Com. v. Brocco

• Court: Superior Court of Pennsylvania
• Writing for the Court: Before WATKINS; PRICE; SPAETH; JACOBS, former President Judge, WATKINS, former President Judge, and HOFFMAN
• Citation: 396 A.2d 1371,263 Pa.Super. 51
• Parties: COMMONWEALTH of Pennsylvania v. Joseph BROCCO, Appellant.
• Decision Date: 26 January 1979

Page 1371

396 A.2d 1371 263 Pa.Super. 51 COMMONWEALTH of Pennsylvania
v.
Joseph BROCCO, Appellant. Superior Court of Pennsylvania. Submitted Sept. 12, 1977.
Decided Jan. 26, 1979.

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[263 Pa.Super. 56] Nicholas A. Clemente, Philadelphia, for appellant.

Bernard L. Siegel, Deputy Atty. Gen., Philadelphia, for Com., appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

PRICE, Judge:

The instant appeal is another in the long series of cases arising out of the activities of the January 1974 Philadelphia County Investigating Grand Jury. Appellant was charged in five separate indictments with conspiracy to commit perjury before the grand jury, ¹ conspiracy, ² solicitation to commit perjury ³ (three counts), theft by unlawful taking ⁴ (nine counts) and forgery ⁵ (fifty counts). He was acquitted of one count of forgery. The court imposed five consecutive sentences of one to two years on one count of each indictment and suspended sentence on the remaining counts for those indictments consisting of multiple counts.

Portions of the factual history will be set forth in more detail in the course of discussion of appellant's thirteen [263 Pa.Super. 57] assignments of error on which this appeal is based. Briefly, however, the facts are as follows. During the period from 1973 to 1975, appellant

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was employed as the superintendent of the Pennsylvania Department of Transportation (PennDOT) in the Philadelphia area. In his role as superintendent, appellant was in charge of submitting the pay records of the employees under his supervision to the appropriate office. From 1973 to 1975, appellant submitted fraudulent overtime records for five men under his supervision. Under the usual procedure, separate checks were issued for the regular pay of the employees and a different check for their overtime pay. The employees then came to the office in which appellant worked to receive their checks. The Commonwealth presented the five men who testified that they had not performed the work for which the overtime checks had been issued and had only received a few of the overtime checks that had been issued to them. They further testified that they endorsed the few checks that they had received and then turned them over to appellant. Finally, they testified that they had never received nor endorsed the majority of checks that had been issued in their names. Additional evidence established that appellant had forged the signatures of the employees on these additional checks and then used other employees to cash them.

The Commonwealth also presented evidence of a second interlocking conspiracy. At appellant's request, the five PennDOT employees were summoned to a meeting with appellant's attorney. At the meeting, appellant instructed them to testify that they had given him permission to cash the overtime checks on their behalf. The employees testified to this effect before the grand jury, but later admitted the falsity of their testimony.

After post-trial motions, appellant brought this appeal alleging thirteen assignments of error. ⁶ After a reviewing [263 Pa.Super. 58] the record we conclude that twelve of the assignments are without foundation. However, for reasons stated herein, we remand for a hearing regarding appellant's Pa.R.Crim.P. 1100 claim. Although appellant has raised numerous assignments of error, we deem only certain worthy of extensive discussion. ⁷

I.

Appellant's first assignment is that the investigating grand jury was without power or jurisdiction to investigate the crimes for which he was convicted. As mentioned, appellant was indicted pursuant to a presentment by the January 1974 Philadelphia Investigating Grand Jury. Without expounding at length upon the history of this grand jury, it will suffice to state that it was convened in 1972 and re-convened in 1974 to investigate corruption in the Philadelphia area involving Commonwealth and Philadelphia city officials and employees. In convening the grand jury, Judge Takiff delineated eight specific areas

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for investigation. [263 Pa.Super. 59] ⁸ Appellant contends that because the charges against him arose out of the investigation of PennDOT, and because PennDOT was not one of the eight enumerated areas of investigation, the grand jury exceeded its jurisdiction in investigating that agency and the judgment against him should be set aside and the indictments quashed. We find this contention to be wholly untenable.

In convening the grand jury, Judge Takiff charged the jurors with the task of investigating charges of corruption among government employees. In this respect, Judge Takiff delineated those areas in which evidence of specific instances of corruption was known. However, in addition to the eight enumerated areas of corruption, he concluded that corruption may exist in areas known only by the participants. Accordingly, he invested the grand jury with authority to investigate the enumerated areas of known corruption "and other cognate matters" which may as yet be unknown. Thus, we conclude that because the activities of appellant involved corruption by government officials, it was a "cognate" matter within the parameters of Judge Takiff's order. Accordingly, the grand jury did not exceed its jurisdiction in this particular case.

Appellant contends, however, that even if the investigation into the present scheme falls within the parameters of Judge Takiff's charge regarding "cognate matters," such a charge amounted to an open-ended authorization to unleash the "inquisitorial" powers of the grand jury. With this contention, we cannot agree.

[263 Pa.Super. 60] In delineating the scope of a grand jury investigation, the rule in this Commonwealth is that

"(o)nce the concerns of society justify the convening of an investigating grand jury, it is given broad investigative power with which to adequately discharge its public responsibility. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). 'When the grand jury is performing its investigatory function into a general problem area . . . society's interest is best served through a thorough and extensive investigation . . ..' Wood v. Georgia, 370 U.S. 375, 392, 82 S.Ct. 1364, 1374, 8 L.Ed.2d 569 (1962). These 'broad investigative powers to determine whether a crime has been committed and who has committed it,' United States v. Dionisio, 410 U.S. 1, 15, 93 S.Ct. 764, 772, 35 L.Ed.2d 67 (1973), '(serve) identifiable and legitimate state interests.' Commonwealth v. McCloskey, supra, 443 Pa. (117,) 137, 277 A.2d (764,) 774, (Cert. denied 404 U.S. 1000, (92 S.Ct. 560, 30, L.Ed.2d 552) (1971))." Commonwealth v. Field, 231 Pa.Super. 53, 59, 331 A.2d 744, 747 (1974).

Accordingly, because the scope of authority in the instant case extended to investigating corruption among officials in the Philadelphia area, and because the scope of inquiry in this respect is necessarily broad, Commonwealth v. Field, supra, neither the charge to the grand jury, nor the scope of its investigation was overly broad in this particular case.

II.

Appellant's second assignment of error arises out of the grand jury proceeding during which six members of that jury were substituted more than one year after the grand jury had been sworn and had begun to hear evidence. In Commonwealth v. Levinson, 480 Pa. 273, 389 A.2d 1062

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(1978), the supreme court affirmed an order of this court and held that such a substitution was impermissible. Since appellant's indictment arose out of a presentment by the same grand jury with the substitution of the same six jurors, he contends that the indictments against him should be quashed. We disagree.

[263 Pa.Super. 61] In Levinson, the defendant was indicted by the regular grand jury on April 17, 1975, pursuant to a presentment by the investigating grand jury on March 19, 1975. After pre-trial motions, he appealed the substitution of jurors issue on August 1, 1975, under the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. V, § 501, 17 P.S. § 211.501(b) (Supp.1978-79). See Commonwealth v. Levinson, 239 Pa.Super. 387, 362 A.2d 1080 (1976). Thus, in Levinson, the defendant raised the substitution of jurors issue in a timely manner prior to the commencement of trial.

In Commonwealth v. Lee, 246 Pa.Super. 294, 369 A.2d 1329 (1977), the defendants raised the same issue regarding the substitution of jurors in the same investigating grand jury. In that case, the defendants were indicted on September 3, and November 18, 1975, pursuant to two presentments by the investigating grand jury. On December 19, 1975, the authorization for the investigating grand jury expired. Subsequently, the two defendants filed motions to quash the indictments on March 31, and April 7, 1976. Although the motions had been filed before commencement of the trial, this court ruled that they were not timely because the defendants had delayed until the grand jury had disbanded and thus prevented the Commonwealth from having the opportunity to correct the defect in the grand jury proceeding. In so holding, we stated:

"Where no statute, procedural rule or decision establishes a time limit for raising a particular objection, the rule is simply that the objection must be made within a reasonable time. (citation omitted). The reasonableness of a delay in objecting must be determined on a case-by-case basis." Id. at 298, 369 A.2d at 1331.

In this case, the presentment of the investigating grand jury issued on March 14, 1975, and the indictments issued on March 25, 26, and 31, 1975. Trial in the case was conducted from October 16, to November 1, 1975. Unlike the defendants in Levinson And Lee, appellant did not raise the defect in the substitution of the grand jurors at any time prior to commencement of the trial; indeed, the issue was not raised [263 Pa.Super. 62] until post-trial motions filed on November 6,...