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decided: October 3, 1975.



Mark A. Klugheit, Asst. Atty. Gen., Walter M. Phillips, Jr., Deputy Atty. Gen., Philadelphia, for Commonwealth, appellant.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Nix, J., files a dissenting opinion in which Eagen, J., joins. Manderino, J., did not participate in the consideration or decision of this case.

Author: Roberts

[ 464 Pa. Page 69]


Appellee Raymond Martorano was held in contempt of court for refusing to testify before an investigating grand jury after being granted immunity and ordered to testify pursuant to the Act of November 22, 1968, P.L. 1080, 19 P.S. ยง 640.1-.6 (Supp.1974). In this appeal we must decide the propriety of that adjudication.

On July 2, 1974, Martorano was served with a subpoena ordering him to testify on July 10 before the January, 1974, Special Investigating Grand Jury of Philadelphia, which was investigating official corruption in Philadelphia. See generally In re Investigation of the January, 1974, Philadelphia Grand Jury, 458 Pa. 586, 328 A.2d 485 (1974). On July 10 Martorano filed a petition to strike or set aside the subpoena. The court supervising the grand jury heard testimony and argument on July 12

[ 464 Pa. Page 70]

    on Martorano's claim that service of the subpoena was defective and that the absence from the face of the subpoena of the official seal of the court of common pleas rendered it void. On August 8, the court filed an order denying the petition.

Martorano appeared, as directed, on August 16. After being sworn and instructed as to his rights,*fn1 he was taken before the grand jury and questioned concerning certain acquaintances and business activities. However, Martorano invoked his privilege against self-incrimination*fn2 and refused to answer all questions. He was excused and directed to appear on September 4.

Upon his reappearance on September 4, he again invoked the privilege against self-incrimination and refused to answer any questions. The Commonwealth immediately petitioned the supervising court to grant immunity to Martorano and to order him to testify, pursuant to the Act. The petition was signed by then-Attorney General Israel Packel and verified by the affidavit of an assistant attorney general. It alleged that Martorano was "reasonably believed" to possess "knowledge or evidence . . . concerning a system of payment of bribes to Philadelphia Police officers to forego prosecution of those involved in illegal gambling activities." The petition asserted that the grand jury needed Martorano's testimony "in order to uncover the identity of others involved with him in illegal gambling activities and bribe payments to police officers" and was unable to acquire that testimony because of Martorano's invocation of the privilege against self-incrimination.

After the court ascertained that Martorano had properly invoked the privilege, it afforded Martorano's counsel

[ 464 Pa. Page 71]

    an opportunity to respond to the petition. However, he protested that he needed time to prepare, and the hearing was continued until September 5.

On September 5, the hearing resumed and Martorano's counsel presented a lengthy oral argument opposing immunization of his client. Also on September 5, the court held an in camera hearing for the Commonwealth to present evidence in support of the petitioner's assertion that immunization was needed. After the hearings, the court granted the Commonwealth's petition, ordered Martorano to testify, and conferred the immunity from prosecution permitted by the Act.

Martorano returned to the grand jury on the same day but he again invoked his privilege against self-incrimination and refused to testify. The Commonwealth immediately petitioned the court orally to hold Martorano in contempt. The court, however, decided not to proceed without a written petition. It directed the Commonwealth to file a petition and rescheduled the matter for the afternoon of September 6. Martorano's counsel unsuccessfully sought a longer delay so that he could attend a funeral that day.

When the hearing resumed, the court gave Martorano a further opportunity to answer the grand jury's questions, but he refused. The court found Martorano to be in civil contempt and ordered him incarcerated in the county jail for a period of six months or until he purged himself by testifying or until the term of the grand jury expired.

Martorano appealed to the Superior Court, which reversed the contempt order.*fn3

The Commonwealth petitioned this Court for allowance of an appeal,*fn4 which we granted. Due to the need for an

[ 464 Pa. Page 72]

    expeditious decision in this appeal, we filed an order on July 7, 1975, reversing the order of the Superior Court and reinstating the order of the court of common pleas. We noted these opinions would follow.

We note that this is Martorano's second adjudication of contempt. He had been called to testify before a predecessor grand jury and had refused to answer its questions. After he had been immunized and ordered to testify, Martorano persisted in his refusal and was adjudged to be in contempt. He received a sentence identical to that imposed in this case. See Martorano Appeal, 225 Pa. Super. 474, 310 A.2d 683 (1973). While the record does not indicate the ...

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