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MARTORANO APPEAL (09/19/73)

decided: September 19, 1973.

MARTORANO APPEAL


225 Pa. Super. 474.

COUNSEL

John Rogers Carroll, with him Robert E. Gabriel, and Carroll and Gabriel, for appellant.

David Richman, Assistant District Attorney, with him Paul R. Michel, Deputy District, Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee. 476

Before Wright, P.j., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ.

Author: Per Curiam

[ 225 Pa. Super. Page 476]

Judgment of sentence affirmed. Opinion to follow.

Appellant Raymond Martorano appeals from the order of May 4, 1973, entered by Judge Harry A. Takiff of the Court of Common Pleas of Philadelphia County, citing him for contempt of court and committing him to county prison for a period of six months or until he purges himself by testifying or until the expiration of the present investigating grand jury in Philadelphia.

Appellant was subpoenaed as a witness and sworn before the investigating grand jury on January 17, 1973. The grand jury is investigating the areas of illegal gambling operations and systematic attempts to corrupt law enforcement officers, among other things. On February 13, 1973, appellant appeared before the grand jury, but declined to answer any substantive questions concerning the areas under investigation,*fn1 invoking his privileges against self incrimination. Subsequently, on April 12, 1973, the District Attorney of Philadelphia and the Attorney General of Pennsylvania jointly petitioned the court below to grant appellant immunity pursuant to the Act of Nov. 22, 1968, P. L. 1080, No. 333, § 1 et seq., 19 P.S. § 640.1 et seq.

[ 225 Pa. Super. Page 477]

Appellant filed an answer to the petition and a hearing was then conducted, without appellant participating, at which the court reviewed the transcript of appellant's February 13th appearance before the grand jury and heard argument by the district attorney as to the "need" for the granting of immunity. The court granted immunity and directed appellant to testify. On the same day, after consulting with counsel, appellant again appeared before the investigating grand jury. He continued his earlier refusal to testify, reasserting the constitutional grounds.

On May 1, 1973, the district attorney petitioned the court below to cite appellant for contempt. A hearing was held on May 4, and when appellant persisted in his refusal to answer any questions, the court cited him for contempt. The order was framed conditionally so that appellant could purge himself by testifying, the trial judge quite clearly indicating in his opinion that the court "concluded that the witness was in civil contempt of court for refusing to testify. . . ." (Emphasis added.) Appellant now appeals from that order.

I.

Initially, we are faced with a jurisdictional question not, however, raised by the parties. The issue is whether the lower court's order is properly characterized as a civil contempt order or whether, under the Act, supra, it is necessarily an order for direct criminal contempt, from which appeal would be directly to our Supreme Court. Our decision on this question is prescribed by that Court's decision in Riccobene Appeal, 439 Pa. 404, 268 A.2d 104 (1970), until that Court re-examines this question when properly called upon to do so. While the decision in Riccobene was three justices in favor of the majority opinion, one concurring in the result, and three dissenting, and despite the fact that the membership of the present Court is

[ 225 Pa. Super. Page 478]

    different, in view of both the recentness of the decision and the jurisdictional question involved, it is inappropriate for us to strike out on our own here. See also Commonwealth v. Mason, 222 Pa. Superior Ct. 453, 295 A.2d 103 (1972), concurring and dissenting opinion. We therefore take the liberty of quoting the Riccobene opinion on this issue, since we hold that decision to be controlling here.

The Court there reasoned, in denying Riccobene's contention that a civil contempt order was improper in circumstances similar to those here, as follows: "Riccobene urges that the sanction of criminal contempt expressly provided by the Act [See § 640.5] is exclusive, and that his civil contempt sentence is thus beyond the authority of the Court. Because of the conditional nature of the contempt sentence which allowed Riccobene to purge himself of contempt and free himself by testifying before the Grand Jury, it is clearly civil contempt. Shillitani v. United States, 384 U.S. 364 (1966). As the Court pertinently said (pages 365, 368, 369-371): [T]he difficult question [is] whether a charge of contempt against a witness for refusal to answer questions before a grand jury requires an indictment and jury trial. In both cases, contempt proceedings were instituted after petitioners had refused to testify under immunity granted by the respective District Courts. . . . Both were found guilty and sentenced to two years' imprisoment, with the proviso that if either answered the questions before his sentence ended, he would be released. . . . We hold that the conditional nature of these sentences renders each of the actions a civil contempt proceeding, for which indictment and jury trial are not constitutionally required.

"'We believe that the character and purpose of these actions clearly render them civil rather than criminal ...


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