Com. v. Fudeman

• Decision Date: 28 May 1959
• Citation: 152 A.2d 428,396 Pa. 236
• Parties: COMMONWEALTH v. Alexander FUDEMAN, Appellant.
• Court: Pennsylvania Supreme Court

Page 428

152 A.2d 428

396 Pa. 236

COMMONWEALTH v. Alexander FUDEMAN, Appellant.

Supreme Court of Pennsylvania.

May 28, 1959.

Rehearing Denied July 10, 1959.

Jacob Kossman, Philadelphia, Samuel R. Liever, Reading, for appellant.

Thomas D. McBride, Atty. Gen., Victor H. Wright, Jr., Deputy Atty. Gen., for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES and COHEN, JJ.

BELL, Justice.

Defendant appealed from an Order of the Quarter Sessions Court which dismissed his petition to quash an indictment charging him with extortion and levying blackmail. Defendant appealed to the Superior Court which quashed the appeal. An allocatur was allowed by this Court.

Defendant seeks to support his appeal by alleging that there were unauthorized and prejudicial communications between members of the Grand Jury and a member of the State Police who investigated the alleged crimes, and because the indictments were signed by the Attorney General instead of by the District Attorney. We shall discuss these in their inverse order.

The Attorney General was requested by the entire Common Pleas Court of Berks County to investigate these alleged crimes. Moreover, the District Attorney of Berks County voluntarily agreed that the Attorney General should conduct the prosecutions in their entirety, and the Attorney General did actually conduct them with the cooperation of the District Attorney.

There is no doubt that under the common law and the statutory ¹ and decisional law of Pennsylvania, the Attorney General has the power and, under certain circumstances, the duty to investigate any violations or alleged violations of the laws of the Commonwealth and to supplement and supervise a Grand Jury, and he may, under proper circumstances, supersede or act in conjunction with a district attorney.

In Matson v. Margiott, 371 Pa. 188, at pages 200-201, 88 A.2d 892, at page 898, the Court pertinently said:

"We conclude from the review of decided cases and historical and other authorities that the Attorney General of Pennsylvania is clothed with the powers and attributes which enveloped Attorneys General at common law, including the right to investigate criminal acts, to institute proceedings in the several counties of the Commonwealth, to sign indictments, to appear before the grand jury and submit testimony, to appear in court and to try criminal cases on the Commonwealth's behalf, and, in any and all these activities to supersede and set aside the district attorney when in the Attorney General's judgment ² such action may be necessary.'

'These vast powers of the Attorney General were further recognized in our opinions in Re Dauphin County Grand Jury Investigation Proceedings No. 1, 332 Pa. 289, 298, 2 A.2d 783; In re Dauphin County Grand Jury Investigation Proceedings No. 3, 332 Pa. 358, 362, 2 A.2d 809; in Margiotti's Appeal, 365 Pa. 330, 75 A.2d 465, and in Com. ex rel. Margiotti v. Orsini, 368 Pa. 259, 81 A.2d 891, 892, in each of which we reiterated that the Attorney General may supplement and supervise a grand jury and may under proper circumstances supersede or act in conjunction with a district attorney; and then said: '* * * and it is his duty to do so if he believes the government is to be hindered in the lawful conduct of its affairs to the detriment of the security, peace and good order of the State * * *.'

'It is obvious therefore that the powers and duties of an Attorney General as chief law enforcement officer of the Commonwealth, derived as they are from both statute and the common law, are wide and vast.'

There is absolutely no merit in this contention of the defendant, i. e., that the indictments were void because they were signed by the Attorney General.

The facts in connection with defendant's other contention are as follows: Prior to the reconvening of the December 1957 Grand Jury, one of its members approached another member and allegedly attempted to influence and prejudice the latter in favor of the defendant. The juror who was approached communicated the facts to the Court below, as a result of which the Pennsylvania State Police during their investigation interviewed the juror who had been approached.

The following day, prior to the reception of evidence by the Grand Jury, and prior to its deliberations, the jurors were examined as on voir dire by the Deputy Attorney General in open Court. All of the jurors stated that they would consider nothing but the evidence which would be presented to them in the Grand Jury room. A person can be indicted by a majority of a Grand Jury, ³ which is not required, as is a Petit Jury, to act unanimously.

We consider this contention of the defendant in the light of the following pertinent principles. In Commonwealth v. O'Brien, 389 Pa. 109, 132 A.2d 265, an appeal was taken from the Superior Court which had affirmed an Order of the Court of Quarter Sessions of Montgomery County refusing to quash an indictment brought against the defendant. Defendant contended that a Grand Jury cannot indict, without special permission of Court, a person who is not present at a preliminary hearing. This Court stated that the Superior Court should have quashed the appeal, and in our opinion dismissing the appeal, said (389 Pa. at pages 110-111, 132 A.2d 265): 'Unless a bill of indictment is defective on its face, when a defendant moves to quash an indictment prior to trial, and his motion is denied by the trial court, the court's order is interlocutory and hence, not appealable. Petition of Quay, 1899, 189 Pa. 517, 542, 42 A. 199.'

Defendant relies upon several decisions of the Supreme Court of the United States as to communications with a petit jury during a trial ⁴ which are inapposite, and upon Commonwealth v. Kilgallen, 379 Pa. 315, 108 A.2d 780, 783, which we shall discuss. In Commonwealth v. Kilgallen, this Court quashed a bill of indictment for bribery because the Grand Jury, in the course of its consideration of the bill, had before it, in violation of art. III, § 32 of the Constitution of Pennsylvania, P.S., defendant's prior compulsory self-incriminating testimony. The Court reaffirmed the general rule that no appeal lies from the refusal of a motion to quash an indictment, unless it is defective upon its face, but held that there may be exceptions, and such exceptions would be recognized 'in exceptional cases and to safeguard basic human rights.'

It is clear that no basic human right of this defendant has been violated or prejudiced.

The Order of the Superior Court quashing this appeal is affirmed.

CHARLES ALVIN JONES, Chief Justice.

I concur in the judgment of this court but, in so doing, I wish to make plain my disagreement with certain matter in the majority opinion which I consider not only erroneous but unnecessary to the present decision.

In Margiotti's Appeal, 365 Pa. 330, 341, 75 A.2d 465, by way of dissent, I expressed my considered opinion that the Attorney General of Pennsylvania possesses no power (common law or otherwise) to supersede of his own motion an elected county district attorney in any instance. To that view, I still unwaveringly adhere. The opposite conception, upon which the majority opinion in Margiotti's Appeal, supra, was based, had its genesis in extensively expressed but nonetheless palpably mistaken dicta in Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 188 A. 524. Whether the Attorney General of the Commonwealth possessed power to supersede of his own motion a local district attorney was in no way involved in that case. The supersession by the Attorney General of the local district attorney in the Minerd case was pursuant to the written request of the judges of the court of common pleas of Fayette County, acting under their statutory power so to proceed. See Section 907 of The Administrative Code of April 9, 1929, P.L. 177, 71 P.S. § 297, and also Commonwealth ex rel. Minerd v. Margiotti, supra, 325 Pa. at pages 19-20, 188 A. 524.

An elected county district attorney was wholly unknown to the common law. The sole prosecuting officer in England was the Attorney General who, from time to time and in place to place, appointed members of the bar to conduct the prosecution of criminal trials as occasion required. The office of elected county district attorney became a part of Pennsylvania's governmental organization by the Act of May 3, 1850, P.L. 654, 16 P.S. §§ 7701, 7703, 7704, 9951, 9952, and was thereafter confirmed and ordained by the Constitution of 1874 (art. XIV, Sections 1 and 2) in effect to this very day. By what process of ratiocination the idea was arrived at that the Attorney General of Pennsylvania--a purely personal appointee of the Governor--possesses a common law power to supersede of his own motion a statutorily created and constitutionally recognized elected officer, it is utterly impossible for me to comprehend.

In any event, the whole fallacious notion, which ascribed plenary power to the Attorney General of Pennsylvania by virtue of the common law, in respect of elected county district attorneys, was effectively repudiated by the legislature in 1939. The year before, in an effort to give statutory effect to what had been gratuitously opined in Commonwealth ex rel. Minerd v. Margiotti, supra, the General Assembly, in special session, passed the Act of July 30, 1938, P.L. 17 (Act No. 3) entitled, 'An Act Defining the relative powers of the Attorney General and of district attorneys in investigations and proceedings in the criminal courts * * *.' The Act was at once brought to this court for construction. And, two months later (October 3, 1938), this court held (see In re Dauphin County Grand Jury Investigation Proceedings (No. 3), 332 Pa. 358, 2 A.2d 809) that the power reposed in the Attorney General by the Act of 1938 was the same power possessed by him under the common law as ascribed to him by the dicta in Commonwealth ex rel. Minerd v. Margiotti, supra. The opinion...