436 Pa. Super. Ct. 550 648 A.2d 546

648 A.2d 546

COMMONWEALTH of Pennsylvania v. William J. COSGROVE, Appellant.

Superior Court of Pennsylvania.

Argued April 26, 1994.

Filed Aug. 25, 1994.

Reargument Denied Nov. 3, 1994.

Morey M. Myers, Scranton, for appellant.

*551Andrea F. McKenna, Deputy Atty. Gen., Harrisburg, for Commonwealth, appellee.

Before McEWEN, JOHNSON and HOFFMAN, JJ.

McEWEN, Judge:

Appellant, William J. Cosgrove, has filed this appeal as of right from the order, entered November 3,1993, which denied, without prejudice, his petition to dismiss the criminal complaint filed against him by the Office of the Attorney General charging him with the offenses of theft by deception,1 unsworn falsification to authorities,2 and corrupt organizations.3 We are constrained, for the reasons set forth hereinafter, to quash this appeal as premature.

Appellant, doing business as the North End Plumbing Company and North End Plumbing, Inc., was charged by criminal complaint dated March 22, 1993, and sworn to by Special Agent Michael Crossin of the Office of the Pennsylvania Attorney General, with 24 counts of theft by deception, and 24 counts of unsworn falsification to authorities, based upon appellant’s request for and receipt of allegedly excessive amounts of reimbursement pursuant to a contract with the Scranton Sewer Authority during the calendar year 1991— AND, AS WELL, A FURTHER COUNT OF CORRUPT ORGANIZATIONS. Appellant was arrested on March 22, 1993, and, on April 15, 1993, 14 days prior to the scheduled preliminary hearing, filed a petition for a rule to show cause why the complaint should not be dismissed or, in the alternative, why a “Goodman” hearing4 should not be held prior to the preliminary hearing. The trial court granted the rule to show cause and entertained argument by the parties on June 3, 1993, and September 20, 1993.

*552The distinguished Judge Carlon M. O’Malley, on November 3, 1993, following submission of memoranda by counsel, denied, without prejudice, appellant’s petition to dismiss the criminal complaint, noting, however, that “serious questions are being raised herein relative to the authority of the Attorney General to institute these proceedings”. Appellant, on December 3, 1993, filed an appeal as of right to this Court pursuant to Pa.R.App.P. 313. Appellant also filed, as a pre-' cautionary appeal, a petition for permission to appeal an interlocutory order,5 aware of the compelling arguments of the Commonwealth in support of their contention that the instant appeal was premature.

Appellant initially contends that this appeal is properly before us as the order of November 3, 1993, is immediately appealable pursuant to Pa.R.App.P. 313. Rule 313 provides:

a) General Rule — An appeal may be taken as of right from a collateral order' of an administrative agency or lower court.
b) Definition — A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.

Pa.R.App.P. 313.

The Commonwealth contends that the instant appeal does not involve a collateral order and, therefore, must await the entry of a final order, and also argues that, even if an interlocutory appeal was permissible pursuant to Pa.R.App.P. 313, the instant appeal, taken from an order entered even before a preliminary hearing has been held, must be quashed as premature. While we agree that appellant must be permitted to challenge, prior to trial, the authority of the Attorney General to proceed in this matter, we are not persuaded that appellant may do so prior to the completion of the preliminary hearing.

*553Appellant has challenged the authority of the Attorney General to investigate and prosecute the offenses set forth in the criminal complaint, citing Section 205(a)(1) — (8) of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, No. 164 § 101 et seq., 71 P.S. § 732-205(a)(l)-(8).6 Ap*554pellant concedes that 71 Pa.C.S. § 732-205(a)(2) authorizes the Attorney General to investigate and prosecute criminal charges involving corrupt organizations as provided for in 18 Pa.C.S. § 911, but argues that the charge of violating 18 Pa.C.S. § 911 is contrived and was included in the criminal complaint solely for the purpose of enabling the Attorney General to wrongfully assert jurisdiction over the instant case.7

Both the Supreme and Superior Courts have previously reviewed pre-trial challenges to the authority of the Attorney General. The Pennsylvania Supreme Court, in Commonwealth v. Bobitski, 534 Pa. 310, 632 A.2d 1294 (1993), affirmed an order which had granted the pre-trial motion of the defendant to quash three counts of an indictment, arising out of a scheme whereby the defendant, an employee of Thrift Drug, solicited bribes in exchange for awarding construction contracts. The trial court dismissed one count of forgery and two counts of corrupt organizations, leaving for trial five counts of commercial bribery, and one count of tampering with records.

The Supreme Court, in Bobitski, in affirming the lower courts, framed the issue as “whether the Pennsylvania Corrupt Organizations Statute (18 Pa.C.S. § 911) can be applied to an individual who committed a series of criminal acts for his *555own benefit while employed by a legitimate enterprise, where the Commonwealth concedes that there are no identifiable ties between the individual, the enterprise, and ‘organized crime’.” Id. at 312, 632 A.2d at 1295. The Court in Bobitski expressly rejected the federal courts’ interpretation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq., which does not require “the prosecution to establish a nexus between the individual and/or the enterprise being charged and ‘organized crime’ ”, Id. at 325 n. 2, 632 A.2d at 1296 n. 2. Rather, our Supreme Court specifically there held that the Corrupt Organizations Statute is applicable only to “organized crime ‘as it is commonly understood’ ”. Id. at 314, 632 A.2d at 1296.8

*556Appellant, arguing that the complaint makes no reference to “organized crime” and contending that he has no connection to “organized crime”, contends that he must be permitted to challenge the decision of the Attorney General to charge him with a violation of the Corrupt Organizations Statute, and is entitled to an immediate hearing to develop the factual basis of the jurisdiction of the Attorney General to investigate and prosecute this action., See: Commonwealth v. Goodman, supra.

The decision of appellant to challenge the authority of the Attorney General almost immediately after the filing of the criminal complaint has resulted in a record which contains, in essence, only the complaint and the affidavit of probable cause. The complaint charges appellant with the theft of $174,160.43 as a result of “intentionally creating and reinforcing the false impression that the amount submitted for reimbursement was the actual direct cost for furnishing the materials for emergency Scranton Sewer Authority projects when in fact the amounts submitted were in excess of those costs *557incurred by the defendant, the President of North End Plumbing, Inc.” and “by intentionally creating and reinforcing a false impression that [appellant], doing business as North End Plumbing Company, had paid prevailing wage rates to employees of North End Plumbing Company on emergency projects for the Scranton Sewer Authority, and requested and received reimbursement for excess amounts as set forth below.” Count 49 of the complaint, which charges appellant with a violation of the Corrupt Organizations statute, provides:

Between January 1, 1991, and December 31, 1991, the Defendant was employed by or associated with an enterprise, to wit, a group of individuals associated in fact although not a legal entity, engaged in commerce and trading as “North End Plumbing Company” or “North End Plumbing Incorporated”, a corporation engaged in commerce, of which the Defendant was President, and the Defendant conducted or participated, directly or indirectly, in the conduct of the enterprise’s affairs through a pattern of racketeering activity as set forth in detail in counts 1-48 above, each of which is within the definition of ‘racketeering activity’ as set forth in 18 Pa.C.S. § 911(h)(1).

Appellant correctly argues that the Superior Court in Commonwealth v. Goodman, supra, sanctioned the pre-trial review by a trial court of the use of the Corrupt Organizations Statute by the Attorney General so as to prevent the wrongful assertion of jurisdiction by the Attorney General. While we agree that the appellate courts have sanctioned the review of the prosecutorial authority of the Attorney General prior to trial, we believe that such review may not properly be invoked until the conclusion of a preliminary hearing.

Our Supreme Court in Commonwealth v. Carsia, 512 Pa. 509, 517 A.2d 956 (1986), affirmed a pre-trial order quashing the information filed against Carsia by the Attorney General, based upon the limitations imposed upon the Office of the Attorney General by the Attorney’s Act. The defendant in Carsia had been held over for trial following a preliminary hearing and, after the filing of the information against him, filed a motion to quash based upon the lack of authority for *558the Attorney General to prosecute the case. The trial court granted the motion and the Commonwealth appealed. The Supreme Court subsequently affirmed the trial court, holding that “the Attorney General can only investigate and prosecute criminal actions set forth under section 205 of the Act”. Commonwealth v. Carsia, supra at 511, 517 A.2d at 957.

Similarly, the Supreme Court in Commonwealth v. Bobitski, supra, entertained an appeal originally taken by the Commonwealth from a pre-trial motion to quash various counts of an indictment, in particular, charges of corrupt organizations, and affirmed the decision of the trial court to quash those counts of the indictment upon which the Attorney General had relied for authorization to prosecute the action.

The Superior Court in Commonwealth v. Goodman, supra, also affirmed an order which had granted the pre-trial motion of the defendant based upon the absence of any statutory authorization for the Attorney General to investigate or prosecute the case. In Goodman, as in the instant case, “the only justification for the Attorney’s General’s investigation rests on the grant of authority under Section 205(a)(2) which in turn relies on his authority under 18 Pa.C.S. § 911.” This Court, affirming the trial court, reiterated that the primary purpose of the Corrupt Organizations statute is “to prevent the infiltration of legitimate business enterprises by organized crime.” Commonwealth v. Goodman, supra at 420, 500 A.2d at 1126 quoting Commonwealth v. Brady, 470 Pa. 420, 433, 368 A.2d 699, 706 (1977) (footnote omitted). In each of the cases in which this Court or the Supreme Court has reviewed a challenge to the' authority of the Attorney General to investigate or prosecute a case, however, review has been conducted following the conclusion of the preliminary hearing.

Pennsylvania Rule of Criminal Procedure 306 provides that “[ujnless otherwise required in the interests of justice, all pretrial requests for relief shall be included in one omnibus pretrial motion.” Rule 307 provides that the motion is to be filed and served within 30 days after arraignment. The Comment to Rule 306 notes that the types of relief to be requested in the omnibus pre-trial motion include suppression *559of evidence and requests to quash an indictment or information.

While appellant persuasively argues that the “interests of justice” require that an evidentiary hearing be conducted prior to the preliminary hearing, we believe that the rights of appellant will be adequately protected through the orderly presentation of the issues sought to be raised in this appeal in the omnibus pre-trial motion where the record from the preliminary hearing will be available for the scrutiny of the trial court and, if necessary, the Superior Court.

We, therefore, quash this appeal without prejudice to the right of appellant to file a pre-trial appeal from any adverse determination made by the trial court following proceedings in conformity with Pennsylvania Rule of Criminal Procedure 306.

Appeal quashed. Jurisdiction relinquished.

Commonwealth v. Cosgrove
436 Pa. Super. Ct. 550 648 A.2d 546

Case Details

Name
Commonwealth v. Cosgrove
Decision Date
Aug 25, 1994
Citations

436 Pa. Super. Ct. 550

648 A.2d 546

Jurisdiction
Pennsylvania

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