Com. v. Field

• Court: Superior Court of Pennsylvania
• Writing for the Court: Before WATKINS; JACOBS
• Citation: 231 Pa.Super. 53,331 A.2d 744
• Parties: COMMONWEALTH of Pennsylvania v. Sander L. FIELD, Appellant.
• Decision Date: 23 September 1974

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331 A.2d 744 231 Pa.Super. 53 COMMONWEALTH of Pennsylvania
v.
Sander L. FIELD, Appellant. Superior Court of Pennsylvania. Sept. 23, 1974.

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[231 Pa.Super. 55] Louis Lipschitz, Donald J. Goldberg, Philadelphia, for appellant.

David Richman, Asst. Dist. Atty., Chief, Appeals Div., James Ranney, Philadelphia, for appellee.

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

[231 Pa.Super. 56] JACOBS, Judge:

This is an appeal from judgments of sentence entered after a jury trial in which the appellant was convicted on 26 separate indictments charging him with violations of the Pennsylvania Securities Act, ¹ and three indictments charging him with fraudulent practices and fraudulent conversion in connection with stock. Motions in arrest of judgment were granted by the court below on one of the Securities Act violations and on all three of the fraud convictions. On the remaining 25 convictions, the appellant was sentenced to pay a fine of $1,000 on each conviction, and from these sentences he appeals.

For the reasons stated hereinafter, we find it unnecessary to examine the merits of the case against appellant and rule that all indictments in this case must be quashed.

In 1969, the District Attorney of Philadelphia petitioned the court to convene a Special Investigating Grand Jury to examine 'widespread corruption, malfeasance, fraud, bribery, extortion, blackmail and other criminal activity in the operation of various public offices, departments, boards, commissions, authorities and agencies involved in the City of Philadelphia's urban renewal efforts . . ..' ² The appellant,

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Sander Field, a member of the City Planning Commission and Chairman of the Board of Directors of Citizens Bank of Philadelphia, was called to testify before this grand jury in April of 1969. His testimony concerned three areas not hereunder consideration and an alleged 'series of fraudulent stock dealings . . . to the detriment of the shareholders of Citizens Bank.' ³

[231 Pa.Super. 57] Prior to his testimony, the appellant was brought before Judge SLOANE for the administration of oath and at this time he was not advised of his rights before the grand jury as required by the Court in the decision in Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764, cert. denied, 404 U.S. 1000, 92 S.Ct. 559, 30 L.Ed.2d 552 (1971). The appellant contends that this failure to advise him of his rights requires that the indictments against him be quashed. The Commonwealth, on the other hand, argues that the testimony of the appellant did not contribute to the grand jury presentment; and therefore, under the McCloskey decision the indictments remain valid.

The Court in Commonwealth v. McCloskey, supra, in speaking of a witness's right to exercise his privilege against self incrimination knowingly and intelligently, set forth the following rule: '(W)e believe that the proper procedure is for the court supervising the investigating grand jury to instruct a witness when administering the oath that while he may consult with counsel prior to and after his appearance, he cannot consult with counsel while he is giving testimony. However, the witness should also be informed that should a problem arise while he is being interrogated, or should he be doubtful as to whether he can properly refuse to answer a particular question, the witness can come before the court accompanied by counsel and obtain a ruling as to whether he should answer the question.' Id. at 143, 277 A.2d at 777.

The Court stated as the proper remedy: '(T)hose indictments in any way based upon a defendant's own testimony given without this warning and in violation of his right against self incrimination must be quashed.' Id. at 120, 277 A.2d at 766.

Our decision in this case turns upon an interpretation of the language 'in any way based.' The Commonwealth would have this phrase read narrowly to require a direct causal connection between the testimony [231 Pa.Super. 58] and the indictment before the indictment would be quashed. The appellant asserts that 'in any way' comprehends any connection, influence, or relationship between the indictment and the impermissible testimony. Although we choose not to interpret the language as broadly as the appellant, history demonstrates that his interpretation is more nearly correct than that of the Commonwealth.

We must recognize that we deal with the clash of two principles deeply rooted in and vastly important to our system of jurisprudence. 'The grand jury is well known to Anglo-American criminal justice as the people's guardian of fairness. . . .' In re Subpoena to Nixon, 360 F.Supp. 1, 9 (D.C.D.C.), aff'd in part sub nom., Nixon v. Sirica, 159 U.S.App.D.C. 58, 487 F.2d 700 (1973). 'It is a grand inquest, a body with powers of investigation and inquisition . . .,' Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919), which has 'served for centuries both as a body of accusers sworn to discover and present for trial persons suspected of criminal wrongdoing and as a protector of citizens against arbitrary and oppressive governmental action.' United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561, 568 (1974).

The use of the investigative grand jury serves as an alternative for the normal methods of commencing a criminal action; ⁴ and, because this alternative dispenses

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with the procedural protections of a preliminary arraignment and preliminary hearing, the power in Pennsylvania to convene an investigating grand jury 'is a most delicate one, (which) is never exercised unless under urgent necessity or . . . (where) the public interest would suffer from delays incident to ordinary forms of law.' McNair's Petition, 324 Pa. 48, 60, 187 A. 498, 504 [231 Pa.Super. 59] (1936). It may be called to investigate 'matters of general public import, which, from their nature and operation in the entire community, justify such intervention. . . . Such as great riots that shake the social fabric, carrying terror and dismay among the citizens; general nuisances affecting the public health and comfort; multiplied and flagrant vices tending to debauch and corrupt the public morals, and the like.' Lloyd & Carpenter's Case, 5 Pa.L.J. 55, 58--59, 3 Clark 188, 192 (Ct. of Qtr.Sess. of Phila. 1845).

Once 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 by 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 had 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. at 137, 277 A.2d at 774.

Society's need for the extraordinary remedy of the investigating grand jury gives rise to the well established premise that 'the grand jury has a right to every man's evidence . . ..' In re Subpoena to Nixon, supra, 360 F.Supp. at 6. 'To this end it must call witnesses, in the manner best suited to perform its task.'...