*1 docket, (2) order has been entered on the appropriate appears notation in the docket that notice has proper been Yeaple v. Yea concerning the of the order.” given entry ple, (1979); Pa.R.A.P. 108(b) 301(a); Rules Rule 236. In the Pa.R.Civ.P. action, instant there is no notation in the that notice docket given concerning entry was of the order granting appellees’ Thus, judgment. motion for the order not summary was final and the trial court did not lack to jurisdiction open or strike the summary judgment. addition, if,
In
as alleged by appellant, proper notice was
of
given
entry
summary judgment,
it would
before
extraordinary miscarriage
justice
permit
to
become final. See Tulsa
order
to stand
if it had
even
—
Services,
Collection
Inc. v. Pope,
U.S.
Professional
—,
(1988) (fundamental
108 S.Ct.
Accordingly, Superior we reverse Court and remand to the Pleas of Schuylkill County Court Common for further proceedings opinion. consistent with this
In re INVESTIGATING GRAND JURY OF CHESTER
COUNTY, Pennsylvania SUBPOENA NO. 91. of Karen
Petition LEES. Supreme Pennsylvania. Court of
Argued April
Decided *2 Merrick, Defender, DiSantis, John R. Public John A. Carnes, Jr., Defenders, Philadelphia, John S. Asst. Public Chester, petitioner. West for Carroll, II, Glenmoore, Joseph respondent. W. for C.J., NIX, LARSEN, Before and FLAHERTY, ZAPPALA, McDERMOTT, STOUT, PAPADAKOS and JJ. THE COURT OF
OPINION LARSEN, Justice. for is wheth- this review1 presented by petition
The issue she grand a that jury who testifies before er a witness is being questioned she recall the events about which cannot prison. and committed to found can be Investigat- County Chester the Second On June series evidence Jury began receiving ing Grand Township in Tredyffrin which had occurred recom- of 1987. April May during Karen against charges brought petitioner, mended Lees, of two residences which burglary for were complaints had been found. Criminal fingerprints 12, 1987, petition- petitioner, and on November against filed burglary Alford two counts of plea2 er entered an *3 of Pleas of in the Court Common conspiracy two counts subpoena, then served a County. Chester She was with Investi- appear County her to the Chester ordering before Jury testify.3 gating Grand grand the on November appeared jury
Petitioner before in her the 19, 1987, questioned participation and was about pursuant jurisdiction properly to 42 Pa.C.S.A. 1. invoked This Court’s is 722(5), pleas a court of common concern- a final order of § investigating grand jury. ing supervision of the an Supreme the Court plea name from U.S. Alford derives its 160, 25, Alford, U.S. S.Ct. 27 North v. 400 91 decision in Carolina guilty explained most in 162 The Court L.Ed.2d pleas Alford guilt plea express and of nolo admission of that the consist of guilt. regarded When a criminal is as a tacit admission contendere defendant is tuting unwilling participating in acts consti- unable or to admit crime, strong guilt, the but the contains evidence a record guilty plea is best may in his or her conclude that a defendant interests. entering Thus, 37, person at 400 U.S. 91 S.Ct. Id. at innocence, imposi- plea but consents to the an Alford claims prison a sentence. tion of petitioner subpoena was served. Her third with which 3. This was the 1987, 11, grand jury at appearance before occurred on June initial taken, required she fingerprints but was not were which time testify. 16, grand jury appeared again on before Petitioner burgla- 1987, knowledge questioned about her was at that time and Doria, burglaries but by not those possibly committed Edward ries grant of charged. She under a had testified with which she been immunity during appearance. this second to which she had entered an Alford plea and whether she had committed any burglaries with Edward Doria, whose burglary cases were then in pending the Court of Common Pleas of Chester County.4 replied Petitioner that she had no recollection of participating any burgla- ries. brought She was the judge before supervising the and was found to of court. Term, In re Jury, April 1977, Grand Citing Wayne Coun- ty, Pa.Super. (1977),5 the supervising petitioner’s concluded that lack of regard- recollection ing burglaries to which she had plea entered a was unbe- lievable, and the supervising judge petitioner sentenced imprisonment six months’ unless she purged herself of contempt by answering questions before the grand jury. The supervising judge denied petitioner’s motion for stay of order, on but November Mr. Chief Justice Nix granted request stay petitioner for a was released.
This
Petition,
Court stated
Schlesinger
Pa.
(1951),
that when a court rules that a
person is in contempt,
appellate
“the
court will not inquire
further
than to ascertain whether
the record
such
shows
misconduct or disobedience of the court’s order.”
It is well
settled that refusal to
answer
before a grand jury
by petitioner
4. One of the
subpoena
issues raised
is whether use of the
powers
investigating grand jury
of an
to secure evidence in a case
charges
where
grand jury
have been filed constitutes abuse of the
Investigating
Jury
violates the
This Court
Grand
Act. 42 Pa.C.S.A.§§ 4541-4553.
*4
Lang,
considered this issue in Commonwealth v.
517 Pa.
(1988),
It is clear from the record that did refuse petitioner questions to answer before the On the con- grand jury. trary, every question put she answered to her by and she prosecutor, repeatedly asserted that she could not participating any burglaries.6 recall Petitioner’s asser- repeated supervising tion was when the directed question to answer to the petitioner respect “[w]ith do think burglaries you you Transcript ... did them?” (Nov. 20, 1987). Proceedings at 56 recognized This Court has what it the “trilemma” dubbed witnesses, i.e., facing 1) every may witness refuse to an- question subjected swer a and be to contempt proceedings; 2) therefore; make a harmful disclosure prosecuted and be 3) answering or lie while for be indicted Good, perjury. Commonwealth v. steadfastly position spite questioning
6. Petitioner maintained her by prosecutor prosecutorial which we find amounted to miscon- offending prosecutor duct. The remarks of the are as follows: Q Lees, just you going Miss I want to remind of where I’m because time, you you I think I told this last I want to make that sure you remember this. I think that were at those and I prove prove beyond think I can that. I think I can it a reasonable you plea doubt and if had not entered a to those offenses that’s exactly what the Commonwealth intended to do. I think that you you you Edward Doria was there with because can’t drive so get somebody can’t there without else and it was Edward Doria’s car during burglaries. prove you’re that was there those If I can that lying today during your prior testimony going try here or I am to to you jail you prove send for each time have lied and I think I can testimony that with the of Edward Doria. If I have to I’ll make a him, though prefer just testimony deal with even I’d take from Doria, you, you go against let home and use the truth Mr. but if I prove you’re lying. have to I’ll deal with Mr. Doria and that Please keep during questioning. that in mind the rest of this right. say you you partici- All You have no idea whether ever pated burglary your in a life? (Nov. 1987). Testimony Notes of at 11-12 permitted attempt grand jury Prosecutors are not to influence a Smart, by expressions personal opinion. See Commonwealth v. also, Pa. duct, See Gershman Prosecutorial Miscon- 2.3(b) (hostile (1986) questioning implication § that witness misconduct). lying generally is viewed as *5 490 288, (1975). Thus,
A.2d it is clear that a witness who questions answers in cannot be court. Indeed, supervising the judge acknowledged petition- er had questions, answered the he but refused to believe Assuming answers. that petitioner was under lying oath, the only sanction would be an indictment for perjury. Harris, See Commonwealth v. 5, 175 n. A.2d 592 n. 5 find
Accordingly, we that the supervising judge erred in committing petitioner prison for contempt. civil We hereby reverse order of the Court Common Pleas of Chester County finding petitioner to be a grand jury subpoena. J.,
McDERMOTT, dissenting filed a opinion which STOUT, J., joined.
McDERMOTT, Justice, dissenting. insulate majority would the immunized from witness any fear of sanction if they answer all “I with recall”; don’t that, know” or “I don’t even where no ration- person al under ordinary circumstances could not know the answer to the specific questions addition, asked. In In re Grand Jury, April majority overrules summarily Term Wayne County, Pa.Super.
(1977),and condemns as prosecutorial misconduct the warn- ing to a jury witness that what she she does says know is under the egg circumstances on the face of com- mon sense.
The prosecutor told the simply witness there is more than one way witnesses, to skin a deliberately uncooperative in doing All, so he said he thought prove. what he could course, is time wasted as the majority cheers her on in what and, trial considered her intransigence, blatant passing, escape devises an to all who “I simply say do not know.” Whether a witness does not must know be left to he, judge. present hearing, trial If beyond believes he subterfuge is a that such answer a reasonable doubt to act. empowered must be *6 vigorously
I dissent. STOUT, J., joins opinion. this Pennsylvania, Appellee,
COMMONWEALTH
v. TURNER,
Geary Appellant. Pennsylvania, Appellant, COMMONWEALTH
v. TURNER, Appellee. Geary Pennsylvania. Supreme Court of April Submitted Decided