Com. v. Gross

• Court: Superior Court of Pennsylvania
• Writing for the Court: RENO
• Citation: 92 A.2d 251,172 Pa.Super. 85
• Parties: COMMONWEALTH v. GROSS. COMMONWEALTH v. KILGALLEN et al.
• Decision Date: 12 November 1952

Page 251

92 A.2d 251 172 Pa.Super. 85 COMMONWEALTH
v.
GROSS.
COMMONWEALTH
v.
KILGALLEN et al. Superior Court of Pennsylvania. Nov. 12, 1952.

[172 Pa.Super. 87]

Page 252

Robert E. Woodside, Atty. Gen., Earle T. Adair, Sp. Deputy Atty. Gen., Kennedy Smith, Asst. Deputy Atty. Gen., and Henry S. Moore, Sp. Deputy Atty. Gen., for appellant.

James P. McArdle and Paul J. McArdle, Pittsburgh, for appellee.

Before RHODES, P. J., and HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.

RENO, Judge.

An indictment charging Howard Gross, an employe of the City of Pittsburgh, with misdemeanors in office and fraudulent conversion of labor, time, materials, and supplies of the City was quashed by the court below, and the Commonwealth appealed to No. 98 April Term, 1952. Another indictment charging Gross, George Manko and Thomas Kilgallen with conspiracy to defraud the City was quashed as to Gross and Manko, ¹ and from that order the Commonwealth appealed[172 Pa.Super. 88] to No. 99 April Term, 1952. The appeals were argued together in this Court and will be decided in one opinion.

The indictments were procured upon district attorney's bills or, more accurately, attorney general's bills. They were presented to the grand jury pursuant to the following orders of the court below, endorsed on the bills: 'And now, to wit, this 2nd day of February, 1951, the within Indictment based upon Presentment at No. 59 September Sessions 1950, having been presented in Open Court, same is ordered filed and Charles J. Margiotti, Attorney General of the Commonwealth of Pennsylvania, is directed to submit the within Bill of Indictment to the Grand Inquest sitting for February, 1951, for its consideration.' (Emphasis added.)

The references in the orders to the 'Presentment at No. 59 September Sessions 1950', constituted the principal ground for quashing the indictments. As to that, the court below held: 'The indicting grand jury, therefore, had direct notice that the bill of indictment was recommended by the special grand jury, an item of knowledge which might have been of determining

Page 253

weight in the decision to return a true bill. Since the presentment and recommendations of the special grand jury could easily have been influenced by the illegal invasion of the constitutional rights of these defendants, the bill of indictment and the action of the regular grand jury, based as it was on the presentment, were tainted with the same illegality.'

The presentment was prepared and filed by a special investigating grand jury summoned upon the petition [172 Pa.Super. 89] of the Attorney General of Pennsylvania, ² wherein he charged, inter alia, that Gross, Manko and Kilgallen had cheated and defrauded the City. ³ Gross and Manko were called as witnesses before the investigating grand jury and for their refusal to testify were adjudged in contempt of court, a decision which this Court reversed in Manko Appeal, 168 Pa.Super. 177, 77 A.2d 700. Without their testimony but upon the testimony of a hundred other witnesses, ⁴ the investigating grand jury returned a presentment recommending the indictment of Gross, Manko and Kilgallen.

Since the defendants had been named in the petition for the special investigating grand jury, they could not, upon a claim of constitutional privilege, be compelled to testify before it, Manko Appeal, supra, and they refused to testify. The Manko opinion, supra, 168 Pa.Super. at page 179, 77 A.2d at page 701, reports: '[E]ach [Gross and Manko] declined to answer certain questions on the ground that the answers would incriminate [them].' They should not have been called as witnesses and they should not have been adjudged in contempt, but ultimately their constitutional rights were recognized and protected by this Court, and meanwhile they had not testified to any facts upon which the investigating grand jury based its recommendations. There was an attempt to invade their constitutional rights but the invasion was staunchly[172 Pa.Super. 90] repelled by this Court. Perhaps the investigating grand jury was, as are petit juries sometimes, influenced by the defendants' failure or refusal to testify, but it does not follow that the indictments found by the succeeding grand jury were tainted with illegality.

The motions to quash did not question the form or the sufficiency of the indictments. The defendants relied exclusively upon extraneous matters to invalidate...