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GRAND JURY (10/27/77)

decided: October 27, 1977.

IN RE GRAND JURY, APRIL TERM, 1977, WAYNE COUNTY. APPEAL OF CHARLES MESITI


COUNSEL

Charles J. Bufalino, Jr., West Pittston, with him Malcolm Limongelli, West Pittston, for appellant.

David Richman, Assistant District Attorney, with him Thomas E. Butler, Jr., and Elliott D. Goldberg, Assistant District Attorneys, Honesdale, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., concurs in the result. Watkins, President Judge, dissents.

Author: Jacobs

[ 251 Pa. Super. Page 47]

Appellant Charles Mesiti appeals from an Order of the Court of Common Pleas of Wayne County citing him for civil contempt and ordering him imprisoned for the lesser of six (6) months, discharge of the Special Investigating Grand Jury of Wayne County, or appellant's purging himself of the contempt. Appellant alleges on this appeal that the lower court erred in finding him in contempt, in not specifying the information to be supplied by appellant in purging himself of contempt, and in setting conditions for purging the contempt which appellant cannot meet. We disagree with appellant's contentions and affirm the findings of the lower court.

On May 18, 1977, Appellant Mesiti was sworn as a witness to testify before a Special Grand Jury in Wayne County which was investigating certain conditions at Farview State Hospital, an institution for the criminally insane. Appellant, a charge guard on the medical-surgical ward of the hospital, was fully advised of his constitutional rights, including his privilege against self-incrimination. In his appearances before the Grand Jury on May 20 and 31, 1977, appellant invoked his privilege against self-incrimination and refused to answer any substantive questions about the conditions under investigation.

On June 1, in an in camera proceeding before TAKIFF, J., appellant again refused to answer these same substantive questions. During this proceeding, appellant told the court that but for his fear of self-incrimination, he would have substantive answers to the questions asked, although he was unsure of the accuracy and extent of his memory. Judge TAKIFF affirmed appellant's right to invoke the privilege against self-incrimination.

On June 23, 1977, the Commonwealth petitioned the Court of Common Pleas of Wayne County to grant appellant

[ 251 Pa. Super. Page 48]

    immunity from prosecution pursuant to the Act of Nov. 22, 1968, P.L. 1080, No. 333, ยง 1, et seq., 19 P.S. 640.1 et seq. (Cum.Ann. Pocket Part, 1977-78), and to compel appellant to testify. Following a hearing on the matter, the court granted appellant immunity and ordered him to testify before the Grand Jury. On June 29, appellant was called before the Grand Jury. With few exceptions, in response to the same questions to which appellant had previously invoked his privilege against self-incrimination, he then responded that he could not recall any of the circumstances involved in the area of questioning, specifically the alleged beating deaths of two Farview patients.

Later that day, the Special Prosecutor filed a petition asking the court to cite appellant for civil contempt. Following an answer by appellant and a hearing by the court, TAKIFF, J., did find appellant to be in civil contempt and ordered him committed to the Wayne County Prison for the time period noted, supra. Pending this appeal, a supersedeas was granted and appellant has been out of prison on bail. Appellant has been represented by counsel throughout these proceedings.

". . . '[T]he public . . . has a right to every man's evidence,' except for those persons protected by a constitutional, common-law, or statutory privilege . . ." (Citations omitted.) Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626, 644 (1972). Whether a person may invoke a privilege against testifying is a ...


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