Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1970, No. 213, in re grand jury investigation.
Ronald N. Rutenberg, with him Harry A. Rutenberg, Michael J. Rutenberg, and Rutenberg, Rutenberg, Rutenberg & Rutenberg, for appellant.
Arlen Specter, District Attorney, with him Esther R. Sylvester, John Rogers Carroll, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, and Richard A. Sprague, First Assistant District Attorney, for appellee.
Edward Friedman, Counsel General, with him David W. Rutstein, Deputy Attorney General, and William C. Sennett, Attorney General, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones concurs in the result. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice O'Brien joins in this dissenting opinion. Dissenting Opinion by Mr. Justice Eagen.
Appellant, Mario Riccobene, was sworn as a witness by Judge Sloane to testify before the Investigating Grand Jury in the City of Philadelphia on October 27, 1969. The Grand Jury had begun sitting on April 8, 1969, for the purpose of investigating organized crime and alleged corruption in the governmental departments and agencies of the City of Philadelphia.
On November 20, 1969, appellant was questioned before the Grand Jury on matters relating to organized crime and the bribery of a City official. The questions concerned the involvement of certain City officials and persons allegedly connected with organized crime in real estate and urban redevelopment transactions. One of the questions related to an alleged bribery of a member of Philadelphia's City Council for a favor in connection with a land transaction in a redevelopment area.
Appellant refused to answer the questions asked by the Grand Jury, asserting his Constitutional privilege against self-incrimination granted by the Fifth Amendment. Later the same day, appellant reiterated his refusal before Judge Sloane in open court. Judge Sloane then affirmed appellant's right to assert his privilege and to refuse to answer the questions.
On January 30, 1970, the Attorney General of the Commonwealth of Pennsylvania and the District Attorney of Philadelphia filed a Petition for the grant of immunity under the Act of November 22, 1968, P. L. [ILLEGIBLE WORD], 19 P.S. § 640.1-6, together with a rule returnable on February 5, 1970 to show cause why appellant should not be compelled to testify under a Grant of Immunity.
On February 5, a hearing was held, at which time the particular need for appellant's testimony in the pending Grand Jury Investigation was elucidated. The Commonwealth presented evidence of the matter under immediate inquiry by the Grand Jury to show the need for appellant's testimony. On February 19 and 20, 1970, the Court below heard extensive argument by counsel for appellant in opposition to the Commonwealth's Petition for the Grant of Immunity.
On February 26, 1970, the Court below decreed that appellant must testify before the Investigating Grand Jury with the immunity provided under Act No. 333 of 1968. An appeal was taken to the Superior Court from this Order. Supersedeas was denied and the appeal was quashed by that Court on the ground that the Order was interlocutory.
On March 6, 1970, appellant was asked the identical questions before the Grand Jury. Despite the grant of immunity he persisted in his refusal to answer.
The lower Court then held a hearing to determine whether appellant should be held in contempt of Court. The Commonwealth produced evidence of his refusal to answer questions asked by the Grand Jury. The Court then offered the appellant a chance to purge himself of any contempt by answering the questions. He refused to answer, asserting again that he had a Constitutional right to do so. The lower Court then ordered "that the respondent Mario Riccobene a/k/a Sonny Riccobene be forthwith committed to the County Prison and remain so committed for a period of six (6) months unless he shall sooner purge himself by testifying before the said Grand Jury, whereupon he shall be released." From this Order, Riccobene has taken this appeal. This Order was undoubtedly a penalty or sentence of civil contempt.*fn1
On this appeal, Riccobene makes the same three basic contentions which he made before the Court below. He first asserts that the Immunity Statute is Unconstitutional and that he was thus still privileged to refuse to answer, because of his Constitutional privilege against self-incrimination (see infra). His second contention is that the petition for the grant of immunity was insufficient and inadequate and that immunity was improperly granted. Finally, he asserts that the lower Court improperly cited him for civil contempt when the only punishment provided by the Immunity Statute for a failure to answer is criminal contempt. We find no merit in any of these contentions.
Riccobene asserted his privilege against self-incrimination under the Fifth Amendment to the United States Constitution and under the Pennsylvania Constitution. As this Court said in Commonwealth v. Carrera, 424 Pa. 551, 227 A.2d 627 (pages 552-553): "The privilege afforded against compulsory self-incrimination by the Fifth Amendment to the United States Constitution is now protected under the Fourteenth Amendment against abridgment by the states: Malloy v. Hogan, 378 U.S. 1 (1964). Accord, Murphy v. Waterfront Commission of New York, 378 U.S. 52 (1964); Tehan v. U.S. ex rel. Shott, 382 U.S. 406 (1966); and, Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965)." In Gardner v. Broderick, 392 U.S. 273 (1968), the Court said (page 276): "Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying."
A. Scope of Pennsylvania Immunity Grant
Riccobene contends that the Pennsylvania Statute is unconstitutional because it fails to provide immunity against the use of the fruits of the compelled testimony in connection with a criminal prosecution. The statute, in pertinent part, provides: "§ 640.3. Immunity. No such witness shall be prosecuted or subjected to any penalty or forfeiture nor shall there be any liability on the part of and no cause of action of any nature*fn2 shall arise against any such witness for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding against him in any court. 1968, November 22, P. L. [ILLEGIBLE WORD], No. 333, § 3."
This is not the first time language such as this has been subjected to Judicial scrutiny. It is almost identical to language considered by the Supreme Court of the United States in Brown v. Walker, 161 U.S. 591 (1896). The Federal statute there construed provided: "But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said Commission, or in obedience to its subpoena, or the subpoena of either of them, or in any such case or proceeding." Act of February 11, 1893, ch. 83, 27 Stat. 443.
In Brown v. Walker, the Court held that the statute granted what has come to be called "transactional" immunity, which precludes prosecution for any transaction concerning which testimony was compelled,
regardless of its source. This is broader than the so-called "use" immunity statute, which forbids further use of compelled testimony or its fruits, but would still permit prosecution for the same transaction if the evidence was obtained independently of the compelled testimony.
Brown v. Walker was reaffirmed recently in Ullmann v. United States, 350 U.S. 422 (1956), where the identical language (hereinabove quoted) was once again found Constitutional. By its terms, the Pennsylvania Immunity Act is clearly a grant of "transactional" immunity identical to -- and indeed broader than -- that upheld in Brown and Ullmann, supra. As such it is, we repeat, broader than the "use" immunity, viz., the scope of protection required under the United States Constitution as interpreted in Murphy v. Waterfront Commission, 378 U.S. 52; Gardner v. Broderick, 392 U.S., supra. See note: Scope of Taint, 114 U. of Pa. Law Rev. 570 (1966).
Riccobene further contends that the statute protects him only from prosecution for offenses being investigated by the Grand Jury, and that as the Grand Jury is investigating only certain organized criminal acts, he is not protected from prosecution for other crimes which his testimony might reveal. The immunity relates to the transactions, matters or things concerning which testimony is compelled, not merely to the specific crimes which the Grand Jury was called to investigate. The immunity is as extensive as the testimony given, Marcus v. United States, 310 F. 2d 143 (3d Cir. 1962); by its terms it extends to " any penalty or forfeiture for or on account of any transaction, matter or thing " concerning which he is compelled to testify. Thus the coverage of the statute is broad enough to include any offense or crimes disclosed by the compelled testimony.
Appellant also contends that the statute is Constitutionally infirm because it fails to provide immunity for civil liability. It must first be noted that he cites no decision of this or of any other Court which requires such immunity. As the Supreme Court said in Hale v. Henkel, 201 U.S. 43, 67: "The interdiction of the Fifth Amendment operates only when a witness is asked to incriminate himself -- in other words, to give testimony which may possibly expose him to a criminal charge."
Fear of public disgrace or personal danger or civil liability are not adequate Constitutional or legal grounds to successfully invoke the privilege and protection of immunity and only criminal prosecutions and criminal liability need be immunized. Ullmann v. United States, 350 U.S., supra; Piemonte v. United States, 367 U.S. 556.
The penalty imposed upon this appellant was for civil contempt. Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336; Knaus v. Knaus, 387 Pa. 370, 376, 127 A.2d 669, 672. Pennsylvania's Immunity Act provides: ". . . nor shall there be any liability on the part of and no cause of action of any nature shall arise against any such witness for or on account of any transaction, matter or thing. . . ." Even though appellant is not Constitutionally entitled to immunity from civil liability, we believe that Pennsylvania's aforesaid Act clearly grants immunity from civil liability.
C. Prosecution by Jurisdictions
Riccobene contends that the statute is unconstitutional because it does not provide immunity from prosecution in Federal or other State jurisdictions. Once again, we disagree. The statute grants immunity against ...