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FOURTH STATEWIDE INVESTIGATING GRAND JURY. MATTER JOHN GIOVANNI BALSAMO (06/03/86)

SUPREME COURT OF PENNSYLVANIA


decided: June 3, 1986.

IN RE THE FOURTH STATEWIDE INVESTIGATING GRAND JURY. IN THE MATTER OF JOHN GIOVANNI BALSAMO, APPELLANT

Appeal from a September 24, 1985 Contempt Order by the Supervising Judge of the Fourth Statewide Investigating Grand Jury, Court of Common Pleas, Westmoreland County, 58 Miscellaneous 1985

COUNSEL

Robert C. Brady, Washington, for appellant.

LeRoy S. Zimmerman, Atty. Gen., Harrisburg, Robert A. Graci, Sr. Deputy Atty. Gen., Gary M. Mogil, Deputy Atty. Gen., Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., concurred in the result.

Author: Larsen

[ 510 Pa. Page 498]

OPINION OF THE COURT

The threshold question to be answered is the method and timeliness of appeal from a finding of civil contempt by the supervising judge of the Fourth Statewide Investigating Grand Jury (created by order dated May 8, 1985).

In March, 1985, Appellant (John Giovanni Balsamo) was convicted of various criminal charges.*fn1 Appellant was sentenced to no less than 16 and no more than 40 years imprisonment. Appellant filed an appeal of his conviction with the Superior Court, which is still pending.

The Investigating Grand Jury was empaneled on September 23, 1985 and on September 24, 1985, pursuant to subpoena, appellant was called to testify. The Grand Jury wished to obtain any information which appellant had concerning drug distribution in Greene County. Appellant's aforementioned conviction was related to this drug distribution. Appellant asserted his Fifth Amendment right against self-incrimination, and the supervising judge, pursuant to a request from the Appellee (Attorney General) entered an order granting immunity to appellant. Appellant still refused to answer any questions. The supervising judge found appellant in civil contempt of court and on September 24, 1985, entered the following order:

AND NOW, to wit this 24th day of September, 1985, after Hearing, the Court finds John Giovanni Balsamo in contempt of court. He is sentenced to imprisonment at the Greensburg State Facility, or such other facility as may be available, until such time as he purges himself

[ 510 Pa. Page 499]

    from contempt by volunteering to answer the questions that relate to the matter under inquiry and is further ordered that said sentence supersede any other sentence that he is now serving.

BY THE COURT:

/s/ George P. Kiester, S.J.

On October 24, 1985, appellant filed a notice of appeal. Appellee filed a motion to quash the appeal on the ground that appellant failed to timely file his appeal. We agree.

This court has exclusive jurisdiction over all orders entered in regard to grand juries.*fn2 The method of appeal is governed by the rules of appellate procedure.

Rule 3331. Review of Special Prosecutions or Investigations

(a) General rule. Any of the following orders shall be subject to review pursuant to Chapter 15 (judicial review of governmental determinations):

(3) An order entered in connection with the supervision, administration or operation of an investigating grand jury or otherwise directly affecting an investigating grand jury or any investigation conducted by it.

Rule 3331, Pa.R.A.P. Rule 1511, Pa.R.A.P. provides that "[r]review under this chapter [Chapter 15] shall be obtained by filing a petition for review . . . within the time allowed by Rule 1512 . . . ." Rule 1512 provides:

Time for Petitioning for Review

[ 510 Pa. Page 500]

The Note to Rule 108 provides, "[t]he purpose of this rule is to fix a date from which the time periods such as those set forth in Rule[s] . . . 1512 (time for petitioning for review) . . . shall be computed." Note, Rule 108, Pa.R.A.P. Appellant and his counsel were present on September 24, 1985 when the contempt finding was made and imprisonment imposed; a written order dated September 24, 1985 embodied the finding; and, the order was obviously effective as of that day. Clearly, September 24, 1985 was the day on which the order was "adopted" by the court and the date governing the beginning of the appeal period.

Appellant argues, in the alternative, that he was appealing a civil contempt order only affecting "the Appellant and not the Investigating Grand Jury" and therefore he had thirty days to appeal. Appellant's Answer to Motion to Quash Appeal by Commonwealth, p. 1. Appellant is in error. Rule 3331 clearly governs appeals from a finding of civil contempt. The Note to Rule 3331 provides, in pertinent part, "This rule is intended to provide a simple and expeditious method for Supreme Court supervision of special prosecutions and investigations, e.g. orders of the supervising judge of an investigating grand jury, findings of contempt (whether civil or criminal). . . ." Note, Rule 3331, Pa.R.A.P. (emphasis supplied); see also, footnote 2, supra.

Because we find the appeal, treated as a petition for review, to have been untimely filed, we do not address appellant's argument, for which no authority was cited, that the sentence imposed on him, which sentence superceded the sentence which was being served by him, was cruel and unusual punishment.

The motion to quash the appeal is granted.

Disposition

The motion to quash the appeal is granted.


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