Jackson M. Sigmon, Sigmon, Littner & Ross, P.C., Bethlehem, for Irvin L. Good, appellant.
Mark S. Refowich, Fishbone & Refowich, P. C., Herbert Fishbone, Easton, for Louis Malo.
Charles H. Spaziani, Dist. Atty., Easton, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., concurs in the result. Nix, J., filed a concurring opinion. Manderino, J., filed a dissenting opinion.
We are asked in these two appeals to reverse convictions of perjury on the ground that the perjurious statements were made by defendants when they testified before a grand jury without first being warned of certain aspects of their right against self-incrimination. We hold that the failure to give such warnings did not vitiate the prosecution of these appellants.
In April 1967, a special investigating grand jury was convened in Northampton County to inquire into alleged gambling activities within the county and any related police
misconduct. Among those called to testify before the grand jury were Irvin L. Good and Louis Maio, the appellants. At the time they were summoned to appear, Maio was a member of the police force of the City of Bethlehem and Good was the Director of Public Safety of the City. Both men testified and denied any knowledge of any illegal wiretapping activities by members of the Bethlehem police department. This testimony, however, was directly contrary to information Maio had previously given the district attorney of Northampton County. In fact, prior to his grand jury appearance Maio had personally played for the district attorney certain tape recordings which he had made as a result of illegal wiretapping during 1962 and 1963 and which, he told the district attorney, had been undertaken at the express behest of his superior, Director Good.
Following their grand jury appearances Maio and Good were indicted for perjury. They moved to quash the indictments on the ground that prior to testifying before the grand jury, the appellants had not been adequately advised of their rights relative to their Fifth Amendment privilege against self-incrimination as set forth in Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764 (1971), cert. denied, 404 U.S. 1000, 92 S.Ct. 559, 30 L.Ed.2d 552 (1971). Following the denial of these motions and the granting of Good's motion for severance, appellants were tried separately and each was convicted of perjury. On appeals from the judgments of sentence, the Superior Court affirmed. Commonwealth v. Good, 225 Pa. Super. 719, 306 A.2d 367 (1973). This Court then granted allocatur in each case,*fn1 limited to two questions: (1) whether the failure to give appellants the warnings as prescribed in Commonwealth v. McCloskey, supra, precluded conviction of perjury before the grand jury; and (2) whether, if so, the decision in McCloskey,
which was announced subsequent to the grand jury proceeding here involved, should be ...