Com. v. Swinehart

Decision Date29 August 1995
Citation664 A.2d 957,541 Pa. 500
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Patricia Ann SWINEHART. Appeal of Thomas DeBLASE, Appellant.
CourtPennsylvania Supreme Court

Robert A. Graci, Harrisburg, for Attorney General's Office.

Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION OF THE COURT

CAPPY, Justice.

This case presents the question of whether the use and derivative use immunity provided in 42 Pa.C.S. § 5947, is consistent with the Pennsylvania constitutional privilege at Article 1, Section 9, against compelled self-incrimination. 1 For the reasons that follow we find that use and derivative use immunity is consistent with the protection provided under our state constitution. Thus, for the reasons that follow, the judgement of the Superior Court is affirmed.

The issue before the Court arises from the investigation into the murder of David Swinehart on January 15, 1982. The appellant herein, Thomas DeBlase, is the nephew of the decedent. DeBlase was arrested and charged with the murder of Swinehart on May 11, 1985. DeBlase was originally called for trial on these charges in October of 1985. Prior to trial, DeBlase's motion to suppress evidence which was obtained through the use of a wiretap and body wire worn by his brother, Jeffrey DeBlase, was granted. The Commonwealth appealed the suppression ruling. The Superior Court reversed the trial court ruling on the suppression on September 22, 1986. This Court granted allowance of appeal and subsequently dismissed the appeal as having been improvidently granted on January 25, 1988.

DeBlase was again scheduled for trial on the murder charges on June 20, 1988. The motion to suppress the wiretap and bodywire evidence was renewed by DeBlase, and again granted by the trial court. The trial court granted the motion the second time relying on the en banc decision of the Superior Court in Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987), aff'd by an equally divided court, 539 Pa. 272, 652 A.2d 294 (1994). The Commonwealth again appealed from the suppression ruling to the Superior Court. The Superior Court reversed the trial court, relying upon the decisions of this Court in Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988) aff'd Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990), and Commonwealth v. Rodriguez, 519 Pa. 415, 548 A.2d 1211 (1988). DeBlase filed a Petition for Allowance of Appeal from this second ruling by the Superior Court on the wiretap issue with this Court on April 24, 1989.

In January of 1991, while awaiting disposition of the Petition for Allowance of Appeal, DeBlase, who had been incarcerated since his arrest in May of 1985, filed with this Court an emergency petition for dismissal citing his constitutional right to a speedy trial as guaranteed under the United States and Pennsylvania Constitutions and pursuant to Rule 1100, Pa.R.Crim.P. On May 15, 1991, DeBlase filed a Petition for Habeas Corpus in the United States District Court for the Eastern District of Pennsylvania. The United States District Court ordered DeBlase released on bail subject to electronic home monitoring in November 1991.

On December 2, 1992, the United States District Court rendered a report and recommendation that DeBlase's Writ of Habeas Corpus be granted and all charges dismissed if he were not tried within 120 days of said report. DeBlase and the Commonwealth both filed objections to the report and recommendation. Upon consideration of the objections, the District Court subsequently denied the Writ of Habeas Corpus but found probable cause existed to appeal. A Notice of Appeal was filed with the Third Circuit Court of Appeals. The Appeal in the Third Circuit was ultimately discontinued.

Subsequent to the activity in the District Court on the Writ of Habeas Corpus, this Court on December 28, 1992 denied DeBlase's Petition for Allowance of Appeal from the opinion of the Superior Court regarding the suppression of the wiretap and body wire evidence, without prejudice, and dismissed his emergency petition for dismissal pursuant to Rule 1100 as moot.

Thereafter DeBlase was again brought before the Court of Common Pleas of Montgomery County on the homicide charges. On April 19, 1993, after hearing argument on pre-trial motions, the trial court dismissed all charges against DeBlase finding that his right to a speedy trial under the Fifth, Sixth and Fourteenth amendments of the United States Constitution, and Pa.R.Crim.P. 1100, had been violated. 2 On January 7, 1994, the Superior Court reversed the trial court ruling on the speedy trial issue and remanded the case back to the Court of Common Pleas. DeBlase petitioned this Court for Allowance of Appeal, which was granted. 3

In the meantime, on July 28, 1992, Patricia Swinehart, the wife of the decedent, was arrested and charged with the murder of her husband, and with being a co-conspirator of DeBlase. DeBlase was subpoenaed as a witness in the Patricia Swinehart trial and offered a grant of immunity pursuant to 42 Pa.C.S. § 5947 (hereinafter "the Act"). DeBlase moved to quash the subpoena and objected to the grant of immunity. A hearing was held on the motions on January 19, 1994. The trial court refused to quash the subpoena, approved the grant of immunity to DeBlase, and then when DeBlase still refused to answer, found him to be in both civil and criminal contempt.

Pursuant to the Act, DeBlase was sentenced to a period of incarceration of 5 months and 29 days on the criminal contempt and was advised that he could purge himself of the civil contempt whenever he chose to testify in the Commonwealth's case against Patricia Swinehart. The trial of Patricia Swinehart began the next day and concluded in a not guilty verdict. Thus, DeBlase now has no opportunity to purge himself of the civil contempt. However, as he is still suffering under the onus of a criminal conviction the matter is not moot and shall be fully reviewed by this Court. 4

Having traced the extraordinarily indirect route which brought DeBlase once again to this Court, we will now turn to the substantive issue to be resolved in this case. Simply put, DeBlase asserts that the Act, which grants an immunized witness use and derivative use immunity, offers insufficient safeguards in exchange for the considerable protection guaranteed under Article I, Section 9 of the Pennsylvania Constitution which the immunized witness is forced to forsake. DeBlase acknowledges that the United States Supreme Court has upheld use and derivative use immunity as sufficient protection under the Fifth Amendment to the United States Constitution in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). He argues, however, that the Pennsylvania Constitutional protection is broader and can only be satisfied by a grant of transactional immunity. 5

We begin our analysis of this issue by setting forth our standard of review. Duly enacted legislation carries with it a strong presumption of constitutionality. Commonwealth v. Parker White Metal Co., 512 Pa. 74, 515 A.2d 1358 (1986). The presumption of constitutionality will not be overcome unless the legislation is clearly, palpably, and plainly in violation of the constitution. Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988), aff'd Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990). Further, as to the specific claim that the Pennsylvania Constitution provides greater protection than the United States Constitution, this Court stated in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), that when reviewing such a claim

[h]ere in Pennsylvania, we have stated with increasing frequency that it is both important and necessary that we undertake an independent analysis of the Pennsylvania Constitution, each time a provision of that fundamental document is implicated. Although we may accord weight to federal decisions where they "are found to be logically persuasive and well reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees," Commonwealth v. Tarbert, 517 Pa. 277, 283, 535 A.2d 1035, 1038 (1987), quoting, Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 502 (1977), we are free to reject the conclusions of the United States Supreme Court so long as we remain faithful to the minimum guarantees established by the United States Constitution.

Edmunds, 526 Pa. at 389-390, 586 A.2d at 894-895.

Having properly established the degree of scrutiny under which we must consider the arguments raised, we find that the four-pronged method of analysis established in Edmunds to be the most thorough manner of accomplishing our task. 6 Accordingly, we will begin our analysis with a review of the text of the constitutional provision at issue, the history of that provision as related through legislative enactments and prior decisions of this Court, related case law from our sister states, and finally, policy considerations which include matters unique to our Commonwealth. Edmunds, 526 Pa. at 390, 586 A.2d at 895.

I. Text

Article I, Section 9 reads as follows, with the phrase at issue highlighted:

In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land. The use...

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