In re Special Investigating Grand Jury of April 26, 1984

37 Pa. D. & C.3d 516, 1986 Pa. Dist. & Cnty. Dec. LEXIS 407
Pennsylvania Court of Common Pleas, Philadelphia County·Decided March 14, 1986·No. no. 84-00-6304·Published

Opinion

DlNUBILE, JR., J.,

This is an appeal from a citation of direct civil contempt of court for failure of three appellants herein to comply with the dictates of a subpoena to appear before the above-mentioned special investigating grand jury presently in session in Philadelphia County and due to expire April 25, 1986. The contempt arises from the denial of appellants’ petition to quash their respective subpoenas and approve an accompanying protective order. Since appellants have refused to’ honor the provisions of the subpoenas (after the issuance of the court’s order denying their relief), they have been held in contempt of court. Appellant Nellinger was served with a subpoena to appear before the special investigating grand jury on Feb(ruary 19, 1986. Appellants Joseph and James Marianni were subpoenaed to appear on February 18, 1986. All three subpoenas were issued pursuant to an ongoing investigation conducted by the District Attorney’s Office of Philadelphia concerning patterns of corruption involving employees of the Streets Departfnent of Philadelphia. In particular, this investigation focuses on certain individuals who may have paid bribes to city employees of the [518] streets department in connection with the dumping of trash at city facilities. The alleged payments' were made by private haulers to city employees to induce them to misrepresent the actual weights of the amount of trash dumped, thereby reducing the amount of money charged by the city to these haulers. It appears (from the arguments made before this court below) that appellants may be haulers who are targets of the particular investigation in question. In response to these subpoenas, counsel for appellants notified the district attorney that his clients would assert their Fifth and Fourteenth Amendment privileges against self-incrimination if called to testify. The assistant district attorney in charge of the investigation then prepared, filed and served Hawthorne affidavits. In them, inter alia, was contained a demand that appellants’ photographs be taken to be used as part of the ongoing investigation. There also was a demand that appellant Jamés M. Marianni provide the district attorney with a handwriting sample. If appellants complied, the assistant district attorney indicated that they would not even have to appear before the grand jury to assert their privilege against self-incrimination. Motions to quash these subpoenas as well as accompanying protective orders were filed and various hearings held. All motions were denied by March 12, 1986, and this court ordered that photographs' be taken and a handwriting sample be furnished in accordance with the district attorney’s request. Counsel then asserted that his clients would not comply with the court’s order. The court then held all three appellants in direct civil contempt of court. 42 Pa.C.S. §4131, see also Commonwealth v. Maurizio, 496 Pa. 584, 437 A.2d 1195 (1981). It further ordered them to undergo incarceration commencing March 14, 1986 and ending at the date of [519] the termination of the present investigating grand jury on April 25, 1986; In accordance with the rules pertaining to a direct civil contempt, the contemners could purge themselves immediately by complying with this court’s directive. The court made it abundantly clear that the sole purpose of its citation was to coerce ^compliance. See Commonwealth v. Cameron, 501 Pa. 572, 462 A.2d 649 (1983). This appeal follows.

Appellants argue that the present Investigating Grand Jury Act of 1978 does not grant the district attorney the power to compel witnesses to submit to the taking of their photograph or providing a handwriting exemplar. Appellants concede that no Fifth or Fourteenth Amendment right against self-incriminatión can be asserted. Their sole argument is predicated upon the lack of authority contained in the act itself. A reading of the Grand Jury Act clearly leads to an opposite conclusion:

“Powers of investigating grand jury

The investigating grand jury shall have the power to inquire into offenses against the criminal laws of the Commonwealth alleged to have been committed within the county of counties in which it is summoned. Such power shall include the investigative resources of the grand jury which shall include but not be limited to the power of subpoena, ...” 42 Pa.C.S. §4548(a)

“Counsel for witnesses.

A witness subpoenaed to appear and testify before an investigating grand jury or to produce documents, records or other evidence before an investigating grand jury shall be entitled to the assistance of counsel, . . .” 42 Pa.C.S. §4549(c)(l)

“Investigative resources of the grand jury

The power to compel the attendance of investigating witnesses; the power to compel the testimony of [520] investigating witnesses under oath; the power to take investigating testimony from witnesses who have been granted immunity; the power to require the production of documents, records and other evidence; . . 42 Pa.C.S. §4542

It can be seen from a redding of these excerpts from the act that broad subpoena power is vested in the investigating authority. The rationale is apparent. Without such authority, how could a prosecutor effectively investigate and ferret out crime? To follow the narrow construction that appellants desire would have a chilling effect on any and all types of investigation. It would defeat the very purpose of the act. Appellants’ argument that the submission of a photograph and the compelling of a handwriting sample is not within the authority of the act is in direct contradiction to all existing authority. Judge Savitt, Pennsylvania Grand Jury Practice, §21.04(A)(3) at p. 92-93, §21.04(C)(3) at p. 96 (1983).

■ Appellant's further argue that the prosecutor cannot subpoena nor compel a witness to “create or manufacture” evidence. This assertion is fallacious. Following this argument to its logical conclusion would mean that all testimony would be barred and the investigating authority could call no witnesses. Cannot any witness’s oral testimony before an Investigating Grand Jury be considered the “creation of evidence?” How does a witness’s recorded oral testimony differ from the production of a handwriting sample and the taking of a photograph? Do they not all, to some extent, involve the creation of evidence? Appellants conceded that a subpoena duces tecum for the production of their photographs or handwriting sample could have been issued vali'dly. How then is it illegal and improper to require them [521] to do so at the time they are called to testify? Such an argument lacks consistency.

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In re Special Investigating Grand Jury of April 26, 1984, 37 Pa. D. & C.3d 516, 1986 Pa. Dist. & Cnty. Dec. LEXIS 407 (Pa. Super. Ct. 1986).

37 Pa. D. & C.3d 516 (In re Special Investigating Grand Jury of April 26, 1984) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Commonwealth v. Maurizio
437 A.2d 1195 (Supreme Court of Pennsylvania, 1981)
Commonwealth v. Ferguson
475 A.2d 810 (Supreme Court of Pennsylvania, 1984)
Commonwealth v. Cameron
462 A.2d 649 (Supreme Court of Pennsylvania, 1983)
Fidelity Title & Trust Co. v. Garrett
194 A. 398 (Supreme Court of Pennsylvania, 1937)
Commonwealth v. Harvey
331 A.2d 915 (Superior Court of Pennsylvania, 1974)