Commonwealth v. Brady

• Citation: 368 A.2d 699,470 Pa. 420
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Warren BRADY. COMMONWEALTH of Pennsylvania, Appellant, v. Henry GEORGE.
• Decision Date: 28 January 1977
• Court: United States State Supreme Court of Pennsylvania

368 A.2d 699

470 Pa. 420

COMMONWEALTH of Pennsylvania, Appellant,
v.
Warren BRADY.

COMMONWEALTH of Pennsylvania, Appellant,
v.
Henry GEORGE.

Supreme Court of Pennsylvania.

January 28, 1977

Argued Jan. 13, 1975. [368 A.2d 700]

[470 Pa. 421] Israel Packel, Atty. Gen., Harrisburg, Kenneth Biehn, Dist. Atty., Stephen B. Harris, Asst. Dist. Atty., Doylestown, B. Lerner, Philadelphia, for appellant.

No appearance for appellees.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

NIX, Judge.

The case presently at bar raises questions concerning the authority of a court, under the Act of November 22, [470 Pa. 422] 1968, P.L. 1080, 19 P.S. §§ 640.1 et seq. (Supp.1975--76) (hereinafter referred to as Immunity Act), to grant immunity from prosecution to a witness appearing before an indicting grand jury. The Superior Court affirmed the order of the Bucks County Court of Common Pleas denying the Commonwealth's petition for a grant of immunity. The Commonwealth appealed. We affirm.

The pertinent facts disclose that by a criminal complaint filed on August 10, 1972, Warren Brady and Henry George were charged with the crimes of 'extortion, prohibited acts by public officers, and conspiracy.' The complaint alleged that Brady and George, in their capacity as Bansalem Township supervisors, had extorted money and other rewards from construction contractors Joseph D'Egidio and John Carmerlengo, in return for favorable action on certain subdivision approvals and zoning changes needed by D'Egidio and Carmerlengo in their construction business.

At a preliminary hearing held on August 18, 1972, both defendants were bound over to court on the charges of extortion and prohibited acts by a public officer. The prosecuting attorney, however, withdrew the conspiracy charge.

On February 16, 1973, the remaining charges were presented to the regularly convened January Term, 1973, Bucks County Grand Jury. At this proceeding, D'Egidio and Carmerlengo were subpoenaed to testify regarding their transactions with the defendants. Both witnesses appeared, [368 A.2d 701] but refused to answer certain questions on the basis of their constitutional privilege against self incrimination. ^[1] The supervising judge subsequently sustained their refusal to testify.

On March 2, 1973, the Attorney General, joined by the Bucks County District Attorney, petitioned the Court of Common Pleas for an order immunizing D'Egidio and [470 Pa. 423] Carmerlengo from prosecution and compelling them to testify. The court dismissed the petition, however, concluding that since the bill of indictment presented to the indicting grand jury did not allege a conspiracy, it was not a proceeding 'related to organized crime or racketeering' as required by the Immunity Act. The court therefore held that it was without authority to confer the grant of immunity and order the witnesses to testify. ^[2]

The Commonwealth appealed the court's order to the Superior Court, which affirmed per curiam. ^[3] This Court granted the Commonwealth's petition for allowance of appeal ^[4] to resolve the questions raised concerning the scope and applicability of the Immunity Act.

I.

The Fifth Amendment to the United States Constitution provides in relevant part that 'no person . . . shall be compelled in any criminal case to be a witness against himself.' U.S.Const. Amend. V. The policies and rationale underlying this privilege against self incrimination were succinctly stated by the United States Supreme Court in Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964).

The privilege against self-incrimination 'registers an important advance in the development of our liberty--'one of the great landmarks in man's struggle to make himself civilized. " It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; [470 Pa. 424] our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates 'a fair state--individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,' our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life,' our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes 'a shelter to the guilty,' is often 'a protection to the innocent.' Id. at 55, 84 S.Ct. at 1596. (footnotes and citations omitted).

On another occasion, the court in discussing the privilege stated that:

No doubt the constitutional privilege may, on occasion, save a guilty man from his just deserts. It was aimed at a more far-reaching evil--a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality. Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil. Having had much experience with a tendency in human nature to abuse power, the Founders sought to close the doors against like future abuses [368 A.2d 702] by law-enforcing agencies. Ullmann v. United States, 350 U.S. 422, 428, 76 S.Ct. 497, 501, 100 L.Ed. 511 (1956).

The Fifth Amendment thus defines the relationship between the government and the citizenry. It serves the function in our constitutional democracy of balancing the privacy and dignity of the individual with the power of the government to obtain testimony. While it may generally be asserted that the public 'has the right to every man's evidence,' that right is clearly limited by and subject [470 Pa. 425] to the Fifth Amendment. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892).

It has been recognized, however, that a grant of immunity may 'supplant' the Fifth Amendment privilege, provided that it is coextensive with that privilege. This principle is premised upon the view that immunity leaves the witness and the government in substantially the same position as if the witness had claimed his privilege. ^[5] See, e.g., Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1971); Counselman v. Hitchcock, supra. While we recognize that immunity can be a valuable prosecutorial tool, we must also consider, however, that it constitutes an extraordinary exercise of power. It cannot be denied that a grant of immunity authorizes and even encourages interrogation which would otherwise be prohibited by the Fifth amendment. ^[6] Therefore, if a grant of immunity is to erase the line drawn by the privilege between government and citizen, it must be done so with the utmost care, and with the least possible infringement of Fifth Amendment rights. For this reason, we reject at the outset the Commonwealth's assertion that the Immunity Act is a 'sweeping provision' which must be 'broadly construed.' ^[7] To the [470 Pa. 426] contrary, the delicate balance created by the privilege requires that the Act be construed according to its express terms, and that its applicability be limited to only those proceedings clearly within the purview of the language employed by the legislature. It is with this principle in mind that we approach our analysis and interpretation of the Immunity Act.

II.

The threshold question raised by this appeal concerns whether the Immunity Act may be employed to immunize witnesses called to appear before a regularly convened indicting grand jury. The lower court suggested that the language of the Act indicated that as to grand juries, the power of immunity is available only to [368 A.2d 703] those engaged in conducting an investigation, not to those solely concerned, as here, with the finding of indictments. We agree.

In reaching this conclusion, we first note that immunity statutes have historically been considered a prosecutorial 'investigative tool.' The first federal immunity provision, enacted in 1857, was passed to aid an investigation into a vote selling scheme allegedly occurring in the House of Representatives. ^[8] Since that time, the underlying premise upon which immunity statutes have [470 Pa. 427] been enacted is their effectiveness in securing prosecutorial information. Restated, it is apparent that immunity statutes were designed to assist in the uncovering of criminal activity, as opposed to simply providing a means whereby sufficient information may be obtained for the prosecution and conviction of an individual offender. See, e.g., Kastigar v. United States, supra, 406 U.S. at 446--47 nn. 14--15, 92 S.Ct. 1653. We have no doubt that the Immunity Act of 1968 was passed by the General Assembly to achieve this same purpose.

Turning to the language of the Act, it should first be noted that the title to the Act provides that it is '(a)n Act authorizing courts of record to grant witnesses immunity from prosecution . . . in a proceeding before Certain grand juries, investigating committees or commissions and courts of record; . . .' (emphasis added). The legislature has specifically provided that '(t)he title and preamble of a statute may be considered in the construction thereof.' ^[9] In the title to the Act, it is clear that the Act is intended to apply only in proceedings before 'certain' grand juries. The word 'certain' cannot be considered mere surplusage, ^[10] and must be construed to indicate that not all grand jury proceedings fall within the contemplation of the Act. Moreover, the entire thrust of the Act compels the conclusion that it is primarily intended to assist in the Investigation of organized crime and racketeering. Such investigations are undertaken not by a...