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COUNTY INVESTIGATING GRAND JURY JUNE 1 (07/31/81)

decided: July 31, 1981.

IN RE COUNTY INVESTIGATING GRAND JURY OF JUNE 1, 1979. APPEAL OF DAVID BOHANNON. APPEAL OF RICHARD WOLF


Petition Nos. 184 and 187 E.D.Misc.Dkt. 1981 for Review of Order of Court of Common Pleas of Philadelphia dated March 30, 1981, Adjudging Petitioner in Civil Contempt.

COUNSEL

Marvin Comisky, Jerome R. Richter, Norman E. Greenspan, C. Oliver Burt, III, Philadelphia, for petitioner.

Steven H. Goldblatt, Jane Greenspan, Philadelphia, for respondent.

Roberts, Nix, Larsen, Flaherty and Wilkinson, JJ. O'Brien, C. J., and Mr. Justice Kauffman, J., did not participate in the consideration or decision of these cases. Larsen, J., filed a dissenting opinion.

Author: Per Curiam

[ 495 Pa. Page 211]

OPINION

Orders affirmed. See also In Re Investigating Grand Jury of Philadelphia County: Appeal of Richard Drapczuk, 495 Pa. 186, 433 A.2d 5 (1981).

LARSEN, Justice, dissenting.

I dissent to the per curiam affirmance of the lower court's orders. On June 22, 1979, the Honorable David N. Savitt,

[ 495 Pa. Page 212]

Court of Common Pleas of Philadelphia County, accepted for submission to the June 1, 1979 Investigating Grand Jury of Philadelphia County an investigation into alleged tampering with water pollution monitoring and sampling equipment at Mrs. Paul's Kitchens, Inc. (Mrs. Paul's). After 15 months of investigation, the grand jury issued a presentment against David Bohannon and Richard Wolf (inter alia), petitioners herein, and Richard Drapczuk, petitioner in No. 162 E.D.Misc.Dkt. 1981, recommending that each be charged with theft of services (18 Pa.C.S.A. § 3926), unsworn falsification (18 Pa.C.S.A. § 4904), obstructing the administration of law (18 Pa.C.S.A. § 5101), conspiracy (18 Pa.C.S.A. § 903), and corrupt organizations (18 Pa.C.S.A. § 911). Following five days of preliminary hearing, petitioners were held over for court on these charges on March 9, 1981.

Petitioners Bohannon and Wolf were subpoenaed on March 31, 1981 to appear before the grand jury. On April 14, these petitioners filed motions to quash the subpoenas which were denied by Judge Savitt, who also on that date granted the Commonwealth's petition for an immunity order over petitioners' objections.

The petitioners then went before the grand jury and each in turn read prepared statements explaining that they would decline to answer any further questions. Their reasons as embodied in the statements for their refusals were essentially, that the immunity orders of Judge Savitt were, under the facts of these cases insufficient to safeguard their Fifth Amendment privileges against self-incrimination because of prior abuse by the same prosecutors of grand jury testimony in a criminal trial also stemming from the Mrs. Paul's investigation (in the case of one Gary Zanecosky). The statements explained to the grand jury its obligation to protect the individuals who come before it from such asserted abuse, and requested the grand jury to refuse to ask further questions and to refuse to obtain the initiation of contempt proceedings against petitioners.

The grand jury discussed the statements and expressed a desire, nevertheless, to ask certain further questions of the

[ 495 Pa. Page 213]

    petitioners. Upon refusing to answer the questions, each petitioner was informed, in the presence of the grand jury, that he would be taken before Judge Savitt for an adjudication of possible contempt. The grand jury session was recessed, the contempt proceeding was held immediately, and Judge Savitt found petitioners to be in contempt of court and ordered them confined to the county jail until they purged themselves of contempt by agreeing to testify before the grand jury or until the grand jury expired (scheduled expiration date was May 30, 1981). This Court stayed the judgments of contempt against these petitioners pending determination of their petitions for relief.

Petitioners come before this Court and ask us to find that the lower court erred in denying the motions to quash the subpoenas, in issuing the immunity orders, and in adjudicating them in contempt of court, and seek appropriate relief for these asserted errors. The petitions raise this issue: whether the immunity granted in this proceeding pursuant to section 5947 of the Judicial Code, 42 Pa.C.S.A. § 5947 is coextensive with the Fifth Amendment privilege against self-incrimination.*fn1 Because I believe that, under the facts of this case, the immunity granted petitioners was not coextensive with the Fifth Amendment privilege, I would reverse the orders of the lower court and grant the relief requested.

"The constitutional inquiry, rooted in logic and history, as well as in the decisions of this Court, is whether the immunity granted under [the federal witness immunity]

[ 495 Pa. Page 214]

    statute is coextensive with the scope of the privilege. If so, petitioners' refusals to answer based on the privilege were unjustified, and the judgments of contempt were proper, for the grant of immunity has removed the dangers against which the privilege protects. (citation omitted) If, on the other hand, the immunity granted is not as comprehensive as the protection afforded by the privilege, petitioners were justified in refusing to answer, and the judgments of contempt must be vacated. (citation omitted)."

Kastigar v. United States, 406 U.S. 441, 449, 92 S.Ct. 1653, 1659, 32 L.Ed.2d 212 (1972).

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." In 1892, the United States Supreme Court first considered a challenge to the constitutionality of an immunity statute and concluded "no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States . . . . In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates." Counselman v. Hitchcock, 142 U.S. 547, 585-86, 12 S.Ct. 195, 206, 35 L.Ed. 1110 (1892). This decision was, understandably, subsequently read to prohibit immunity as a means of compelling testimony unless it was complete transactional immunity, i. e. immunity from prosecution for any offense touching upon the subject matter of the immunized testimony.

Through the years the broad language of Counselman was explained and narrowed with references to its "conceptual basis", see, e. g., Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956) and Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138 (1920), until in Kastigar, supra, the United States Supreme Court dispelled the ...


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