In re the April, 1977, Special Investigating Grand Jury

394 A.2d 1266, 483 Pa. 203, 1978 Pa. LEXIS 1158
CourtSupreme Court of Pennsylvania
DecidedNovember 29, 1978
DocketNo. 157
StatusPublished

This text of 394 A.2d 1266 (In re the April, 1977, Special Investigating Grand Jury) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the April, 1977, Special Investigating Grand Jury, 394 A.2d 1266, 483 Pa. 203, 1978 Pa. LEXIS 1158 (Pa. 1978).

Opinion

OPINION OF THE COURT

O’BRIEN, Justice.

In June, 1977, the April 1977 Special Investigating Grand Jury was impaneled in Philadelphia with Judge Edwin S. [205]*205Maimed as the presiding judge. The charge of the grand jury is to investigate allegations of criminal conduct in connection with charitable fund raising activities in Philadelphia 1 and contains the following descriptions of the types of criminal conduct to be investigated:

“1. Charitable fund raising on behalf of sham or non-existent charities.
“2. Charitable fund raising on behalf of legitimate charities where:
“a. The charities receive no percentage of the proceeds or less than they are entitled to under Solicitation of Charitable Funds Act.
“b. The charities do not receive a proper accounting of the proceeds.
“c. The charities receive a flat, fixed sum, less than they are entitled to under the Solicitation of Charitable Funds Act.
“3. Charitable fund raising purportedly on behalf of legitimate charities where the charities have not authorized or received any proceeds from their fund raising.
“4. The fraudulent conduct of charitable fund raising purportedly on behalf of legitimate charities.
“5. Sham charities and fraudulent fund raising.
“6. Fraudulent solicitation of advertising books, etc., purportedly on behalf of legitimate fraternal orders.”

The grand jury conducted an investigation into the operations of B & R Associates, a Pennsylvania corporation, which is engaged in charitable fund raising in Philadelphia.

On April 5, 1978, appellant, Alan Massey, an employee of B & R Associates, appeared before the investigating grand jury pursuant to a subpoena. Massey exercised his Fifth Amendment right against self-incrimination and refused to testify before the grand jury.

Because of Massey’s refusal to testify, on August 2, 1978, the Attorney General of the Commonwealth of Pennsylvania [206]*206filed a petition to grant immunity to Alan Massey. This grant of immunity was sought under the authority of the Act of November 22, 1968, P.L. 1080, No. 333, § 1, et seq., 19 P.S. § 640.1-6 (Supp.1978). The petition for immunity contained the following averments:

“2. For the past several months, the Grand Jury has investigated inter alia the fund-raising activities of B & R Associates. This investigation has revealed evidence of a systematic and organized conspiracy to fraudulently obtain charitable contributions from members of the community.
“3. On April 5,1978, Alan Massey, an employee of B & R Associates, appeared before the Grand Jury, and refused to answer any questions regarding his employment at B & R Associates on Fifth Amendment grounds.
“4. It is necessary that the Court grant Alan Massey immunity as provided by the Act of November 22, 1968, P.L. 1080, No. 333, § 1 et seq.; 19 P.S. § 640.1 et seq. for the following reasons:
“(a) Alan Massey is reasonably believed to possess, as a result of his employment as an Office Manager and ‘Collector’ at B & R Associates, knowledge and evidence of systematic and organized thefts, conspiracy, and other related crimes in connection with fraudulent charitable fund-raising perpetrated by B & R Associates, its President and employees.
“(b) The Grand Jury has further reliable information that Alan Massey has knowledge of the record-keeping system and the contents of the business records of B & R Associates. It is believed that these records reveal additional evidence of systematic thefts, conspiracy and related crimes. Mr. Massey’s testimony in this regard is especially necessary, since the Custodian of Records of B & R Associates, Barry Arno, refused to comply with the Grand Jury’s subpoena to produce certain of these records and was held in criminal contempt of Court, on May 10, 1978, as a result thereof. Accordingly, the Grand Jury may be precluded from obtaining this essential evidence without Mr. Massey’s testimony.”

[207]*207Massey filed a motion with the court below to dismiss the immunity petition. On August 2, 1978, the court held a hearing on the Commonwealth’s petition for immunity and appellant’s motion to dismiss.

On August 30, 1978, the court below granted Massey “immunity” pursuant to the Act of November 22, 1968, supra. The court then stayed its order of immunity and certified controlling questions of law, the resolution of which would materially advance the ultimate end of the proceedings. See Judicial Code, § 7Q2, Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 702 (formerly the Appellate Court Jurisdiction Act of 1970, Act of July 31,1970, P.L. 673, No. 223, art. I, § 101, et seq., 17 P.S. § 211.101, et seq.)

On September 8, 1978, Massey filed with this Court a petition for permission to appeal from an interlocutory order granting immunity and a petition for review of said order. On September 22, 1978, the Commonwealth filed its answer to these petitions. On October 12, 1978, this Court, in a per curiam order, granted the September 8 petitions of Massey. (Mr. Justice O’Brien and Mr. Justice Roberts noted dissents.) On November 14, 1978, the case was argued before this Court (Mr. Justice Pomeroy did not participate.)

Appellant first argues that the proceedings before the April, 1977 Special Investigating Grand Jury do not relate to “organized crime” or “racketeering,” as those terms are defined in the Act of November 22, 1968, supra. We do not agree.

Section 640.6 provides:

“As used in this act—
“ ‘Organized crime’ and ‘racketeering’ shall include, but not be limited to, conspiracy to commit murder, bribery or extortion, narcotic or dangerous drug violations, prostitution, usury, subornation of perjury and lottery, bookmaking or other forms of organized gambling.” Act of November 22, 1968, P.L. 1080, No. 333, § 6, 19 P.S. § 640.6.

In Commonwealth v. Brady, 470 Pa. 420, 432-33, 368 A.2d 699 (1977), this Court discussed the above definition:

[208]*208. . Rather, we are inclined to believe that it is when such acts are the end product of an ‘unlawful agreement ’ that constitute the evil sought to be eradicated by the legislature. Thus,- on the basis of the obvious legislative intention to reach organized, concerted activity, and the plain meaning of the language of Section 6, it is clear that before the authority to confer immunity arises under the Act, there must be a conspiracy to commit any of the substantive offenses as set forth in Section 6.
“The Commonwealth also asserts, however, that the language of Section 6 ‘shall include, but not be limited to,’ implies that the legislature must have intended to reach the substantive offenses as well, including others not specifically enumerated in the Act.

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Related

Commonwealth v. Brady
368 A.2d 699 (Supreme Court of Pennsylvania, 1977)
In re January 1974 Philadelphia County Grand Jury Investigation
328 A.2d 485 (Supreme Court of Pennsylvania, 1974)

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Bluebook (online)
394 A.2d 1266, 483 Pa. 203, 1978 Pa. LEXIS 1158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-april-1977-special-investigating-grand-jury-pa-1978.