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submitted: September 9, 1983.


No. 651 Philadelphia 1982, Appeal from the Order of January 22, 1982 in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 626-629 September 1980.


Barry H. Oxenburg, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, President Judge, and Cavanaugh and Hoffman, JJ.

Author: Hoffman

[ 322 Pa. Super. Page 201]

Appellant challenges the lower court's contempt order, arguing that he was justified in refusing to testify after being granted immunity because the Assistant District Attorney had threatened to prosecute him for perjury if his

[ 322 Pa. Super. Page 202]

    testimony failed to conform to his prior statement to the police. We disagree and, accordingly, affirm the contempt order and judgment of sentence.

Appellant was called as a witness for the prosecution in the Commonwealth's case against Ociele Hawkins, who was charged with the December 18, 1978 murder of James Hughes. On January 8, 1979, appellant gave a statement to the police concerning the incident. Prior to Hawkins' trial, after being advised that appellant would invoke the privilege against self-incrimination if questioned under oath, the Commonwealth petitioned for and was granted an immunity order pursuant to 42 Pa.C.S.A. § 5947.*fn1 On January 22, 1982, appellant was called to testify but refused to answer questions put to him by the prosecutor even though he had been advised of the grant of immunity and directed to answer by the court. Consequently, the trial judge found appellant in contempt and sentenced him to five months and twenty-nine days imprisonment, to run consecutively to the sentence appellant was then serving. This appeal followed.

Appellant contends that he refused to testify because the Assistant District Attorney threatened to prosecute him for perjury if his testimony failed to conform to his prior statement. We find appellant's contention meritless.*fn2 Appellant's

[ 322 Pa. Super. Page 203]

    account of his conversation with the Assistant District Attorney on January 20, as reported by appellant's counsel, is as follows:

[M]y client [appellant] advised me that he had a conversation with the Assistant District Attorney in this case, and while I was not party to that conversation, it is my understanding that Mr. Long [the Assistant District Attorney] indicated to my client that he wants him to tell the truth on one hand. On the other hand, he told him that if he in any way deviates on the witness stand his testimony from that which he told the police in his statement which was taken on January the 8th of 1979, that the District Attorney's office would prosecute him for perjury and recommend that if he were convicted, he would receive the maximum sentence of three and a half to seven years.

(N.T. January 22, 1982 at 4-5).

Our Supreme Court has stated the following:

In general, immunity statutes protect persons who are compelled to give testimony, from the use of the compelled testimony and evidence derived therefrom in subsequent criminal prosecutions . . . . Neither immunity statutes nor the Fifth Amendment, however, "endow the person who testifies with a license to commit perjury." . . . Accordingly, the United States Supreme Court has upheld convictions for perjury committed during the giving of a compelled statement where the respondent's immunized statement was used at a subsequent prosecution for making false statements . . . .

Commonwealth v. Sklar, 497 Pa. 404, 413, 441 A.2d 1201,

[ 322 Pa. Super. Page 2041206]

(1982) (citations omitted).*fn3 The promise of immunity is premised on the assumption that the information will be truthful and if the information turns out to be false, there can be no immunity because of the basis for the grant of immunity would have been frustrated. Id., 497 Pa. at 414, 441 A.2d at 1206. Therefore, appellant could have been prosecuted for perjury if he had testified falsely, regardless of whether his testimony differed from or conformed exactly to his prior police statement.*fn4

Appellant's refusal to testify can be justified only if such testimony would put him in jeopardy. It is clear that such is not the case. Under the Pennsylvania immunity statute, immunized testimony or information derived from such testimony cannot be used against the witness in any criminal case; the only exceptions are for prosecutions for perjury or false swearing. 42 Pa.C.S.A. § 5947(d)(1). Here, if appellant testified truthfully on the stand and his testimony differed markedly from his prior statement to the police, then he could not even be prosecuted for making false statements to authorities. See 18 Pa.C.S.A. § 4904(a)(1) (Unsworn Falsification to Authorities).*fn5

[ 322 Pa. Super. Page 205]

In United States v. Frumento, 552 F.2d 534 (3d Cir. 1977), the defendant contended that the federal immunity statute, 18 U.S.C. § 6002, and the fifth amendment privilege presented him with the following dilemma: if the testimony was untruthful (i.e., exculpatory as to him) he would be subject to a perjury prosecution; but if the testimony was truthful (i.e., inculpatory) then it could be used against him to impeach his testimony at any subsequent prosecution. Such reasoning was rejected by the third circuit court, which stated that "for his 'dilemma' to move this Court to rule that § 6002 immunity does not provide the full measure of Fifth Amendment protection, he must demonstrate that his truthful immunized statements could be used against him. This he cannot do." Id. at 542 (emphasis in original). The court further stated that the defendant's dilemma was "illusory" because his testimony could only be used against him in the event of a perjury prosecution. Id. at 543-44. In the instant case, appellant alleges a similar dilemma, which is equally illusory because his testimony could only have been used against him if he committed perjury. In In re Grand Jury, April Term, 1977, Wayne County, 251 Pa. Superior Ct. 43, 379 A.2d 323 (1977), we held that it was no defense to a contempt finding that the witness believed in good faith that "if his memory is not completely accurate, he must refuse to testify, deny all recollection, or face perjury charges[.]" Id., 251 Pa. Superior Ct. at 50, 379 A.2d at 326. The court reasoned that "If necessary, he later may use his faulty memory as a shield to perjury charges; he may not use it now as a sword to avoid the Special Prosecutor's questions." Id., 251 Pa. Superior Ct. at 51, 379 A.2d at 326. Similarly, in the present case, appellant may later use the truth as a "shield" to perjury charges but he may not use it now as a "sword" to avoid testifying.*fn6

[ 322 Pa. Super. Page 206]

Appellant is further protected from false prosecutions for perjury by the legal ethical standards applicable to prosecutors. While it is true that a prosecutor has broad discretion to decide whether and when to prosecute, see Piscanio Appeal, 235 Pa. Superior Ct. 490, 494, 344 A.2d 658, 660 (1975), quoting Commonwealth v. DiPasquale, 431 Pa. 536, 540-41, 246 A.2d 430, 432 (1968), and enjoys absolute immunity from liability for actions taken within the scope of his official duties, see Ross v. Meagan, 638 F.2d 646 (3d Cir. 1981), it is nevertheless required that he or she "refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause[.]" Rule 3.8 of the American Bar Association (ABA) Model Rules of Professional Conduct, 52 U.S.L.W. 1, 20 (August 16, 1983).*fn7

[ 322 Pa. Super. Page 207]

Appellant, having been granted immunity, should have testified truthfully, regardless of his fear of prosecution for perjury. As a witness, he ran the same risk as any other witness that what he said under oath would be scrutinized and, if false, penalized. In considering an appeal from a contempt order, great reliance must be placed upon the discretion of the trial judge. In re Grand Jury, April Term, 1977, Wayne County, supra, 251 Pa. Super. at 50, 379 A.2d at 326. Because we find no abuse of discretion, we must affirm the contempt order and judgment of sentence.


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