, as the Superior Court majority concluded, “in the status of accused persons”? And finally do any of the other reasons advanced by the trial court justify quashing the indictments?

II

The implications of the Superior Court’s holding should be fully understood. If Miranda warnings are constitutionally required when one in the situation of the individual appellees is called before an investigating grand jury, then he must be afforded the presence of an attorney while testifying or be allowed to remain silent when before the grand jury. The Superior Court’s interpretation is completely at odds with the rationale of Miranda v. Arizona, supra, and of Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964), and with the historical function of the grand jury.⁵

This Court in McCloskey categorically rejected the contention that Miranda and Escobedo are applicable to grand jury situations.

“Neither Escobedo nor Miranda were even remotely concerned with right to counsel before an investigating grand jury. The interpretation urged by appellees that counsel be accessible at all times during a witness’s appearance is an unwarranted extention of the teaching of these decisions.” Commonwealth v. McCloskey, supra, at 142, 277 A.2d at 777. Miranda and Escobedo are aimed at the coercion inherent in “statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, supra, at 445, 86 S. Ct. at 1612.

The United States Supreme Court, through the use of empirical data concerning police tactics designed to break the will of an in-custody accused, clearly indicated that its concern was with custodial interrogation and the oppressive tactics and subterfuges employed by police officers seeking to obtain incriminating statements. See id. at 445-59, 86 S. Ct. at 1612-19.⁶ This Court has consistently applied Miranda only to such in-custody interrogation situations. E.g., Commonwealth v. D’Nicuola, 448 Pa. 54, 292 A.2d 333 (1972); Commonwealth v. Simala, 434 Pa. 219, 252 A.2d 575 (1969); Commonwealth v. Bordner, 432 Pa. 405, 247 A.2d 612 (1968); Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d 765 (1967).

Although our Court has never been reluctant to apply Miranda to custodial interrogation situations, we have never held that testimony before a grand jury, investigating or indicting, is the equivalent of in-custody police interrogation. When confronted with the question of what warnings are necessary before testimony is taken by an investigating grand jury, we formulated a warning specifically designed for the unique situation an investigating grand jury presents. Commonwealth v. McCloskey, supra.

Our reasoning in refusing to extend Miranda to a grand jury witness is entirely consistent with that of the United States Supreme Court. That Court only one year ago observed that “[t]he compulsion exerted by a grand jury subpoena differs from the seizure effected by an arrest or even an investigative ‘stop’ in more than civic obligation.” United States v. Dionisio, 410 U.S. 1, 10, 93 S. Ct. 764, 769 (1973).

The Court quoted Chief Judge Friendly writing for the Court of Appeals for the Second Circuit: “The latter [an arrest or investigative stop] is abrupt, is effected with force or the threat of it and often in demeaning circumstances, and, in tlie case of arrest, results in a record involving social stigma. A subpoena is served in the same manner as other legal process; it involves no stigma whatever; if the time for appearance is inconvenient, this can generally be altered; and it remains at all times under the control and supervision of a court.”⁷ Manifestly, one subpoenaed to testify before a lawfully-constituted grand jury such as this, see Commonwealth ex rel. Camelot Detective Agency, Inc. v. Specter, 451 Pa. 370, 303 A.2d 203 (1973), is not subjected to in-custody interrogation. Hence Miranda warnings are not required.

Ill

Another compelling basis for holding that Miranda warnings are not mandated is that one giving testimony before a grand jury, whether witness, potential defendant, or “virtual defendant,” is not privileged to refuse to testify.⁸ He may, of course, assert his privilege against self-incrimination in response to a particular question. Here the supervising judge gave a warning accurately reflecting the rights that could be asserted by witnesses before the investigating grand jury. Judge Sloane clearly advised appellees and their counsel that they were privileged to refuse to give any potentially incriminating answers and that if unsure of the privilege’s applicability to a particular question, they and their counsel were entitled to a preliminary ruling on the incriminating nature of the question.⁹

United States v. Luxenberg, 374 F.2d 241 (6th Cir. 1967), and Stanley v. United States, 245 F. 2d 427 (6th. Cir. 1957), relied upon by appellees and the trial court, require no more. In Luwenberg, the court did not address the question whether Mvranda warnings were necessary when a “virtual defendant” is called before a grand jury because appellants had stipulated that they were not, when called, “virtual defendants.” Similarly, in Stanley, the putative “virtual defendant” neither showed nor claimed that he was charged with any crime at the time he testified before the grand jury; Stanley’s testimony like appellees’ was not incriminating. The court refused to dismiss the indictment. Stanley v. United States, supra, at 434-35. Although in each case, the Sixth Circuit stated that one called before a grand jury must be advised of his privilege against self-incrimination, there is no statement or intimation that the right to remain silent should apply before a grand jury.¹⁰

Other federal courts which, have considered applicability of Miranda to grand jury testimony have refused to extend the warning requirement. See United States v. Corallo, 413 F.2d 1306 (2d Cir.), cert. denied, 396 U.S. 958, 90 S. Ct. 431 (1969); United States v. Levinson, 405 F.2d 971 (6th Cir. 1968), cert. denied, 395 U.S. 958, 89 S. Ct. 2097 (1969); see also In re Groban, 352 U.S. 330, 77 S. Ct. 510 (1957); In re Grumbles, 453 F.2d 119 (3d Cir. 1971), cert. denied, 406 U.S. 932, 92 S. Ct. 1806 (1972).

Indeed, Chief Judge Friendly recently stated that “even the fact that the witness may himself be the subject of the grand jury investigation does not entitle him to refuse to appear.” United States v. Doe (Schwartz), 457 F.2d 895, 898 (2d Cir. 1972), cert. denied, 410 U.S. 941, 93 S. Ct. 1376 (1973). Likewise, Mr. Justice Stewart, speaking for the Court in United States v. Dionisio, 410 U.S. 1, 10 n.8, 93 S. Ct. 764, 769 n.8 (1973) commented, “The obligation to appear is no different for a person who may himself be the subject of the grand jury inquiry.” Accord, United States v. Winter, 348 F.2d 204, 207-08 (2d Cir.), cert. denied, 382 U.S. 955, 86 S. Ct. 429 (1965); United States v. Scully, 225 F.2d 113 (2d Cir.), cert. denied, 350 U.S. 897, 76 S. Ct. 156 (1955); United States v. Boyle, 338 F. Supp. 1028, 1036 (D.D.C. 1972).

It must be concluded that a grand jury witness, virtual defendant or otherwise, does not have the right to refuse to appear before a grand jury and, once there, does not have an unqualified right to remain silent. Requiring Miranda warnings to be administered to grand jury witnesses would not only be an unprecedented and unwarranted extention of Miranda, it would be illogical and confusing because it would erroneously imply the existence of two nonexistent rights — the unqualified right to remain silent and the right to have counsel present in the grand jury room. The instructions required by Commonwealth v. McCloskey, here administered to appellees in the presence of counsel prior to appellees testifying, completely appraise any grand jury witness, “virtual defendant” or otherwise, of the Fifth and Sixth Amendment rights available to him.

IV

We do not however rest our decision exclusively upon our determination that one subpoenaed to testify before an investigating grand jury is not in custody or on our determination that one called before a grand jury may not refuse to appear or remain silent. A complete examination of the facts surrounding the testimony of Burstein and Shapiro convinces us that they were not, as the Superior Court erroneously concluded, “in the status of accused persons.”¹¹

Here appellees were in the same position as any other witness called before the investigating grand jury. That Burstein and Shapiro may have been potential defendants cannot be denied. However, as of the time appellees were subpoenaed and appeared before the grand jury they were not, as the Superior Court mistakenly held, “in the status of accused persons upon whom a police investigation has focused.”

The district attorney’s questioning of appellees, prior to issuing subpoenas as a part of the investigation of Philadelphia Housing Authority programs, did not mark them as criminal defendants. The prosecutor’s dissatisfaction with appellees’ answers does not establish that evidence sufficient to indict existed.¹² Appellees would have us hold that when a potential defendant decides that the prosecuting authorities have evidence sufficient to obtain an indictment he may then either refuse to appear or remain silent before an investigating grand jury. We expressly decline to permit the witness to decide ex parte whether to appear or to refuse to appear. The privilege against self-incrimination guaranteed by the Fifth Amendment and Article I, Section 9 of the Pennsylvania Constitution, as implemented through this Court’s McOloshey decision, provides ample protection to one giving testimony before an investigating grand jury.¹³

Y

The Superior Court majority in affirming the quashing of the indictments discussed only the necessity for Miranda warnings. Before the indictments may be reinstated, we must examine the trial court’s alternate grounds for quashing.

First, the trial court concluded that the Commonwealth’s failure to have appellees arrested and given a preliminary hearing violated our rules of criminal procedure. Therefore, the indictments had to be quashed. We examined this precise claim in McCloskey, and determined that our rules do not abolish the traditional procedure by which an investigating grand jury makes a presentment. The absence of a preliminary hearing was thus held not to justify quashing the indictments; this conclusion is equally applicable to the instant case. See Commonwealth v. McCloskey, supra, at 127-29, 277 A.2d at 769-70.¹⁴

Second, appellees have failed to demonstrate how they were prejudiced by the presence of a court-appointed and sworn stenographer in the investigating grand jury room. Furthermore, neither appellees nor their counsel interposed objection to the presence of the stenographer and no prejudice has been alleged. The trial judge thus erred in quashing the indictments on this basis.

Additionally, the Pennsylvania rule of criminal procedure proscribing the recording of testimony in grand jury proceedings¹⁵ is directed solely to indicting grand juries.¹⁶ The entire thrust of our rules is toward regulating prosecutorial discretion and possible abuses of the indicting grand jury. See, e.g., Pa. R. Crim. P. 200, 203, 210, 211, 213-21, 224.

Procedural regulation of investigating grand juries, on the other hand, is accomplished through the close supervision of a presiding judge and superintendance by our appellate courts. See, e.g., Commonwealth ex rel. Camelot Detective Agency, Inc. v. Specter, 451 Pa. 370, 303 A.2d 203 (1973); Commonwealth v. McCloskey, supra; Commonwealth v. Kilgallen, 379 Pa. 315, 108 A.2d 780 (1954); McNair’s Petition, 324 Pa. 48, 187 A. 498 (1936); Manko Appeal, 168 Pa. Superior Ct. 177, 77 A.2d 700 (1951). In McCloskey, this Court concluded that recording of proceedings before an investigating grand jury is a positive advantage to one subsequently indicted. At trial, the accused, if he desires, will have the benefit of relevant portions of the recorded testimony for purposes of impeachment. Id. at 138, 277 A.2d at 772-73. This advantage may be particularly valuable when, as here and in McCloskey, no preliminary hearing is held. Other than this use of the notes of testimony and the very real need of the investigating grand jurors for a record in deciding whether to issue a presentment, the transcript is under court supervision and is kept strictly secret.¹⁷

The final ground for quashing advanced by the trial court was the alleged denial of the right to counsel. Appellees argued, and the trial court held, that the Sixth Amendment requires that grand jury witnesses be permitted to leave the grand jury room to consult with waiting counsel. The court accepted the procedure adopted by the New York courts. See People v. Ianniello, 21 N.Y.2d 418, 235 N.E.2d 439, 288 N.Y.S.2d 462, cert. denied, 393 U.S. 827, 89 S. Ct. 90 (1968). See also United States v. Capaldo, 402 F.2d 821 (2d Cir. 1968), cert. denied, 394 U.S. 989, 89 S. Ct. 1476 (1969).¹⁸

In McCloshey this Court faced the issue whether one testifying before a grand jury must be afforded the right to consult with counsel at the door to the grand jury room. We examined the New York system and reasoned that “[t]he essential element of judicial supervision would not be available were a witness permitted at will to consult with his attorney for an indefinite period of time after every question, no matter how unmeritorious his objection.”

We there concluded that in Pennsylvania if one testifying before a grand jury is uncertain of the propriety of refusing to answer a particular question, he may not, as in New York, consult with counsel at the grand jury room door. He may, however, leave the grand jury room and with his counsel appear before the supervising judge. While affording the witness the important right to consult with Ms attorney, tMs system prevents abuse of that right by maintaining judicial cogmzance of the witnesses’ conduct.¹⁹ Our system maintains close liaison between supervising judge, grand jury witnesses, and counsel.

The McGloshey regimen consequently provides the grand jury witness with greater protection than does the New York system. In Pennsylvania, not only may the doubtful witness consult with counsel, but he is entitled to a preliminary ruling by the supervising judge on the merits of a claim of privilege. Both the rights of the witness and the need for adequate judicial supervision of the investigating grand jury are protected. See Commonwealth v. McCloskey, supra, at 140-45, 277 A.2d at 776-78.

As noted earlier, appellees have never claimed that they in fact answered any potentially incriminating questions. Since appellees do not claim that they have answered incriminating questions, whether they were or were not adequately warned of their right to counsel becomes irrelevant. Moreover, appellees cannot possibly, in the present factual situation and in view of the supervising judge’s instructions, point to any prejudice caused by the alleged lack of warnings.

VI

“For more than three centuries it has now been recognized as a fundamental maxim that the public (in the words sanctioned by Lord Hardwicke) has a right to every man’s evidence.” 8 J. Wigmore, Evidence § 2192, at 70 (McNaghten rev. 1961). This maxim is particularly applicable to an investigating grand jury.

“It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime. As has been said before, the identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury labors, not at the beginning.” Blair v. United States, 250 U.S. 273, 282, 39 S. Ct. 468, 471 (1919). See United States v. Calandra, 414 U.S. 338, 343, 94 S. Ct. 613, 617 (1974); Branzburg v. Hayes, 408 U.S. 665, 688, 92 S. Ct. 2646, 2660 (1972).

Review of the record satisfies us that appellees were in no sense prejudiced by their appearance before the investigating grand jury. The supervising judge, immediately prior to their entering the grand jury room, fully informed them in the presence of their counsel of their constitutional rights before the grand jury. No objection to these instructions was interposed. Although appellees testified, they do not allege that they were compelled to or did answer any incriminating questions. The record fails to indicate any basis for quashing the indictments.

The order of the Superior Court is reversed and the indictments reinstated.

1 Initially we note that the trial court properly refused to quash the indictment against the corporate appellee, Columbia. A corporation may not claim the Fifth Amendment right against self-incrimination. Bellis v. United States, 417 U.S. 85, 94 S. Ct. 2179 (1974); Commonwealth ex rel. Camelot Detective Agency, Inc. v. Specter, 451 Pa. 370, 375 n.1, 303 A.2d 203, 206 n.1 (1973); see Campbell Printing Corp. v. Reid, 392 U.S. 286, 289, 88 S. Ct. 1978, 1980 (1968); Curcio v. United States, 354 U.S. 118, 77 S. Ct. 1145 (1957); United States v. White, 322 U.S. 694, 64 S. Ct. 1248 (1944); Hale v. Henkel, 201 U.S. 43, 26 S. Ct. 370 (1906).

2 Montgomery, J., filed a dissenting opinion, in wMcli Wright, P. J., and Watkins, J., joined. Commonwealth v. Columbia Inv. Corp., 222 Pa. Superior Ct. 30, 41, 292 A.2d 533, 539 (1972).

3 See Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 204(a), 17 P.S. § 211.204(a) (Supp. 1973).

4 It should be noted that the trial court's order quashing the indictments was issued on October 21, 1970. Judge Smith thus did not have the benefit of this Court's decision in Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764, cert. denied, 404 U.S. 1000, 92 S. Ct. 563 (1971).

5 See United States v. Calandra, 414 U.S. 338, 342-47, 94 S. Ct. 613, 617-19 (1974). For a discussion of the history and role of the grand jury, see id. at 342 n.3, 94 S. Ct. at 617 n.3, and Commonwealth v. McCloskey, 443 Pa. 117, 131-34, 277 A.2d 764, 771-72, cert. denied, 404 U.S. 1000, 92 S. Ct. 563 (1971).

6 The in-custody test is essentially identical to the foeus-on test applied in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964). See Miranda v. Arizona, 384 U.S. 436, 444 & n.4, 86 S. Ct. 1602, 1612 & n.4 (1966).

7 United States v. Dionisio, 410 U.S. 1, 10, 93 S. Ct. 764, 770 (1973) (quoting United States v. Doe (Schwartz), 457 F. 2d 895, 898 (2d Cir. 1972), cert. denied, 410 U.S. 941, 93 S. Ct. 1376 (1973)). See United States v. Mara, 410 U.S. 19, 93 S C.t. 774 (1973).

8 Appellees’ reliance on Sheridan v. Garrison, 273 F. Supp. 673 (E.D. La. 1967), rev’d on other grounds, 415 F.2d 699 (5th Cir. 1969), cert. denied, 396 U.S. 1040, 90 S. Ct. 685 (1970), is misplaced. There the district court enjoined enforcement of a subpoena issued to Sheridan by a state grand jury. The court makes clear, however, that “Sheridan is not only the focus of suspicion: he is formally charged with the crime of public bribery.” 273 F. Supp. at 678. Instantly Burstein and Shapiro concede that when subpoenaed they were not “formally charged.” We need neither approve or disapprove the holding in Sheridan. It is sufficient merely to note that Bur-stein and Shapiro, unlike Sheridan, were not formally charged.

We are next urged to interpret Commonwealth v. Kilgallen, 379 Pa. 315, 108 A.2d 780 (1954), and Manko Appeal, 168 Pa. Superior Ct. 177, 77 A.2d 700 (1951), as holding that an accused may either refuse to appear or appear and remain silent when subpoenaed by au investigating grand jury. We need not decide this question because whatever the holdings of Kilgallen and Manko, they are not applicable to the instant appellees. Kilgallen, Manko, and co-defendant Gross were specifically named in the petition for the calling of the investigating grand jury. They were, therefore, effectively charged when subpoenaed. The entire grand jury investigation was directed toward gathering evidence against them. Here, appellees were not named in the petition. They were merely three witnesss, and perhaps potential defendants, among hundreds. Their situation is easily distinguishable from that in Kilgallen and Manko. In Kilgallen this Court specifically held, “where one is charged with a specific crime or crimes in a petition for the calling of an investigatory grand jury, he cannot be compelled to testify before such grand jury if he claims his constitutional privilege . . . .” Commonwealth v. Kilgallen, supra, at 321, 108 A.2d at 783 (quoting Manko Appeal, supra, at 179, 77 A.2d at 701).

9 Appellees’ argument centers on a single point. It is not contended that while testifying Burstein and Shapiro were compelled to answer questions which might have tended to incriminate them. Rather, appellees assert that “It was the appearance of Burstein and Shapiro before the grand jury, and the grand jury’s disbelief of the assertions of innocence, which caused the grand jury to conclude that Burstein and Shapiro had committed deliberate fraud.’’ (Emphasis added).

This theory, however, is purely conjectural and not persuasive. Earlier, appellees claimed that the indictments must be quashed because prior to calling them to testify before the grand jury the Commonwealth had evidence sufficient to indict. Now we are urged that it was the appearance of Burstein and Shapiro which caused the investigating grand jury to present them for indictment. Certainly if the district attorney had evidence sufficient to indict before subpoenaing appellees, and they gave no incriminating testimony before the grand jury, appellees’ argument is nothing more than an attempt to bootstrap a non-incriminating appearance before the grand jury to the level of incriminating evidence.

There is simply no evidence to support appellees’ theory that their mere appearance led to presentment. We find no basis for their intuitive notion that the grand jury based its action on disbelief of their assertions of innocence. We can only conclude that this theory is nothing more than completely unsupported speculation. On this record it must be concluded that the grand jury based the presentment on evidence adduced during its extensive examination of numerous other witnesses familiar with the operation of the Philadelphia Housing Authority.

10 More recently, the United States District Court for the Western District of Texas examined the applicability of Miranda to grand jury situations and held that full Miranda warnings were not required. United States v. Rangel, 365 F. Supp. 155, 161-62 (W.D. Tex. 1973).

The instructions given to Burstein and Shapiro by the supervising judge were at least as broad, and in all probability broader, than those required in Rangel. In spite of repeated references to Miranda, the Rangel court never addressed or even alluded to any right of grand jury witness, “virtual defendant” or not, to remain silent. See also United States v. Fruchtman, 282 F. Supp. 534 (N.D. Ohio 1968).

In Mattox v. Carson, 295 F. Supp. 1054 (M.D. Fla. 1969), aff’d on other grounds, 424 F.2d 202 (5th Cir. 1970), the district court granted a petition for habeas corpus. The court found that prior to testifying before a grand jury, petitioners, who were virtual defendants, had signed waiver of immunity forms without being advised of their Fifth and Sixth Amendment rights. This failure to warn, it was held, prevented petitioners from knowingly and intelligently waiving their rights. The court’s holding does not address the right to have counsel in the grand jury room nor the right of any witness to remain silent before a grand jury. See id. at 1059.

11 That appellees were not in the same status as a criminal accused is implicit in our holding that they were not “in custody.” See n.6 supra & accompanying text; Miranda v. Arizona, 384 U.S. 436, 444 & n.4, 86 S. Ct. 1602 & n.4 (1966).

12 See Commonwealth v. Columbia Inv. Corp., 222 Pa. Superior Ct. 30, 42-43, 292 A.2d 533, 539-40 (1972) (Montgomery, J., dissenting, joined by Weight, P. J., and Watkins, J.).

13 Tbe Superior Court erroneously relied on Commonwealth v. Kilgallen, 379 Pa. 315, 108 A.2d 780 (1954), and Manko Appeal, 168 Pa. Superior Ct. 177, 77 A.2d 700 (1951), to show that appellees were “accsued.” Manko, Kilgallen, and co-defendant Gross were accused “by name, of particular offenses and of a general conspiracy” in the district attorney’s petition for an investigating grand jury. Manko Appeal, supra, at 179, 77 A.2d at 701. Appellees cannot claim, as did Manko, Kilgallen and Gross, that the entire grand jury investigation is directed against them. Those decisions do not support appellees’ claim that they were “in the status of accused persons.”

14 Pa. R. Crim. P. 102 & 116(b)(2). These rules have been revised since the date of the trial court’s opinion. However, the present appeal is governed by the former rules. See Commonwealth v. McCloskey, 443 Pa. 117, 127-28 nn.15-16, 277 A.2d 764, 769 nn.15-16, cert. denied, 404 U.S. 1000, 92 S. Ct. 563 (1971).

15 See Pa. R. Crim. P. 208-09.

16 See Pa. R. Crim. P. 200-24.

17 Pour reasons for grand jury secrecy are usually advanced.

“1. The grand jurors should be free from the apprehension that

their opinions and votes may subsequently be disclosed by compulsion ;

“2. The complainants and witnesses summoned should be free from the apprehension that their testimony may be subsequently disclosed by compulsion so that the state may secure willing witnesses ;

“3. The guilty accused should not be provided with information that might enable him to flee from arrest, suborn false testimony, or tamper with witnesses or grand jurors;

“4. The innocent accused, who is charged by complaint before the grand jury but exonerated by its refusal to indict, should be protected from the compulsory disclosure of the fact that he has been groundlessly accused.” Calkins, Grand Jury Secrecy, 63 Mich. h. Rev. 455, 458-59 (1965). None of these policies are in any way denegrated by the use, under court supervision, of recorded testimony by the grand jurors in their deliberations and the release of advantageous excerpts to an accused when fairness demands.

18 The trial court properly refused to hold that one testifying before an investigating grand jury is entitled to counsel inside the grand jury room.

19 As Judge Brietel observed in People v. Ianniello, 21 N.Y.2d 418, 425, 235 N.E.2d 439, 443-44, 288 N.Y.S.2d 462, 469, cert. denied, 393 U.S. 827, 89 S. Ct. 90 (1968):

“Where a witness persists in raising objections which are palpably not in good faith, the judge may compel him to desist from this course under the sanction of contempt proceedings.”