Com. v. Cohen

• Decision Date: 19 March 1964
• Citation: 199 A.2d 139,203 Pa.Super. 34
• Parties: , 2 UCC Rep.Serv. 100 COMMONWEALTH of Pennsylvania v. Raymond COHEN, John J. Elco, Abraham D. Berman, Joseph E. Hartsough, Ben Lapensohn, Edward F. Walker, Appellants.
• Court: Pennsylvania Superior Court

Page 139

199 A.2d 139

203 Pa.Super. 34, 2 UCC Rep.Serv. 100

COMMONWEALTH of Pennsylvania v. Raymond COHEN, John J. Elco, Abraham D. Berman, Joseph E Hartsough, Ben Lapensohn, Edward F. Walker, Appellants.

Superior Court of Pennsylvania.

March 19, 1964.

Rehearings Denied April 13, 1964.

Applications for Allocaturs Denied in Nos. 273-275, 278, May

27, 1964, and in No. 277, June 2, 1964.

Abraham J. Brem Levy, Philadelphia, for Cohen

John Rogers Carroll and John Patrick Walsh, Philadelphia, for Hartsough.

Jay D. Barsky, Philadelphia, for Walker.

Ray E. Machen and Bernard L. Lemisch, Philadelphia, for Berman.

Morton Witkin and Witkin & Egan, Philadelphia, for Lapensohn.

Gordon Gelfond, Asst. Dist. Atty., Louis F. McCabe, Asst. Dist. Atty., Arlen Specter, Asst. Dist. Atty., Chief, Litigation Division, James C. Crumlish, Jr., Dist. Atty., Philadelphia, for appellee.

Joseph P. McLaughlin and Donald J. Goldberg, Philadelphia, for Elco.

Before RHODES, P. J., and ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.

ERVIN, Judge.

The six defendants, Raymond Cohen, John Joseph Elco, Joseph E. Hartsough, Edward F. Walker, Abraham D. Berman The district attorney, with allowance of the court below, presented a bill to the grand jury which, on September 18, 1959, was returned as a true bill. On September 25, 1961 the defendants filed a motion to quash the indictment on the ground that they had not been afforded a preliminary hearing before the presentation of the bill to the grand jury. The motion was denied by Judges SLOANE, GLEESON and McCLANAGHAN. After a trial which lasted ten weeks and one day, the jury returned verdicts of guilty as to all defendants on June 3, 1963. A review of the record will reveal that the Commonwealth produced 98 witnesses and introduced 1116 exhibits. None of the defendants testified. No evidence was introduced on behalf of any of the defendants. After the dismissal of motions for new trial and in arrest of judgment and the imposition of sentences, these appeals were taken.

and Ben Lapensohn, have appealed from the judgment and sentence of the court below following a joint trial on a single bill of indictment charging them with conspiracy to cheat and defraud a union of its money, goods and property.

Several of the appellants argued that the court below erred in not quashing the indictment because of the absence of a preliminary hearing. It should be pointed out that this question was not presented or argued in the post-trial motions filed in the court below. We will, however, consider this argument on the merits.

Upon review of an order to quash an indictment based on a special bill submitted under the supervision of the court, we will not set aside the action of the court below except for an abuse of discretion both manifest and flagrant, and in a clear case where we are convinced that harm has been done to the defendant by improper conduct that interfered with his substantial rights. Com. v. Carey, 201 Pa.Super. 292, 296, 191 A.2d 730; Rowand v. Com., 82 Pa. 405, 408; Com. v. Ramsey, 42 Pa.Super. 25, 32.

In Com. v. Cody, 191 Pa.Super. 354, 358, 156 A.2d 620, 622, we said: 'Adherence to this practice [obtaining prior leave of court for a district attorney's bill of indictment] will obviate attacks on indictments returned without a preliminary hearing and previous binding over.'

The evidence at the hearing on appellants' petition for a writ of habeas corpus ¹ in the court of common pleas, established that the district attorney was confronted with an emergency which required utilizing the district attorney's bill of indictment. The district attorney's office had received certain leads from the United States Senate Committee investigating Local 107 in 1958 but Local 107 instituted an action in the United States District Court for the District of Columbia to prevent the Senate from turning over the original Local 107 records to the Philadelphia district attorney's office. Appeals were taken to the Court of Appeals for the District of Columbia and then a petition for a writ of certiorari was filed with the United States Supreme Court. It was not until January of 1959 that the original records were turned over to the district attorney. William V. Suckle, the assistant district attorney then in charge of the case, organized the evidence and prepared a report, which was a time consuming procedure because of the obvious complexity of the case involving a review of 15,000 checks and much legal research. The report was delayed for a short period of time due to Mr. Suckle's illness. On July 24, 1959 the report, consisting of more than 200 pages, was turned over to the district attorney When the petition for a writ of prohibition threatened to obstruct the proceedings of the special grand jury, the district attorney was faced with the necessity of an alternative procedure with time rapidly running out. Concerned that a preliminary hearing would take at least ten days, the district attorney ordered the preparation of a petition for a district attorney's bill of indictment on September 10, 1959, which petition was completed on September 15, 1959. On September 16, 1959 the petition was presented to Judge CARROLL, who approved it, and on September 17 and 18 evidence was heard by the grand jury with the bill of indictment being returned on September 18, 1959.

who studied it in the time available while he was performing his numerous other duties. After an initial staff meeting on August 20, 1959, a subsequent staff meeting was held on August 25, 1959, at which time the district attorney decided that the evidence was sufficient to proceed with the prosecution of the defendants. The district attorney decided to petition to have a special grand jury to convene in order to seek additional evidence which might extend the statute of limitations or, failing that, to have the special grand jury make an interim presentment to the regular grand jury. After the Court of Quarter Sessions granted the petition for a special grand jury, a petition was filed on behalf of the defendants to secure a writ of prohibition, which was ultimately successful when the Supreme Court of Pennsylvania prohibited further action by the special grand jury. Special Grand Jury Case, 397 Pa. 254 (1959), 154 A.2d 592.

Among the findings of fact in the opinion of Judge GOLD when this question was considered, are: 'Despite the protestations of relators to the contrary, we find no evidence of undue delay or negligence on the part of the District Attorney covering the period ending July 24, 1959. * * * first, we perceive no evidence pointing resolutely to the conclusion that relators were deliberately or purposefully deprived of their right to a preliminary hearing; second, a genuine emergency existed which called for the special remedy of a district attorney's bill; and third, the public good and interest made such a step justifiable. * * * no harm has been done to the relators by the District Attorney's alleged improper conduct.' The court below, in its opinion, further stated: 'Local 107 is a gigantic union with more than 12,000 members situate in the greater Philadelphia area. Its immense economic influence in the transportation and allied industries is well known. We have been and are now of the belief that Local 107 is a strong, powerful, self-disciplined and militant labor organization, which, concentrated in the field of transportation, is affected with a public interest no less than the utilities, railroads and trucking industry which it serves.' The court below noted that the principal reason for a preliminary hearing was to prevent a defendant from being detained for a crime he never committed. See the exhaustive opinion of Judge WOODSIDE for this Court in Com. v. O'Brien, 181 Pa.Super. 382, 387, 124 A.2d 666. The court below also pointed out that the defendants were not deprived of their liberty since bail was posted an hour or so after they surrendered themselves. It also stated: 'There is not a word in their [defendants'] voluminous briefs citing any harm, prejudice, or any adverse strategic position caused to them by the failure of the District Attorney to grant them a preliminary hearing. Nor was there any testimony or evidence to this effect.'

The value of a preliminary hearing in acquainting a defendant with the nature of the charge and the evidence to be presented against him is uniquely absent in this case because the great bulk of the evidence, checks and vouchers, was prepared and controlled by the defendants themselves. The district attorney was confronted with an emergency. The statute of limitations was about to expire. A matter of great public importance was involved. While the crime of conspiracy is only a misdemeanor when it is applied to a situation such as was The appellants argue that the delay was caused by the district attorney's own inactivity. We do not believe that the record substantiates this argument. Even if we did agree, we are convinced that the district attorney acted in good faith with no resultant harm to the appellants and that his action was in the public interest. The record reveals that the appellants also were responsible for much of the delay which prevented the institution of these criminal proceedings. While the facts show that the district attorney acted properly in this case, if it were otherwise certainly the rights of the people should not be deemed waived for his dereliction by having these important convictions invalidated on such a technicality.

presented in this case, it is affected with a great public interest. To prevent the treasury of an important union, with its 12,000 members, from being looted was a matter of great public interest. Unions today have assumed a very important position in the economic life or our country. Millions of working people are directly affected by the conduct of such unions. It is just as important to see that the...