Commonwealth v. Soloff

107 A.2d 179, 175 Pa. Super. 423, 1954 Pa. Super. LEXIS 422

• Court: Superior Court of Pennsylvania
• Decided: July 13, 1954
• Docket: Appeals, 98, 99 and 100
• Status: Published

Opinions

Opinion by

Ross, J.,

The defendants, Jack Soloff, Leonard Hall and Martin J. Scanlon, police officers of the City of Pittsburgh, were convicted and sentenced for simple assault and battery after a trial before a judge and jury in the Court of Quarter Sessions of Allegheny County. Motions in arrest of judgment and for a new trial were refused by the court below, and this appeal followed.

At No. 59 September Sessions 1950, in the Court of Quarter Sessions of Allegheny County, the Attorney General of Pennsylvania, who had superseded the District Attorney of Allegheny County, filed a petition asking that a special investigating grand jury be summoned.¹ The petition averred that there existed widespread conspiracies to cheat and defraud the City of Pittsburgh of its properties, supplies and labor; that certain city officials had received money, property and other valuable things to influence their official conduct; that city officials and employes had failed to comply with certain statutes relating to the awarding of contracts; that gambling establishments, lotteries and houses of prostitution operated with the wilful, knoAving and corrupt connivance of public officials and employes of the City of Pittsburgh and Allegheny County, and that said officials and employes had accepted bribes for permitting such illegal operations.

In response to the petition an investigating grand jury was impaneled, and on January 2, 1952 it filed a presentment recommending, inter alia, the indictment of the defendants for aggravated assault and battery allegedly committed when arresting a sex offender, one Sehilpp. Pursuant to this recommendation of the investigating grand jury, the Attorney General prepared and submitted to the regular March (1952) grand jury indictments “based upon the Presentment at No. 59 September Sessions, 1950” charging the defendants with aggravated assault and battery upon the person of Schilpp. True bills were returned by the indicting grand jury. Before the trial, the defendants moved to quash the indictments and for a continuance. Both motions were refused and the prosecution proceeded.

Schilpp, who had been tried and convicted on a charge of solicitation to commit sodomy brought by the defendants, testified at their trial that they had beaten him in order to secure a conviction.

The question involved in this appeal is whether the presentment — upon which the indictment was based— was within the orbit of authority of the investigating grand jury, such authority being limited by the scope of the petition which caused the impaneling of such jw-

“A grand jury investigation, because of the gravity of the undertaking, must have a definite purpose to discover criminal acts which seriously affect or injure the public generally, which effect, if permitted to continue, would endanger public safety [citing cases], or health, demoralize the personal security of members of the public, or permit systematic criminal depredations by public officers: [citing cases]. Such matters require immediate attention so that these evils may be suppressed. The criminal acts subject to investigation must be such that the ordinary process of the law is inadequate to cope with or discover them. . . .” McNair’s Petition, 324 Pa. 48, 60-61, 187 A. 498. In Com. v. Klein, 40 Pa. Superior Ct. 352, 357, this Court stated: “This extraordinary power [to depart from the ordinary mode of criminal procedure which affords equal justice to accuser and accused] is to be exercised sparingly, with great caution and only when special circumstances or pressing emergencies require it for the suppression of general and public evils, affecting in their influence and operation communities rather than individuals.” See also Com. v. Green, 126 Pa. 531, 17 A. 878.

We think it clear that the matters of public concern which the Attorney General alleged in his petition and which the grand jury was summoned to investigate did not include an isolated instance of overzealous law enforcement or police brutality. On the contrary, the conclusion is inescapable that the Attorney General sought to unearth evidence indicating that the Pittsburgh police and public officials protected criminals for financial gain.

Consequently, we hold that the crime for which these defendants were tried and convicted was not the proper subject of a presentment by the investigating grand jury. Such crime was not cognate to any offense as disclosed by the petition, and, therefore, it seems clear that assault and battery committed by police officers while making an arrest was not within the orbit of authority prescribed for the investigating grand jury. Hence there is no justification for depriving the defendants of their right to the relative advantages accorded by the usual mode of instituting criminal proceedings.

The Commonwealth questions the timeliness of the motion to quash, but in our opinion this contention is without merit.

Judgment of sentence- reversed, and the defendants discharged.

1 For tlie proceedings antecedent to tlie summoning of tlie special investigating grand jury, see Margiotti Appeal, 365 Pa. 330, 75 A. 2d 465.