Com. v. Dessus

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: Before BELL; BELL
• Citation: 423 Pa. 177,224 A.2d 188
• Decision Date: 15 November 1966
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Ronald J. DESSUS.

Page 188

224 A.2d 188 423 Pa. 177 COMMONWEALTH of Pennsylvania, Appellant,
v.
Ronald J. DESSUS. Supreme Court of Pennsylvania. Nov. 15, 1966.

[423 Pa. 178]

Page 189

Alan J. Davis, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellant.

[423 Pa. 179] Robert N. C. Nix, Jr., Philadelphia, for appellee.

[423 Pa. 178] Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS JJ.

[423 Pa. 179] OPINION OF THE COURT

BELL, Chief Justice.

This is an appeal by the Commonwealth from the Order entered by the Court of Oyer and Terminer which quashed an indictment charging Dessus with murder.

In the early morning of April 3, 1966, Lena Alexandroff, a 79-year-old grandmother living in Philadelphia, and her 44-year-old daughter and her 14-year-old granddaughter (who lived with her) were raped, and as a result of the bodily injuries received by the grandmother, she died on

Page 190

April 22, 1966. On May 10, 1966, ¹ a magistrate held Dessus for the Grand Jury, and on the same day defendant was indicted by the Philadelphia Grnad Jury for the murder of Lena Alexandroff.

On August 16, 1966, defendant presented a motion to the lower Court to suppress a confession which defendant had given to Detective Timlin, and also a motion to quash the murder indictment because (a) it was based upon hearsay testimony and (b) a denial of defendant's right to challenge the indicting Grand Jury because the extensive and prejudicial publicity about rape in general, and these rapes in particular, May have created a state of mind on their part which prevented them from acting impartially. The lower Court held a hearing on these motions. Detective Timlin testified in open Court that he was the investigating detective in the above-mentioned crimes; that he was the only witness who appeared before the Grand Jury, and that he did not see any of the alleged crimes committed. Timlin further testified that he saw the dead body of [423 Pa. 180] the grandmother, he examined the house and place where the murder occurred and the physical evidence which was obtained by the police, including the bloody garments of the victims and of the defendant. He also observed the physical condition of the defendant, including blood and scrapes around his knuckles, and likewise the physical conditions of the victims. In addition, defendant gave an oral statement to Timlin.

Detective Timlin testified that prior to taking defendant's statement he informed defendant that he did not have to say anything, and that anything he said could be used for or against him if the case went to Court, and that he could have the advice of counsel. Defendant responded by both nodding his head affirmatively and orally saying that he knew all that. After the hearing, the lower Court, relying on Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, suppressed defendant's statement on the ground that defendant was not informed that if he was indigent he was entitled to have counsel appointed for him by the Court.

On September 28, 1966, after extensive argument--during which the Commonwealth reiterated its position (1) that the Court could not directly or indirectly inquire into what evidence was presented to the Grand Jury, and (2) that an indictment could be based on hearsay testimony--The lower Court ordered that the murder indictment be quashed because it was based upon hearsay testimony.

Although there was no evidence that Dessus's statement to Timlin was read by or shown by Timlin to the Grand Jury, and although the Grand Jury proceedings were held and the murder indictment was found prior to June 13, 1966, the date of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, supra, ² the lower Court assumed that defendant's statement had been submitted by Timlin to the Grand [423 Pa. 181] Jury and held that under Miranda v. State of Arizona, supra, Timlin's statement was inadmissible not only at the trial of the case but before the Grand Jury. The Commonwealth contends that defendant's statement was, even under Miranda v. State of Arizona, admissible before the Grand Jury. Since the Commonwealth has not appealed from the suppression of this statement, it is unnecessary for us to pass upon this question.

The Commonwealth has appealed, we repeat, from the Order of the lower Court quashing the indictment of Dessus for murder because it was found and based upon hearsay testimony. It was error to quash the indictment on this ground.

Page 191

The law is well settled in Pennsylvania that an indictment can be found by a Grand Jury based upon hearsay testimony or upon evidence which was incompetent or inadequate to make out a prima facie case. Commonwealth v. Morris, 91 Pa.Super. 571, 573--575; Commonwealth v. Halleron, 163 Pa.Super. 583, 586, 63 A.2d 140; Commonwealth v. Feenix, 6 Pa.Dist. & Co. R. 15; ³ Commonwealth v. Coyle, 415 Pa. 379, 396, 203 A.2d 782 (in which the Court cited with approval Commonwealth v. Deppen, 52 Pa. Dist. & Co. R. 442, and Commonwealth v. Halleron, 163 Pa.Super. 583, 63 A.2d 140, supra, and Commonwealth v. Kumitis (No. 2), 17 Pa.Dist. & Co. R.2d 445, 451, affirmed 190 Pa.Super. 133, 151 A.2d 653, and Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397). Accord: United States v. Grosso, 3 Cir., 358 F.2d 154; Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321; Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021.

In an exceptionally able Opinion by Judge, subsequently Chief Justice, Horace Stern in Commonwealth v. Feenix, the Court said that 'the proposition (that an indictment could be quashed because founded upon [423 Pa. 182] hearsay testimony or information) is a startling one that would revolutionize the practice of criminal law' and 'would * * * introduce into the administration of the criminal law a novel and vicious practice.'

In addition to the reasons set forth at length by Judge Stern in Commonwealth v. Feenix, supra, it is clear that in the absence of very exceptional circumstances the filing of a motion to quash would unduly obstruct the administration of criminal justice, would destroy the secrecy of Grand Jury proceedings which has been recognized for centuries, would enable an accused to hear and learn before trial the Commonwealth's entire case, and would permit discovery in criminal cases beyond that permitted in Rule 310 of the Rules of Criminal Procedure. See Commonwealth v. Caplan, 411 Pa. 563, 192 A.2d 894; Commonwealth v. Wable, 382 Pa. 80, 86, 114 A.2d 334.

Appellee relies, as did the lower Court, on Commonwealth v. Kilgallen, 379 Pa. 315, 108 A.2d 780. Kilgallen is clearly distinguishable. That case merely decided (1) that an indictment cannot be found or based Upon the judicially-compelled testimony of the defendant because it would violate Article I, Section 9, of the Pennsylvania Constitution, P.S., which provides that a person 'cannot be compelled to give evidence against himself,' and also the Fifth Amendment to the United States Constitution which provides: '* * * nor shall (any person) be compelled in any criminal case to be a witness against himself * * *' and (2) for these reasons the indictment must be quashed.

The decision and the reasoning in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397, supra, is so sound and analogous that we adopt it and apply it to...