Commonwealth v. Carrera

• Court: Pennsylvania Supreme Court
• Writing for the Court: Author: Eagen
• Citation: Commonwealth v. Carrera, 227 A.2d 627, 424 Pa. 551 (Pa. 1967)
• Decision Date: 14 March 1967
• Parties: COMMONWEALTH of Pennsylvania v. Manuel CARRERA and Diane Garcia. Appeal of Jane DOE.

Page 627

227 A.2d 627

424 Pa. 551

COMMONWEALTH of Pennsylvania v. Manuel CARRERA and Diane Garcia Appeal of Jane DOE.

Supreme Court of Pennsylvania.

March 14, 1967.

Bernard L. Segal, Needleman, Needleman, Segal & Tabb, Philadelphia, for appellant.

Alan J. Davis, Atty. Dist. Atty., Chief, Appeals Div., James D. Crawford, Asst. Dist. Atty., Arlen Specter, Dist. Atty., Philadelphia, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION

EAGEN, Justice.

The appellant Jane Doe, an unmarried female, was subpoenaed and called before a grand jury in Philadelphia County, and asked to testify in accordance with a voluntary statement she previously gave to the police to the effect that a certain physician and his nurse had performed an abortion upon her. She declined to answer on the grounds of self-incrimination and stated she was exercising this privilege under Art. 1 § 9 of the Pennsylvania Constitution, P.S., and the Fifth and Fourteenth Amendments to the United States Constitution.

Subsequently, she was brought before a judge of the Court of Quarter Sessions and directed to answer. When she persisted in her refusal to testify before the grand jury, she was adjudged in contempt of court and sentenced to a period of imprisonment. ¹ From the judgment this appeal was filed. The judgment must be reversed.

The privilege afforded against compulsory self-incrimination by the Fifth Amendment to the United States Constitution is now protected under the Fourteenth Amendment against abridgment by the states: Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Accord, Murphy v. Waterfront Commission of New York, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); and, Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965). The privilege, if properly invoked in a state proceeding, is governed by federal standards. In other words, the standards to be now used in determining whether or not the silence of one questioned about the commission of a crime is justified are the same in both state and federal proceedings. See, Malloy v. Hogan, supra. And, under the more recent and now controlling federal decisions, it is not necessary that a real danger of prosecution exist to justify the exercise of the privilege against self-incrimination. It is sufficient if the person questioned has reasonable cause to apprehend such danger. See, Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). Moreover, the privilege extends not only to the disclosure of facts which would in themselves establish guilt, but also to any fact which might constitute an essential link in a chain of evidence by which guilt can be established. See, Hoffman v. United States, supra; Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170 (1950); United States v. Coffey, 198 F.2d 438 (3 Cir. 1952); and, In re Contempt of Myers and Brei, 83 Pa.Super. 383 (1924).

When an individual, such as the instant appellant, is called to testify before a grand jury or in a judicial proceeding, he or she is not exonerated from answering questions merely upon the declaration that in so doing it would be self-incriminating. It is always for the court to judge if the silence is justified, and an illusory claim should be rejected. However, for the court to properly overrule the claim of privilege, it must be Perfectly clear from a careful consideration of all the circumstances, that the witness is mistaken in the apprehension of self-incrimination and the answers demanded Cannot possibly have such tendency: Hoffman v. United States, supra.

Under the circumstances the instant case presents, it is not 'perfectly clear' that the answers demanded of the appellant before the grand jury could not possibly have a tendency to incriminate her. On the contrary, it is clear that reasonable cause for such apprehension existed, and the privilege claimed should have been sustained.

Assuming arguendo, as the Commonwealth contends, that the victim cannot be prosecuted for her part in the abortion, ² there is nothing in the law to prevent her prosecution for a crime unrelated to the abortion itself, such as...