Commonwealth v. Bestwick
| Decision Date | 29 December 1978 |
| Parties | COMMONWEALTH of Pennsylvania v. Jack BESTWICK, Appellant. |
| Court | Pennsylvania Superior Court |
Argued April 12, 1978.
Timothy L. McNickle, Grove City, for appellant.
David B. Douds, Asst. Dist. Atty., Hermitage, for Com appellee.
Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.
The six Judges who decided this appeal being equally divided the judgment of sentence is affirmed.
PRICE, J files an opinion in support of affirmance in which JACOBS, P J., joins.
SPAETH, J files an opinion in support of affirmance.
HESTER, J., files an opinion in support of reversal in which CERCONE and VAN der VOORT, JJ., join.
HOFFMAN, J., did not participate in the consideration or decision of this case.
PRICE, Judge, in support of affirmance:
This appeal arises from denial in the court below of appellant's motions in arrest of judgment and for a new trial. Appellant, an assistant superintendent at the District 1-4 office of the Pennsylvania Department of Transportation (PennDOT), was convicted of violating Pennsylvania's "anti-macing act." [1] Appellant raises five alleged errors on appeal for our consideration. For the reasons stated herein, we would affirm the judgment of sentence.
Appellant first asserts that the lower court erred in failing to grant his motion to dismiss the presentments of the investigating grand jury, out of which his conviction culminated, and in failing to quash the indictments on the basis that the petition requesting the grand jury was not self-sustaining and did not contain the required factual specificity. In order to answer this assertion, it is first incumbent upon us to review the district attorney's petition in detail.
On June 2, 1975, the district attorney of Mercer County filed his petition, which stated that his office had been "conducting an investigation into allegations of the macing of employees of the Pennsylvania Department of Transportation in Mercer County for political donations." The petition asserted that PennDOT supervisory personnel had extorted funds from persons seeking contracts with PennDOT, See 18 Pa.C.S. § 3923, and that contract awardees were thereafter required to return a percentage of their earnings to PennDOT personnel. With the aid of PennDOT supervisory personnel, other individuals were alleged to have formed a paper corporation and to have received payments for work never performed. See 18 Pa.C.S. § 3922. The petition asserted that investigation had already disclosed that these were not single, unrelated incidents, but were part of a "widespread and systematic scheme by which a large number of persons ha(d) conspired to obtain money and property for themselves and/or the Democratic Party." See 18 Pa.C.S. § 903.
The petition further asserted that the alleged criminal activity affected the community; that the proper administration of the government was hampered; that public employees were demoralized by the actions alleged; and that the effectiveness of government operation was undermined. The petition pointed out that the allegations indicated "systematic depredations by public officers," and that the public as a whole, rather than single individuals, was victimized; public confidence in governmental integrity was endangered. The petitioner contended that normal processes of law could not accommodate the investigation, and that the grand jury's subpoena power appeared essential, since documentary evidence was held and controlled by those who committed the offenses, certain persons involved refused to cooperate with the state police, and, due to fear of reprisal, witnesses were generally reluctant to assist in the investigation.
The petition stated that the material contained therein was derived from statements given to state police investigators, to the "Gleason Committee," [2] and to investigators of other legislative and executive departments. The petition concluded:
On June 3, 1975, the Honorable John Q. Stranahan conducted an In camera hearing to determine the propriety of convening the investigative grand jury and to garner specific information in support of the petition. Assistant District Attorney John Garhart stated that the activity to be investigated spanned a three-year period. Cash payments were made by a number of private contractors to PennDOT personnel, and signed statements of those contractors were read into the record. Mr. Garhart stated that the funds were not believed to be going into Mercer County Democratic Committee coffers, because its books did not reflect such contributions. It was therefore believed that the money was being kept by individuals or was being forwarded to the state committee. Several of the contractors made statements that their money was taken by a conduit to appellant, or that named PennDOT supervisory personnel approached them to reveal what appellant was currently demanding. One individual stated that he was informed that unless he paid the requested amount, at appellant's direction, his equipment would be the last to be used by PennDOT for service. Another contractor was approached by appellant for a contribution, and decided to make the payment because he felt he would lose work otherwise.
In many of the statements presented to the court, appellant's name appeared. Several other names were mentioned repeatedly. One contractor was told that the money was destined for Harrisburg. Several contractors believed that PennDOT personnel who approached them were being pressured from higher up in the party system.
On the basis of the petition and In camera proceeding, the grand jury was convened. The court order stated in part:
As justification for granting the Commonwealth's petition, the opinion of the court below, authored in compliance with Pa.R.A.P. 1925(a), states:
Following its investigation, the grand jury returned presentments recommending that appellant be indicted for bribery, macing, extortion, and conspiracy. Prior to submission of these presentments to the indicting grand jury, appellant filed petitions to dismiss the presentments and to grant a preliminary hearing, at the time making his first assertion that the investigating grand jury was improperly convened. Those motions denied, appellant was indicted and subsequently filed his motion to quash. Finally, post-trial, appellant again asserted his argument that the grand jury was improperly empanelled.
The investigating grand jury is an unusual mode of instituting criminal proceedings. In the majority of criminal cases, an action commences with a complaint filed by the appropriate prosecuting official. Preliminary arraignment and a preliminary hearing are then conducted. This procedure, however, has not been without exception in Pennsylvania. See Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764 (1971). As early as the comprehensive opinion in Lloyd and Carpenter's Case, 5 Pa.L.J. 55, 3 Clark 188 (Ct. of Qtr. Sess. of Phila.1845), Judge King noted that, when dealing with investigating grand juries, strict safeguards are necessary because, except in an exceptional case, a defendant should not be deprived of having a preliminary hearing and a known accuser. Because of its uniqueness, Pennsylvania appellate courts have stated that "this power, which is a most delicate one, is never exercised unless under urgent necessity or . . . (where) the public would suffer from the delays incident to ordinary forms of law." McNair's Petition, 324 Pa. 48, 60, 187 A. 498, 504 (1936). The McNair court expanded on this proposition:
...
To continue reading
Request your trial