March 18, 1959
Appeals, Nos. 40 and 41, Oct. T., 1959, from order of Court of Quarter Sessions of Berks County, June T., 1958, No. 83, in case of Commonwealth of Pennsylvania v. William H. Fisher. In Appeal No. 40 record remanded for imposition of sentence; in Appeal No. 41, judgment reversed.
Donald J. Goldberg, with him Henry F. Gingrich, Garfield W. Levy, for appellants.
Peter F. Cianci, Assistant District Attorney, with him Frederick O. Brubaker, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 189 Pa. Super. Page 14]
OPINION BY ERVIN, J.
These two appeals are from judgments of sentence for contempt of court for refusing to answer questions propounded to two witnesses in the court below. Appellants appeared as witnesses at the trial of William H. Fisher, who was charged with performing an abortion
[ 189 Pa. Super. Page 15]
upon Barbara Ann Snyder. At the trial Dr. James Z. Appel testified that on February 13, 1958 Barbara Ann Snyder was a patient in the Lancaster General Hospital suffering from the effects of an abortion. She was then called as a witness by the Commonwealth but refused to answer certain of the District Attorney's questions on the ground that the information sought might tend to incriminate her.*fn1 After excusing the jury, the court took testimony bearing on the question of whether the privilege against self-incrimination had in fact been waived. For this limited purpose the court below received into evidence the signed statement of Barbara Ann and, by way of anticipation, the statement of Dolores Jean Snyder, a sister of Barbara Ann. According to these statements Barbara Ann had twice become pregnant by one Thomas LiBrandi and on each occasion she was taken by her sister, Dolores Jean, to a Dr. Berberian in the City and County of Lancaster to "get rid of it." Dr. Berberian administered shots and pills without success and then made arrangements for Dr. Fisher, of the City of Reading in the County of Berks, to perform an abortion. Dr. Fisher performed abortions on Barbara Ann in February of 1957 and January of 1958 and on each occasion was paid $150.00 by Dolores Jean. Barbara Ann became ill as the result of the second abortion and entered the Lancaster General Hospital on February 13, 1958. These statements were made shortly thereafter. Barbara Ann was called as a witness by the Commonwealth and was asked whether in the year 1958 she was a patient in the Lancaster General Hospital. She refused to answer on the ground of self-incrimination. The court below held her in contempt and committed her to the
[ 189 Pa. Super. Page 16]
Berks County prison until she purged herself of the contempt by answering the question. Thereupon Dolores Jean was called as a witness by the Commonwealth. She and her sister had been indicted in Lancaster County, together with Dr. Berberian, on a conspiracy charge growing out of the same set of circumstances. She was asked when she had hitherto seen Dr. Fisher. She refused to answer on the ground of self-incrimination, whereupon the court below likewise adjudged her guilty of contempt with the same disposition as that of her sister. The present appeals were then taken.
The principal question on these appeals is whether the witnesses had waived their privilege against self-incrimination by answering the same questions in a prior written statement given to the detectives of Lancaster County in the course of their investigation. The court below was of the opinion that the written statements, given voluntarily after being advised that they need not make statements and that if they did, they could be used in court against them, constituted a waiver of their right against self-incrimination as long as the questions asked of them were confined to those which they had answered in their statements. The reasoning of the court below is found in the following quotation from its opinion: "This statement could clearly be used against the witness in her own trial, on charges pending against her in Lancaster County, if the statement was found to have been voluntarily given. How then could her answer, under oath, as a witness in the present case, more completely incriminate her? The answer is it could not." The error in this reasoning is pointed out in 8 Wigmore on Evidence, 3d ed., § 2266, in the following language: "The rule excluding untrustworthy Confessions and the rule giving a Privilege against compulsory testimonial Self-Crimination
[ 189 Pa. Super. Page 17]
are sometimes not kept plainly apart, - and naturally enough, for not only have they the common feature of an acknowledgment of guilty facts, but also, by the test frequently employed (ante, § 826) the test of voluntariness for confessions becomes almost identical with the idea of compulsion as forbidden by the privilege. Judicial expressions which blend the two into one principle might therefore sometimes be expected.
"But this confusion is radically erroneous, both in history, principle, and practice: ...."
The cases of Com. v. Doughty, 139 Pa. 383, 397, 21 A. 228, and Com. v. House, 6 Pa. Superior Ct. 92, 104, were cases in which the testimony of a defendant at his first trial was offered in evidence against him on a second trial of the same indictment, he having elected not to go upon the witness stand in the second trial. His former testimony was admissible just as a confession would have been, provided it was voluntarily given. This, however, is an entirely different question from the one presented in the present case, where the witness was being asked questions at the subsequent trial which tended to incriminate her. It is settled by the overwhelming weight of authority that a witness who testifies to incriminating matters on one trial, hearing or proceeding does not thereby waive the right to refuse to answer as to such matters on a subsequent, separate or independent trial or hearing.*fn2 Our Court in
[ 189 Pa. Super. Page 18]
In the appeal of Barbara Ann Snyder, No. 40 October Term, 1959, the record is remanded to the court below for the imposition of a sentence in accordance with the law.
In the appeal of Dolores Jean Snyder, No. 41 October Term, 1959, the judgment of sentence is reversed.
Opinion BY WRIGHT, J., CONCURRING IN PART AND DISSENTING IN PART:
Having consistently taken the position that the written statements made by the Snyder sisters did not constitute waivers of their privilege against self-incrimination, I am in full accord with the majority opinion so far as the determination of that question is concerned. I cannot go along, however, with the majority in holding that Barbara Ann Snyder was in contempt. It must be remembered that she was, and apparently still is, under indictment in Lancaster County for conspiracy. In any event, her testimony would involve an acknowledgment that she was guilty of fornication. I would reverse both judgments.
GUNTHER and WATKINS, JJ., join in this opinion.