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COMMONWEALTH PENNSYLVANIA v. WARREN BRADY. COMMONWEALTH PENNSYLVANIA (01/28/77)

decided: January 28, 1977.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
WARREN BRADY. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. HENRY GEORGE



COUNSEL

Israel Packel, Atty. Gen., Harrisburg, Kenneth Biehn, Dist. Atty., Stephen B. Harris, Asst. Dist. Atty., Doylestown, B. Lerner, Philadelphia, for appellant.

No appearance for appellees.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., filed a concurring opinion. Roberts, J., filed a dissenting opinion, in which O'Brien and Pomeroy, JJ., joined.

Author: Nix

[ 470 Pa. Page 421]

OPINION

The case presently at bar raises questions concerning the authority of a court, under the Act of November 22,

[ 470 Pa. Page 4221968]

, P.L. 1080, 19 P.S. §§ 640.1 et seq. (Supp.1975-76) (hereinafter referred to as Immunity Act), to grant immunity from prosecution to a witness appearing before an indicting grand jury. The Superior Court affirmed the order of the Bucks County Court of Common Pleas denying the Commonwealth's petition for a grant of immunity. The Commonwealth appealed. We affirm.

The pertinent facts disclose that by a criminal complaint filed on August 10, 1972, Warren Brady and Henry George were charged with the crimes of "extortion, prohibited acts by public officers, and conspiracy." The complaint alleged that Brady and George, in their capacity as Bansalem Township supervisors, had extorted money and other rewards from construction contractors Joseph D'Egidio and John Carmerlengo, in return for favorable action on certain subdivision approvals and zoning changes needed by D'Egidio and Carmerlengo in their construction business.

At a preliminary hearing held on August 18, 1972, both defendants were bound over to court on the charges of extortion and prohibited acts by a public officer. The prosecuting attorney, however, withdrew the conspiracy charge.

On February 16, 1973, the remaining charges were presented to the regularly convened January Term, 1973, Bucks County Grand Jury. At this proceeding, D'Egidio and Carmerlengo were subpoenaed to testify regarding their transactions with the defendants. Both witnesses appeared, but refused to answer certain questions on the basis of their constitutional privilege against self incrimination.*fn1 The supervising judge subsequently sustained their refusal to testify.

On March 2, 1973, the Attorney General, joined by the Bucks County District Attorney, petitioned the Court of Common Pleas for an order immunizing D'Egidio and

[ 470 Pa. Page 423]

Carmerlengo from prosecution and compelling them to testify. The court dismissed the petition, however, concluding that since the bill of indictment presented to the indicting grand jury did not allege a conspiracy, it was not a proceeding "related to organized crime or racketeering" as required by the Immunity Act. The court therefore held that it was without authority to confer the grant of immunity and order the witnesses to testify.*fn2

The Commonwealth appealed the court's order to the Superior Court, which affirmed per curiam.*fn3 This Court granted the Commonwealth's petition for allowance of appeal*fn4 to resolve the questions raised concerning the scope and applicability of the Immunity Act.

I.

The Fifth Amendment to the United States Constitution provides in relevant part that "no person . . . shall be compelled in any criminal case to be a witness against himself." U.S.Const. Amend. V. The policies and rationale underlying this privilege against self incrimination were succinctly stated by the United States Supreme Court in Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964).

The privilege against self-incrimination "registers an important advance in the development of our liberty -- 'one of the great landmarks in man's struggle to make himself civilized.'" It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt;

[ 470 Pa. Page 424]

    our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates "a fair state -- individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load," our respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life," our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes "a shelter to the guilty," is often "a protection to the innocent." Id. at 55, 84 S.Ct. at 1596. (footnotes and citations omitted).

On another occasion, the court in discussing the privilege stated that:

No doubt the constitutional privilege may, on occasion, save a guilty man from his just deserts. It was aimed at a more far-reaching evil -- a recurrence of the inquisition and the Star Chamber, even if not in their stark brutality. Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil. Having had much experience with a tendency in human nature to abuse power, the Founders sought to close the doors against like future abuses by law-enforcing agencies. Ullman v. United States, 350 U.S. 422, 428, 76 S.Ct. 497, 501, 100 L.Ed. 511 (1956).

The Fifth Amendment thus defines the relationship between the government and the citizenry. It serves the function in our constitutional democracy of balancing are privacy and dignity of the individual with the power of the government to obtain testimony. While it may generally be asserted that the public "has the right to every man's evidence," that right is clearly limited by and subject

[ 470 Pa. Page 425]

    to the Fifth Amendment. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892).

It has been recognized, however, that a grant of immunity may "supplant" the Fifth Amendment privilege, provided that it is coextensive with that privilege. This principle is premised upon the view that immunity leaves the witness and the government in substantially the same position as if the witness had claimed his privilege.*fn5 See, e. g., Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1971); Counselman v. Hitchcock, supra. While we recognize that immunity can be a valuable prosecutorial tool, we must also consider, however, that it constitutes an extraordinary exercise of power. It cannot be denied that a grant of immunity authorizes and even encourages interrogation which would otherwise be prohibited by the Fifth amendment.*fn6 Therefore, if a grant of immunity is to erase the line drawn by the privilege between government and citizen, it must be done so with the utmost care, and with the least possible infringement of Fifth Amendment rights. For this reason, we reject at the outset the Commonwealth's assertion that the Immunity Act is a "sweeping provision" which must be "broadly construed."*fn7 To the

[ 470 Pa. Page 426]

    contrary, the delicate balance created by the privilege requires that the Act be construed according to its express terms, and that its applicability be limited to only those proceedings clearly within the purview of the language employed by the legislature. It is with this principle in mind that we approach our analysis and interpretation of the Immunity Act.

II.

The threshold question raised by this appeal concerns whether the Immunity Act may be employed to immunize witnesses called to appear before a regularly convened indicting grand jury. The lower court suggested that the language of the Act indicated that as to grand juries, the power of immunity is available only to those engaged in conducting an investigation, not to those solely concerned, as here, with the finding of indictments. We agree.

In reaching this conclusion, we first note that immunity statutes have historically been considered a prosecutorial "investigative tool." The first federal immunity provision, enacted in 1857, was passed to aid an investigation into a vote selling scheme allegedly occurring in the House of Representatives.*fn8 Since that time, the underlying premise upon which immunity statutes have

[ 470 Pa. Page 427]

    been enacted is their effectiveness in securing prosecutorial information. Restated, it is apparent that immunity statutes were designed to assist in the uncovering of criminal activity, as opposed to simply providing a means whereby sufficient information may be obtained for the prosecution and conviction of an individual offender. See, e. g., Kastigar v. United States, supra, 406 U.S. at 446-47 nn. 14-15, 92 S.Ct. 1653. We have no doubt that the Immunity Act of 1968 was passed by the General Assembly to achieve this same purpose.

Turning to the language of the Act, it should first be noted that the title to the Act provides that it is "[a]n Act authorizing courts of record to grant witnesses immunity from prosecution . . . in a proceeding before certain grand juries, investigating committees or commissions and courts of record; . . ." (emphasis added). The legislature has specifically provided that "[t]he title and preamble of a statute may be considered in the construction thereof."*fn9 In the title to the Act, it is clear that the Act is intended to apply only in proceedings before "certain" grand juries. The word "certain" cannot be considered mere surplusage,*fn10 and must be construed to indicate that not all grand jury proceedings fall within the contemplation of the Act. Moreover, the entire thrust of the Act compels the conclusion that it is primarily intended to assist in the investigation of organized crime and racketeering. Such investigations are undertaken not by a regular, indicting grand jury, which functions only to receive complaints and approve indictments, but by a special grand jury convened under a mandate to procure information and make recommendations, or a regular grand jury specially charged by a judicial

[ 470 Pa. Page 428]

    authority to investigate a specifically delineated type of widespread criminal activity.*fn11

The distinction between the regular grand jury and the latter two categories of "special" grand juries is crucial; the preservation of the distinction assures that the grand jury's investigative powers are employed only in situations where the subject matter of the inquiry is aimed at conditions affecting the members of the community as a whole, and not in instances where the primary target is the individual.*fn12 The Immunity Act by its express terms is similarly available only in proceedings relating to "organized crime and racketeering." Accepting this view, we then give meaning to the obvious legislative purpose in framing the Immunity Act to provide an effective means for the uncovering of pervasive and systematic criminal activity. We also preserve the delicate balance between the competing rights of the individual and society, by excluding the power to immunize from the arsenal of the prosecutor in his efforts to secure convictions of particular individuals. It is therefore clear that it is only the latter two categories of "special"

[ 470 Pa. Page 429]

    grand juries to which the Immunity Act was intended to apply, and the record adequately demonstrates that the Bucks County Grand Jury in the instant case was not clothed with special investigative authority.

The conclusion that the Immunity Act applies only to investigating grand juries is further supported by other language contained in that provision. Section 2 provides for a grant of immunity upon petition by the Attorney General, and requires that "[s]uch petition shall set forth the nature of the investigation and the need for the immunization of the witness." Act of November 22, 1968, § 2, 19 P.S. § 640.2 (Supp.1975-76) (emphasis added). This language clearly demonstrates that the Act is intended to be operative only to aid an "investigation", such as that undertaken by the two types of investigating grand juries delineated above. The legislature obviously did not intend to confer upon the Attorney General the power to immunize witnesses in all grand jury proceedings; such unlimited authority would undoubtedly subvert the fine balance between the rights protected by the Fifth Amendment and the power of the government to obtain testimony. We believe that the legislature specifically intended to avoid such a result, and did so by proscribing the power to immunize in proceedings before a regular, indicting grand jury, like that in the case presently at bar.

III.

An alternative ground for our holding also requires consideration, however, since it is our view that absent an allegation of conspiracy, the power to obtain a grant of immunity is not available under the Act.

Section 1 of the Immunity Act sets forth the circumstances under which a court may order a witness to testify, specifically limiting such authority to proceedings

[ 470 Pa. Page 430]

"relating to organized crime or racketeering."*fn13 In addition, this Court has previously stated that "[u]nder the Act, a court may grant immunity to a witness and order him to testify only if the proceeding in which his testimony is sought relates to 'organized crime or racketeering.'" In re Salvatore LaRussa, 464 Pa. 86, 89, 346 A.2d 32, 34 (1975). There terms are defined in Section 6 of the Act as follows:

"Organized crime" and "racketeering" shall include, but not be 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.

Act of November 22, 1968, § 6, 19 P.S. § 640.6 (Supp.1975-76).

Both the trial court and the Superior Court construed the words "conspiracy to commit" in Section 6 to modify each of the substantive crimes following thereafter. Since the conspiracy charge against both defendants had been withdrawn, it was concluded that under the statutory definition, the grand jury proceeding did not relate to "organized crime or racketeering", and the court was therefore without authority to grant immunity. We believe that the courts below correctly interpreted this language of the Act.

The Commonwealth argues that the lower courts erred in holding that the words "conspiracy to commit" in Section

[ 470 Pa. Page 4316]

of the Act modified each of the substantive crimes following thereafter, contending instead that these words should be construed to modify only the substantive crime of murder. To support its contention, the Commonwealth asserts that each substantive offense listed in Section 6 should be considered the food upon which organized crime feeds, and that the legislature must have intended the Act to become operative whenever a crime of that nature was involved. Thus, it is suggested that the language "conspiracy to commit" should be interpreted to modify only murder in order to achieve the purpose of reaching this class of criminal activity.

Such a construction, however, not only vitiates the natural and non-technical word arrangement employed by the legislature in Section 6, but it disregards an obvious legislative intention to reach the vast network of well conceived criminal ventures undertaken by those involved in organized crime. It is obvious that the legislature did not intend the Act to be operative to reach the criminal activity of one individual acting alone.*fn14 Rather, the Act unquestionably addresses itself to the concerted action of organized criminal activity.*fn15 It has long

[ 470 Pa. Page 432]

    been recognized that "[a]n unlawful act may not prove injurious . . . when attempted by an individual, and may be readily prevented; the same act attempted by the confederation of two or more may become dangerous to the public peace and to the security of persons and property, and harmful to the public morals by the very weight and power of numbers." Fimara v. Garner, 86 Conn. 434, 437-38, 85 A. 670, 672 (1913); See also, United States v. Rabinowich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211 (1915). The substantive crimes listed in Section 6 may or may not be the product of organized crime. Rather, we are inclined to believe that it is when such acts are the end product of an "unlawful agreement" that constitute the evil sought to be eradicated by the legislature. Thus, on the basis of the obvious legislative intention to reach organized, concerted activity, and the plain meaning of the language of Section 6, it is clear that before the authority to confer immunity arises under the Act, there must be a conspiracy to commit any of the substantive offenses as set forth in Section 6.

The Commonwealth also asserts, however, that the language of Section 6 "shall include, but not be limited to," implies that the legislature must have intended to reach the substantive offenses as well, including others not specifically enumerated in the Act. We agree that the legislature may have foreseen that it could not specifically identify all substantive offenses relating to organized crime, and we therefore agree that the legislature did not limit the Acts applicability to conspiracies to commit only the enumerated crimes. However, we also believe that the legislature intended only to provide sufficient latitude to reach conspiracies for any such unenumerated offenses relating to organized crime.*fn16 We therefore cannot accept the Commonwealth's assertion that this

[ 470 Pa. Page 433]

    language indicates a legislative intention to reach something less than concerted activity.

The Commonwealth also argues that the Immunity Act should be read in pari materia with the subsequently enacted Corrupt Organizations Act of 1970, 18 Pa.C.S. § 911 (1973). That Act imposes criminal penalties and civil liability on anyone who receives benefit, pecuniary or otherwise, from a "pattern of racketeering activity." Its primary purpose is, through the use of civil remedies of the type traditionally employed against antitrust violators, to prevent the infiltration of legitimate business enterprises by organized crime.*fn17 The Commonwealth contends that the definition of "racketeering activity" in the Corrupt Organizations Act should be incorporated into the Immunity Act. Subsection (h) of the Corrupt Organizations Act defines "racketeering activity" as follows:

(i) any act which is indictable under any of the following provisions of this title:

Chapter 25 (relating to criminal homicide)

Section 2706 (relating to terroristic threats)

Chapter 29 (relating to kidnapping)

Chapter 33 (relating to arson, etc.)

Chapter 37 (relating to robbery)

Chapter 39 (relating to theft and related offenses)

Section 4108 (relating to commercial bribery and breach of duty to act disinterestedly)

Section 4109 (relating to rigging publicly exhibited contest)

Chapter 47 (relating to bribery and ...


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