Appeal, No. 258, Jan. T., 1959, from order of Superior Court, Oct. T., 1959, No. 40, affirming orders of Court of Quarter Sessions of Berks County, June T., 1958, No. 83, in case of Commonwealth of Pennsylvania v. William H. Fisher. Order reversed. Same case in Superior Court: 189 Pa. Super.Ct. 13. Indictment charging defendant with abortion. Before READINGER, J. Witness adjudged to be in contempt of court for refusal to answer question on the ground of self-incrimination. Witness appealed to Superior Court which remanded record for imposition of sentence, opinion by ERVIN, J.; opinion by WRIGHT, J., concurring in part and dissenting in part, in which GUNTHER, and WATKINS, JJ., joined. Appeal to Supreme Court allowed.
Donald J. Goldberg, with him Garfield W. Levy, and Henry Ginrich, for appellant.
Peter F. Cianci, Assistant District Attorney, with him Frederick O. Brubaker, District Attorney, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Barbara Ann Snyder, 19 years of age, living in Lancaster County, having reason to believe that she was in a state of pregnancy, consulted with a Dr. H. S. Berberian in Lancaster who prescribed pills and hypodermic injections for the purpose of accomplishing a miscarriage. The treatment failing to achieve its objective, he recommended the girl to a Dr. William H. Fisher in Reading, whose attempts to abort her brought on physical distress which sent her to the Lancaster General Hospital in Lancaster. The prosecuting authorities of both Berks and Lancaster Counties investigated the matter and an indictment was brought against Dr. Fisher in Berks County, charging him with an abortion on Barbara Ann Snyder. In Lancaster County an indictment was returned against Dr. Berberian, Barbara Ann Snyder and her sister Dolores Jean Snyder charging them with conspiracy to commit abortion.
At the trial of Dr. Fisher in Berks County, Barbara Snyder, being called as a witness by the Commonwealth, was asked by the District Attorney if she had been a patient in the Lancaster General Hospital in the year 1958. Upon advice of counsel, she refused to answer, asserting the privilege against self-incrimination guaranteed under the Constitutions of the United States and Pennsylvania. The Trial Judge, in the absence of the jury, took testimony which revealed that, prior to the trial, Barbara made a statement in which she disclosed her relations with Dr. Berberian and Dr. Fisher. The Trial Judge now informed her that when she voluntarily made this statement she waived her constitutional privilege protecting her against self-incrimination and that, therefore, she was required to answer the District Attorney's question.
Barbara again refused to answer, insisting on her constitutional privilege, whereupon the Trial Court adjudged her guilty of contempt of court and committed her to the Berks County Jail until such time as she purged herself of the contempt. She was only released when (on the following day) she appealed to the Superior Court and a supersedeas issued. The Superior Court affirmed the conviction but on grounds different from those assigned by the Trial Court. We granted allocatur.
The provision of Art. I, § 9 of the Constitution of Pennsylvania that one cannot be compelled to give evidence against himself applies to witnesses as well as to accused persons. (In re Myers and Brei, 83 Pa. Superior Ct. 383.) And then, the Act of May 23, 1887, P.L. 158, § 10, 19 P.S. § 631, provides that a witness "may not be compelled to answer any question which, in the opinion of the trial judge, would tend to criminate him."
It was contended by the Commonwealth at the trial that Barbara should have answered the District Attorney's question since it was an innocuous one and could not possibly have incriminated her in any way. The question, however, was not as trifling as the Commonwealth endeavored to make it appear. Barbara, as already stated, was herself under indictment in Lancaster on a charge arising out of the same facts which formed the basis of the Fisher trial. She was thus justified in fearing that her answer might become a link in a chain of admissions which could eventually implicate her in the conspiracy, in which, it was charged by the Commonwealth, she had participated in Lancaster County. If she answered the District Attorney's question in the affirmative, which of course is the only way she could honestly answer it, the succeeding question would inevitably be directed toward ascertaining why
she was a patient in the hospital. In fact, without this second question, the first question would have been sheerly meaningless, since it is obvious she could have been a patient for one of a hundred causes, none bearing any relation to the trial of Dr. Fisher on a charge of abortion. Thus, had she answered the first question in the affirmative and the District Attorney had put the inevitable second question: "Why were you in the hospital?" she would have had to divulge that she was there as the result of an abortion, which admission would be formidable ammunition to be used against her in her forthcoming trial in Lancaster County. A witness placed in the situation of responding to questions which can possibly incriminate him must be allowed some latitude in determining whether he should or should not answer.
Addressing himself to this subject in the case of Adjudication of Contempt of Myers and Brei, 83 Pa. Superior Ct. 383, President Judge KELLER said: "The privilege extends to the disclosure of any fact which might constitute an essential link in a chain of evidence by which guilt might be established, although that fact alone would not indicate any crime. If the witness was ...