Martorano, In re

• Decision Date: 03 October 1975
• Citation: 346 A.2d 22,464 Pa. 66
• Parties: In re Raymond MARTORANO. Appeal of the COMMONWEALTH of Pennsylvania.
• Court: Pennsylvania Supreme Court

Page 22

346 A.2d 22

464 Pa. 66

In re Raymond MARTORANO.

Appeal of the COMMONWEALTH of Pennsylvania.

Supreme Court of Pennsylvania.

Argued May 8, 1975.

Decided Oct. 3, 1975.

Mark A Klugheit, Asst. Atty. Gen., Walter M. Phillips, Jr., Deputy Atty. Gen., Philadelphia, for Commonwealth, appellant.

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

OPINION OF THE COURT

ROBERTS, Justice.

Appellee Raymond Martorano was held in contempt of court for refusing to testify before an investigating grand jury after being granted immunity and ordered to testify pursuant to the Act of November 22, 1968, P.L. 1080, 19 P.S. § 640.1--.6 (Supp.1974). In this appeal we must decide the propriety of that adjudication.

On July 2, 1974, Martorano was served with a subpoena ordering him to testify on July 10 before the January, 1974, Special Investigating Grand Jury of Philadelphia, which was investigating official corruption in Philadelphia. See generally In re Investigation of the January, 1974, Philadelphia Grand Jury, --- Pa. ---, 328 A.2d 485 (1974). On July 10 Martorano filed a petition to strike or set aside the subpoena. The court supervising the grand jury heard testimony and argument on July 12 on Martorano's claim that service of the subpoena was defective and that the absence from the face of the subpoena of the official seal of the court of common pleas rendered it void. On August 8, the court filed an order denying the petition.

Martorano appeared, as directed, on August 16. After being sworn and instructed as to his rights, ¹ he was taken before the grand jury and questioned concerning certain acquaintances and business activities. However, Martorano invoked his privilege against self-incrimination ² and refused to answer all questions. He was excused and directed to appear on September 4.

Upon his reappearance on September 4, he again invoked the privilege against self-incrimination and refused to answer any questions. The Commonwealth immediately petitioned the supervising court to grant immunity to Martorano and to order him to testify, pursuant to the Act. The petition was signed by then-Attorney General Israel Packel and verified by the affidavit of an assistant attorney general. It alleged that Martorano was 'reasonably believed' to possess 'knowledge or evidence . . . concerning a system of payment of bribes to Philadelphia Police officers to forego prosecution of those involved in illegal gambling activities.' The petition asserted that the grand jury needed Martorano's testimony 'in order to uncover the identity of others involved with him in illegal gambling activities and bribe payments to police officers' and was unable to acquire that testimony because of Martorano's invocation of the privilege against self-incrimination.

After the court ascertained that Martorano had properly invoked the privilege, it afforded Martorano's counsel an opportunity to respond to the petition. However, he protested that he needed time to prepare, and the hearing was continued until September 5.

On September 5, the hearing resumed and Martorano's counsel presented a lengthy oral argument opposing immunization of his client. Also on September 5, the court held an In camera hearing for the Commonwealth to present evidence in support of the petitioner's assertion that immunization was needed. After the hearings, the court granted the Commonwealth's petition, ordered Martorano to testify, and conferred the immunity from prosecution permitted by the Act.

Martorano returned to the grand jury on the same day but he again invoked his privilege against self-incrimination and refused to testify. The Commonwealth immediately petitioned the court orally to hold Martorano in contempt. The court, however, decided not to proceed without a written petition. It directed the Commonwealth to file a petition and rescheduled the matter for the afternoon of September 6. Martorano's counsel unsuccessfully sought a longer delay so that he could attend a funeral that day.

When the hearing resumed, the court gave Martorano a further opportunity to answer the grand jury's questions, but he refused. The court found Martorano to be in civil contempt and ordered him incarcerated in the county jail for a period of six months or until he purged himself by testifying or until the term of the grand jury expired.

Martorano appealed to the Superior Court, which reversed the contempt order. ³

The Commonwealth petitioned this Court for allowance of an appeal, ⁴ which we granted. Due to the need for an expeditious decision in this appeal, we filed an order on July 7, 1975, reversing the order of the Superior Court and reinstating the order of the court of common pleas. We noted these opinions would follow.

We note that this is Martorano's second adjudication of contempt. He had been called to testify before a predecessor grand jury and had refused to answer its questions. After he had been immunized and ordered to testify, Martorano persisted in his refusal and was adjudged to be in contempt. He received a sentence identical to that imposed in this case. See Martorano Appeal, 225 Pa.Super. 474, 310 A.2d 683 (1973). While the record does not indicate the disposition of that sentence, Martorano represents in his brief that he remained in jail for six months and was released.

In this case the Superior Court reversed on the authority of In re Falone, 231 Pa.Super. 388, 332 A.2d 558, rev'd, --- Pa. ---, 339 A.2d 759 (1975), holding that the petition was defective under the Act because it was verified by an assistant attorney general rather than the Attorney General himself. 231 Pa.Super. at 398, 332 A.2d at 536. We have held that an immunization petition is sufficient if it is signed by the Attorney General and verified by one of his subordinates who has personal knowledge of the facts alleged in the petition. In re Falone, --- Pa. ---, ---, 346 A.2d 9, 14 (1975).

We conclude that the petition requesting that Martorano be immunized satisfies the standards laid down in Falone. This conclusion removes the ground upon which the Superior Court's order rests. However, Martorano offers several other arguments not passed upon by the Superior Court which, if meritorious, would be sufficient to require affirmance. ⁵ We conclude that they are not meritorious.

First, he argues that the court was without authority to grant immunity under the Act because the proceeding in which his testimony was sought was not 'a proceeding relating to organized crime or racketeering before a . . . grand jury' under the Act. ⁶ We rejected an identical argument in In re Falone, supra at ---, 346 A.2d at 15--16. See also In re LaRussa, --- Pa. ---, 346 A.2d 32, 34 (1975).

Second, he argues that the grant of immunity and order to testify were ineffective because the In camera hearing held by the court in this case failed to satisfy the requirement of section 1 of the Act that '(t)he order to testify shall not be given except upon an order of court after a hearing in which the attorney general has established a need for the grant of immunity . . ..' ⁷ In Falone we held:

'The 'hearing' requirement is designed solely to serve as the means of conveying to the court information to enable it to perform its independent approval function. It was not designed to provide an adversary proceeding in which a witness could contend, in opposition to the Commonwealth's presentation, that there is no need for immunization. (citations omitted) Accordingly, if the Commonwealth establishes to the satisfaction of the court, in a manner satisfactory to the court, that immunization is necessary the purpose of the 'hearing' requirement is effectuated, and no more is required.'

-- - Pa. at ---, 346 A.2d at 17. The hearing in this case satisfied the court that immunization was needed, and that is all that the Act requires. Martorano's argument must accordingly fail.

Martorano next argues that he was deprived of his liberty without due process in that he was not afforded an adequate time in which to prepare to attack the Commonwealth's petition for immunization and to resist the grant of immunity. The petition was filed with the court and served on Martorano on September 4. The court held a hearing on September 5 during which it afforded Martorano's counsel an opportunity to argue in opposition to immunization. He argues that one day was insufficient to permit his counsel to prepare to resist the petition. We disagree.

Due process is a flexible concept. What process is due depends upon the circumstances of each case, including the nature of the interests that are at stake and the particular proceeding in question. See Groppi v. Leslie,404 U.S. 496, 500, 92 S.Ct. 582, 585, 30 L.Ed.2d 632, 637 (1972); Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 894--95, 81 S.Ct. 1743, 1748--49, 6 L.Ed.2d 1230, 1235--1236 (1961); Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960); Commonwealth v. Mayberry, --- Pa. ---, ---, 327 A.2d 86, 92 (1974). In this case, the extent of Martorano's due-process right to an adequate time to prepare is dependent upon the magnitude of his interests in resisting a grant of immunity and the nature of the immunization proceedings.

It is clear that any interest a witness may have in opposing immunization does not rise to a constitutional level, because a grant of immunity under the Act is a constitutionally sufficient replacement for his privilege against self-incrimination. In re Falone, supra, --- Pa. at ---, 346 A.2d at 17; Riccobene Appeal, 439 Pa. 404, 410--16, 268 A.2d 104, 108--11 (1970) (plurality opinion). No other constitutionally-based interests are arguably at stake in a witness's immunization.

Furthermore, the Act grants to a witness only a limited right to oppose the Commonwealth's petition. We have held that the witness has no statutory right under the Act to participate in the Commonwealth's showing of the...