*1 at tlie time apartment lant was not even Walley an arm’s less within length of the initial much raid, drugs.2 was not circumstances, Under these evidence posses- sufficient to sustain conviction for sion of drugs. of the lower judgment court should be reversed.
Spaulding in this join JJ., dissenting Spaeth, opinion. Bonham, (3rd In the recent U. S. v. case of F. 2d 1137 1973), Appeals Cir. the Third Circuit held that doorway evidence found in a secreted hidden recess above the of a bedroom shаred defendant and his half-brother was insufficient “possession” Judge Hastie, to establish heroin the defendant. writing Majority, said, p. person for the 1138: “Where a is the occupant right sole of a room and has the to exclude all others may it, logically knowing from it be inferred he dominion objects likely and control over so situated in his room that he is presence. Palmer, be aware of their United States v. D. C. Cir. F. per But 371. the situation is different where two оccupancy right sons share of a room and the to exclude others Depending upon circumstances,
from it. either or both knowing particular have chattel, dominion control over a choice between these alternatives must be based more than speculation.” Appeal.
Martorano *2 Before P. Wat- J., June 1973. 11, Argued Wright, kins, Jacobs, Spaulding, Cercone, Hoffman, JJ. Spaeth, Gabriel, him Robert E. Oarroll, with
John Rogers Gabriel, for appеllant. and Oarroll Assistant District Richman, Attorney, David District Richard Michel, Attorney, R. Deputy Paul him District and Ar- Attorney, Assistant First Sprague, A. Attorney, Commonwealth, len District Specter, ap- pellee. August
Opinion 1973: Per Curiam, affirmed. to follow. Opinion sentence Judgment Opinion September 1973: Per Curiam, from the Appellant Raymond. Martorano appeals order of A. Harry entered May 4, 1973, by Judge of Common Pleas of Philadelphia Takiee him for of court and commit- County, citing him to for a six months ting county prison period he until or until ex- himself purges by testifying piration present investigating grand jury Philadelphia. as a
Appellant subpoenaed witness and sworn before the investigating grand jury January 1973. The of ille- areas investigating *3 gal gambling operations systematic and to attempts law corrupt enforcement other officers, among things. On February 13, 1973, appellant before the appeared grand but declined tо jury, answer any substantive the questions areas under concerning investigation,1 his invoicing privileges against self incrimination. Sub- sequently, April 12, 1973, the District Attorney and the Philadelphia Attorney General of Pennsylvania the jointly court below to petitioned grant appellant to the immunity pursuant Act Nov. P. L. 22, 1968, No. et seq., P.S. et seq. §1 §640.1 questions appellant which refused to answer included the following: Martorano, you engaged “Mr. illegal have ever been in an gambling operation Philadelphia?” Martorano, you employed any persons “Mr. have ever other you illegal gambling syndicate Philadelphia?” to an assist Martorano, you any money paid directly “Mr. have ever indirectly any Philadelphia Department to member of the Police your illegal protect gambling to activities?” paid any money you directly indirectly “Have ever City judiciary Philadelphia?” or member of Official February Aрpearance 13, 1973, at n.t. 4-5. petition Appellant to the filed an answer partici- appellant hearing then without conducted, was transcript of pating, at the court reviewed February appearance before 13th attorney argument by as heard the district immunity. court granting “need” for the testify. appellant On directed appellant consulting day, counsel, the same after jury. investigating grand He again appearеd reasserting testify, earlier refusal to continued his grounds. constitutional May attorney petitioned
On the district 1, 1973, appellant to cite for A below court persisted May appellant held on and when any questions, the him for refusal to answer court cited conditionally contempt. The was framed so order by testifying, purge himself could trial clearly indicating judge quite in his that the in civil “concluded that the witness was refusing testify. (Emphasis added.) ...” of cоurt Appellant appeals from that now order.
I. jurisdictional ques Initially, we are faced with a parties. raised is tion The issue not, however, properly court’s order is character whether lower order or ized as under the whether, necessarily supra, it an order for crim Act, direct contempt, appeal directly from which would inal *4 Supreme question on our Court. Our decision this prescribed by Ap that Court’s decision in is Riccоbene (1970), peal, Pa. 268 A. 2d until that question properly this when Court re-examines called upon to do so. While decision Biccobene was justices majority of opinion, favor three one con curring dissenting, three despite and result, and membership present fact that Court is of of
different, view both the recentness the decision and jurisdictional it is question involved, inappro- for priate us to strike out on our here. own See also Commonwealth v. Pa. Mason, Ct. Superior A. 2d 103 and (1972), concurring dissenting opinion. We therefore take the the Riccobene liberty quoting this since hold that decision to be issue, we controlling here.
The Court there Riccobene’s reasoned, denying contention that a civil order was contempt improper circumstances similar to here, those as follows: “Ricco- bene that urges sanction of criminal ex- contempt pressly prоvided the Act exclusive, is [See §640.5] and that his civil sentence is thus contempt beyond authority the Court. Because of the conditional na- ture of the sentence which allowed Riccobene himself of and purge free himself testi- fying before the Grand it civil con- Jury, clearly tempt. Shillitani v. United States, 384 U.S. (1966). As the Court said pertinently (pages 369- 365, 368, 371) : difficult question whether a charge [T]he [is] for against witness refusal to answer questions before a grand jury an requires indictment In and trial. both jury cases, contempt proceedings were instituted after had petitioners refused to testify under granted by respective District Courts. . . . Both were found guilty sentenced to two years’ imprisoment, with the if proviso either answered the before his questions sentence he ended, . would released. . . hold that We conditional nature these sentences renders each actions civil contempt proceeding, which indiсtment trial a/re not constitutionally required.
“ ‘We believe the character these actions render them clearly rather than criminal contempt proceedings. See Penfield Co. v.
479
Exchange
590
585,
330 U.S.
Comm’n,
&
Securities
Gompers
phrased
v.
(1947).
As the distinction
(1911),
Range
449
“ question no can that courts have inherent ‘There power compliance to enforce with their lawful orders through civil United v. United Mine States (1947) Workers, 258, 330 U.S. 330-332 (Black concurring part dissenting JJ., Douglas, part); v. United States U.S. 753-754 Barnett, 681, (1964) dissenting). itAnd is essential J., (Goldberg, compel appearance able to courts be and testi mony Bryan, witnesses. United States v. 339 U.S. grand jury subpoena (1950). A must com respect. mand same Cf. Levine v. United States, (1960). U.S. Where consists obey refusal to court order judicial stage proceedings, the witness be con compliance. until McCrone v. United fined States, 307 (1939). imprison 61. conditional nature of the U.S. entirely upon ment—based eontemnor’s continued holding justifies proceedings defiance— safeguards jury, Uphaus absent the indictment Wyman, (1960) 364 U.S. 403-404 (Douglas, J., provided dissenting), process the usual due re- quirements are met.’ *6 supra,
“In Brocker
the
v.
Court
Brocker,
Pa.,
pertinently
(page 519)
said
‘The dominant
:
objective
controlling
of the Court’s Order is the
contempt
factor in the determination of
the
whether
only
dividing
was
or
line
civil
criminal.
the
Not
between civil and criminal
shad-
sometimes
owy
may
or
but the same facts or conduct
con-
obscure,
contempt.’
stitute or amount to both
and criminal
civil
power
“To
The
summarize:
commit
civil con-
tempt
punish petty
contempts
and to
summar-
ily may
by
be exercised
the
and the Constitu-
Court,
right
by jury
apply
tional
of trial
does
such
contempts.
right
by jury
applies (a)
of trial
imprisonment
to serious crimes where
for more than
(b)
six months is
or
no
authorized,
cases where
by
Legislature
maximum sentence is established
the
punishment actually imposed
but
the
exceeds six
imprisonment.
months’
Baldwin New York, 399 U.S.
(1970);
66,
II. here are contentions substantive Appellant’s at of the Act2 which no as required hearing, §640.1 was established, need for the grant adversary a full-scale, was not held hearing to partici- at which was allowed proceeding under the Act. We he claims is pate, required be- as the court find did arguments unpersuasive, low. dealt court’s lower of need and the establishment
contentions regarding “At as follows: type required length, hearing this case this grant of the witness before the reviewed the testimony Grand verified Petition Gen- Jury, Attorney and thereafter eral and the District the wit- Attorney *7 on ness’s counsel was heard He then stated: argument. Stjlman: I . . am ‘Mb. . What presently sir, attacking, is the fact that the Commonwealth has within the for Act the need this to particular established witness I Jury. before this Grand believe their testify petition ’ just hearsay.” ... in an Court, response allegation by counsel [to in for the nothing petition that was either fact before the or any related to directly states, alia, Organized that: “§640.1 inter Thе statute crime testify racketeering; order to Dr relating organized If, proceeding racketeering a to in crime or court, grand jury investigating body up by legis- or set Governor, any person of the order enactment lative shall testify produce any of or to evidence to other kind the refuse may testimony him, ground evidence tend that to incriminate may give testimony. person be ordered such The order that given except upоn an not be order of shall after im, general attorney the established a need for provided.” immimity, (Emphasis added.) grant as hereinafter the of knowledge], had relevant that asserted the of to the fact counsel directed attention grand jury an investigating proceeding pertains in the in addition to the matters disclosed further of wit- transcript Petition for and the Immunity the Court before the Grand Jury, ness’s interrogation of of disclosure the scope had the benefit an in camera and the to be addressed the witness the inquiry from him. information to be elicited anticipated sought “The attack upon present proceeding ignores of a is so immunized as essential status who person of a In our view, benefit conferred. recipient in grant immunity is Common- derogation wealth’s interest right public prosecution who be of crimes. ... should persons guilty [It] be under circumstances sparingly where thе Court is of the opinion that there is a larger concern overriding the broad under public matters investigation by Jury Grand which outweigh the immediate interest the witness who otherwise might his actions. prosecuted
“The establishment ‘need’ must be proven to the satisfaction the cautious and restrained exercise the extraordinary benefit being allowed the immunized witness. As stated Riceobene, supra 418: basic ‘The page “need” requirement statute is to assure that only those criminals whose is vital testimony to the Common wealth will be immunized against punishment for their *8 crimes. This a matter primarily between the prose and the and cuting agency Judge, concern.’* * immunity statutes, somewhat Under related Federal it has sim- ilarly primarily been stated that issue the of ‘need’ is one for the Judge Attorney, determination of the and the United States any if person
little
the
involvement
immunized:
be
See
in-
of the
the basis
determined
“This Court
in-
the
for obtaining
a need
it,
formation before
brib-
regarding
possesses
the witness
formation which
demonstrated
sufficiently averred
has been
ery
immunity.
warrant
the grant
.
disclosure
. . public
“. . .
to require
Further,
matters
of the
and information supportive
the evidence
been violative
would have
recited
the Petition
Additionally,
Proceedings.
Grand
secrecy
Jury
the
excessive
be
such a
would
somewhat
requirement
to the Supervis-
disclosurе
view the
in camera
prior
appearance
witness’s
the
Judge which
ing
preceded
Jury.
the Grand
the
‘need’ require-
Riccobene
‘hearing’
“[I]n
by
ments of
were found to
satisfied
the statute
and the
averments of the Petition
affirmation
of the Grand
transcript
court’s
consideration
examination of the witness whose
was
Jury
every
counsel on cross-
inquiry by
prayed for, [since
the Petition
objected
examination
was
beyond
by
by
district
sustained
аffirmed
attorney,
court,
Supreme Court].
“If the
witness’s counsel wished
either
challenge
he had every
‘hearing’
‘need’,
opportunity to present
testimony
legal argument
held on
Petition. The Court asked counsel
specifically (N.
T.
if
further’.
82)
‘anything
there
Counsel for the
negative.”
witness answered
with the lower
concur
court’s
We
conclusions that
was shown
district
need
here
attorney
and that,
S.,
(9th
Bursey
1972) ;
F. 2d
U.
Cir.
Netberger,
U. S. v.
(6th
1972) ;
Philip Bart,
In re
Cir.
F.
firmed. Dissenting Opinion Hoffman, J.:
Appellant contends that his conviction for testify investigating grand refusal to before an should reversed because the lower court did not com- ply statutory requirements prior with granting immunity prosecution him ordering from bim testify. jurisdic- instant matter is not within our Supreme tion and should be certified to the Court which jurisdiction appellate has exclusive in cases of direct contempt.1 Although Judge Harry criminal A. Takiff Supreme jurisdiction “The shall have exclusive appeals pleas final from orders of the courts of common following classes cases: (5) Direct criminal pleas courts of common contempt proceedings pleas other courts of common appealable relating directly Supreme to orders are to the refusal following civil held jury, testify refuse de- who shall “Any person provides: statute . . after being cline to . con- guilty shall be
ordered
*10
”
must be
this
Thus,
.
added).2
.
(emphasis
tempt.
crim-
for direct
from conviction
an
a
considered
appeal
our jurisdiction.
not
inal
which is
within
contempt
L.
No. 383,
P.
1968,
1080,
of November
The Act
22,
the judge
(19
seq.) empowers
et
P.S.
et
seq.
§640.1
§1
investigating
organized
a grand jury
over
presiding
attor
to
where the
crime
to a witness
immunity
grant
need.3 In a dissent
a
general has established such
ney
in Riccobene
“There is no
the Act
1968
question
a witness
not been
it is determined that
is
passed
no
rightfully
(as
sanctions
asserting
privilege
here)
criminal could be
either civil
contempt,
imposed.
is to determine the effect of the
problem
immunity
in
statute.
5
the Act
unmistakable
Section
language
who
refuse or
person
states that
shall
decline to
Any
.
after
granted
. .
testify
being
immunity
ordered
be
of criminal
guilty
shall
.
court,
. .’
contеmpt.
no
statute,
has
Without
power, inherent
31, 1970,
673,
July
223,
Court;”
II,
(17
P. L.
No.
Act of
art.
§202
§211.202).
P.S.
1968,
1080,
333,
(19
P. D.
§5
Act of November
No.
P.S.
§640.5).
enactment,
judiciary
power
this
Prior
to
had no
to
appearing
grand
jury
grant
a witness
to
a
organised
were, however,
investigating
provi
crime. There
other
grant
permitting
to
a court
witnesses
sions
See,
Butler,
Superior
investigations.
Commonwealth
171 Pa.
Rosenberg
(1952) ;
Appeal,
350, 357,
2dA.
186 Pa.
Ct.
(1958).
142 A. 2d
Superior
Ct.
when
Therefore,
otherwise,
impose any penalties.
no
courts had
this field
legislature enters
to have
can
be deemed
power
courts
previously,
them in
the statute.
specific
power
Courts
not exercise their normal
inherent
powers
exercise them
this situation because
could not
they
the statute and the
does
legislation
absence
not
they
not
them what
otherwise did
give
possess.
has
field and
legislature
occupied
prescribed
criminal
as the
sanction.
contempt
only permissible
more
the statute
if civil
Certainly
might
effective
but
were
we cannot
permissible sanction,
the draftsmen have omitted.”
what
supply
refusal
Although
witness’
following
criminal
grant
immunity is
under this
stat-
ute,
does
indicate
legislation
whether such a
refusal
direct or
criminal
indirect
Direct
is misconduct
taking place
*11
“or
court’s
so near thereto
presence
as to interfere with
its immediate business”;
indirect criminal
is
contempt
of a
order
the violation
court
outside the
occurring
Knaus v.
court’s
Knaus,
387 Pa.
presence.
127
370, 375,
2dA.
(1956); Commonwealth v. Patterson et
669,
452 Pa.
al.,
Superior state this jurisdiction constitution and appellate acts support a conclusion: whеn witness “Thus, refuses to testify a grand before jury, notwithstanding statutory immu- or constitutional is nity protection, brought before the directed to answer is court, proper notice and re- in court to answer open fuses proper a questions, contempt is committed in criminal presence of the may be punished court which summarily.” Common- 2d 90 A. 356, Ct. Superior v. Pa. Butler, wealth is contempt a Such added). (emphasis 841 (1952) in presence occurring “contempts because direct place taking as are considered jury the grand as to obstruct near thereto court so presence imme or interfere with its justice the administration Pa. Superior Rosenberg Appeal, business.” diate These rules 452-3 (1958). A. Ct. 509, 515, are founded contempt imposition to the respect with If to before the refusing testify law. common upon the com under is direct criminal grand jury be direct criminal under mon it must law, In contemрt. as criminal such action defining statute prior of the statute these wording light plain erred civil holding appellant cases, lower testify, refused pre contempt. Once him in alternative was to hold direct siding judge’s criminal contempt. conflict Chief conclusion is with apparent
This
Riccobene
affirming opinion
Appeal,
Justice
Bell’s
civil
found that
be im
contempt may
supra,
refuses to
after
testify
a witness who
upon
being
posеd
grand
before a
jury investigating
The Chief
interpreted
crime.4
Justice
Shilli
organized
Appellant’s the grand jury grant following immunity constitutes direct crim- inal Appellate Court Jurisdiction Act jurisdiction exclusive places over such appeal Supreme hands Court. Thus, this case should be the Supreme certified to Court.