*1 Appeal. Riccobene *3 Before May 1970. Argued C. J., Bell, Jones, JJ. Cohen, Eagen, Roberts O’Brien, Pomeroy, Ronald N. with him A. Ruten- Rutenberg, Uwrry *4 Michael berg, J. Rutenberg, and Rutenberg, Rutenberg, & Rutenberg Rutenberg, appellant.
Arlen him Specter, District with Attorney, Esther R. Sylvester, John Rogers Carroll, Assistant District Attorneys, James D. Attor- Crawford, Deputy District Richard ney, and A. First Assistant Sprague, District Attorney, appellee. him David with Friedman, General,
Edward Counsel and 0. Butstein, Attorney General, William Deputy W. Attorney General, appellee. Sennett, Opinion 1970: July 13, Justice Bell, bt Mb. Chief sworn wit- Mario Appellant, Riccobene, before the Investigat- Judge testify ness by Sloane on October Philadelphia in the of City Grand ing Jury on April Grand had Jury begun sitting 1969. The 27, crime of investigating organized for the 8,1969, purpose governmental and departments alleged corruption of the of City Philadelphia. and agencies questioned 20, 1969, appellant On November on Jury organized Grand matters relating before official. City questions crime bribery involvement of certain officials City concerned the crime in with organized connected persons allegedly One transactions. redevelopment real estate and urban a mem- to an alleged bribery related the questions ber,of for a favor in Council Philadelphia’s City in a redevelopment a land transaction nection with area. asked questions refused to answer
Appellant his Constitutional privilege Jury, asserting the Grand Amend- Fifth granted by self-incrimination against his reiterated day, ment. Later same appellant Judge court. Judge open refusal before Sloane affirmed to assert his appellant’s right then Sloane refuse to answer the questions. and to privilege General of the January 1970, Attorney On 30, At- the District Pennsylvania Commonwealth a Petition for the filed torney Philadelphia grant Act of November under awith rule §640.1-6, 19 P.S. returnable together P. L. , 1970 to why on show cause February appellant not be under Grant of should compelled Immunity. *5 February hearing time at which a was held,
On 5, testimony appellant’s particular in the for need the Investigation Jury The pending elucidated. was Grand presented matter under the evidence Commonwealth by Jury inquiry the need Grand show immediate February testimony. appellant’s 20, On by argument heard extensive Court below 1970, appellant opposition the Common- counsel Immunity. Petition the Grant wealth’s February decreed that the Court 1970, On below Investigating appellant Grand before the must immunity provided Jury No. under with the Act Superior appeal Court An taken to 1968. was ap- Supersedeas from denied and this Order. was ground peal quashed on the that Court interlocutory. Order was appellant asked the identical
On March Jury. Despite grant questions before the Grand persisted he in his refusal to answer. hearing held to determine The then lower Court contempt appellant held in of Court. whether should be produced Commonwealth evidence of his refusal to Jury. questions The Court asked the Grand answer appellant purge a chance himself then offered questions. by answering re He asserting again fused to he had Consti answer, right do The lower Court then ordered tutional so. respondent Sonny Riccobene “that the Mario Ric a/k/a County cobene be forthwith committed to the Prison period (6) for a months and remain so committed of six purge by testifying sooner himself be unless he shall Jury, whereupon he re fore the said Grand shall be From this has Riccobene taken this Order, leased.” undoubtedly penalty appeal. This Order was sen contempt.* tence of civil
* See infra.
On this Riccobene makes the three appeal, same he basic contentions which made before the be- Court He low. first asserts that the Immunity Statute and that he Unconstitutional was thus still privileged *6 to refuse to because of his Constitutional answer, privi- against self-incrimination lege (see His second infra). contention the of immu- petition grant nity insufficient inadequate and that immu- he nity improperly granted. asserts that Finally, Court lower cited him for improperly civil con- when the only punishment the Im- tempt provided by munity Statute a failure to answer is criminal con- We find no tempt. merit of these any contentions. Constitutionality
I.
Riccobene asserted
against
his
self-incrim-
privilege
ination under
the Fifth Amendment
to the United
under
States Constitution and
Con-
Pennsylvania
stitution.
this
As
Court said in
v. Car-
Commonwealth
rera, 424 Pa.
“The
A. 2d 627
:
(pages 552-553)
afforded
privilege
against compulsory self-incrimination
the Fifth
Amendment
the United States Consti-
tution is now
under the
Amend-
protected
Fourteenth
ment against
Ho-
abridgment by
Malloy
states:
v.
In Brown v. Walker, Court held stat- come ute what has called granted “transaction- which precludes al” immunity, prosecution which testimony transaction concerning compelled, * ours, throughout, Italics unless otherwise noted.
412
regardless its source. This is broader than the so- called “use” immunity which forbids further statute, use compelled testimony its but would still fruits, permit prosecution the same if transaction the evi- dence was obtained of the independently tes- compelled timony.
Brown v. Walker was reaffirmed recently Ull- mann v. United 422 States, U.S. where the (1956), identical language (hereinabove once quoted) found Constitutional. again By its the Penn- terms, sylvania Immunity Act is clearly grant “transac- tional” immunity identical to—and indeed broader than—that upheld Brown and Ullmann, supra. As such it is, we broader than repeat, the “use” immunity, viz., scope protection required under the United States Constitution as interpreted v. Water- Murphy Commission, U.S. Gardner 52; Broderick, front See U.S., supra. note: Scope of ofU. Taint, Pa. Law Rev. 570 (1966).
Riccobene further contends that the statute protects him from only prosecution offenses investi- being gated by Grand and that Jury, as the Jury Grand certain investigating only organized criminal acts, he is not from protected prosecution for other crimes which his testimony might reveal. The re- immunity lates to the transactions, matters things concerning testimony compelled, not merely the specific crimes which the Grand Jury was called to investigate. as extensive as the testimony given, Marcus v. United *8 States, F. 2d 143 (3d Cir. 1962); its terms by it to extends “any or penalty forfeiture or on account of any transaction, matter or thing” which he cerning compelled testify. Thus cov- of the erage statute is broad to include enough any of- or crimes disclosed compelled testimony. fense
413 Liability B. Civil Consti- statute is contends also Appellant immunity to provide it fails infirm because tutionally he cites first be noted It must liability. for civil requires Court which or other of any no this decision v. in Hale Court said the Supreme As immunity. such Fifth of the “The interdiction 67: Henkel, 201 U.S. asked a witness is when only operates Amendment testimony to give other words, incriminate himself—in criminal charge.” to a him expose which may possibly or civil danger or disgrace personal Fear public legal Constitutional adequate are not liability and pro the privilege invoke grounds successfully criminal prosecutions only tection immunity v. immunized. Ullmann need be liability and criminal v. United Piemonte States, U.S., supra; United 556. States, 367 U.S. appellant
The this imposed upon penalty Pa. 513, Brocker, civil Brocker contempt. A. A. Pa. Knaus, 370, 376, 2d Knaus v. 336; Act Inununity provides: 2d 669, Pennsylvania’s 672. of and “. . nor on the any liability part . shall there no against nature shall arise any cause action transaction, or on account any witness such .” matter or . . is not thing. appellant Even though from lia entitled immunity Constitutionally Act believe that aforesaid Pennsylvania’s we bility, liability. from civil clearly grants immunity C. Jurisdictions Prosecution statute is contends that unconstitu- Riccobene not from provide immunity prose- because it does tional jurisdictions. Once in Federal other State cution statute disagree. grants we again, com- “nor so testimony shall self-incrimination, against *9 be used as evidence in pelled any proceeding Mm in against Court.” believe any We tMs language in sufficiently broad Mm in protect Federal and all other State Courts.
The question of from Federal immunity prosecution was squarely presented to the United States Supreme Court in v. Murphy U.S., Commission, Waterfront In supra. that before a case, witnesses bi-State inves- board were tigating granted both immunity by States York (New and New but asserted their Jersey) privi- lege self-incrimination on against that grounds they subject were still to Federal prosecution, because State on grants were not the Federal binding Courts.
The Court, Commission, v. Murphy Waterfront held : (pages 77-78-79) hold that constitution- “We al self-incrimination privilege against protects state against witness incrimination under federal as well as state law and federal incrimination against witness under state as well as federal law. to our that case
“Applying holding holdings today the privilege self-incrimination against pro- tects state federal against witness prosecution, supra, at and that ‘the same 77-78, standards must determine whether silence in either a federal state [a witness’] justified,’ proceeding Malloy Hogan, at ante, we constitutional rule be hold that a state wit- ness not be give may compelled testimony be under federal law the com- incriminating unless testimony and its fruits pelled any cannot used manner federal officials connection with a crimi- inal prosecution him. We against conclude, moreover, in order to this constitutional rule and implement accommodate interests the State and Federal crime, Governments investigating prosecuting prohibited mak- from must be Government Federal testimony compelled and its fruits. ing use such exclusionary permitting the States while This rule, necessary enforce- effective law information secure Government Federal the witness and the ment, leaves *10 position substantially if had the witness the same in grant of privilege in of a state the absence claimed his immunity.” procedure to the
In outlined a Court footnote, immunity from granting “use” in effect be followed, compelled prosecution Federal to witnesses immunity. grants has Riccobene under Thus State Pennsylvania’s compelled by testimony no claim that subject immunity to Fed- him or fruits could its ever prosecution. eral (page Malloy Hogan,
In said Court 1, v. 378 U.S. refusing 11) privilege of : a “What accorded is may prosecution feared incriminate one’s and the self, Murphy either or authorities. v. federal state p. post, incon It would be 52. Comm’n, Waterfront gruous the va to have standards determine different lidity privilege feared of a claim of based on the same prosecution, depending claim was on whether the as the same Therefore, serted a state federal court. an standards must determine whether accused’s silence justified.” proceeding in either a federal state Appellant’s that he second contention is privilege immunity because the does tinue to assert his protect testimony in crim- not him from the use his a prosecution by inal another State. have herein- We pertinent language quoted from the Su- above some preme point. on Court this
A of other since number Courts have faced this issue Murphy They Murphy decided. as a Consti- view grants immunity from tutional “use” decision, prosecution in all other as well as the Fed- States
eral Courts. This
view taken
Supreme
Court
Jersey
New
Zicarelli v. New
State
Jersey
Commission
261 A.
55 N.J.
2d
Investigation,
it
when
said
:
(1970),
(page
“It is contended
270)
statutory
inadequate
it does
because
not protect a witness with
respect
a prosecution
or in
sister State
foreign
land.
to a sister
As
it seems clear
if
State,
the Fifth
re
Amendment
quires protection against
use of the
testimony by
sister
will
State,
Amendment
itself
provide
protection.
can mean no less.
Murphy
United States
ex rel. Ciffo McClosky,
273 F.
at
supra,
Supp.
606;
Application
F.
cf. In
Longo, supra,
Supp. 185;
re
121 U.S.
Flanagan,
App. D.C.
350 F. 2d
As to a
if
foreign
even
land,
Murphy
means that
under
liability
foreign law is
relevant,
now
in the
case before
too
danger
us is
imaginary
unsubstantial
sustain a refusal
to answer. See Mur
*11
We with of agree this view as Murphy. the immunity Riccobene covered both granted Pennsylva- nia and, through and cases, Federal Murphy supra, well prosecution, prosecution as other it States, was coextensive with his privilege against self-incrim- ination therefore Constitutional.
D. Vagueness final Riccobene’s Constitutional claim is that the is too Immunity Act and is thus vague Unconstitution- on al its face. As pointed we have already the out, grants statute full “transactional” clearly (and use) from criminal immunity prosecution, as well as pre- the of cluding imposition “. . . and no liability, cauáe action nature arise any shall . for or . . on account of . . transaction .” any of “organized the definition of tlie Act, Under §6 for show- out. The procedure made crime” is clearly sufficiently is immunity for the “need” a grant ing offi- the Act. after Only set forth prosecuting testimony witness’s cial decided that particular has to presented immunity is is the necessary petition of need lies with The ultimate a Judge. finding to a afforded a witness and an is opportunity Court, an oral argument if a brief and hearing and, desired, no need his there is to his contentions support case. particular on this whole argument
More Riecobene’s basically, on He assumes an erroneous hinges premise. point to those mat- only would immunity granted apply in- of the Grand Jury ters within the stated purpose im- the case. repeat, This is not We vestigation. mat- transaction, its terms munity, by applies "any to tes- ter or which he is compelled thing” concerning tify. for the is questions relevance particular it granted to decide. Once is Jury immunity
Grand compelled which the witness is extends matter on limitations There no need precise reveal. broad as is as immunity itself—the questioning See Marcus the Grand scope Jury’s questioning. F. The witness States, United 2d 143, supra. the statute; application not at the required guess all he answers simply once the granted from questions enjoys immunity prosecution criminal conduct revealed. liability *12 There here no scheme for conferring is complicated Marks, such as that considered Stevens v. immunity no of any 234. There is here requirement U.S. limited of maintain necessary waiver is immunity urge office. No was made here to public attempt no wit- were waiver, procedural steps required ness. and Constitutional Pull, complete immunity and no choice but Riccobene had answer. granted, There is no contention that merit appellant’s statute void for vagueness. pok Immunity
II. Need no Riccobene that the statute also contends under immunity. was made of the need adequate showing argument several errors his makes drastic Appellant on this point. in the requirement
The basic of the “need” purpose those criminals immunity only statute is assure Commonwealth will whose to the testimony vital crimes. This immunized for their against punishment agency a matter the prosecuting between primarily concern. Ap and the not for and Judge, appellant’s for a special confuses this need with need pellant In 324 Pa. 187 Atl. Grand McNair’s Petition, 48, Jury. in the cases cited subsequent appellant, and 498, Grand County Investigation Proceed Dauphin Jury (No. Special 332 Pa. A. 2d 1), 783, ings Pa. A. 2d this Case, Grand Jury effect on the Court held that because their would be allowed to justice grand juries system, super sede the functions investigative prosecutional in unusual established Government circumstances. only is not the need However, appellant challenging immunity the Grand but the need Jury, only The lower excellent its stat- grant. Court, Opinion, ed: the Petition for sets grant “Here, if forth a series events indicates which, true, Petitioner was at the time a bribe present passed head of an crime alleged present organized syn- to a dicate member the Philadelphia Council City to influence such Councilman’s official conduct relat- control of City If ing streets. these housing so, assertions to the heart of of the go part Investigating Jury’s Grand investigation. testimony established
419 granted Petitioner, a need the to be to immunity [97]
To At- further the District substantiate this need of the In- torney presented Sergeant Smith, William office. Unit the District Ser- telligence Attorney’s Smith for over he been geant testified that had year to the investigating transactions Whitman Ur- relating ban Renewal Area. He further he had testified that received information the Mario witness, proposed to Riccobene, was witness a bribe one by paid Angelo Bruno to a official of public the City Philadelphia to influence official conduct land owned by benefit Bruno and others within the Whitman Urban Renewal Area.
The questions asked Riccobene bribe involved the and other area. He dealings transactions this refused to answer these questions at outset as- by his serting from privilege self-incrimina- tion. Clearly bound to the inquiry closely subject the Grand im- Jury investigation and the munity was obtain necessary testimony. this
Riccobene argued that need should demonstrated reference to the Grand Jury proceedings themselves. This is an simply attempt invade the secrecy of the Grand Jury. This Court has stressed the repeatedly need for such keeping proceedings secret and re has fused to permit such to be testimony unless divulged the evidence introduced was direct contravention of Constitutional rights. Commonwealth v. Kilgallen, Pa. A. 2d see 780; also Commonwealth v. Brownmiller, Pa. Ct. Superior A. 2d 907; Commonwealth 141 Pa. Kirk, Ct. Superior 123, af firmed per curiam, 340 Pa. 17 A. 2d 195.* The * consistently upheld secrecy Federal Courts have Jury, refusing proceedings Grand to disclose its unless de- “particularized fendant showed some need.” See Dennis v. United States, present 384 U.S. 855. No need such in this case. clearly immunity grant shown need for the testimony petition of Ser- Attorney’s District justify re- geant reason to There was no Smith. Judge Jury proceedings Grand course to the restricting the cross- discretion did not abuse his secrecy preserve Sergeant examination of Smith *14 Jury proceedings. of the Grand immunity petition urges for Appellant that the also inadequate limitations legally of the statute because only Eiccobene which run on the offense about has City bribery How- namely, questioned, official. the of questions Jury to decide what for the Grand it is ever, organized crime. information about would best elicit starting question intended as been The have dealings investigation point more recent with of for property. people The Grand the and the same same satisfy requirement Jury petition the the itself did investigation designed information to disclose cerning the within statu- and indictments crimes prior importance tory period. to certain crimes of conspiracies continuing proof crim- criminal the Jury the to decide. This inal was for Grand conduct restricting the in- lawful has no intention Court Jury. quiries of the Grand appellant’s
In it was own we note that addition, Jury cooperate complete to with the Grand refusal questioning the and seek caused it to discontinue which questions, appellant the the Had answered sanctions. might have well demonstrated answers themselves relationship between the bribe referred and other are indictable. matters still
III. Contempt Appellant’s final contentions concern the citation contempt, entered after his refusal to answer civil granted. questions after had been even con sanction Biccobene urges exclusive, and Act is by provided expressly tempt is thus beyond sentence contempt civil that his na the conditional Because of Court. authority allowed Biccobene sentence which of the contempt ture free tes himself contempt himself purge contempt. Jury, clearly the Grand it before tifying 384 U.S. States, litani United Shil 365, 368, said (pages As the Court pertinently again present consolidated cases : “These 369-371) against difficult whether a charge question before a answer questions a witness refusal In an trial. indictment grand jury jury requires after were instituted cases, contempt proceedings both immunity grant refused under had petitioners Neither petition ed District Courts. respective er trial. were was indicted or Both found given jury years’ imprisonment, and sentenced to two with guilty *15 before questions if either that answered proviso his he released. . sentence would . . We hold ended, these the conditional nature sentences renders of each a civil the actions contempt proceeding, of for which indictment and trial me not constitution jury ally required.
“We the character and of believe these purpose actions render civil rather them than criminal clearly Co. contempt proceedings. See Penfield v. Securities & Comm’n, 330 U.S. 590 Exchange 585, (1947). As distinction was phrased v. Bucks Stove Gompers & 221 U.S. 449 Range Co., the act (1911), dis obedience consisted ‘in to do what solely refusing had been to answer ordered,’ not ‘in i.e., do questions, been ing prohibited.’ what had And the judgments conditional for imposed the obvious imprisonment pur pose to compelling obey witnesses [Costs’] 422 keys 'the testify. petitioners
orders to When carry 117 In re of their their own pockets,’ Nevitt, prison F. 461 8th Cir. the action 'is essen- 1902), (C.A. of other tially designed the benefit remedy and been quite has exercised cen- parties properly turies secure judicial with decrees.’ compliance Green v. United U.S. States, (1958) . . . J., dissenting). (Black,
''The fact that both the the Court District Court and called ‘criminal con- Appeals conduct petitioners’ does our tempt’ not disturb conclusion. Courts often terms speak punishment for remedial purposes. Onan, United See, e.g., States 2d 1 F. Cir. fact (C.A. 1951). 8th 'It is not the but punishment rather character its and purpose that often serve from criminal distinguish’ civil tempt. v. Bucks Gompers & Range Stove U.S. Co., 418, 441 the fact that (1911). Despite Shillitani were Pappadio ordered imprisoned for definite period, their were sentences clearly intended operate prospective manner—to rather than As coerce, punish. relate to such, they civil contempt. While im- prisonment, has ef- course, punitive deterrent fects, it must be viewed remedial if the condi- court tions release the contemnor’s upon willingness tes- tify. Nye See v. United 42-43 States, U.S. 33, . The test be stated as: what does the .court seek to primarily accomplish by sen- imposing tence? Here the towas obtain purpose answers to the questions grand jury.5 “III.
“There can no question that courts inherent have enforce power to compliance with their lawful orders 5 contrary, contempt proceeding “On a criminal would be imposition characterized of an unconditional sentence for punishment Schnackenberg, post, deterrence. See Cheff v. at 377.”
423 Mine United States v. United contempt. civil through and 330-332 (1947) 258, 330 U.S. Workers, (Black in dissenting in and part concurring JJ., Douglas, 753-754 681, 376 U.S. v. Barnett, States United part); essential it And dissenting). J., (1964) (Goldberg, tes compel appearance be able that courts 339 U.S. Bryan, States v. United witnesses. timony of com must A subpoena grand jury 331 (1950). 323, States, United Cf. Levine v. respect. mand the same consists 362 617 Where U.S. stage at any a court order to obey refusal be confined may in witness judicial proceedings, 307 U.S. McCrone States, until v. United compliance. 921 F. 2d States, Giancana v. United (1939); The 959 (1965). 7th cert. U.S. (C.A. Cir.), denied, entire conditional nature the imprisonment—based defiance—justifies continued ly contemnor’s upon the safe absent holding contempt proceedings civil Wyman, of indictment and jury, Uphaus guards dissenting), J., U.S. 403-404 (1960) (Douglas, are the usual due requirements provided process met.”
The of the Court Supreme United States Opinion of Buie Shillitani did not an interpretation involve Procedure. low- the Federal Buies of Criminal The er defendants Courts that case had held that their sen- were of criminal contempt, thus guilty tences were to Buie which pursuant applies imposed Court held only to contempts. Supreme the sentences were contempt, under the inherent of the power be imposed Court, Buie 42 in discussed the erroneous only disapproving of the lower Courts. The issue presented view Shil- the distinction crimi- litani involved between civil and nal and the basic enunciated there- contempt, principles clear from of the (as language apply Court) *17 424 case is- and contempt every contempt to every
equally or or under what no how from what Court matter sue, arose. rule the question
In Pa., 429 Court Brocker, supra, Brocker v. : dominant said “The 519) purpose* pertinently (page objective controlling* and the Court’s Order is the factor in the determination the contempt whether line criminal. Not is the was civil or only dividing shadowy criminal sometimes between contempt civil or or but the same facts conduct consti obscure, tute amount both civil criminal contempt.” The “In Court further said : Unit (pages 520, 521) ed States v. United Mine Workers of 330 America, U.S., Supreme held that the trial supra, Court Court found L. John Lewis properly guilty indirect criminal contempt and the Union both civil guilty of and criminal . . . The contempt* Court inter alia said, : ‘Common .(pages 298-299, 303-304) sense would recog nize that conduct can amount to both and crimi nal . . . The trial contempt. court also found properly the defendants guilty civil contempt. Judicial sanc tions in civil proceedings may, proper case, be either or employed two both purposes: for to coerce the into compliance with court’s defendant order, and some com compensate [in instances] * plainant losses sustained Gompers v. Bucks Stove ” & Range Co., at 449.’ supra,
To The summarize: power to commit for civil con- tempt to punish petty summari- contempts ly may exercised and the Court, Constitution- al of trial right does by jury not apply such tempts. right trial by jury applies (a) only serious crimes where imprisonment more than six months is authorized, (b) cases where no maxi- mum sentence is established Legislature but
* Opinion. Italics in Brocker v. Brocker
425 im punishment actually exceeds six imposed months’ Baldwin v. New prisonment. York, U.S. (1970) S. Ct. 1886 Duncan v. ; Louisiana, U.S. 145. See Bloom also, v. U.S. Illinois, 194; Cheff 373. U.S. Since Ric Schnackenberg, appellant cobene was held and he imprisoned civil contempt, *18 may be either upon released himself of (1) purging his before the or contempt by testifying Grand Jury, of the (2) upon discharge Grand Jury, (3) up on the of the six-month expiration term of imprison ment, whichever See first occurs. Shillitani v. United States, 384 U.S., supra. that
Appellant lastly argues he was to entitled trial at jury least a on the hearing issue contempt which occurred in the presence the Court. Appellant had on the issue of hearing we contempt, and, repeat, there no is merit his contention that he was entitled to a trial sentence jury where was for civil contempt. Shillitani v. United States, 384 v. U.S., supra; Cheff Schnackenberg, 384 Bloom U.S., supra. Illinois, U.S., supra, upon which appellant in relies, clearly and applicable to applies only serious criminal con- tempts.
It clear that lower Court had both legal to Constitutional use its authority remedial power of civil force contempt to compliance with lawful con- its ditional Order, required appellant be- testify fore the Grand Jury.
Order affirmed.
Mr. Justice Jones concurs the result.
Dissenting Opinion Mb. Justice Cohen: The majority concludes that the sentence imposed civil that such sentence was because courts have the inherent proper to use power remedial their this device to enforce lawful I orders. a court has the statement with general
agree to enforce its orders civil through inherent power no the majority’s opinion but contains tempt citations, circum- of the and unusual very special discussion citation. civil contempt stances this surrounding P. L. had If Act November 22, 1968, , if the court below had deter- not been enacted and assertion of the Fifth Amend- mined that appellant’s an- then refusal not proper, ment privilege could have the submitted question validly gen- swer not the pos- contempt. That, however, erated the court below. matter came before ture which this his affirmed assert appellant’s light Judge Sloan® to answer the questions. and to refuse privilege and the then sought General District Attorney Attorney on Act No. 333 February invoke be- court decreed that must appellant 1970 the provided the immunity fore the with grand jury *19 asked the identi- March act. On appellant before the grand despite cal and jury, questions in answer. he his refusal persisted granted immunity to determine then held a The lower court hearing be of court. The he should held contempt whether evidence of refusal to an- Ms produced Commonwealth Mm court then and the offered swer the questions, himself of any contempt by answering. chance to purge consti- his asserting he refused again answer, After court that the grant tutional concluded rights, removed those its sen- rights and imposed tence. if the not
There no that Act 1968 had question it determined that a witness is right- and been passed no sanctions (as his asserting privilege here) fully civil or could be imposed. either criminal, contempt, the effect of the immunity to determine The problem the act unmistakable language Section statute. “Any person shall refuse decline who states granted immunity being ordered . . . after contempt. guilty . .” . be of criminal court, shall power, inherent the court has no Without statute, impose any penalties. when Therefore, otherwise, legislature had no enters this field in which courts power previously, only can be deemed to have courts specific power granted to them the statute. may powers Courts their not exercise normal inherent they in this situation exercise them because could not legislation in the absence of does the statute and give possess. they not them The what otherwise did not legislature occupied prescribed has field has contempt only permissible as the sanction. Certainly might the statute effective if civil more permissible were a but we can not sanction, supply what the draftsmen have omitted. Pennsyl-
In Article 3 of the addition, III, Section passed vania Constitution “No bill shall be states taining subject, clearly more than one which shall be expressed object require- in its title. . . .” “The of that legislators, ment is that re- others shall interested, ceive direct notice in immediate connection with the act subject, they may put itself, its so that or be know upon inquiry provisions Sug- to its and their effect. gestions or inferences which be drawn from knowl- edge language enough. dehors the are not used, requires constitution that the notice shall be contained Attorney the title itself.” Commonwealth ex rel. General v. Samuels, 163 Pa. 287, 29 Atl. Boyertown See also, Burial Casket Co. v. *20 Commonwealth, Pa. 79 A. 2d The title authorizing to Act No. 333 “An states Act grant immunity courts record to witnesses from prosecution for or on thing account of matter or concerning they testify which pro- were ordered to in a com- grand investigating certain juries, before
ceeding record; making or commissions and courts mittees criminal such to testify the after refusal supplied) penalties.” (Emphasis and providing tempt criminal prescribing contempt The title is clear the for refusal alone as penalty contempt correct act If majority reading is answer. uncon- the act is citation, contempt to permit because the title under Article Section 3 III, stitutional no notice that civil is contempt per- absolutely gives sanction. missible demon- of Section 5 legislative history
Finally, only that criminal is conclusively contempt strates the Sen- passed by sanction. As originally permissible shall refuse stated who “Any person ate that section ” . . shall . be guilty decline in the House On third supplied). reading (Emphasis from language of Representatives changed to “criminal “contempt” contempt.” power impose In this case civil contempt not within the court powers inherent penalty of Act No. court 333 the passage because prior no inherent otherwise. powers, Therefore, had to have only powers court can deemed those the sole power enumerated the act itself, are that of the recalcitrant wit- the act is finding given of criminal ness guilty contempt.
I dissent. O’Brien joins
Mr. Justice this dissenting opinion. Dissenting Opinion Eagen: Mr. Justice the Majority’s It is view that reliance on Shilli my States, 384 Ct. 1531 tani v. United U.S. 86 S. That case concerned with misplaced. only (1966) 42 of Rule the Federal Rules of Criminal interpreting on the is based United Procedure, and, such, States
429 powers Supreme supervisory the federal Court’s over judiciary only applicable federal and to the courts. is There is no that the indication definitions therein set contempt contempt forth of and are civil criminal Con- stitutionally required, regulating or that statutes state contempt and are civil unconstitutional if not precise conformity therewith. are therefore We Pennsylvania statutory regulating bound to follow law contempt power, a court’s use of the and need not feel obligated interpreting to our abandon case law same. question always pos no
There is that courts have power sessed the inherent to enforce their orders penalties imposing decrees sanctions failure obey comply Brocker therewith: v. Brocker, (1968). Pa. 241 A. 2d 336 The crucial issue is given the manner in which the in a situation, court, right, exercise such inherent use i.e., contempt contempt. civil or criminal purpose contempt proceeding The dominant of a de termines whether it civil is or criminal: Brocker v. supra; Brocker, Knaus, Knaus v. 387 Pa. 127 A. purpose 2d 669 contempt pro- civil proceeding judicial remedial, are em sanctions ployed compliance to coerce the defendant into with compensate order court’s in some and, instances, complainant losses sustained: Brocker v. supra; Philadelphia Brocker, Marine Trade v. Assn. Longshoremen’s International Assn., Pa. (1958)
A. 2d supra. ; Knaus v. Knaus, Where contempt complained act the refusal to do or doing prohibited refrain from pri some act ordered marily private party, proceedings for the benefit of a compliance to enforce with decree are in nature: supra; Philadelphia Br ocker v. Brocker, Marine Longshoremen’s Trade Assn. v. International Assn., su- The factors generally Knaus, supra. Knaus pra; Where are these: (1) to a civil said point to the person opposed is a complainant private where (2) or a governmental agency; government action injunction the original entitled in proceeding sep thereof as opposed a continuation and filed as *22 where holding action; (3) arate and independent relief a private party; to affords contempt defendant benefit for the primarily relief is where (4) requested of con where the acts of the complainant; (5) in character of are primarily complained tempt or conduct of constitute and do not themselves crimes im court is defendant so contumelious by Marine motion: Philadelphia on its own to act pelled Assn., su Assn. International Longshoremen’s Trade v. Knaus, supra. Knaus v. pra; of a criminal contempt pro The dominant purpose of the and authority the dignity vindicate ceeding of public: the general court and to interests protect Long v. International Marine Trade Assn. Philadelphia are di contempts Criminal Assn., supra. shoremen’s contempts: Philadelphia into direct and indirect vided International Longshoremen’s Marine Trade Assn. v. crimi A direct supra. Assn., supra; Knaus, Knaus of a nal consists of misconduct person contempt near inter thereto, of the so court, presence immediate and punishment fere with its business, of summarily: Act be inflicted may such contempts 2042; L. 17 P.S. §§2041, June P. 16, 1836, 784, §§23, 24, Long Assn. v. International Marine Trade Philadelphia An Knaus v. Assn., supra; Knaus, supra. shoremen’s consists the violation contempt indirect criminal court outside the or decree of which occurs an order the Act regulated of the and is court, presence 17 Phila 2048; P. L. P.S. 1931, 925, §§2047, 23, June Trade Assn. v. International Marine delphia Longshore Knaus, supra. Knaus v. Assn., supra; men’s
431
grand jury
an
of the criminal court:
arm
(1938);
A.
Shenker v.
2
Mc
Harr,
Pa.
2d 298
(1936).
A.
Petition,
Nair’s
Pa.
When
testify
grand jury,
not
witness refuses
before a
pro
withstanding statutory immunity or constitutional
brought
and is
before
to an
tection,
directed
court,
proper
open
swer on
court
and refuses
notice,
proper questions,
answer
com
a criminal
presence
pun
in the
mitted
of the court
be
summarily:
ished
171 Pa.
Commonwealth v.
Su
Butler,
perior
Ct.
Such Section the Act November P. L. 19 P.S. 22, 1968, , person “Any §640.5, which states: who refuse shall produce or decline to evidence other being granted immunity kind after and ordered guilty contempt, upon shall court, of criminal pay conviction shall be sentenced to fine of thereof, *23 exceeding not ($1,000), one thousand dollars or to un- dergo imprisonment period exceeding for a not one year, (Emphasis added.) or both.” spe- under the Thus, granting immunity cific statute and the under case law Pennsylvania, proper in prescribed the sanction and mandated for the to enforce court its order in this situ- contempt. ation criminal conformity
The lower court, with the de- statute, appellant creed testify grand jury must before the provided with the that act. He was asked questions the previously identical grand before the jury, despite granted persisted the immunity, and, he hearing his refusal to answer. A was held to deter- mine whether he contempt should be held of court, produced at time the Commonwealth evidence questions of his refusal answer appellant the and the given opportunity purge an himself of the con- tempt answering. Appellant refused. The lower of “civil appellant guilty thereafter found
court to the County committed ordered him tempt” soon- unless he shall “for of six months Prison a period Grand before the said er testifying before himself purge error. This was be released.” he shall Jury whereupon the appellant the misconduct of As indicated above, of rise to a sanction of gives in the the court presence contempt, criminal For direct criminal contempt. direct of imprisonment court, punishment committed open of con commitment for a definite time is imposed, of the contempt until themselves they purge temnors Rosenberg and a nullity: authority is without law A. Pa. Ct. 2d 509, 142 Appeal, Superior for direct person an order which confined a However, of one or until year “for period the contempt confine court” was valid as a the further order of the of one since ad year, for the definite period ment In Re: as surplusage: ditional considered language was A. 110 Pa. Ct. MacDonald, Superior Donald 521 (1933). case,
I of the lower court in this feel that the order definite met imprisonment the requirement with of the six as to Section 5 time, months, comply so and the addition Act of November 22, supra, himself appellant purge opportunity It in no did not the order. nullify way at the same facilitated and, time, harmed appellant of the order that enforcement court’s possible for the before the which is grand jury, appellant benefit of the public consistent with purposes of criminal the mere contempt. However, finding *24 in “civil rather than criminal appellant contempt” major case even consequence this was actually given sanction though result, appellant As de- contempt. thereby to trial under by jury, required nied is now right
433 Baldwin v. New 1886 York, 399 U.S. 90 S. Ct. 66, and was under Bloom (1970) implicit v. Illinois, U.S. Ct. 1477 Duncan v. Louisiana, S. (1968); 391 U.S. Ct. 1444 S. (1968) Cheff 384 U.S. S. Schnackenberg, Ct. the sentence
Although here actually imposed was only six the statute authorised a months, maximum sentence of one year imprisonment, than longer considerably that permissible without a to trial right by jury.
I therefore would reverse the order of the court below but without to the prejudice Commonwealth proceed prosecute appellant criminal con- tempt with accordance the requirements of due process.
Bell Estate.