No. 121 January Term, 1977, Appeal from Judgment of Sentence of Court of Common Pleas of Union County at No. 136 Criminal Division, 1974
Paul W. Brann, Matson, Brann & Bromfield, Lewisburg, for appellant.
James F. McClure, Jr., Acting Dist. Atty., Lewisburg, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Roberts, J., files a dissenting opinion in which Manderino, J., joins.
On August 27, 1973, appellant, Jimmie T. Strickler, pleaded guilty to a charge of being an accessory after the fact to an armed robbery in Union County. On April 16, 1974, he was sentenced to a term of fifteen months' imprisonment, sentence to commence on May 1, 1973. He took no appeal from the judgment of sentence, and on June 1, 1974, he was paroled to the custody of another county where he was to serve unrelated sentences of imprisonment.
Subsequently, on September 11, 1974, after he had completed his sentence on the accessory charge, Strickler was called by the Commonwealth to testify at the Union County trial of one Craig Timothy Shirk for the purpose of identifying Shirk as a principal in the same armed robbery to which Strickler had pleaded guilty as an accessory. Strickler, however, invoked his Fifth Amendment privilege against self-incrimination and refused to testify. The trial judge advised Strickler, who was represented by counsel, that, because he had pleaded guilty, been sentenced, and failed to take a timely appeal with respect to a charge based upon the same events about which he was scheduled to testify, and because, pursuant to this Court's decision in Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), he could not then be prosecuted for any additional charges based upon these events, he had no grounds to fear self-incrimination as a result of his testimony.
Strickler, however, informed the judge that he was presently in the process of preparing a petition for post-conviction relief and that, in connection with this, he feared anything he said might later be used against him. The judge observed that no such petition was then pending before the court. The district attorney then asserted that
"the Commonwealth grants the witness immunity from prosecution with regards to any other matter, transaction arising out of facts involved in the case for which he was previously sentenced." The judge again advised Strickler that he could not be subjected to further prosecution based upon the facts about which he was to testify and that he therefore had no basis to assert his privilege against self-incrimination with regard to this testimony; he ordered Strickler to testify and warned him that if he persisted in his refusal to do so he could be found in contempt of court. When Strickler still refused to testify, the judge summarily found him in direct criminal contempt and sentenced him to imprisonment for six months "to begin and date from the time [he] is released from his present confinement." The judge nevertheless offered him an opportunity to purge his contempt by testifying, but he again refused to do so. As a result of this refusal, the Commonwealth moved that a nolle prosequi be entered in the case against Shirk; the judge granted the motion, and Shirk was discharged. Strickler appealed his criminal contempt conviction to the Superior Court, but on October 20, 1976, the appeal was properly transferred to this Court.*fn1
In Commonwealth v. Carrera, 424 Pa. 551, 553-54, 227 A.2d 627, 629 (1967), this Court stated:
"When an individual . . . is called to testify . . . in a judicial proceeding, he or she is not exonerated from answering questions merely upon the declaration that in so doing it would be self-incriminating. It is always for the court to judge if the silence is justified, and an illusory claim should be rejected. However, for the court to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration of all the circumstances, that the witness is mistaken in the apprehension of self-incrimination and the answers demanded cannot possibly have such tendency . . . ." (Emphasis in original.)
Strickler argues that the trial judge erred in overruling his claim of privilege and ordering him to testify on two grounds: (1) if his contemplated petition for post-conviction relief were to succeed in causing his conviction as an accessory to be invalidated, his testimony at the Shirk trial might be used against him in a new trial on the accessory charge, and (2) his testimony might subject him to new charges arising out of the incident about which he was to testify. He further contends that the district attorney's purported grant of immunity from further prosecution was of no significance, since he was entitled to reject immunity for "his own reasons."
We agree with Strickler that the purported grant of immunity is not here controlling, but not for the reason he advances. It is clear that a valid grant of immunity is constitutionally sufficient "to supplant the privilege if the witness is protected against use of the compelled testimony and all its fruits." In re Falone, 464 Pa. 42, 48, 346 A.2d 9, 12 (1975). It is also clear, however, that since in Pennsylvania district attorneys lack the statutory authority to grant witnesses immunity in criminal prosecutions, such a promise is not legally binding or effective. Commonwealth v. Carrera, supra. Accord, Commonwealth v. Hawthorne, 428 Pa. 260, 236 A.2d 519 (1968); Commonwealth v. Kaye, 232 Pa. Super. 513, 335 A.2d 430 (1975). Thus, although Strickler is mistaken in his assertion that he was entitled to reject immunity for his own reasons, instantly the purported grant of immunity was invalid.*fn2 We turn therefore to his arguments
that the judge improperly overruled his claim of privilege.
With regard to Strickler's assertion that his testimony in the Shirk trial might subject him to new charges in connection with the armed robbery about which he was scheduled to testify, we observe that Section 110 of the Crimes Code,*fn3 in addition to Commonwealth v. Campana, supra, cited by the trial judge,*fn4 requires in general that all charges against a defendant "based on the same conduct or arising from the same criminal episode" be brought in a single proceeding. Thus, it would appear that any subsequent prosecution of Strickler based upon the armed robbery about which he was to testify and in connection with which he had already been convicted would have been barred under Pennsylvania law.
Section 110(1)(ii) does make exception for an offense which, though based on the same conduct or arising from the same criminal episode, was not "known to the appropriate prosecuting officer at the time of the commencement of the first trial," but there is nothing in the instant record to indicate that the district attorney was not fully aware of the circumstances surrounding the criminal episode in question and the extent of Strickler's involvement therein; indeed, the record reveals that the district attorney's attempt to grant Strickler immunity was at least in part in response to and apparently intended to confirm the trial judge's view that ...