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COMMONWEALTH v. FATTIZZO (12/11/72)

decided: December 11, 1972.

COMMONWEALTH, APPELLANT,
v.
FATTIZZO



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1970, Nos. 907 and 908, in case of Commonwealth of Pennsylvania v. Alfred Mario Fattizzo.

COUNSEL

Martin H. Belsky, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.

Jonathan Miller, Assistant Defender, with him Vincent J. Ziccardi, Defender, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 223 Pa. Super. Page 379]

The issue presented by this case is whether the immunity conferred on a federal grand jury witness under 18 U.S.C. § 2514*fn1 protects him from further proceedings

[ 223 Pa. Super. Page 380]

    under a state gambling prosecution in which he had been indicted prior to his federal testimony, the witness having replied affirmatively in his federal testimony to a question as to whether he was self-employed in the numbers business at the time of his state arrest. We agree with the lower court that the statute protects him from further proceedings in the state prosecution.

On January 29, 1970, the defendant, Alfred Fattizzo, was arrested by Pennsylvania authorities as the result of alleged numbers activities. He was indicted on February 18, 1970, for being a common gambler and for setting up and maintaining an illegal lottery. Prior to trial on these charges, defendant appeared before a

[ 223 Pa. Super. Page 381]

    federal grand jury in Philadelphia investigating gambling and invoked his privilege against compulsory self-incrimination. Judge John B. Hannum, of the United States District Court for the Eastern District of Pennsylvania, on June 22, 1970, issued an order compelling his testimony, pursuant to 18 U.S.C. § 2514; the language of the order, with regard to the witness' immunity from prosecution and use of his testimony, largely followed that of the statute.*fn2 It read: "[The witness] shall not, however, be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is asked and compelled to testify or produce evidence under this Order, nor shall his testimony so compelled be used as evidence in any criminal proceeding Federal or State, against him in any court except in a prosecution for perjury or contempt committed by him while giving testimony or producing evidence under compulsion of this Order."

As a result of the order, defendant testified. He was questioned concerning his numbers activities and his relationship with and knowledge of various people, including one Pasquale Monzelli. On a number of occasions, the questions concerned defendant's criminal activity occurring a few months prior to his arrest on state charges. At one point, he was questioned directly about his activity at the time of his arrest: "Q. What position are you in now? A. I am before a Federal Grand Jury, and I have a case pending. Q. When did you get arrested on that case? A. January 29th, I believe, or 27th of 1970. Q. And you were working for yourself then? A. Yes." It is clear from an examination of previous questions and answers that defendant's statement that he was working for himself at the time of his arrest referred to his status in the numbers business;

[ 223 Pa. Super. Page 382]

    prior testimony elicited from him frequently concerned whether he was self-employed or working for another in numbers operations.

Following his testimony, on August 19, 1970, defendant moved for dismissal of the state indictments pending against him. On November 5, 1970, the motion was granted by Judge Emanuel W. Beloff of the ...


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