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LA RUSSA APPEAL (12/11/74)

decided: December 11, 1974.


Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, No. 00-0430 of 1974, in re January 1974 Special Investigating Grand Jury Investigation; Petition for a Grant of Immunity for Salvatore La Russa.


Burton A. Rose, with him A. Charles Peruto, and Peruto, Ryan & Vitullo, for appellant.

Charles Lang Duncan, Jr., Assistant Attorney General, with him Walter M. Phillips, Jr., Deputy Attorney General, and Israel Packel, Attorney General, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Dissenting Opinion by Jacobs, J. Cercone and Spaeth, JJ., join in this dissenting opinion. Dissenting Opinion by Cercone, J. Spaeth, J., joins in this dissenting opinion.

Author: Watkins

[ 232 Pa. Super. Page 275]

This is an appeal from the order of the Court of Common Pleas of Philadelphia County which directed that the defendant-appellant, Salvatore La Russa, be incarcerated for a period of six (6) months for contempt of court or until such time as he purges himself of that contempt by testifying before a Special Investigating Grand Jury. The court below found the appellant to be in contempt on August 2, 1974. The appellant is currently free on $7,500.00 bail.

The appellant had been subpoenaed to appear before the Special Investigating Grand Jury which was investigating police corruption in Philadelphia. On August 2, 1974, La Russa exercised his Fifth Amendment privilege against self-incrimination and refused to answer certain questions asked of him during the Grand Jury proceedings. Immediately thereafter the prosecutors petitioned the court to compel the appellant to testify pursuant to a grant of immunity under the Act of November 22, 1968, 19 P.S. § 640.1-6 (No. 333). The petition was granted by the court below, the appellant again took the stand and again refused to answer certain questions directed to him. The court subsequently held him in contempt for his refusal to testify.

An issue which is not raised in the briefs, but which we feel is important, is that of jurisdiction. The Act of July 31, 1970, P. L. 673, No. 223, Art. II, § 202 (17 P.S. § 211.202), provides that the Pennsylvania Supreme Court has jurisdiction of appeals from final orders of the Courts of Common Pleas in cases of direct criminal contempt. In Martorano Appeal, 225 Pa. Superior Ct. 474, 310 A.2d 683 (1973), this Court held that a lower court's contempt citation against a defendant who had refused to testify after having been granted immunity did amount to civil contempt since the contempt sentence was conditioned upon the witness's refusal to testify, that is, the witness could purge himself of contempt

[ 232 Pa. Super. Page 276]

    at any time by testifying. Since the contempt sentence in this case is similar to the one in Martorano, supra, in that it is conditional in nature it is, therefore, civil contempt and this Court has jurisdiction to hear this appeal.

Appellant's contention in this appeal is that the Commonwealth's petition for immunity failed to comply with the requisites of the applicable statutes in that the petition does not establish that the subject matter of the appellant's testimony would relate to a conspiracy to benefit "organized crime."

Section 1 of the Act of November 22, 1968 (19 P.S. § 640.1) provides in part that: "If, in a proceeding relating to organized crime or racketeering before a court, grand jury or investigating body set up by legislative enactment or by order of the Governor, any person shall refuse to testify or to produce evidence of any other kind on the ground that his testimony or evidence may tend to incriminate him, that person may be ordered to give such testimony. . . ." The Section goes on to provide for immunity for witnesses who so testify. The significant item of this section is that immunity can be provided under this Act only if the proceeding relates to "organized crime" or "racketeering."

Section 6 of the Act of November 22, 1968 (19 P.S. § 640.6) defines "organized crime" and "racketeering" as including but not limited to: "Conspiracy to commit murder, bribery or extortion, narcotic or dangerous drug violations, prostitution, usury, subornation of perjury and lottery, bookmaking or other forms of organized gambling."

It is necessary here to examine the Commonwealth's petition requesting the grant of immunity in order to establish whether or not the grant of immunity was proper in this case. The Commonwealth's petition ...

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