Commonwealth v. Fudeman

152 A.2d 428, 396 Pa. 236, 1959 Pa. LEXIS 541

• Court: Supreme Court of Pennsylvania
• Decided: May 28, 1959
• Docket: Appeal, 348
• Status: Published

Opinions

Opinion by

Mr. Justice Bell,

Defendant appealed from an Order of the Quarter Sessions Court which dismissed his petition to quash an indictment charging him with extortion and levying blackmail. Defendant appealed to the Superior Court which quashed the appeal. An allocatur was allowed by this Court.

Defendant seeks to support his appeal by alleging that there were unauthorized and prejudicial communications between members of the Grand Jury and a member of the State Police who investigated the alleged crimes, and because the indictments were signed by the Attorney General instead of by the District Attorney. We shall discuss these in their inverse order.

The Attorney General was requested by the entire Common Pleas Court of Berks County to investigate these alleged crimes. Moreover, the District Attorney of Berks County voluntarily agreed that the Attorney General should conduct the prosecutions in their entirety, and the Attorney General did actually conduct them with the cooperation of the District Attorney.

There is no doubt that under the common law and the statutory

* and decisional law of Pennsylvania, the Attorney General has the power and, under certain circumstances, the duty to investigate any violations or alleged violations of the laws of the Commonwealth and to supplement and supervise a Grand Jury, and he may, under proper circumstances, supersede or act in conjunction with a district attorney.

In Matson v. Margiotti, 371 Pa. 188, 88 A. 2d 892, the Court pertinently said (pages 200-201) : “ ‘We conclude from the review of decided cases and historical and other authorities that the Attorney General of Pennsylvania is clothed with the powers and attributes which enveloped Attorneys General at common law, including the right to investigate criminal acts, to institute proceedings in the several counties of the Commonwealth, to sign indictments, to appear before the grand jury and submit testimony, to appear in court and to try criminal cases on the Commonwealth’s behalf, and, in any and all these activities to supersede and set aside the district attorney when in the Attorney General’s judgment** such action may be necessary.’

“These vast powers of the Attorney General were further recognized in our opinions in Dauphin County Grand Jury Proceedings No. 1, 332 Pa. 289, 298, 2 A. 2d 783; in Dauphin County Grand Jury Proceedings No. 3, 332 Pa. 358, 362, 2 A. 2d 809; in Margiotti Appeal, 365 Pa., [330], and in Com. ex rel. Margiotti v. Orsini, 368 Pa., [259], in each of which we reiterated that the Attorney General may supplement and supervise a grand jury and may under proper circumstances supersede or act in conjunction with a district attorney; and then said: . . and it is his duty to do so if he believes the government is to be hindered in the lawful conduct of its affairs to the detriment of the security, peace and good order of the State . . .

“It is obvious therefore that the powers and duties of an Attorney General as chief law enforcement officer of the Commonwealth, derived as they are from both statute and the common law, are wide and vast.”

There is absolutely no merit in this contention of the defendant, i.e., that the indictments were void because they were signed by the Attorney General.

The facts in connection with defendant’s other contention are as follows: Prior to the reconvening of the December 1957 Grand Jury, one of its members approached another member and allegedly attempted to influence and prejudice the latter in favor of the defendant. The juror who was approached communicated the facts to the Court below, as a result of which the Pennsylvania State Police during their investigation interviewed the juror who had been approached.

The following day, prior to the reception of evidence by the Grand Jury, and prior to its deliberations, the jurors were examined as on voir dire by the Deputy Attorney General in open Court. All of the jurors stated that they would consider nothing but the evidence which would be presented to them in the Grand Jury room. A person can be indicted by a majority of a Grand Jury,* which is not required, as is a Petit Jury, to act unanimously.

We consider this contention of the defendant in the light of the following pertinent principles. In Commonwealth v. O’Brien, 389 Pa. 109, 132 A. 2d 265, an appeal was taken from the Superior Court which had affirmed an Order of the Court of Quarter Sessions of Montgomery County refusing to quash an indictment brought against the defendant. Defendant contended that a Grand Jury cannot indict, without special permission of Court, a person who is not present at a preliminary hearing. This Court stated that the Superior Court should have quashed the appeal, and in our opinion dismissing the appeal, said (pages 110-111) : “Unless a bill of indictment is defective on its face, when a defendant moves to quash an indictment prior to trial, and his motion is denied by the trial court, the court’s order is interlocutory and hence, not appealable. Petition of Quay, 189 Pa. 517, 542, 42 A. 199.”

Defendant relies upon several decisions of the Supreme Court of the United States as to communications with a petit jury during a trial* which are inapposite, and upon Commonwealth v. Kilgallen, 379 Pa. 315, 108 A. 2d 780, which we shall discuss. In Commonwealth v. Kilgallen, this Court quashed a bill of indictment for bribery because the Grand Jury, in the course of its consideration of the bill, had before it, in violation of Art. III, §32 of the Constitution of Pennsylvania, defendant’s prior compulsory self-incriminating testimony. The Court reaffirmed the general rule that no appeal lies from the. refusal of a motion to quash an indictment, unless it is defective upon its face, but held that there may be exceptions, and such exceptions would be recognized “in exceptional cases and to safeguard basic human rights.”

It is clear that no basic human right of this defendant has been violated or prejudiced.

The Order of the Superior Court quashing this appeal is affirmed.

Mr. Justice McBride took no part in the consideration or decision of this case.

The Administrative Code of 1929, P. L. 177, §904, 71 P.S. §294.

The reasonable exercise of which is subject to judicial review.

While a person can be indicted by a majority of a Grand Jury, it would appear that the majority must consist of at least 12 members: 4 Wharton, Criminal Law and Procedure, §1695; Sadler, Criminal Procedure in Pennsylvania, §217, page 264; In the Matter of the Citizens Association, 8 Phila. 478, 480; Edwards, Grand Jury, page 147.

Remmer v. United States, 350 U. S. 377; Gold v. United States, 352 U. S. 985; Mattox v. United States, 146 U. S. 140; Wheaton v. United States, 133 P. 2d 522.