*1 452 of At the appellant. over that undercover policeman however, offered exculpatory Mr. Paine
PCHA hearing, trial appellant’s testimony which corroborated testimony the defense. have aided may substantially credibility issue is virtually only In a where case defendant, versus that of the witness Commonwealth’s to assure that alternatives available failure to all explore who a known witness testimony heard jury the Common- shadow casting be might capable ineffective assistance wealth’s witness’s truthfulness counsel. 407, 410 Pa. 350 A.2d v. 465 Abney,
Commonwealth v. 460 Pa. (1976) Twiggs, Commonwealth (quoting (1975)). 331 A.2d 443 Mr. Paine's
It to decide what effect is not for this Court if he had called have had on the been testimony left to the fact-find- best testify. credibility Matters Adams, Pa. 350 A.2d v. ers. Commonwealth 412, 416 (1976). the Superior denying Court the order
Accordingly, of sentence judgment is reversed. The post-conviction relief trial is granted. is vacated and a new A.2d PHILADELPHIA In re GRAND JURY OF INVESTIGATING (Misc. 809-11-47, C-13). No. COUNTY INC., COMPANY, Appeal RUST PROOF of PHILADELPHIA Vezzosi, Vezzosi, Jr., Sr., Thomas Thomas
Richard Vezzosi. Pennsylvania. Supreme Court 28, Argued Oct. 14, 1981. Decided Dec. *3 Gelb, J. for Marilyn Philadelphia, petitioner. Chief, Div., B. Lawler,
Robert Asst. Dist. Appeals Atty., Lehr, Michele Philadelphia, respondents. Goldfarb O’BRIEN, J., ROBERTS, NIX, LARSEN, Before C. FLAHERTY, WILKINSON, KAUFFMAN and JJ. OF THE
OPINION COURT ROBERTS, Justice.
This is a petition plenary separate review two related orders of the Court Common Pleas Philadelphia 16, 1981, entered on September and October connection with the July Investigating Jury Grand This Court County. heard oral on argument October 1981. We accept plenary jurisdiction, see 42 Pa.C.S. and remand for proceedings consistent with § this opinion.
I Upon application respondent Office Attorney’s of Philadelphia, the grand was authorized to investigate “allegations Co., Inc., that Philadelphia Rust Proof or its employees agents, obstructed or interfered with the Phila- delphia Water Department’s attempts enforce compliance with its Wastewater Control Regulations by submitting or inviting reliance false information about the nature and contents of the wastewater from its plant located in the City Philadelphia, and related and cognate offenses.” *4 Petitioner Vezzosi, Sr., Thomas of president Philadelphia Rust Proof as well as Company, petitioners Vezzosi, Thomas Jr., Vezzosi, and Richard of the employees were company, subpoenaed to and to testify produce documents before the grand jury.
The challenged order of September peti- denied tioners’ consolidated motions to quash the subpoenas, well as their motions for protective orders to bar the disclosure of grand jury evidence respondent. In these by motions peti- would disclose respondent improperly that
tioners claimed Law in a Department, plaintiff to the Philadelphia evidence to relief obtain against petitioners action filed equity Code and Philadel- Philadelphia violations of the alleged In of the Department regulations. support Water phia affidavit in it revealed filed an which subpoenas, respondent the by judge entered supervising the existence an order to respondent The order authorized 14, 1981.1 on May the to Philadel- by grand jury disclose obtained Law Department: phia
“ORDER
1981an ORDER
wit,
May,
this 14
NOW,
day
AND
Philadelphia
disclosure
entered
hereby
approving
physi-
witnesses and
testimony
all
evidence)
scientific
obtained
(including any
cal evidence
the obstruction
regarding
Jury
Grand
Investigating
Co., Inc. and
Rust-Proof
by Philadelphia
and interference
De-
Water
Philadelphia
its
and
employees
agents
its Wastewater Control
to enforce
partment’s attempts
at
of Amber Willard Streets
premises
Regulations
(cid:127)
of Philadelphia.”
the City
motions,
respondent
Attorney’s
At
on the
argument
that the court had also
petitioners
further informed
Office
grand jury
an
order
entered
earlier
government,
another unit of city
materials to members of
Unlike the May
Water
Philadelphia
Department.
of the record.
part
been made a
order, this order has not
dis-
asserts, however, that
order authorized
Respondent
Industrial Waste
Kulesza,
Chief
closure
Thomas
and Thomas
Department,
Philadelphia
Unit of the
affidavit,
affidavit,
re
see In
called a “Schofield”
1. The
sometimes
1973),
(3d
Jury Proceedings (Schofield),
On September September review this Court of order. plenary then to rescind Respondent requested supervising judge his 14th disclosure to the Philadel- authorizing order of May was on phia granted Sep- The rescission Department. however, 25,1981.2 tember The that the order parties agree, disclosure to members in remains effect. 9,1981, held petition The order of October challenged Vezzosi, er custodian of records for Philadelphia Richard for his refusal to Co., contempt comply Rust Proof in civil him to submit records ordering company with the subpoena The execution of the October 9 order has grand jury. been this Court’s determination.3 pending stayed
II
Grand
have
been con
jury proceedings
traditionally
ducted in
This
which is
secrecy,
indispensable
secrecy.
during
2. Because disclosures
well have been made
the four
effect,
May
reject
months that the
14 disclosure order was in
we
respondent’s argument
of the order has mooted the
that rescission
validity.
issue of that order’s
filing
petitioners’
contempt,
3. The order of civil
entered after the
review,
petition
way
challenged by
supplemental
initial
of a
was
petition. This Court consolidated review of the order of civil con-
tempt
September
challenged
with review of the
order of
petitioner
appeals
Because
Richard Vezzosi
from an order of civil
contempt,
comply
with a
entered
his refusal
subpoena,
may properly
address the issues raised
Court
quash.
though
consolidated
the denial of
motions to
This is so even
quash
non-appealable, interlocutory
the motions to
is a
order insofar
remaining petitioners,
as it
affects the
who have not had orders
contempt
against
Arlen
entered
them. See In re Petition of
Specter,
(1974).
455 Pa.
may
deliberations,
to prevent
its
and
persons
in
grand jury
importuning
their
from
to indictment or
friends
subject
or
perjury
subornation
(3)
prevent
the grand jurors;
testify before
may
with the witnesses who
tampering
indicted
at the trial of those
grand
appear
and later
jury
it;
free
untrammeled disclosures
encourage
by
(4)
respect
have information with
who
by persons
crimes;
innocent accused who
(5)
protect
commission
he
the fact that
has been
from disclosure of
exonerated
standing
from the
expense
under
investigation,
”
guilt.’
was no
probability
trial where there
677,
n.6,
Co., 356 U.S.
681
v. Procter & Gamble
United States
with
n.6,
(1958), quoting
which Commonwealth attorneys jury: investigating grand before an occurring close matters other participants “(b) by Disclosure of proceedings matters before occurring witnesses. —Disclosure of than its the vote of than deliberations and jury other grand the Common attorneys made to the juror may be any The their duties. use in the performance wealth for the approval with may for the Commonwealth attorneys before matters occurring disclose judge supervising testi including transcripts the investigating law enforce local, State, state Federal other mony in investi to assist them agencies or investigating ment jurisdiction. Oth investigative their gating crimes under opera stenographer, erwise a juror, attorney, interpreter, device, who transcribes any tor of a recording typist before occurring matters recorded disclose testimony may court.[4] when so grand directed jury only All such sworn to and shall persons shall be be in secrecy, of court if reveal information contempt they which keep sworn to secret.” Thus, Pa.R.Crim.P. 263. for the Common- attorneys See wealth of matters before an may make use inves- occurring tigating duties, in the their own grand performance of disclose such matters to other “law enforcement or in one investigating agencies” only instance —“to assist them under investigating investigative crimes their jurisdic- tion.”
In defense of order disclosure to of Philadelphia, respondent that, argues *7 because the Law action Department’s equity against petitioners seeks as not damages only injunction an but also fine fine, failure to the imprisonment upon pay the Law Department’s investigation in preparation trial must constitute into To inquiry an “crime.” the contrary, whether a is for the of a prosecution commission crime or for the infraction of a civil law is determined not by the the potential penalties charged. offense by This Court has that an held action for unanimously violation of a municipal “civil in ordinance is nature.” Waynesburg Bor ough v. 104, 105, Van Pa. Scyoc, 216, 419 213 A.2d 217 (1965). Accord, ex Commonwealth rel. Ransom v. Township Masch eska, 429 168, Pa. A.2d (1968); 239 386 Commonwealth v. Ashenfelder, 517, 413 198 (1964). Pa. A.2d 514 Respondent’s own motion requesting authorization to disclose grand jury evidence to Department the Law states that disclosure was sought to assist Philadelphia Department Law “[t]he [in] an pursuing action in equity against Rust [Philadelphia Proof the the purpose enforcing Philadelphia Co.] correctly sentence, 4. The does that Commonwealth not contend this by jurors, attorneys, which refers to court-directed disclosure inter- etc., preters, supports supervising judge order of the the entered on 14, May Indeed, portion reasonably this of the statute cannot enlarge scope permitted be read to the to Common- attorneys specific language preceding wealth sentences. 460
Code, Regulations.” Codes i.e., Department the Water not be characterized action may Thus this civil enforcement as a of “crime.” prosecution argument ignores respondent’s fundamentally,
More a civil law fact viola- prosecute no authority with agency enforcement stated, As Court has tions the law “crimes.” pow- have the in this Commonwealth attorneys “district in- the Commonwealth’s duty represent er—and the —to its laws. criminal terests in the enforcement official, not Solicitor, a locally appointed The City Attorney’s infringe be permitted law. of the criminal or functions in powers prosecution no less than Philadelphia County, The District Attorney Common- of this county other attorneys district charged legal with wealth, is sole official public other ‘in court all criminal and conducting responsibility ofAct name of the Commonwealth.’ in the prosecutions, 1402(a) 1, (Supp. P.S. § July § [P.L. 1969)].” Bauer, v. Pa. Specter
Commonwealth ex rel. Home Accord, Philadelphia (1970). A.2d 575-76 section 4.4^400, (“This Note Charter, Rule 351 Pa.Code § *8 is not Department] of the Law the functions [delineating the traditional Department to the Law intended to transfer Attorney”). office of the District powers prosecuting upon its reliance prevail through respondent Nor can in 3, proceedings” Rule “criminal Pa.R.Crim.P. Under laws.” of the penal for the enforcement clude “all actions “all statutes “Penal laws” defined 3(g). Pa.R.Crim.P. establish, create law which common and embodiments ordinances which including or crimes or offenses define upon conviction or upon may provide imprisonment 3(1). How Pa.R.Crim.P. to a fine or pay penalty.” failure
461 ever, the “ordinances may provide inclusion of which to conviction failure a fine imprisonment upon pay definition of laws” “penal within the does not penalty” Rather, ordinances make violations such “crimes.” it that, reflects the established in a civil merely principle a civil defendant object penalize action whose for the law, commission of against an offense availa protections prosecutions ble defendants in traditional criminal attach. v. Coin See United United States & Curren States 401 28 434 cy, (1971) (fifth U.S. 91 L.Ed.2d S.Ct. amendment forfeiture proceedings); One applies 1958 v. 380 Plymouth Pennsylvania, Sedan U.S. S.Ct. (fourth L.Ed.2d 170 (1965) applies amendment in same). also of Philadelphia See v. City Kenny, Pa.Cmwlth. 369 A.2d (1977) (citing cases).
Therefore, the order May full approving disclosure of grand jury testimony and physical evidence to Philadelphia Department, a civil law enforcement agency which is the in a civil action plaintiff against peti tioners, was entered in contravention of 42 4549(b). Pa.C.S. § too, So an order such permitting the Water Department of for use in enforcement of its regulations likewise would be invalid.
Ill The record does reveal respondent not whether Attorney’s Office in fact made grand available to the Law Department Philadelphia during the four months that 14 disclosure order was in May effect. Moreover, because the order disclosure to mem- bers the Water has not Department been made a part record, it is for this impossible Court to evaluate respon- dent’s contention such justified disclosure was on the ground that Judge authorized two Supervising spe- “[t]he cialists from the access evidence de- veloped by the Grand for the Jury, purpose assisting *9 in the instant criminal Attorney the District Jury
Grand and for that secrecy purpose.” swore them investigation, and for an evidentiary record is remanded Accordingly, what, any, grand must reveal if respondent at which hearing Department. to the Law evidence has been disclosed jury to reveal all disclosures obliged also be will Respondent that not come does any party which have been made to it disclose may validly to which groups within one of the two crimes that investigating grand agencies evidence: jury Pa. approved pursuant judicially both authorized and to secrecy are sworn 4549(b), who parties C.S. and § grand jury to learn of approval court and receive judicial for the prosecutor agents evidence in their capacity investigation in before the assisting exclusive purpose grand jury. not come
If made to that do parties disclosures have been to enter an within these the court is directed exceptions, to return all disseminated order those requiring parties use court, to make no materials forthwith investigation any disseminated grand If have disclosures purpose. or other proceeding as “ex- Department the Water been made to members of review the experts those perts,” respondent permit evidence, secrecy must be sworn grand jury respondent’s custody. not be released from the evidence may Comment, See Pa.R.Crim.P. with this opin- consistent proceedings remanded
Case ion.
LARSEN, J., dissenting files a opinion.
LARSEN, Justice, dissenting. Act, Jury Grand Pa.C.S. the Investigating
I agree informa- not 4549(b), permit does § tion to the breach of the Act authorizes limited Since
Department. for the (and ordinarily quite properly which secrecy *10 protection witnesses) accompanies of the of the a rights grand provisions the disclosure must be investigation, jury Thus, construed. the orders such disclo- strictly sures to not “investigating that were crimes” with- agencies in 4549(b) the of are meaning improper. section
However, I must by dissent creation the of majority a second to which Commonwealth “group attorneys] [the evidence....”, may validly disclose grand jury namely, who are sworn to the court and receive “parties secrecy by of in judicial learn evidence their approval for agents prosecutor the exclusive capacity pur- pose of in the assisting investigation the before grand jury.” (at 1132). The then holds if that “disclosures have majority been made to members of the as ‘ex- perts’, respondent permit experts those to review may the grand evidence, but sworn they must be to secrecy and the evidence not be released may respondent’s from custo- dy.”
In creating new “valid disclosure group” with virtual- ly no analysis the authority,1 majority seems to have authority only proposition The offered the is the comment to However, Pa.R.Crim.Pro. 263. support neither the rule nor the comment group by majority derogation the disclosure created the in provide the Act. The rule and part: comment in relevant (c) Upon motion, appropriate Other Disclosures: and after a hearing relevancy, may into the transcript court order that a testimony investigating jury, grand physical an before grand may investigating jury, before the be released to another investigative agency, impose. may such under other conditions as the court Comment: attorney It intended that the “official duties” of the reviewing investigating grand the Commonwealth include jury testimony prospective with a witness a criminal case stemming investigation, from testimony such where relates to subject the copy matter of the criminal It is case. not intended that a witness, testimony such prospective be released to the added) (emphasis “may It is investigative rather clear that be released another
agency” agencies must be contemplated by limited to those 4549(b). apparent Pa.C.S. § It is also that comment offers no support majority’s group sugges- for the disclosure since there is no proceedings tion “expert/agents” in the “prospec- below that the are stemming tive investigation.” witnesses in a criminal case from the two sentences of of the last language drawn from the juror, attorney, interpreter, a (“Otherwise 4549(b). section device, recording typist or any operator stenographer, matters testimony may disclose who transcribes recorded when so directed grand jury only before the occurring and shall secrecy, shall be sworn persons court. All such information which if reveal contempt they be in court secret.”). doing, majority In so keep sworn restriction; noted the majority opinion its own fails to heed “cannot 4549(b) of section quoted portion above scope permit- enlarge be read to reasonably specific language attorneys by ted to Commonwealth *11 is exactly n. Yet this (at 4). sentences.” preceding attor- the “disclosure the majority enlarges what does —it to include “agents provision for the neys Commonwealth” affiliated with “law otherwise who are not prosecutor” . investigating . . investigating agencies enforcement ” have been “expert/agents” . . as these long crimes . . so in the Act which is language There no secrecy. sworn to of the “agent prosecutor” a general would such support construction and, strict given requisite group liberty to Court not at the disclosure provisions, create such group. majori- of the the first portion I with concur
Accordingly, do to parties have been made order disclosures ty (“if court is directed exceptions, not come within these all to return dissemi- parties those enter an order requiring no use court, and make nated materials forthwith civil investi- any of the disseminated I cannot but purpose”) or for other gation proceeding (“If order majority of the portion subscribe the second De- made to members disclosures have been experts those may permit partment ‘experts,’ respondent sworn evidence, must be to review the grand jury released from not be and the evidence secrecy respondent’s custody.”)