Carabello Appeal
Carabello Appeal
Opinion of the Court
Opinion by
This is an appeal from a lower court Order denying the Appellant’s Motion to Quash a Subpoena. The Subpoena (No. 1190) was issued in connection with the proceedings of the January, 1974 Special Investigating Grand Jury.
Appellant moved to quash the subpoenas on several grounds. Especially emphasized by appellant is his first contention that the subpoena in question was invalid since it was allegedly not issued by a lawful procedure.
As appellant has pointed out, the assigned judge has a duty to be diligent in his supervision and control of proceedings of an investigating Grand Jury. See Commonwealth v. Columbia Investment Corp., 457 Pa. 353, 325 A.2d 289 (1974); Commonwealth v. Hubbs, 137 Pa. Superior Ct. 229, 8 A.2d 611 (1939). Of course, the judicial supervisory role includes within its purview the subpoena process. However, contrary to arguments raised by appellant, we must hold that the judge has no duty to investigate the propriety of each subpoena prior to its issuance.
The customs and practice with respect to subpoena procedure are long-standing and well-known in judicial proceedings. When any party to a judicial proceeding desires a subpoena to compel the testimony of a witness or the production of some matter, he sees the appropriate officer of the court to secure a blank subpoena form. He then fills in the appropriate blank spaces and has the form properly served. Our statutes provide for issuance of subpoenas; the Act of June 16, 1836, P.L. 784, §22 (17 P.S. §2079) states:
*483 “ISSUE OF WRITS OF SUBPOENA
Each of the said courts is empowered to issue writs of subpoena, under their official seal, into any county of this commonwealth, to summon and bring before the respective court any person to give testimony in any cause or matter depending before them, under the penalties hitherto appointed and allowed in any such case by the laws of this commonwealth.”
Beyond this broad statutory provision, the statutes and rules of procedure provide scant guidance with respect to practices involved in the issuance of subpoenas. Rule 144(a) of the Pennsylvania Rules of Criminal Procedure empowers “issuing authorities”
While dismissing appellant’s claims regarding the procedure followed in subpoena practice, we must nonetheless examine appellant’s substantive claims that the procedure followed worked to deny him (and others) of rights. Appellant contends that by not reviewing the proposed testimony sought of each prospective witness and the relevancy of any other matter sought prior to the issuance of each subpoena, the supervising judge is abdicating his responsibilities to supervise Grand Jury proceedings. It may not be denied, as stated earlier, that the lower court certainly has the clear responsibility to supervise Grand Jury proceedings to avoid abuses, including abuses in the use of subpoenas. See Commonwealth v. Columbia Investment Corp., supra; McNair's Petition, 324 Pa. 48, 187 A. 498 (1936); Commonwealth v. Hubbs, supra. However, the appellant has not convinced us that the court cannot perform this vital function, and provide the necessary safeguards to those served with subpoenas, by entertaining and considering appropriate motions to quash or limit the scope of a subpoena after it is served. Appellant would have us mandate a two step procedure for court review of each subpoena where a single step is more than adequate to prevent abuse. The appellant’s rationale, if logically extended, would compel the conclu
The appellant has also raised an issue on appeal, which, in simplified terms is aptly described by the lower court as an assertion “... that it has not been established that the subpoena is relevant to the Grand Jury’s investigation.”
Affirmed and remanded for further proceedings in the lower court.
. See In re: Investigation of January, 1974 Philadelphia County Grand Jury, 458 Pa. 586, 328 A.2d 485 (1974).
. This identical claim has been raised in other appeals to our Court, but in the instant ease, as noted above, the lower court has certified this interlocutory issue as appropriate for immediate review.
. See Pennsylvania Rule of Criminal Procedure 3 (i) for the definition of “issuing authority.”
. No individual, including a district attorney or even the Commonwealth’s Attorney General has the power to issue subpoenas without express statutory authority; this power is solely a judicial one in the absence of statute. See Commonwealth ex rel. Margiotti v. Orsini, 368 Pa. 259, 81 A.2d 891 (1951), where the Supreme Court held it improper for the Attorney General to attempt to subpoena an individual to appear at his offices for an investigation.
. The Federal Courts, which have followed an identical mode of practice, have set forth the procedure in Federal Rule of Civil Procedure 45(a): “FOR ATTENDANCE OF WITNESSES; FORM; ISSUANCE. Every subpoena shall be issued by the clerk under the seal of the court, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified. The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service.”
. In raising this claim before the lower court, appellant sought disclosure of information provided to the court in an in camera proceeding of the type discussed in In re: Grand Jury Proceedings, 507 F.2d 963 (3d Cir. 1975).
. We do, however, for the guidance of the parties and the lower court, refer attention to our decision in Salvitti Appeal, January, 1974 Special Investigating Grand Jury, 238 Pa. Superior Ct. 465 (1976).
Dissenting Opinion
Dissenting Opinion by
This appeal presents the same question as in Tracey Service Co. Appeals, January, 1974 Special Investigating Grand Jury, 238 Pa. Superior Ct. 476, A.2d
I would quash the appeal.
Hoffman, J., joins in this dissenting opinion.
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