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WILLIAM FALONE. APPEAL COMMONWEALTH PENNSYLVANIA (10/03/75)

decided: October 3, 1975.

IN RE WILLIAM FALONE. APPEAL OF COMMONWEALTH OF PENNSYLVANIA


COUNSEL

Walter M. Phillips, Jr., Deputy Atty. Gen., Peter Noel Duhamel, Asst. Atty. Gen., Philadelphia, for appellant.

Herbert K. Fisher, Philadelphia, for appellee.

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 45]

OPINION OF THE COURT

On October 29, 1974, appellee William Falone was called to testify 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). He was questioned concerning bribes allegedly paid to certain members of the Philadelphia Police Department in consideration for non-enforcement of laws prohibiting gambling. Falone invoked his privilege against self-incrimination*fn1 and refused to testify.

The Commonwealth immediately petitioned the judge supervising the grand jury to grant immunity to Falone and to order him to testify, pursuant to the Act of November 22, 1968, P.L. 1080, 19 P.S. §§ 640.1-.6 (Supp.1974). The petition was signed by then-Attorney General Israel Packel and verified by the affidavit of an assistant attorney general. It stated that the grand jury was reliably informed that Falone "is a member of organized crime who directs a major gambling operation in West Philadelphia" and that he "has conspired with other organized crime figures to make payments of money to members of the Philadelphia Police Department for the purpose of influencing them in the performance of their official duties." The petition asserted that Falone's testimony

[ 464 Pa. Page 46]

    was necessary for the grand jury to perform its function of investigating police corruption.

An immediate hearing was held at which the supervising judge disclosed that an attorney for the Commonwealth had presented to him in camera the grounds upon which a grant of immunity was sought and the need for immunization. Falone's counsel informed the court that he was unprepared to argue in opposition to a grant of immunity. The court accordingly continued the hearing until November 1. On that day the court afforded Falone the opportunity to present testimony and argument why he should not be immunized.

On November 4, the court granted the petition, ordered Falone to testify, and conferred the immunity from prosecution permitted by the Act. Falone was called before the grand jury on November 6 and questioned, but he again invoked his privilege against self-incrimination and refused to testify. The Commonwealth immediately petitioned the court to hold Falone in contempt. A hearing was convened, but Falone's counsel protested that he was unprepared to conduct a defense. The court continued the hearing until November 8.

When the hearing resumed, the court gave Falone a further opportunity to answer the grand jury's questions, but he again refused. The court found Falone to be in contempt of court and ordered him to be 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.

Falone appealed to the Superior Court, which reversed the order of contempt and discharged him.*fn2 231 Pa. Super. 388, 332 A.2d 558 (1975). The Commonwealth petitioned this Court for allowance of an appeal,*fn3 which we

[ 464 Pa. Page 47]

    granted. Recognizing the need for an expeditious resolution of this appeal, we filed an order on July 7, 1975, reversing the order of the Superior Court's order and reinstating the order of the court of common pleas. We noted these opinions would follow.

We must preliminarily determine the manner in which the Act is to be construed. The Superior Court stated:

"[S]erious Fifth Amendment rights are involved in that under the Pennsylvania Immunity Act a person can be compelled to give testimony against himself. It follows that a statute conferring such power must be strictly construed by the government in order to minimize the judicial abuse of power which could occur otherwise. . . .

[B]ecause of [the Act's] exceptional nature and because it deals with basic constitutional rights, it must certainly require strict construction."

231 Pa. Super. at 393, 332 A.2d at 561.

[ 464 Pa. Page 48]

That court's conclusion that the Act must receive a "strict construction" is based on an erroneous view of immunity and the privilege against self-incrimination. It is incorrect that under the Act "a person can be compelled to give testimony against himself" in the constitutional sense. When a witness receives a grant of immunity from prosecution that is at least as broad in scope and effect as the privilege against self-incrimination, his privilege is completely displaced because he has "complete protection from all the perils against which the [privilege] was designed to guard."*fn4 Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972); Kastigar v. United States, 406 U.S. 411, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Gardner v. Broderick, 392 U.S. 273, 276, 88 S.Ct. 1913, 1915, 20 L.Ed.2d 1082 (1968) (dictum); Murphy Page 48} v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956); Hale v. Henkel, 201 U.S. 43, 65-70, 26 S.Ct. 370, 375-77, 50 L.Ed. 652 (1906); Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896); Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892); Riccobene Appeal, 439 Pa. 404, 410, 268 A.2d 104, 108 (1970) (opinion announcing the judgment). A grant of immunity is sufficient to supplant the privilege if the witness is protected against use of the compelled testimony and all its fruits. Kastigar v. United States, supra. Immunity granted under the Act is "transactional" immunity,*fn5 Riccobene Appeal, supra, 439 Pa. at 412, 268 A.2d at 109, and thus is more extensive than necessary to displace the privilege.

As the Supreme Court stated in Kastigar v. United States, supra:

"[The] sole concern [of the privilege against self-incrimination] is to afford protection against being 'forced to give testimony leading to the infliction of "penalties affixed to . . . criminal acts."' Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness."

406 U.S. at 453, 92 S.Ct. at 1661 (footnote omitted).

Accordingly, a witness who is compelled to testify under the Act is not testifying "against himself" in the constitutional sense, because his testimony cannot result in

[ 464 Pa. Page 49]

    the infliction of criminal penalties. Thus, it is not necessary to accord the Act a "strict construction" for the protection of the privilege against self-incrimination. We can perceive no reason why the Act should not "be liberally construed to effect [its] objects and to promote justice." Statutory Construction Act, 1 Pa.C.S. § 1928(c) (Supp.1974). Cf. United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974).

The Superior Court reached its result on the ground that the Commonwealth's petition did not comply with the Act. Specifically, it noted that, under section 2 of the Act, 19 P.S. § 640.2,*fn6 a petition for a grant of immunity must be filed by the Attorney General. It reasoned that the petition was required under the Act of April 9, 1915, P.L. 72, 12 P.S. § 514 (1973),*fn7 and Pa.R.Civ.P. 206*fn8 & 1024*fn9 to be verified, and that, under Rule

[ 464 Pa. Page 501024]

(c), the verification should have been by the Attorney General or should have conformed to the requirements of Rule 1024(c) for verification by one not a "party."

"Only the 'Attorney General' is designated as the petitioning party so that he is the only party to the proceeding and under Rules 206 and 1024 of the Pennsylvania Rules of Civil Procedure he should have been the one to verify the facts contained in the petition unless cogent reasons were set forth as to why his verification does not appear.

"To be effective in this petition, this verification by one other than the Attorney General must set forth the reasons why the petitioner, the Attorney General, failed to take the affidavit, the basis for the third parties' [sic] authority to take the affidavit and the nature and source of the knowledge upon which the verification is based."

231 Pa. Super. 393, 332 A.2d at 561.

Because the affidavit verifying the Commonwealth's petition was not made by the Attorney General and did not comply with the requirements of Rule 1024(c) for a non-party affidavit,*fn10 it was held that the petition was not that of the Attorney General, and was ...


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