*1 Judgmеnt and the remanded reversed case with procedendo.
Kittaning
Moore,
A.2d 278.”
Coal Co. v.
added).
(Emphasis
at
Id. at
81 A.2d
blush,
Kingsley, supra,
applied
At first
London
as
judgment
instant case in
motion for
defendant’s
pleadings
appealing.
is
Plaintiffs’
that Exhibit A
averment
is
policy
interpretation
part of the
in issue
an
relevant
insurance
is
instrument,
exception
a written
under the
articulated
as
However,
Kingsley, supra,
it is
not admitted.
until
London v.
is
policy
the entire
the defendant is
established that the
attached
exception
interpreted,
stated
written instrument
to be
as
Kingsley, supra,
applicable.
London v.
is not
Further,
plaintiffs’ Exhibit A
it cannot be controverted that
supra.
there
Whenever
reference to a declaration. See n.
makes
complaint
inconsistency
allegations
between the
is
case,
instrument,
to-wit,
latter
a written
the documents
this
Co.,
Superior
Corp.
Ct.
prevail.
Framlau
v. Delaware
will
refused,
Superior Ct.
(1972),
allocatur
<S.David Peter Noel Duhamel and Ben Joseph, W. Assistant Attorneys General, Phillips, Deputy M. Jr., Walter Attorney General, for Commonwealth, appellee.
Opinion J., 29, 1976: March Jacobs, Appellant Joseph Samuel Polof was convicted of one perjury January 30, following jury count on Judgment trial. Motions for a New Trial and Arrest of appeal thereafter filed and denied and to this Court appellant pre- properly followed. Because has failed to serve the presents raising issues he now them below may in his motions we them on consider and we therefore affirm. appeared Special Samuel Polof as a witness before the Investigating Jury Philadelphia County Grand on August September 28th 6th, 1974. Polof’s testi- Mr. mony pursuant Jury’s invеstiga- was taken to the Grand alleged payments money tion of police officers and public protect illegal gambling officials in order to activi- In the testimony course of ties. he made certain per- statements which led to his indictment for jury in September, On October counsel appellant Quash filed a Motion to Indictments the four perjury charged. counts of As of the same date *3 also a Motion filed for which Discovery, was allowed part part by Judge and denied in on November Kubacki argu- after answer the Commonwealth and Quash Appellant’s ment. Motion to Indictments was day, on the denied same after argument. also answer and Two of the (сon- indictments were thereafter amended sisting allegedly of deletion of certain of the false state- ments), with court, leave of and an additional Motion to Quash January 13, Judge Indictments was filed on 1975. Kubacki noted of record on the same date that the Motion Quash Indictments had been on denied the record. (Counsel appellant apparently for chose to treat filing amendment as a basis for quash; a new motion to Judge seemingly disagreed and endorsed the Kubacki Appellant accordingly). plea record thereafter entered a guilty of jury, all four was counts, tried before a Judge presiding, and on was convicted one count Kubaсki perjury, January of on 30,1975.
Appellant post-trial February 6, filed motions on 1975. together plate” These included usual “boiler motions general grounds appellant’s Although with two for relief.1 supplemental brief here recites that were motions filed Testimony transcribed, after the *4 contrary “3. to the law. The verdict is “4. The denial of this Petition to Court Defendant’s Quash Indictments.
“5. Denial this Court of Motion for Defendant’s Discovery.”
569 questions been have heretofore unconsidered Although appellant’s arguments our courts. some of may ultimately opinion proper novel and merit an in a case, procedural posture of this is such that case they they properly presented are not because to us may post-trial were not in raised motions and we consider them.
Appellant’s
through
12, 14,
issues Nos. 4
15 and
10,
18,
“Questions
section
as set forth in the
Presented”
post-trial
brief,
way
of his
were
no
raised in his
clearly
motions, supra
1,
waived.
n.
and are therefore
they
were
Not
fail to disclose that
does the record
opinion of
but the
considered below on written motion
they
raised
were
the lower court fails to show
orally
therefore,
must,
deem these issues
as well. We
Bailey,
344
waived,
....
Commonwealth v.
Pa..
31,
Blair, 460
(1975);
Pa.
A.2d 869
Commonwealth v.
part
(1975) ;
are not a
We through 11, 13, appellant’s issues Nos. These “Questions Presented.”2 as set forth his supporting may be theories be said to post-trial set forth general grounds relief as supra How 1. 4 and n. reasons motions, Supreme recent analysis ever, our Court’s a close Bailey, supra, Common decisions (1975), 346 A.2d Mitchell, v. wealth con- supra, Blair, leads us and Commonwealth very contain through 3, and 17 Nos. Issues allegedly in the concerning committed allegations error specific Dis- and for Quash Indictments Petition denial of Defendant’s these claims covery. record that no indication of There appel- consideration presеnted court as basis to the lower post-trial motions. lant’s
570 similarly
elusion that these issues have been waived by post-trial failure to raise them in motions.
The
in
decision
Commonwealth v.
459
Bronaugh,
634,
therein,
(1975)
In the case record reveals that none requirements Appellant’s above have been met. form, specific are motions not in their written and, Bailey, unlike situation we have no record specific orally issues raised because here the lower Indeed, court merits, did not rule on the of record.3 grounds appellant’s lower court here that 4 held 5, supra (as 1, plate” grounds) n. well as “boiler “general in nature” and noted no brief was that by (thus precluding supplement filed counsel to their writing). specificity, in The sole indication that other arguments were advanced the lower court’s comment arguments that meritorious were advanced “[n]o See, Irwin, 296, Commonwealth v. 299 n. 333 which, (1975) although A.2d n. 3 noted Court specifically post-trial motions, ap- not asserted it would hear pellant’s argument because the issue involved was discussed denying en trial, banc in motion for new evidenc- ing assignment of error was raised before the trial court. counsel for the defendant.” No indication as to what arguments these present were is on the as record, noted above.
Moreover, appellant
argued
prеserved
has
that he
“grounds”
below
sup
and here raises “theories” to
port
might
them, as he well
have based on the
decision
Wayman,
n.
A.2d
so,
1n.
Had he done
we would
still
arguments
remain unconvinced that
now ad
properly
vanced
Wayman
before
us.
reason
ing, which
would seem to
the conclusion that
*6
appellant’s “grounds”
(to wit,
that
the lower court
by
erred
refusing
quash
to
grant
the indictment or
range
discovery sought)
total
preserved
were
here
specifically rejected by
has been
Justice Nix in Com
Mitchell, supra
monwealth
(joined
v.
by one Justice
concurring). Although
with three
Mitchell does not
explicitly
given
indicate that
it
to
is
be
retroactive
effect,
reading
а close
of the decision reveals
that
does
prospective
not announce a
rule but
rather
recognition
temporary departure
long
that a
from a
standing
say
rule was erroneous. The Court did not
require
“henceforth”
will
theory
we
that
as well
grounds
below,
as the
rather,
be raised
it held in the
theory
case then before it that a
not
be
there
raised
low was
supported by
waived. This conclusion is
Jus
Pomeroy’s
Concurring Opinion
tice
comment
his
“
applaud
development,
Mitchell
.
that he
.
.
this
[s]
though
even
a few horses
stolen before the barn
..,
(footnote
was
door
locked.” Id. at
.
are We
thus convinced that
trend of
recent
Supreme
precludes
our
Court’s waiver decisions
con-
many
raises
now
theories
sideration
general grounds,4 see
v.
Commonwealth
Bailey, supra;
Mitchell, supra;
Com
Commonwealth v.
;
(1975)
Carter,
..,
.. Pa.
.
Dissenting Opinion Hoffman, J.: assignments Appellant eighteen error raises January 30, conviction this from his appel- perjury. Majority one count of holds right lant raise issues has waived his these in written presented below were not disagree Ma- I with the motions. Because jority’s interpretation of our of the recent decisions Supreme concerning waiver, I would reach Court prop- I been merits of those believe have pre- erly preserved for those issues our review. Of might parenthetically of these add that consideration We issues, so, the lack of were we able to do would he hindered precise complete problem presented by situation record. The *7 Mitchell, recognized in A.2d it is wherein (1975) said: judicial economy “Appellate and render a disservice to Courts they freely operation system the efficient our court where of acсept pre- first that could and should have been have to the courts for their consideration om.]. sented below [cit. procedures encourage many of the reversal Such trials been, probability, could have in all avoided or errors which they promptly if had to the attention of the cured been called lower court. only “Additionally, procedure deprives such a reviewing reasoning of the of the of the lower court benefit many requires at in a deci- court on the issue hand but cases ..., complete than at of an issue on a record.” Id. sion less at 52. 346 A.2d
served for I believe one has merit:1 appellant impending was not informed of in- in right dictmеnt sufficient time for him to exercise challenge array to or individual of the members grand jury before the indictment was returned.
Appellant Investigating Special testified before the Jury Philadelphia County August Grand of and September 6, Investigating Jury 1974. The had Grand investigate allegations been convened to of official mis- police corruption. conduct and In the course of its inves- appellant tigation, testify alleged was called to about his payment police involvement in of to officers bribes public “protection” illegal to officials secure for his gambling operation. September 16, indicting On III, 1. In addition to the issues discussed Parts II appellant assigns fоllowing his con theories infra quash tention that the motion to the indictments should have been granted “Questions (numbered in accordance with the Presented” Appellant’s Brief) : charge appellant perjury It 2. error to with was
denying the commission of which he could have offenses for punished penal been under the laws the state. improper grand jury It for the 3. was to hear evidence person and to vote on bills indictment while an unauthorized wit, present, was member staff Office Special yet who had not been Prosecutor admitted to the bar Pennsylvania. of the Commonwealth of necessary 11. The failed to set forth indictment perjury, Jury elements of the crime оf and the Grand failed grounds upon making pre- to disclose the which it was its sentment. duplicitous give 13. The indictment was failed opportunity
appellant an to formulate a defense. provide with Commonwealth failed hearing. preliminary assignment Appellant also his sixteenth contends error that granted pre-trial discovery. should have broader Because quash improper, I hold that the of the motion to would denial assignments infra, need not Part I consider these of error. III However, record, after careful examination I con- have also merit. cluded that are without *8 charging four grand jury returned two indictments swearing.3 perjury2 of of false counts and four cоunts by charges upon presentments were made These based indicting Special Investigating Jury to the the Grand grand 1974, jury. 8, appellant filed a detailed October On application for quash motion to indictments and the discovery. 1974, pre-trial 20, the lower On November quash and the motion to the indictments court denied discovery copies confessions, granted all all limited to of appellant the had of the Commonwealth statements any possession, and conversations between in its recorded Special appellant representatives of of the Office the and respects, motion Prosecutor. In all other 1975, January pre-trial discovery 20, wаs denied.4 On 6, 1972, §1; 18 Pa.C.S. 2. Act of December P.L. No. §4902. §1; Act of December P.L. No. 18 Pa.C.S.
§4903. requested discovery, of
4. Of the thirteen items of the Office Special voluntarily supplied appellant eight. Prosecutor with discovery granted respect a The The court below with to ninth item. following beyond discovery of items were refused because scope copy transcript a of the of Rule Pa.R.Crim.P.: prior and in the fourth counts of arrest conviction mentioned persons perjury swearing, false the names and addresses of all and presentment indicting grand jury caused made who be to the testimony persons copy as as well a those before jury, jurors investigating grand grand present the names all allеged perjury and on which committed dates was voting presentment, copy names of favor of the and a those testimony prospective witnesses which was Jury. Investigating Appel- previously given Special Grand argues pre-trial application discovery have lant that his should “exceptional compelling- granted circumstances because of been expanded discovery reasons,” required by if Rule 310 granted. compelling “exceptional rea- to be circumstances appellant the court sons” which consist denial advances discovery preliminary hearing opportunity to when of an have logical might the items be I fail tо see the connection between had. might preliminary sought if be secured what hearing held. had been
appellant pleaded jury empanelled. not guilty, and a January 30, 1975, jury On appellant guilty found *9 perjury count, guilty first but second, third perjury.5 fourth counts of Motions for new trial and judgment arrest of February 6, 1975, filed on on following grounds:
“1. The contrary verdict is to the evidence. “2. contrary The weight verdict is evidence.
“3. contrary The verdict is to the law.
“4. denial The of this court of Defendant’s Peti- Quash tion to Indictments.
“5. Denial this Court of Motion Defendant’s Discovery.” Post-trial April motions were denied on and the sentenced twenty-three to three to imprisonment. appeal months’ This followed. I of opinion
Part why sets forth I believe that argued some properly issues before us. Part II will sufficiency address Part claim. opinion III of this appellant’s only is devoted to meritori- ous contention.
I
Supreme
Our
Court has mandated strict adherence to
1123(a),
Rule
Pa.R.Crim.P.
Blair,
See Commonwealth v.
(1975).
460 Pa.
every
331 A.
case,
2d 213
criminal
judge
required
the trial
is
to warn the
who
defendant
guilty
has been
grounds
found
“. . .
con-
. that
[post-trial]
tained
. . .
may
ap-
motions
be raised on
peal
1123(c)(3),
Rule
(Emphasis
Pa.R.Crim.P.
added).
clearly
It is now
policy
established
of Penn-
sylvania appellate practice
specifically
failure to
any
mention
asserted trial
errors
motions
swearing
5. The court below removed four
counts
false
jury.
from the
issues,
precludes their
constitutes waiver of those
being
appellate
for the
court.
considered
first time
Bron
Blair, supra;
v.
Commonwealth
augh,
(1975).
There are for strict sound v. Mitch- tion of the waiver doctrine. See Commonwealth (1975). ell, “Appellate Courts A.2d economy judicial the efficient render a disservice freely accept operation system of our court where pre- have could have and should been first Com- sented to courts below for their consideration.” Mitchell, supra v. at 2d at .., monwealth . 346 A. citing Reid, 2d 267 A. unnecessary purpose 1123 is to avoid Rule given op- appeals by ensuring that the trial court ap- Further, portunity to triаl errors. correct asserted *10 making complete plication 1123 ensures the Rule germane on testimony in that and other record evidence diligent attorney’s prepara- the will be received. An issue relying precluded an rewarded, from on tion and he is poor appellate performance at trial. his court to bail out ultimately may matters, reme- the defendant In criminal ap- preserved error, properly dy trial which was by ineffective, em- peal either trial counsel was because appeal the ploying to raise ineffective- new counsel6 Hearing Act by resorting or to Post Conviction ness issue relief.7 applicа- arguments in
Although favor of strict formidable, appellate the waiver doctrine tion of justice obligation to if it do its historic court abdicates citing Majority, Common- applies hastily. waiver too that, identical Mitchell, supra, reasons wealth v. may supported alternative be grounds for often Dancer, (1975). A.2d 435 331 6. Commonwealth seq.; January 25, 1966, (1965) et P.L. §1 Act of (Supp. 1975). seq. et P.S. §1180-1 theories, appellant satisfy requirements fails 1123(a) Rule specific supporting unless the theories grounds for reversal are enunciated in written motions.8 I believe unnecessarily that this is an narrow reading (a). of Rule 1123 1123(a)
Rule (7) days states: “Within seven after a finding guilt, right the defendant shall have to file written judg- motions for а new trial arrest Only grounds may ment. those be considered which were pre-trial raised in proceedings [0]nly ator trial. those .. grounds raised upon and the relied in the motions may argued added). be (Emphasis . . .” .
And 1123(c) requires judge Rule the trial to admonish the defendant grounds “... contained in may such motions appeal.” (Emphasis be raised on added). language Nowhere in the does Rule theories, only grounds. unnecessarily mention It is severe requirement read appel- into Rule 1123 the that an provide lant must below with theories writing grounds supporting preserve in order to appellate right when it is clear from the record that legal previously theories have been advanced to lower court. opinion 8. Reliance Court on Justice Nix’s may First,
Mitchell
be ill-advised for two reasons.
Mitchell deals
Supreme
with the issue of waiver
the context of our
within
Court’s
Futch,
efforts
define
limits of Commonwealth v.
Mitchell,
A.2d
the Court overrules Common
Wayman,
(1973),
wealth v.
9. The contentions Appellant’s “Questions Brief. Presented” *12 6. Did the trial court err when it recessed the trial week, one appellant’s refused motion for mistrial on this ground, and then appellant’s request refused voir jury dire of the when the trial reconvened?
7. Did the trial taking court err in four counts of swearing false away jury submitting from the four perjury counts of to them?
8. Did unduly the trial court limit cross-examination of Commonwealth reports pre- witnesses from written pared in the investigation? course of their
9. Was it deny error for the lower court request hearing to hold a to determine whether the Com- possessed monwealth reports certain or memoranda might exculpatory might have been or which have aided preparation in the of his defense after testimony at trial preparation alluded to the of re- said ports by Pennsylvania Crime Commission?
10. Did the permitting appellant trial err in not court pre-trial to introduce certain discovery pre- answers pared by Commonwealth, part which contradicted testimony given by Commonwealth witnesses? charge adequate
12. Was the respect perjury? the intent element of the crime of submitting 14. Did the trial court err II counts perjury III of the jury indictment because there finding guilt was no evidence to sustain a on these only possible submitting counts and the result of these jury counts would be confusion? permit ap-
15. Was error to the introduction of pellant’s testimony Special Investigat- entire before the ing Jury? Grand permitting Did the trial court err the introduc- testimony Special Investigating
tion of before the Grand Jury which was irrelevant which contained evidence prior waived, crimes? Because issues are these precluded reaching (cid:127)court from the merits. Common- Mitchell, supra; supra. Blair, wealth v.
II Appellant’s the evidence contention is that fourth prove crime element was insufficient to an essential materiality of the false statement.10 perjury, i.e. the per- “A 4902(a) states: Code11 Section Crimes degree, if felony guilty of the third son is perjury, *13 any false proceeding he makes a statement official affirmation, or affirms equivalent under or or swears oath made, previously when the state- the truth of a statement it to be true.” ment is material does not believe and he materiality (b) as follows: “Falsifica- Section 4902 defines admissibility material, regardless of the of the tion is evidence, if it have af- statement of could under rules proceeding. It is no fected the or outcome of course mistakenly the fal- believed defense that the declarant a falsification to be Whether sification immaterial. question given of law.” situation is a material in a factual perjury, of element the offense Because it is an of beyond proven doubt. materiality a reasonable must be (1970) ; Winship; v. In re Commonwealth U.S. 358 However, (1975). McNeil, A.2d 840 461 Pa. determining sufficiency еvidence, this Court of accept and all reasonable must as true all the evidence arising upon the factfinder inferences therefrom properly v. its verdict. Commonwealth could have based (1974); Com Fortune, 2d 327 318 A. Superior Griffin, Ct. monwealth v.
A. 2d 554 appellant’s of insufficient evidence is I believe that claim boiler-plate post-trial adequately preserved for review our holding. policy offended motions. No waiver is assignment Appellant of error that the also in his fourth contends improperly cross-examination on the issue lower court circumscribed materiality. must, therefore, split fourth contention be into The sufficiency preserved claim for our review and trial its which is its Mitchell, supra. error claim which is waived. 2, supra. 11. See Note
In the case, instant Commonwealth called “foreperson” of Special Investigating Jury, Grand who read portions charge into record selected of the judge grand charge who jury. convened the grand jury scope investigation defined the detail, investigation alleged substantial included payment by professional gamblers “payoff-s” police officers “protection” and other officials to secure from prosecution. criminal It was established that appearance criminality related to one of instances grand jury investigate. had been instructеd It was grand jury further established that called appellant attempt relationship in an to discover the be tween numbers the Philadelphia writers and De Police partment. Appellant testifying falsely was convicted for about the illegal gam that he fact had discontinued all bling activity April, after 1973. The effect this testi mony attempt grand jurors was to mislead the into believing testimony could offer no relevant regarding practices currently investigation. under *14 trial, assigned Special At undercover to the two officers fact, placed they, Prosecutor’s Office testified that had wagers April, with on various occasions after evidence, 1973. In view above clear the is that respect proof Commonwealth sustained its burden materiality. Bil element See Commonwealth v. lingsley, Superior affirmed, 160 Pa. Ct. 50 A. 2d (1947) ; 54 A. 2d Bobanic, Superior (1916). Thus, the Ct. court properly appellant’s judgment. denied motion in arrest 1—1 f-H
1—1 Appellant the lower should have contends that granted he quash to the indictment because his motion precluded exercising pre-indictment right was from his jury array in- challenge indicting grand to the and/or grand indicting jury.12 the dividual members of dispute Commonwealth does not first indicting grand presented an “notice” that his to case was jury Thus, it receipt indictment. actual either the be decided this “notice” violated must whether due of Criminal Procedure оr essential elements of Rules process. provides procedure a
Rule Pa.R.Crim.P., may held exercise his constitutional which one for court grand right array jury challenge or an to grand challenges juror. All be exercised individual must grand jury In order before the returns an indictment. right challenge safeguard pre-indictment to to grand jury, provides shall rule no event a grand jury a for action bill indictment “be submitted to days held . .” until 10 after defendant is for court . subject exceptions. implicit in the to two limited It pre- there be sufficient time between Rule that must hearing liminary presentment of in- of the bill grand permit jury in to dictment order the accused to challenge grand jury about opportunity аn to which is sense, provision is a “notice” indict him. there Sills, Superior Rule 203. v. within A. 2d 539 Ct. Court, however, has ruled that Rules
Our because contemplate procedure of Criminal Procedure did not juries investigating grand concerned arraign- hearings preliminary normal scheme of literally applicable ments, to such situa- Sills, supra. Thus, indictment an tions. Commonwealth grand presentment investigating upon based from jury “simply quashed the Common- not be should appel- supply days’ failed to ten ‘actual’ notice wealth submitting of indict- prior lee the bill or his counsel *15 jury.” Sills, indicting grand Commonwealth ment to “Questions This contention is first issue listed 12. Appellant’s Brief. Presented”
583
supra
288,
held,
at
however,
352 A. 2d at
Sills
543.
supplied by
must be determined whether “the notice
appellee
the Commonwealth
was sufficient to allow
opportunity
challenge
array
grand jury,
to
or
challenge
grand jurors
individual
for cause.”
Pa.
237
Superior
Ct. at
In Commonwealth v.
Pa.
239
(1968),
Supreme
A. 2d 296
our
held that
Court
notify
“. . .
to
failure
accused or his counsel that
presented
grand
case
jury
will be
to a
other than that
to which it was handed over
fundamental no-
violates
process.”
tions of due
v. Dessus, supra; Brown v. Commonwealth,
76 Pa.
(1874).”
Superior
at
2d
Ct.
A.
at 544.
In Sills,
period
provided
of “notice”
the defendant
was measured from the date on which notice was re
ceived until the date on
bill of indictment was
grand
submitted
jury.
to the
In the
argues
instant
case,
that
appellant
provided
was
opportunity
with an
to frame
challenges
grand jury
the indictment was
aftеr
However,
returned.
cognizance
we cannot take
of this
assertion
it
not
record. Commonwealth v.
Young,
102, 111-112,
(1974).
2d 258
A.
Furthermore,
post-indict-
is not clear how a successful
challenge
ment
might be framed when there has been
opportunity
no
investigate
composition
grand jury
timely challenges.
and to
Cf.,
file
Common-
Jones,
wealth v.
Because I would hold provided meaningful with opportunity challenge grand jury array challenge or to individual members grand jury, I would reverse his conviction and order quashed. the indictment
Spaеth, J., joins dissenting opinion. Commonwealth ex Appellant, rel. Coffman,
Aytch. Notes no addi- were grounds appear tional Post-Trial record. Motions were April 21, denied on was sentenced to twenty-three three to Philadelphia County months in opinion Judge Prison. dated June Kubacki post-trial states that no brief on motions sub- by appellant’s mitted counsel, that motions were “[t]he general (suggesting supplemental in nature” motions filed) were fact never meritorious “[n]o arguments were advanced counsel the defendant” (an apparent arguments comment on whatever oral advanced). preceding it clear that makes this Court has no record of the nаture of oral motions and arguments any grounds nor record indication appel- relief other than those advanced Judg- lant’s “Motion For Trial New Arrest And/Or ment”, supra February 6, Appellant n. filed 1975. brings judgment im- from of sentence posed April 21, stayed pend- (which sentence was ing appeal May 21, 1975), advancing numerous grounds upon granted which he should be relief. Appellant eighteen assignments has raised of error present which various interconnected issues some Appellant’s Post-Trial were in Motions the form of a Judgment”, “Motion For Trial New Arrest of And/Or assigned following he reasons: contrary “1. The verdict to the evidence. is contrary weight “2. The verdict the evidence.