*1 р. (2d 1972). McCormick on at Evidence ed. See §87 Scope Privilege also McCormick, The in the Law of 447, 469 Evidence, (1938). making 16 Tex. Rev. In this L. determination, however, the trial court should resolve all non-disclosure, doubt in favor of so that a client should chagrined not be to learn that he confidences conveyed attorney to his have been revealed his detri ment and without his consent.5
Order the lower court is affirmed.
Spaeth, J., concurs the result. Appellees, Lipman Cohen, appeal Claire filed cross argued they collaterally Company that Jenkintown Cab estopped showing guilty contributory from that Mrs. Cohen was negligence. They contributory base contention the fact this negligence hearing. at was not shown the insurance arbitration argument Comрany is novel because Jenkintown Cab was not a party proceedings. any event, appeal to the arbitration interlocutory jury may plaintiffs since a find subse- quent trial, contributory rendering negligence issue of moot. Appeal.
Salvitti *2 Argued September 1975. Before Watkins, J., P. Jacobs, Cercone, Hoffman, Price, Voort, der Van Spaeth, JJ. appellant. Nastаsi, for
Nicholas J. General, Nancy Attorney with Moore, Assistant J. Attorney General, and Joseph, her Assistant Ben W. Attorney General, for Jr., Deputy Phillips, M. Walter appellee.
Opinion February Spaeth, J., 24, 1976: citing appellant for appeal is an from an order This contempt. February April 1975, appellant On Prosecutor with sub- served Office production calling poеnas for the duces tecum ap- Special Investigating of certain *3 25, April for pointment counsel and On books calendars. subpoenas, a appellant quash the and a motion to filed April the hear- hearing held on 30. At on the motion was appellant’s counsel, the court suggestion ing, of testimony from of in camera the Office heard ex parte, rеlevancy of the and Special on the books Prosecutor testimony, the court of this calendars. basis On on produce the and calendars appellant to books ordered copy in May May appellant requested a of the 6, On 7. May 7, request was denied. transcript; On calendars, produce appellant the books and refused contempt May citation issued. 9, and imposed by court that the lower sentence prison for six months or “until appellant be confined making contempt] by purged of he himself has [his pro testimony testifying for himself available expiration ordered, of ducing or until the as [the records 468 Jury], Investigating is Special whichever Grand Jury Investigating Special has Grand
sooner.” The 1974 longer Therefore, expired. appellant purge no him- can by appearing self before it.1 might appeal
It
be concluded from this fact that the
Although
so,
has become moot.2 do not think
however.
Special Investigating
Jury
expired,
the 1974
Grand
has
Special Investigating
a new
been con
has
vened,
may
Special
and it
be assumed that the
Prosecutоr
pursue
investigation
addition,
will
here
In
involved.
principal
presented by
appeal
issue
this
is what show
ing
relevancy
by
of
Special
must be made
Prosecutor
support
subpoena
of a
duces tecum. This issue will
constantly
investigation
recur as the
Prosecutor’s
subject
appeal may fairly
continues. Thus the
of this
be
regarded
representing
continuing controversy
as
a
important
questions
involves
constitutional
and affects
large
persons.
circumstances,
number of
In such
appeal
Iowa,
should not be declared moot. Sosna v.
(issue
(1975)
validity
U.S. 393
of state statute im
posing residency requirement
for divorce not rendered
moot
pending appeal
fact
plaintiff
had satisfied
requirement);
Wade,
Roe
(1973) (issuе
v.
Ct.
moot
validity
act not rendered
(issue
of mental health
of
hospital).
to
by
longer committed
state
that relator no
fact
Special Prose-
my
for the
view, it
not sufficient
was
judge in
in camera
satisfy
supervising
cutor to
the
by
demanded
proceeding
the
of the materials
relevance
been
procedure
should have
subpoena.
the
The
believe
prescribed
Proceed-
in In
followed is that
Re Grand
ings
(3d
1973).
(Schofield),
There, to Jacqueline was Schofield grand jury purpose testifying in a federal for investigation. she was not asked appeared, she When exemplars allow handwriting testify and but to submit refused, fingerprints photograph to be taken. She her and appeal argued, as contempt. she and was held On comply below, required be she had that before she could should request, Government with Government’s necessity request. purpose The Gov- state the for obligation. argued it under no such ernment that Appeals held: Court that think it reasonable Government “[W]e showing by preliminary required to make some be in- rеlevant to an affidavit each item is at least that grand jury and vestigation being conducted sought properly jurisdiction, and is not within its out primarily purpose. We do not rule ... another may affidavit possibility that the Government’s do hold that presented court in but we camera, Pro- 6(e) Rules of the Federal Criminal Rule [of presentation. require does cedure] disclosing difference ’matters oc- between There is a disclosing curring jury’ grand before the subpoena relevant to an requested are matters conducting. extra- investigation Thus unless appear, the nature of which ordinary circumstances supporting anticipate, cannot Government’s we en- in the to the witness disclosed affidavit should be *5 proceeding.... forсement the If after such disclosure application witness makes court for district discovery proceeding in additional the enforcement deciding request weigh the in court must the that quite scope inquiry limited of an into abuse of subpoena process, potential delay, against and the for any might need for additional information which upon accurаcy cast doubt of the Government’s representations.” at Id. recognize Appeals imposed Court of these
requirements as a matter of constitutional law but “pursuant supervisory power to the federal courts’ over grand juries pursuant supervisory power to our over proceedings brought in the district court....” Id. However, present Special in the Investigating case Grand under supervision was of a Common Pleas judge, why investigating I see no grand reason an jury supervised strictly should be less if it ais state grand jury rather than a federal one. recognize
I also that the facts in differ from Schofield present those in the in case that in the Govern- Schofield ment made no relevancy, disclosure of here whereas therе was such in disclosure camera. however, This difference, is preceding As the quotation immaterial. from Schofield shows, an in only acceptable camera will disclosure be “extraordinary in circumstances.” No such circumstances appear here.3 Special argued
3. The
Prosecutor has
to us that his answer
quash
subpoena
motion to
аmounted to such
requires. (Special
8-9,
disclosure as
Prosecutor’s
Brief
Schofield
footnote.)
point, however,
appear
This
does not
to have been
argued
contempt hearing,
finding
at the
and in
the absence of
court,
may
the lower
we cannot decide whether it
It
is sound.
noted, however,
decided,
that after
was
the United
Schofield
attorney
disclosure, which
in
States
made
was ruled sufficient
Jury Proceedings (Schofield),
(3d
Re
Grand
It
true
disclosure
held sufficient
There,
(1975).
Falone,
in In Re
464 Pa.
There any im- present Falone, the as in Falone and case. In munity right plead case, the to the Fifth Amend- witness’s pur- eliminated; indeed, ment that elimination the is extraordinary pose granting immunity, of which "is supra at Falone, the In Re benefit conferred on witness.” hearing requiring 346 A.2d reason a protect the wit- immunity not to is conferred is having public; public ness the the is interested but prosecution made is to be prosecuted, criminals and if a grant impossible by grant of should immunity, a attorney general should alone but be the decision of has in effect approved the witness be the court. Since standing object to object grant, cannot no to he grant being cases such as Scho- approved in camera. In right present the witness’s case, however, field plead has not been eliminated. to the Fifth Amendment object standing to that the does have It follows witness hearing. learn in the witness does not to an in camera If requested to respect are relevant what the materials to impossible grand jury investigation, may for him it rights know he whether should undеr exercise his Fifth Amendment. dissenting deny opinion
I do not to understand present that this difference between Falone and the case hold, however, appel- is decisive. The dissent would right relevancy lant’s to a disclosure of was waived his counsel’s statement to the court that counsel was “asking to receive Commonwealth’s dis- [the court] [the relevancy] going closures of in camera”, counsel on to say, “I that, don’t wish see but wish to to know fact that it exists on the record.”
Granted that these to statements amounted a waiver relevancy, an initial disclosure of it is not clear that counsel agreed there should never be such disclosure. As pointed argument counsel out in if court, to the lower the court had, grantеd after disclosure, the in camera quash counsel’s motion to subpoena, the issue rele- vance having would “However, have become once moot. denied quash compelling the motion legal to awas my need of client opportunity to have an see and argue respect sufficiency with of this [in camera] proof.” (N.T. offer 44a) argument supported by
This is As the court Schofield. there if observed, pre- witness denied at least some *7 liminary may disclosure of relevance, he be unable to among right exercise a rights, against number of them the right unreasonable search and seizure and not to practical incriminate himself. Thus effect of the dissenting opinion by appellant’s be that would counsel, requesting an hearing, effectively in camera his waived rights. client’s constitutional my view, give would be erroneous to counsel’s
request this effect. It is settled that we must be slow to any find a waiver right. constitutional “... ‘[C]ourts indulge every against presumption reasonable waiver’ of rights fundamental constitutional [footnote omitted] presume acquiescence ... ‘do in the lоss of funda-
473
ordinarily
rights’
A waiver
mental
omitted].
[footnote
known
of a
relinquishment or abandonment
an intentional
458, 464
304 U.S.
right
privilege.”
Zerbst,
v.
or
Johnson
Pa, 185,
Singleton, 439
Accord,
(1937).
v.
Commonwealth
Grant, 229 Pa.
v.
(1970);
Commonwealth
A.2d 753
(1974).
Superior
419,
The order therefore reversed. JJ., con- P.J., and Hoffman Cercone,
Watkins, cur in the result.
Dissenting Opinion Voort, J.: der Van Di- Augustine the Executive appellant, Salvitti, The files Redevelopment Philadelphia Authority, rector of the him to be adjudging an appeal from Order the instant following contempt arose citation contempt. The (in sessions May refusal 7, Jury examin- Investigating Special Grand testify or practices)' Authority ing Redevelopment subpoenaed previously produce records Prosecutor. February 1975, Grand
The record shows 868 was served Tecum Number Jury Subpoena Duces “any and all production of calling upon appellant for the on be- maintained calendars daily appointment books or April year On 1974.” half of Salvitti [Mr.] Number Subpoena Tecum Duces informa- requiring similar appellant upon the was served when during December, 1973, period tion for the time Redevelopment Au- position with the appellant his held Authority Redevelopment 1975, thority. April 25, On After the Com- subpoenas. Quash the filed a Motion hear- held a court Answer, the lower filed monwealth appellant, Motion. ing argument on the for oral overly subpoena was hearing, contended this broad.
During hearing to the course of the the Motion on Quash, appellant’s counsel stated:
“They get establish, (sic) have to Court’s satisfaction, satisfaction, my never said to client’s —I but to the Court’s satisfaction that it comes within scope addition, the investigation of the and that, they have requesting some the reason for information they subpoena. seek to That’s not been to done, my knowledge. asking asking
“I am -not to hear I am what that is. this Court to receive camera, them in without from my being present, put a statement which I wish to be on exactly the record so that it will be recorded of why they precisely requesting the the reasons are appointment why they books wish to those review things. I don’t wish to see but that, I wish know the fact that on the exists record.” Following these counsel, statements held Court an in hearing, at time Prose- cutor established, satisfaction, lower court’s relevancy of subpoenaed scope documents within the Jury’s of the investigation. appeal, appellant
On this raises several claims error. He first contends that lower court erred finding contempt, determining by “without first a hearing the being actual nature subpoenaed.” of the items argument At orаl appellant Court, again before our raised the contention that there had been a lack appropriate hearing. completely isIt clear that the record rebuts contention that he was not afforded hearings only hearing on his Not there claims. Quash Subpoenas, Motion to also, but the lower court appellant’s suggestion, at hearing held an in camera con- cerning appellant. broadness issue raised am figure type a loss hearing out further what appellant reject claims is his entitlement. I would his first contention of error. expressly
Next, despite appellant stated the fact that *9 hearing1) he did position (at suppression that concerning right feel a to the information he had relevancy lower materiality, he contends thе and now provide fulfilling that it request in not his court erred hearing. Thus, transcript the in him with a camera of despite don’t to see said, that counsel “I wish the fact diametrically opposite position that...”, he later took the that he to it was to see would wanted see entitled it. improper hold that and would not condone such tactics any right expressly alleged informa- appellant to waived hearing transcript the in about or a of camera tion suggested if I not find initially he Even did to court. judge clear that a circumstances, a waiver in these grand of supervising jury proceedings, in exercise hearing discretion, right to in his has the hold an camera type maintain confi- of the conducted in this case and investigatiоn dentiality of the if he believes the interests require. 963 In re F.2d Proceedings, so Grand 507 Jury Subpoena to (3d 1975); re see In Cir. also Grand States, Supp. (N.D. 1964). 923 Central 225 F. Ill. Last, appellant “... erred claims the lower court finding appellant for action on in in civil his contempt ruling May 7, a on the knew that 1975, when Court May proof’2 until "offer of would not made camera appellant found, Mаy 9, 9, at a 1975 1975.” contempt refusal, hearing, his when he to be in civil Jury May 7, pro- 1975, to appeared on Grand subpoenaed. the information vide hold- appellant might he have While contends avoided May ing had of contempt if he known himself 7 May 6, request his 1975 for a lower court’s decision on transcript proceedings, the in camera the record Appellant’s effectively rebuts this claim. counsel quotation, 1. See above. proceedings.
2. The in camera 476 May office, prior 7, Prosecutor’s to appearance agreed
1975
before the
that his
Jury,
Grand
appearance
purpose
refusing
be for the
would
sole
produce
expressly
subpoenaed
It was
information.
by appellant
stаted
that he realized he would have
subjected
refusal,
enter such a
and be
to a Decree of Civil
Contempt,
challenge
appellate
him
enable
to raise an
subpoena.
530,
402
See United States v.
U.S.
Ryan,
(1971) ;
91 S. Ct.
Ed.2d
29 L.
85
re: Petition of
Specter,
(1974). Moreover,
Pa.
I would affirm and remand to the lower court for compliance imposed. with sentence Price, JJ., join
Jacobs and dissenting opinion. in this Tracey Appeals. Service etCo., al.