Com. v. Kelly
| Decision Date | 07 April 1977 |
| Citation | 369 A.2d 438,245 Pa.Super. 351 |
| Parties | COMMONWEALTH of Pennsylvania v. William J. KELLY, Appellant. |
| Court | Pennsylvania Superior Court |
Alfonso A. Tumini, Philadelphia, with him Anthony D. Pirillo, Jr., Philadelphia, for appellant.
E. Rendell, Philadelphia, with him Maryann D. Conway, Asst. Atty. Gen., and Walter M. Phillips, Jr., Deputy Atty. Gen., Philadelphia, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
A jury trial in August 1975, resulted in the conviction of appellant on three counts of perjury, 1 one count of bribery, 2 and one count of obstructing the administration of the law. 3 Following the denial of post-trial motions, appellant was sentenced to a prison term of three to twenty-three months on the perjury counts. This appeal followed. We affirm.
Portions of the factual history of this case will be set forth in more detail in the course of the seriatum discussion of appellant's nine assignments of error upon which this appeal is based. Briefly, however, the facts are these: The ongoing Pennsylvania Crime Commission investigation of corruption in Philadelphia resulted in charges that appellant, a police officer, had received sums of money a number of times in 1973 from one Joseph Anthony Narcise, in exchange for which appellant would refrain from interfering with a gambling operation of which Narcise was a part. The obstruction charge alleged that in September, 1973, appellant and Narcise became suspicious of an undercover agent, Andrew Marrese, who was posing as a gambler, and arranged to have the agent arrested and thus blow his cover. One of the perjury counts charged appellant with making false statements under oath before Municipal Court Judge Melton who then issued a search warrant which led to the arrest of the undercover agent. Appellant was also charged with two counts of perjury as a result of his testimony before the January, 1974, Special Investigating Grand Jury, wherein he reasserted the facts sworn to in the search warrant affidavit, and denied any prior dealings with Narcise.
Appellant's first contention is that he was denied the opportunity to effectively cross-examine certain prosecution witnesses, in that, following the witnesses' testimony on direct examination, the trial court refused to order the Commonwealth to turn over to appellant the Complete, unedited transcripts of the prior testimony of these witnesses before the investigating grand jury. Instead, the trial judge reviewed the unedited transcripts, and ordered that they be turned over to appellant, after deleting Only those portions of the testimony which dealt with other investigations than being conducted, and which were completely unrelated to appellant. We believe that the course taken by the trial judge was proper.
In recent years, the veil of secrecy surrounding grand jury proceedings has been more easily parted when and where the interests of justice required. This is true in the case of an investigating grand jury as well as an indicting grand jury, and it is now settled that '(a)t trial, the accused, if he desires, will have the benefit of Relevant portions of recorded testimony (before the investigating grand jury) for purposes of impeachment. . . .' Commonwealth v. Columbia Investment Corp., 457 Pa. 353, 369, 325 A.2d 289, 297 (1974) (citation omitted) (emphasis added).
Appellant complains that his counsel should have been permitted to determine which portions of the prosecution witnesses' prior testimony was relevant, not the trial judge, and cites Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), for the proposition that an in camera review by the trial judge of transcripts of the prosecution witnesses' testimony before the grand jury is not a desirable means of determining what parts of their testimony the accused is entitled to see. We would point out that the Court was referring in that instance, to an inspection to determine whether or not the witnesses' grand jury testimony was inconsistent with testimony given on direct examination at trial. In the case at bar, that task was in fact left to appellant's counsel, since the trial judge merely deleted statements of the witnesses concerning investigations unrelated to appellant, which were wholly collateral to appellant's trial, and in any event improper subjects for impeachment. While we have stated that when a timely request is made for a pre-trial statement of a Commonwealth witness, the judge has a duty to review that statement, and make available to the defendant the Relevant portions of that statement, Commonwealth v. Robinson, 229 Pa.Super.Ct. 131, 324 A.2d 441, Allocatur refused, 229 Pa.Super. Xxxv (1974), this is indeed a far cry from saying that an accused is entitled to any and all prior statements a prosecution witness may have made, regardless of whether or not it involved the accused's case, or some unrelated case.
The prior statements with which we are here concerned were made before a special grand jury which was investigating corruption in Philadelphia. This investigation was in process at the time of trial, and we believe that to have revealed testimony involving other investigations which were still being conducted would have jeopardized these investigations, and possibly could have endangered the lives of numerous undercover agents then at work in the Philadelphia area. While the trial judge recognized this obvious need for some secrecy, he also made certain that appellant was provided with transcripts of any prior statements made by prosecution witnesses insofar as they concerned appellant. Since such statements are the only ones to which any defendant is entitled, we fail to see how appellant was in any way hindered in conducting his defense.
Appellant's second assignment of error is that the trial judge improperly admitted certain hearsay evidence. This contention is without merit. Appellant objects to the testimony of Andrew Marrese, the undercover policeman, concerning a conversation Marrese had with the aforementioned gambler, Joseph Narcise, in which Narcise told Marrese about making payoffs to the police. (Printed Record at 374a). The trial judge admitted the testimony concerning that conversation as coming within the well-established co-conspirator exception to the hearsay rule, Commonwealth v. Holloway, 429 Pa. 344, 240 A.2d 532 (1968), on the basis that appellant and Narcise had conspired together to facilitate the gambling operation and obstruct the investigation into that operation.
The admissions of a co-conspirator may come into evidence as an exception to the hearsay rule even though the co-conspirator is not on trial and even if no party is formally charged with conspiracy. Commonwealth v. Garrison, 398 Pa. 47, 157 A.2d 75 (1959). Of course, a conspiracy must first be proved prior to invoking the hearsay exception, but the standard by which the conspiracy must be shown is a fair preponderance of the evidence, rather than beyond a reasonable doubt. In addition, the judge, not the jury, determines whether or not proof of a conspiracy is strong enough to trigger the hearsay exception. Commonwealth v. Hirsch, 225 Pa.Super. 494, 311 A.2d 679 (1973).
The testimony of Joseph Narcise, prior to Marrese's testimony, to prove to the than sufficient, if believed, to prove to the trial judge that appellant and Narcise had conspired together, and that the conspiracy was ongoing at the time Narcise made the statements to the undercover agent, Marrese. Thus, the testimony came within a recognized exception to the hearsay rule and was properly admitted.
The third argument raised by appellant is that, in regards to the arrest of Andrew Marrese, the alleged purpose of which was to blow Marrese's cover, appellant was charged under the wrong section of the Crimes Code, in that he was charged with obstructing the administration of the law, 4 whereas he argues that he should have been charged with official oppression. 5Although it appears that appellant waived this issue by failing to raise it in pretrial applications, Pa.R.Crim.P. 304(e), it is in any event without merit. While the arrest of the undercover agent, Marrese, would certainly be included in the crime of official oppression, the arrest was allegedly merely a means to an end, that being the hinderance of the investigation into the gambling operation. Therefore, we believe that the crime of obstruction of the administration of the law more completely and accurately covers the prohibited conduct with which appellant was charged.
Appellant raises as a fourth assignment of error the admission over objection, of certain portions of his testimony before the grand jury during the course of which he had allegedly perjured himself, on the basis that the testimony was coerced and therefore inadmissible. As an employee of the city of Philadelphia, appellant was subject to a provision in the Home Rule Charter which requires city employees to cooperate in official investigations under the threat of losing their jobs if they failed to do so. It is clear that statements made under threat of being discharged are the products of coercion and are therefore inadmissible at trial. Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975).
However, the presiding judge at the grand jury proceedings Never gave the Home Rule Charter warnings to appellant. Instead, appellant, along with a number of other witnesses, was advised of his right against self incrimination, and told that, if the need arose, and an employee of Philadelphia claimed this constitutional privilege, the judge would give them additional instructions, but he would not do so Unless the privilege was claimed. We fail to see how appel...
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DiCiacco v. Civil Service Commission of City of Philadelphia
...is being made. See Gardner, supra. This view is in accord with a recent decision of the Superior Court in Commonwealth v. Kelly, 245 Pa.Super. 351, 369 A.2d 438 (1976). III. Substantial Evidence to Justify The appellants appear to argue that the findings of fact of the Commission are not su......