Commonwealth v. Bruno

Citation203 Pa.Super. 541,201 A.2d 434
PartiesCOMMONWEALTH of Pennsylvania v. O. B. BRUNO, Orest Panza, William Neff, Sam Iannuzzi and Steve Zielinski.
Decision Date11 June 1964
CourtSuperior Court of Pennsylvania

Application for Allocatur Denied July 31, 1964.

Harold Gondelman, Louis C. Glasso, Pittsburgh for appellant.

Robert W. Duggan, Dist. Atty., of Allegheny County, William Claney Smith, Asst. Dist. Atty., Pittsburgh, for appellees.

Before ERVIN, WRIGHT, WOODSIDE, WATKINS MONTGOMERY and FLOOD, JJ.

MONTGOMERY, Judge.

These appeals by the defendants below from judgments of sentence following verdicts of guilty are based on the following indictments identified by the number assigned to them at the 1961 January Session of the Quarter Sessions Court of Allegheny County:

(545) O. B. Bruno--seven counts of extortion and one of misdemeanor in office during 1958.

(546) O. B. Bruno and Orest Panza--extortion in 1958.

(547) William Neff--twelve counts of extortion in 1957.

(548) William Neff--eight counts of extortion and one count of misdemeanor in office in 1958. (549) William Neff and Sam Ianuzzi--eight counts of extortion and one of misdemeanor in office in 1956.

(551) Stephen Zielinski--eight counts of extortion and one of misdemeanor in office in 1958.

The appellants were councilmen of the Borough of Sharpsburg, Allegheny County, when they allegedly committed the crimes charged aforesaid. The charges arose from transactions relating to the delivery of coal to the borough power plant under its contracts with Frank Panza.

Motions to quash the indictments were refused prior to trial and appeals from such actions were taken to this Court; but they were quashed as interlocutory. The same questions sought to be raised in those appeals are now before us and will be discussed initially. Appellants contend the indictments should have been quashed because (1) they were not returned at the next term of court following the preliminary hearing; (2) the informations on which they were based fail to set forth the exact dates of the alleged acts of extortion and the precise amounts of money extorted; and (3) the informations on which they were predicated were signed by a private prosecutor on information received, without stating that he believed the facts to be true to the best of his knowledge.

(1) The court did not err in refusing to quash the indictments on the ground that they had not been returned at the next term of court following the preliminary hearing before the committing magistrate. The informations were dated September 19, 1960, and the preliminary hearing was held September 29, 1960. The committing magistrate sent them to the district attorney promptly; but they were not presented to a grant jury until that of January, 1961, which returned the indictments. Appellants contend that they were denied a substantial right, viz., the right to challenge the array of the January, 1961 grand jury, since they did not have notice of the fact that it was to consider the matters. However, they made no effort to challenge the array of the grant jury prior to trial, and they have not set forth in what manner they have been prejudiced. This same argument has been advanced under similar circumstances in other cases and has been rejected. It has been advanced in cases where the indictments were returned by a grand jury in session at the time of the transmission of the informations by the committing magistrate (a pending grand jury). Commonwealth v. Bozzi, 178 Pa.Super. 224, 116 A.2d 290 (1955); Commonwealth v. Magid and Dickstein, 91 Pa.Super. 513 (1927). It also has been considered in cases where grand jury action was postponed and the indictments were returned by a subsequent grand jury. Commonwealth v. Gross, 161 Pa.Super. 613, 56 A.2d 303 (1948); Commonwealth v. Weiner, 101 Pa.Super. 295 (1930). In some of those cases the fact of notice to the defendants of when their cases were to be considered by the grand jury was disputed. However, lack of notice has been held not to be prejudicial in itself because the defendant is privileged to challenge the array and formation of the grant jury at any time until a plea is entered or a jury sworn. Commonwealth v. Gross, supra. Therefore, in the present case, in the absence of any prejudice being shown and any attempt being made to challenge the array of the January, 1961 grand jury, we also must hold this contention to be without merit.

(2) Appellants complain further that the informations on which the indictments were found were insufficient in that they contained blanks in relation to the precise amounts of money allegedly extorted and the precise dates on which they received the illegal payments. The informations charge that the defendants received money 'in regular monthly payments beginning in ........, 1956, and continuing thereafter up to and including October 1958.' Regardless of the omissions in the informations, the appellants entered bail for their appearances in court after they had had a preliminary hearing, and they did not object in any way to the preliminary proceedings until after they had been indicted. Therefore, they must be held to have waived any irregularities in the proceedings before the committing magistrate and cannot thereafter complain of the inadequacy of the informations. See Commonwealth v. Evans, 190 Pa.Super. 179, 154 A.2d 57 (1959), affirmed 399 Pa. 387, 160 A.2d 407 (1960), cert. denied, 364 U.S. 899, 81 S.Ct. 233, 5 L.Ed.2d 194, rehearing denied, 364 U.S. 939, 81 S.Ct. 377, 5 L.Ed.2d 371; Commonwealth v. Fudeman, 50 Berks 142, quashed on appeal at 186 Pa.Super, 547, 142 A.2d 473 (1958), affirmed 396 Pa. 236, 152 A.2d 428, cert. denied, 361 U.S. 902, 80 S.Ct. 211, 4 L.Ed.2d 157. See also Commonwealth v. Murawski, 101 Pa.Super. 430 (1931). Although an information must contain the essential elements of the offense sought to be charged, because the defendant should not be required to answer a charge different from and unrelated to the one for which he was arrested and held on bail, it need not set forth the charge with the same particularity and so fully and specifically as the indictment. Commonwealth v. Musto, 348 Pa. 300, 35 A.2d 307 (1944); Commonwealth v. Cortes, 182 Pa.Super. 602, 128 A.2d 155 (1956); Commonwealth v. Gross, supra. The indictments are explicit in stating the amounts of money extorted and the dates on which the acts of extortion were committed; it is only the informations that do not so state. Furthermore, the hearing before the committing magistrate would have supplied this information.

(3) While the law is as contended by the appellants, that one who swears to an information on information received from others must also swear that he believes the information that he received, after a hearing and the posting of bond it is too late to question the information on that basis; and after indictment it is certainly too late. Commonwealth v. Hunsicker, 189 Pa.Super. 63, 149 A.2d 584 (1959); Commonwealth v. Weinstein, 177 Pa.Super. 1, 109 A.2d 235 (1954); Commonwealth v. Murawski, supra. The Hunsicker case, page 66 of 189 Pa.Super., page 586 of 149 A.2d states, 'These defendants when bound over to court might have raised the question of sufficiency, or the total lack of the evidence to hold them, on habeas corpus, but having given bail they can be discharged, before trial, for lack of evidence only by the grand jury.'

The appellants contend that this defect in the information is jurisdictional and that the arrest was, therefore, in violation of art. I, § 8, of the Constitution of Pennsylvania, P. S. and cite Commonwealth v. Wiggins, 54 Lanc.Rev. 11 (1954), in support thereof. In that case the defendant, who was prosecuted before a justice of the peace for reckless driving, had waived a hearing and had given bail. The court quashed the information and stated that the failure to swear that a charge based upon information received is believed by the affiant is a jurisdictional and not a procedural irregularity, which may be raised after a waived hearing. Neither the court in that case nor the appellants delineated what aspect of jurisdiction was involved. However, regardless of the illegality of the arrest, including complete absence of an information and a defective information, the committing magistrate and subsequently the court has jurisdiction over the person of the defendant. Commonwealth ex rel. DiDio v. Baldi, 176 Pa.Super. 119, 106 A.2d 910 (1954). Even though a defective information is subject to review on a question of jurisdiction of the case or subject matter if brought in timely fashion, an indictment found regularly upon examination of witnesses will operate to correct any jurisdictional, as well as procedural, defects and irregularities in the information, warrant and proceedings before a magistrate. Commonwealth v. Brennan, 193 Pa. 567, 44 A. 498 (1899). Furthermore, it is well settled that the defects and irregularities in the information warrant and proceedings aforesaid are waived by pleading to the indictment and going to trial. Commonwealth ex rel. Lockhart v. Myers, 193 Pa.Super. 531, 165 A.2d 400 (1960), cert. denied, 368 U.S. 860, 82 S.Ct. 102, 7 L.Ed.2d 57. None of the cases cited by appellants conflict with these principles. In Commonwealth v. Imboden, 6 Lebanon County Legal Journal 180 (1957), and Commonwealth v. Wiggins, supra, the informations were attacked prior to indictment. Commonwealth v. Hockenberry, 72 Pa. Dist. & Co. R. 274 (1950), and Commonwealth v. Webber, 95 P.L.J. 272 (1946), involved summary convictions for vechile code violations and held that convictions based on defective informations in those circumstances were subject to attack at any time. Thus, in those cases no grand jury proceedings were involved. Commonwealth v....

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