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In re Appeal of O' Brien

October 28, 1977

IN RE NOVEMBER, 1975 SPECIAL INVESTIGATING GRAND JURY
APPEAL OF JAMES T. O'BRIEN.



Per curiam.

Argued April 2, 1976.

Eagen, C.J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Roberts, J. files an opinion in support of affirmance in which O'Brien, J. joins.

Pomeroy, J. files an opinion in support of affirmance in which O'Brien, J. joins

Nix, j. files an opinion in support of reversal in which Eagen, C.J. and Manderino, j. join.

Jones, former C.J. did not participate in the decision of this case.

The court being equally divided, the judgment of sentence is affirmed.

Opinion In Support of Affirmance

ROBERTS, Justice.

I.

In January, 1974, a Special Investigating Grand Jury convened to investigate corrupt practices in the award of contracts, jobs and promotions by the City of Philadelphia and its agencies. One of the subjects of this inquiry was the acquisition and renovation of the residence of the Mayor of Philadelphia. In 1975, the Mayor and his accountant informed the Grand Jury that only representatives of Tracey Service Co., of which appellant is Custodian of Records, could supply answers to the Grand Jury's questions concerning the extent and source of funds for the improvements at the Mayor's address.

A subpoena was immediately issued for the relevant records in appellant's custody. Tracey Service Co. sought to avoid production, pursuing litigation over this issue which continued beyond the time of discharge of the 1974 Grand Jury. Upon the empanelment of the Special Investigating Grand Jury of November Term, 1975, an identical subpoena, identified as Subpoena Duces Tecum No. 27, was issued on December 30, 1975, to Tracey Service Co. On January 6, 1976, Tracey Service Co. filed with the supervising court a motion to quash Subpoena No. 27. In an opinion dated March 9, 1976, the court after thorough consideration of the grounds raised in the motion to quash held that all the contentions were without merit and ordered appellant to appear before the Grand Jury with the subpoenaed documents.

Appellant appeared before the court on March 10, 1976, and was granted a continuance for appearance until March 15, 1976. On March 15, 1976, appellant appeared before the Grand Jury but refused to testify or to produce the subpoenaed documents as ordered by the court, raising as justification the same grounds rejected by the supervising court less than a week earlier.

Later in the morning of March 15, 1976, appellant was brought before the supervising court, which again ordered him to produce the documents. When appellant persisted in his refusal to comply, the court solicited argument from the Commonwealth and appellant's counsel on whether appellant should be held in contempt, and if so, whether civil or criminal contempt should be imposed. The court then cited appellant for contempt, setting a hearing for the afternoon of the same day to determine sentencing. At the hearing, the court imposed a sentence of five months and 25 days, but later that day, Chief Justice Jones stayed the order of contempt pending resolution of appellant's appeal to this Court.

The 1975 Grand Jury has since been discharged without ever having seen the subpoenaed records. Thus, appellant's refusal to produce the subpoenaed documents has frustrated two Grand Juries in the performance of their duties.

II.

The mere refusal to testify before a grand jury constitutes contempt. In re Martorano, 464 Pa. 66, 77, 346 A.2d 22, 27-28 (1975); cf. Commonwealth v. Crawford, 466 Pa. 269, 273 n.7, 352 A.2d 52, 54 n.7 (1976) (criminal contempt imposed for refusal to testify at trial). Good faith does not justify contemptuous behavior. Pennsylvania v. Local 542, International Union of Operating Engineers, 552 F.2d 498, 508-09 (3d Cir. 1977). It is also settled that "a contemptuous refusal to testify before a grand jury may be dealt with either a criminal contempt, civil contempt, or both." In re Martorano, supra, at 77, 346 A.2d at 27-28. I cannot agree with the opinion supporting reversal that the supervising court's choice of a criminal contempt sanction constituted an abuse of discretion.

Petitioner's refusal to produce the documents amounted to an obstruction of justice. Our cases and those of the federal courts have defined obstructions of the administration of justice as any acts which have delayed, frustrated, disrupted or interfered with a court supervised proceeding. United States v. Wilson, 421 U.S. 309, 316, 95 S.Ct. 1802, 1806, 44 L.Ed.2d 186 (1975); Matter of Johnson, 467 Pa. 552, 558, 359 A.2d 739, 742 (1976); Tenenbaum v. Caplan, 454 Pa. 1, 4, 309 A.2d 428, 430 (1973). Here, the supervising court found that the refusal to produce the documents had already prevented the 1974 Grand Jury from investigating the purchase and renovation of the Mayor's residence, had delayed by more than six months the 1975 Grand Jury investigation of the same events, and threatened to frustrate the entire inquiry into that matter. The court was fully justified in regarding this sequence of events as an obstruction of the administration of justice. United States v. Wilson, supra, 421 U.S. at 316, 95 S.Ct. at 1806 ("a contumacious refusal to answer not only frustrates the inquiry but can destroy a prosecution.").

Apparently conceding this much, the opinion supporting reversal insists that the supervising court erred in not resorting to civil contempt sanctions. Several considerations compel me to disagree.

To reach its conclusion that criminal contempt was unjustified, appellant relies on the doctrine that a court must exercise the least possible power adequate to accomplish the desired end. Shillitani v. United States, 384 U.S. 367, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); In re Martorano, supra. However, this principle does not require that a court engage in a futile act. Neither Shillitani nor Martorano commands that a court must initially impose civil contempt before resorting to criminal contempt sanctions. Shillitani and Martorano simply direct the court to impose criminal contempt only where civil sanctions would be inadequate or inappropriate. Shillitani v. United States, supra, 384 U.S. at 371 n.9, 86 S.Ct. at 1536 n.9; In re Martorano, supra, 464 Pa. at 81 n.20, 346 A.2d at 29 n.20.*fn1 Civil contempt here would have been an insufficient remedy.

Further, even if the supervising court had improperly failed to articulate reasons for resorting to criminal contempt, the error would not support a reversal of the court's contempt order. In that situation, the proper disposition would be to vacate and remand for a reimposition of contempt accompanied by a statement of reasons for the penalty imposed. Commonwealth v. Riggins, supra.

The court warned appellant that she would cite him for contempt if he persisted in his non-compliance with Subpoena No. 27. Appellant showed no signs of softening his stance. For more than six months, appellant had been pursuing a policy of non-compliance and had expressly informed the court that he would not come forth with the records until appellate review had conclusively determined the legal merits of the arguments against production which he had presented in his motion to quash. In these circumstances, the court's conclusion that the imposition of coercive sanctions would be a futile gesture was definitely not an arbitrary one.

In support of her decision, the supervising court properly took notice of the limited duration of the Grand Jury and the relatively short statutes of limitations of the suspected crimes being investigated.*fn2 With respect to the first consideration, had appellant received a civil contempt penalty, he no doubt would have appealed, as he did upon receiving a citation for criminal contempt. Civil contempt sentences may not exceed the life of the Grand Jury, In re Martorano, supra, 464 Pa. at 84, 346 A.2d at 31. Appellant's appeal of his civil contempt would most likely outlive the 1975 Grand Jury.*fn3 Thus, if appellant obtained a stay of the civil contempt penalty, which he in all likelihood would have sought, he would then escape both production and the coercive sanction designed to induce him to come forth with the documents. In short, a civil remedy would not have proved coercive at all.

Given that the Grand Jury investigation began in January, 1974, and the first subpoena for the documents in appellant's custody was issued in the fall of 1975, it is clear that in March, 1976, there existed a serious danger that these statutes of limitations would run if compliance with the subpoena was delayed any longer. Indeed, it is probable that by now some of these statutes have run.

Moreover, if the opinion supporting reversal is requiring that the supervising court specify the exact dates on which the crimes were ...


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