Eric B. Henson, Deputy Dist. Atty., Philadelphia, for Com.
John W. Packel, Chief, Appeals Div., Gaele McLaughlin Barthold, Jeffrey Shender, Philadelphia, for Johnson.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala, and Papadakos, JJ. Nix, C.j., filed a concurring opinion.
In these cross appeals we are called upon to decide whether, without the consent of the prosecutor, a trial court has the power to grant use immunity for the compelled testimony of a defense witness. The question of defense witness immunity presented here is one of first impression in this Commonwealth. The trial judge refused to grant immunity holding that:
[T]he request and issuance of immunity is within the judgment of the Attorney General and district attorney, neither the court nor defense counsel may force the prosecutor to compel the testimony of a defense witness.
Slip opinion, p. 6. On appeal, the Superior Court held otherwise, stating:
The trial court held that only the Attorney General or a district attorney could request an immunity order, and that since here there had been no such request, no order
could issue. This was error. The court itself, upon appropriate proof, had the power to grant immunity.
Commonwealth v. Johnson, 323 Pa. Super. 33, 470 A.2d 115 (1983).*fn1 The Commonwealth petitioned this Court for allowance of appeal which was granted. We disagree with the Superior Court and hold that the trial court was correct in its conclusion that it lacked the power to grant use immunity to the defense witness without the consent of the prosecutor.
The evidence in this case established that on July 1, 1980 at approximately 2:30 a.m. a young woman was raped by two men. The rape occurred in a house on North 29th Street in Philadelphia. Appellant Johnson and the proposed defense witness Daryl Jorden (Jorden) were arrested in front of the North 29th Street house and charged with criminal conspiracy, possession of instruments of a crime generally, possession of a concealed weapon, terroristic threats, simple assault, and rape. Upon motion of Jorden's counsel, the cases were severed for trial. The appellant was tried first and he was adjudged guilty of all charges except possession of a concealed weapon. He was sentenced to various terms of imprisonment on each of the charges, all to run concurrently with the term of 5 to 10 years imprisonment for the conviction of criminal conspiracy.*fn2
Prior to the start of the trial the appellant Johnson informed the court that he wished to call Jorden as a witness to testify on his behalf. The appellant stated that, if called, Jorden would invoke the 5th Amendment and decline to testify. The appellant requested that the Commonwealth provide Jorden with use immunity since he deemed Jorden to be an essential witness whose testimony would exculpate appellant. The Commonwealth, through the prosecuting attorney, refused to ask for a grant of immunity. The appellant Johnson then asked the court to order or grant use immunity to Jorden notwithstanding the prosecutor's resistance. The trial Judge denied the request ruling that the issuance of immunity is within the discretion of the Attorney General and the district attorney. He held that the court had no authority, on its own, to compel or order immunity for the proposed witness. During the course of the trial the appellant repeated his request for use immunity and the court reiterated its ruling that it had no authority to grant immunity over the objection of the prosecutor.
Use immunity is the prohibition against the use in any criminal proceeding of "testimony or other information compelled under . . . order (or any information directly or indirectly derived from such testimony or other information)."*fn3 Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Riccobene Appeal, 439 Pa. 404, 268 A.2d 104 (1970). The Commonwealth argues that witness immunity in Pennsylvania is governed by statute.*fn4
We agree. Whether use immunity for a witness' testimony is an available legal tool in Pennsylvania is for the Legislature to decide. Under the Pennsylvania statute the decision to seek a grant of immunity in any individual case rests within the judgment of the prosecutor. It is up to the executive branch of government to ...