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INVESTIGATING GRAND JURY CHESTER COUNTY (07/27/88)

SUPREME COURT OF PENNSYLVANIA


decided: July 27, 1988.

IN RE INVESTIGATING GRAND JURY OF CHESTER COUNTY, PENNSYLVANIA SUBPOENA NO. 91. PETITION OF KAREN LEES

Petition for Review of the Order of the Court of Common Pleas of Chester County entered on November 20, 1987 at No. 69 M 1987

COUNSEL

John R. Merrick, Public Defender, John A. DiSantis, Philadelphia, John S. Carnes, Jr., Asst. Public Defenders, West Chester, for petitioner.

Joseph W. Carroll, II, Glenmoore, for respondent.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. McDermott, J., filed a dissenting opinion in which Stout, J., joined.

Author: Larsen

[ 518 Pa. Page 487]

OPINION OF THE COURT

The issue presented by this petition for review*fn1 is whether a witness who testifies before a grand jury that she cannot recall the events about which she is being questioned can be found in civil contempt and committed to prison.

On June 11, 1987, the Second Chester County Investigating Grand Jury began receiving evidence regarding a series of burglaries which had occurred in Tredyffrin Township during April and May of 1987. The grand jury recommended that charges be brought against petitioner, Karen Lees, for the burglary of two residences in which her fingerprints had been found. Criminal complaints were filed against petitioner, and on November 12, 1987, petitioner entered an Alford plea*fn2 to two counts of burglary and two counts of conspiracy in the Court of Common Pleas of Chester County. She was then served with a subpoena, ordering her to appear before the Chester County Investigating Grand Jury to testify.*fn3

Petitioner appeared before the grand jury on November 19, 1987, and was questioned about her participation in the

[ 518 Pa. Page 488]

    burglaries to which she had entered an Alford plea and whether she had committed any burglaries with Edward Doria, whose burglary cases were then pending in the Court of Common Pleas of Chester County.*fn4 Petitioner replied that she had no recollection of participating in any burglaries. She was brought before the judge supervising the grand jury and was found to be in civil contempt of court. Citing In re Grand Jury, April Term, 1977, Wayne County, 251 Pa. Super. 43, 379 A.2d 323 (1977),*fn5 the supervising judge concluded that petitioner's lack of recollection regarding burglaries to which she had entered a plea was unbelievable, and the supervising judge sentenced petitioner to six months' imprisonment unless she purged herself of contempt by answering questions before the grand jury. The supervising judge denied petitioner's motion for stay of the contempt order, but on November 25, 1987, Mr. Chief Justice Nix granted a request for a stay and petitioner was released.

This Court stated in Schlesinger Petition, 367 Pa. 476, 480, 81 A.2d 316, 318 (1951), that when a court rules that a person is in contempt, "the appellate court will not inquire further than to ascertain whether the record shows such misconduct or disobedience of the court's order." It is well settled that refusal to answer questions before a grand jury

[ 518 Pa. Page 489]

    constitutes contempt of court. See, e.g., In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975).

It is clear from the record that petitioner did not refuse to answer questions before the grand jury. On the contrary, she answered every question put to her by the prosecutor, and she repeatedly asserted that she could not recall participating in any burglaries.*fn6 Petitioner's assertion was repeated when the supervising judge directed petitioner to answer the question "[w]ith respect to the burglaries . . . do you think you did them?" Transcript of Proceedings at 56 (Nov. 20, 1987).

This Court has recognized what it dubbed the "trilemma" facing witnesses, i.e., every witness may 1) refuse to answer a question and be subjected to contempt proceedings; 2) make a harmful disclosure and be prosecuted therefore; or 3) lie while answering questions and be indicted for perjury. Commonwealth v. Good, 461 Pa. 546, 551, 337

[ 518 Pa. Page 490]

A.2d 288, 291 (1975). Thus, it is clear that a witness who answers questions cannot be in contempt of court.

Indeed, the supervising judge acknowledged that petitioner had answered the questions, but he refused to believe her answers. Assuming that petitioner was lying under oath, the only sanction would be an indictment for perjury. See Commonwealth v. Harris, 409 Pa. 163, 175 n. 5, 185 A.2d 586, 592 n. 5 (1962).

Accordingly, we find that the supervising judge erred in committing petitioner to prison for civil contempt. We hereby reverse the order of the Court of Common Pleas of Chester County finding petitioner to be in civil contempt of a grand jury subpoena.

McDERMOTT, Justice, dissenting.

The majority would insulate the immunized witness from any fear of sanction if they answer all questions with "I don't know" or "I don't recall"; that, even where no rational person under ordinary circumstances could not know the answer to the specific questions asked. In addition, the majority summarily overrules In re Grand Jury, April Term 1977, Wayne County, 251 Pa. Super. 43, 379 A.2d 323 (1977), and condemns as prosecutorial misconduct the warning to a grand jury witness that what she says she does not know is under the circumstances egg on the face of common sense.

The prosecutor simply told the witness there is more than one way to skin a deliberately uncooperative witnesses, and in doing so he said what he thought he could prove. All, of course, is time wasted as the majority cheers her on in what the trial judge considered her blatant intransigence, and, in passing, devises an escape to all who simply say "I do not know." Whether a witness does not know must be left to the trial judge. If he, present and hearing, believes beyond

[ 518 Pa. Page 491]

    a reasonable doubt that such an answer is a subterfuge he must be empowered to act.

I vigorously dissent.


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