Com. v. McCauley
| Decision Date | 28 March 1991 |
| Docket Number | No. 528,528 |
| Citation | 403 Pa.Super. 262,588 A.2d 941 |
| Parties | COMMONWEALTH of Pennsylvania v. Emerson G. McCAULEY, Jr., Appellant. Harrisburg 1990. |
| Court | Pennsylvania Superior Court |
Andrew L. Winder, Mifflentown, for appellant.
Mary B. Seiverling, Deputy Atty. Gen., Harrisburg, for the Com., appellee.
Before OLSZEWSKI, BECK and TAMILIA, JJ.
This is an appeal from a July 24, 1990 judgment of sentence imposing a term of life imprisonment after a jury conviction for the second degree murder 1 of Devera Frink. The relevant facts are as follows.
At approximately 11:00 p.m. on Saturday, June 25, 1977, the 21-year old victim was hitch-hiking to her home in Boalsburg after finishing her shift at a waitressing job in State College, Center County, Pennsylvania. The evidence suggests she was forced by appellant and Jessie Taylor, who were riding as passengers, into a van owned and operated by Robert Brown. At one point, the victim attempted to jump from the moving van but was forcibly constrained by appellant and Taylor. Disregarding the victim's pleas not to be harmed, they drove to a secluded area at a ski resort where appellant, who had been using cocaine, and Taylor, in an act of animal brutality, forcibly raped, beat and choked the victim. Afterwards, appellant and Taylor hog-tied the victim's arms and legs with her panty hose, gagged her mouth with a bandana and, because, as appellant stated, "[d]ead people don't talk," threw her off the Route 322 Thompsontown overpass, where she fell 44 feet to her death. By-passers found the victim's partially nude, bound and gagged body the following day.
The eleven year murder investigation took several turns. Shortly after the murder, Brown's van was identified as the possible vehicle used in the abduction. When state police questioned Brown, he gave a false alibi and committed suicide a few days after being confronted with the suspicions against him.
In 1979, the state police suspected appellant's possible involvement in the crime. Thereafter, they questioned appellant and although placing himself at the murder scene, he exculpated himself. The break in the case came sometime in 1985 when Prisk, who, in 1983, had been appellant's cell-mate while appellant was serving time on an unrelated charge, informed the state police that appellant admitted to raping and taking part in the murder of Frink. State police also followed leads which resulted in the questioning of Catherine Crossley, appellant's girlfriend. Crossley, apprehensive of divulging admissions made to her by her boyfriend, gave little information which could corroborate Prisk's story. In 1987, Crossley was called to testify before the grand jury investigating the Frink murder and, under oath, she fully reiterated admissions appellant made to her concerning his role in the rape and murder. Additionally, state police obtained evidence developed by Janice Roadcap, a forensic criminalist with 32 years experience in microscopic hair examination. Roadcap, in her testimony, concluded that a hair found on the victim's calf closely resembled appellant's chest hair.
Due to time constraints and lack of resources, the Juniata County District Attorney made a request to the Office of the Attorney General to take over the investigation and prosecution of the case. On September 30, 1988, based on the evidence and testimony set forth above, the grand jury issued a presentment recommending that murder charges be brought against McCauley. A criminal complaint was filed and appellant was tried and convicted by a jury in 1989, twelve years after the murder was committed.
Appellant raises nine issues for our review with which we will deal in seriatim fashion.
Appellant contends the state-wide investigating grand jury was without authority to investigate and issue a presentment. He argues that because the grand jury was convened pursuant to 42 Pa.C.S. § 4544, Convening multicounty investigating grand jury, the statutory language limited its jurisdiction to investigation of matters of "organized crime" or "public corruption." Because this case involved an indictment for murder, appellant argues this Court should reverse. We disagree.
Appellant contends that only upon convening a grand jury, pursuant to 42 Pa.C.S. § 4543, Convening county investigating grand jury, would the attorney general be empowered to conduct an investigation in this case. That section provides in relevant part:
(a) General rule.--In addition to such other grand juries as are called from time to time, county investigating grand juries shall be summoned as provided in subsection (b).
(b) On the initiative of attorney for Commonwealth.--Application may be made to the president judge of the appropriate court of common pleas by the attorney for the Commonwealth for an order directing that a county investigating grand jury be summoned, stating in such application that the convening of a county investigating grand jury is necessary because of the existence of criminal activity within the county which can best be fully investigated using the investigative resources of the grand jury.
Id. (emphasis added). Had the grand jury been convened pursuant to this section, appellant contends the attorney general would have had authority to investigate this matter. As stated above, the grand jury was impaneled pursuant to section 4544, which provides in pertinent part:
(a) General rule.--Application for a multicounty investigating grand jury may be made by the Attorney General to the Supreme Court. In such application the Attorney General shall state that, in his judgment, the convening of a multicounty investigating grand jury is necessary because of organized crime or public corruption or both involving more than one county of the Commonwealth and that, in his judgment, the investigation cannot be adequately performed by an investigating grand jury available under section 4543 ().
Id. (emphasis added). However, whichever type of grand jury is impaneled, the powers of both remain the same. Powers of investigating grand jury, 42 Pa.C.S. § 4548, provides:
(a) General rule.--The investigating grand jury shall have the power to inquire into offenses against the criminal laws of the Commonwealth alleged to have been committed within the county or counties in which it is summoned. Such power shall include the investigative resources of the grand jury which shall include but not be limited to the power of subpoena, the power to obtain the initiation of civil and criminal contempt proceedings, and every investigative power of any grand jury of the Commonwealth. Such alleged offenses may be brought to the attention of such grand jury by the court or by the attorney for the Commonwealth, but in no case shall the investigating grand jury inquire into alleged offenses on its own motion.
(b) Presentments.--The investigating grand jury shall have the power to issue a presentment with regard to any person who appears to have committed within the county or counties in which such investigating grand jury is summoned an offense against the criminal laws of the Commonwealth.
Concededly, the investigating grand jury which issued the presentment against appellant had been impaneled for purposes of a multicounty investigation of public crime and corruption. However, the legitimate underlying purpose for which the grand jury is convened does not hinder investigations into other matters which may be brought before it. If, during an investigation of ongoing criminal activity, a grand jury comes upon criminal activity which has been completed, it is not required to close its eyes thereto. Commonwealth v. Bradfield, 352 Pa.Super. 466, 508 A.2d 568 (1986), alloc. denied 513 Pa. 633, 520 A.2d 1384 (1987). Where properly impaneled, the purpose for which a grand jury is convened does not restrict the grand jury from investigating actions which constitute either criminal activity or probable violations of the criminal laws of the Commonwealth. In re: County Investigating Grand Jury of October 18, 1982 (Appeal of Stout), 501 Pa. 118, 460 A.2d 249 (1983).
The State Attorney General's Office investigating the case chose to bring this murder case before the grand jury already impaneled rather than impanel a new one pursuant to section 4543. The purpose for which a grand jury is convened does not place a limitation on the grand jury's authority to investigate other crimes committed in a county. As explained in 42 Pa.C.S. § 4548, a grand jury's authority encompasses investigation into statutorily defined criminal offenses committed in the county or counties in which it is summoned. The sixth state-wide investigating grand jury, being duly summoned in Juniata County, had the authority to investigate the kidnap, rape and brutal murder of Devera Frink, a statutorily defined criminal offense, which took place in Center, Mifflin and Juniata Counties.
We additionally reject appellant's argument that notice was defective insofar as the Frink murder investigation was not one of the matters referenced in the attorney general's application to convene the grand jury. There is no requirement that the subject of every notice of submission be among the alleged offenses specifically described in an application to convene an investigating grand jury. Stout, supra.
Furthermore, appellant's reliance on In re: County Investigating Grand Jury of April 24, 1981 (Appeal of Krakower), 500 Pa. 557, 459 A.2d 304 (1983), is misplaced. In Krakower, a second grand jury was presented with the same evidence which was the subject of a previous grand jury presentment which was quashed as a result of misleading evidence. In the instant case, appellant likens the police investigation herein to the prior presentment in Krakower. This argument is wholly without merit. Certainly an ongoing police murder investigation does not...
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