Petition of Specter

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtBefore BELL; BELL; JONES; COHEN, J., files a dissenting Opinion, in which O'BRIEN, J., joins. Mr. EAGEN; EAGEN; COHEN; O'BRIEN
Citation439 Pa. 404,268 A.2d 104
PartiesPetition of Arlen SPECTER, District Attorney of Philadelphia, Requesting a Grand Jury Investigation. Appeal of Mario RICCOBENE, a/k/a Sonny Riccobene.
Decision Date13 July 1970

Page 104

268 A.2d 104
439 Pa. 404
Petition of Arlen SPECTER, District Attorney of
Philadelphia, Requesting a Grand Jury Investigation.
Appeal of Mario RICCOBENE, a/k/a Sonny Riccobene.
Supreme Court of Pennsylvania.
July 13, 1970.
Rehearing Denied Aug. 5, 1970.

[439 Pa. 407]

Page 107

Michael J. Rutenberg, Harry A. Rutenberg, Ronald N. Rutenberg, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., James D. Crawford, Deputy Dist. Atty., Philadelphia, for appellee.



BELL, Chief Justice.

Appellant, Mario Riccobene, was sworn as a witness by Judge SLOANE to testify before the Investigating Grand Jury in the City of Philadelphia on October 27, 1969. The Grand Jury had begun sitting on April 8, 1969, for the purpose of investigating organized crime and alleged corruption in the governmental departments and agencies of the City of Philadelphia.

On November 20, 1969, appellant was questioned before the Grand Jury on matters relating to organized crime and the bribery of a City official. The questions concerned the involvement of certain City officials and persons allegedly connected with organized crime in real estate and urban redevelopment transactions. One of the questions related to an alleged bribery of a member of Philadelphia's City Council for a favor in connection with a land transaction in a redevelopment area.

Appellant refused to answer the questions asked by the Grand Jury, asserting his Constitutional privilege against self-incrimination granted by the Fifth Amendment. Later the same day, appellant reiterated his refusal before Judge SLOANE in open Court. Judge SLOANE then affirmed appellant's right to assert his privilege and to refuse to answer the questions.

On January 30, 1970, the Attorney General of the Commonwealth of Pennsylvania and the District Attorney of Philadelphia filed a Petition for the grant of immunity under the Act of November 22, 1968 P.L. 19 P.S. §§ 640.1--6, together with a rule returnable on February 5, 1970 to show cause why appellant should not be compelled to testify under a Grant of Immunity.

[439 Pa. 409] On February 5, a hearing was held, at which time the particular need for appellant's testimony in the pending Grand Jury Investigation was elucidated. The Commonwealth presented evidence of the matter

Page 108

under immediate inquiry by the Grand Jury to show the need for appellant's testimony. On February 19 and 20, 1970, the Court below heard extensive argument by counsel for appellant in opposition to the Commonwealth's Petition for the Grant of Immunity.

On February 26, 1970, the Court below decreed that appellant must testify before the Investigating Grand Jury with the immunity provided under Act No. 333 of 1968. An appeal was taken to the Superior Court from this Order. Supersedeas was denied and the appeal was quashed by that Court on the ground that the Order was interlocutory.

On March 6, 1970, appellant was asked the identical questions before the Grand Jury. Despite the grant of immunity he persisted in his refusal to answer.

The lower Court then held a hearing to determine whether appellant should be held in contempt of Court. The Commonwealth produced evidence of his refusal to answer questions asked by the Grand Jury. The Court then offered the appellant a chance to purge himself of any contempt by answering the questions. He refused to answer, asserting again that he had a Constitutional right to do so. The lower Court then ordered 'that the respondent Mario Riccobene a/k/a Sonny Riccobene be forthwith committed to the County Prison and remain so committed for a period of six (6) months unless he shall sooner purge himself by testifying before the said Grand Jury, whereupon he shall be released.' From this Order, Riccobene has taken this appeal. This Order was undoubtedly a penalty or sentence of civil contempt. 1

[439 Pa. 410] On this appeal, Riccobene makes the same three basic contentions which he made before the Court below. He first asserts that the Immunity Statute is Unconstitutional and that he was thus still privileged to refuse to answer, because of his Constitutional privilege against self-incrimination (see infra). His second contention is that the petition for the grant of immunity was insufficient and inadequate and that immunity was improperly granted. Finally, he asserts that the lower Court improperly cited him for civil contempt when the only punishment provided by the Immunity Statute for a failure to answer is criminal contempt. We find no merit in Any of these contentions.


Riccobene asserted his privilege against self-incrimination under the Fifth Amendment to the United States Constitution and under the Pennsylvania Constitution. As this Court said in Commonwealth v. Carrera,424 Pa. 551, pages 552--553, 227 A.2d 627, page 629: '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).' In Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), the Court said (page 276, 88 S.Ct. page 1915): 'Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying.'

[439 Pa. 411] A. Scope of Pennsylvania Immunity Grant

Riccobene contends that the Pennsylvania Statute is unconstitutional because it fails to provide immunity against the use

Page 109

of the Fruits of the compelled testimony in connection with a criminal prosecution. The statute, in pertinent part, provides:

' § 640.3. Immunity.

'No such witness shall be prosecuted or subjected to any penalty or forfeiture nor shall there be any liability on the part of and no cause of action of any nature 2 shall arise against any such witness For or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, Nor shall testimony so compelled be used as evidence in any criminal proceeding against him in any court. 1968, Nov. 22, P.L. ---, No. 333, § 3.'

This is not the first time language such as this has been subjected to Judicial scrutiny. It is almost identical to language considered by the Supreme Court of the United States in Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896). The Federal statute there construed provided: 'But no person shall be prosecuted or subjected to any penalty or forfeiture For or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said commission, or in obedience to its subpoena, or the subpoena of either of them, or in any such case or proceeding.' Act of February 11, 1893, ch. 83, 27 Stat. 443.

In Brown v. Walker, the Court held that the statute granted what has come to be called 'transactional' immunity, which precludes prosecution for any transaction concerning which testimony was compelled, [439 Pa. 412] regardless of its source. This is Broader than the so-called 'use' immunity statute, which forbids further use of compelled testimony or its fruits, but would still permit prosecution for the same transaction if the evidence was obtained independently of the compelled testimony.

Brown v. Walker was reaffirmed recently in Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956), where the identical language (hereinabove quoted) was once again found Constitutional. By its terms, the Pennsylvania Immunity Act is clearly a grant of 'transactional' immunity identical to--and indeed broader than--that upheld in Brown and Ullmann, supra. As such it is, we repeat, broader than the 'use' immunity, viz., the scope of protection required under the United States Constitution as interpreted in Murphy v. Waterfront Commission of New York, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678; Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082, supra. See note: Scope of Taint, 114 U. of Pa.Law Rev. 570 (1966).

Riccobene further contends that the statute protects him only from prosecution for offenses being investigated by the Grand Jury, and that as the Grand Jury is investigating only certain organized criminal acts, he is not protected from prosecution for other crimes which his testimony might reveal. The immunity relates to the Transactions, matters or things concerning which testimony is compelled, not merely to the specific crimes which the Grand Jury was called to investigate. The immunity is as extensive as the testimony given, Marcus v. United States, 310 F.2d 143 (3d Cir. 1962); by its terms it extends to 'any penalty or forfeiture for or on account of Any transaction, matter, or thing' concerning which he is compelled to testify. Thus the coverage of the statute is broad enough to include Any offense or crimes disclosed by the compelled testimony.

[439 Pa. 413] B. Civil Liability

Appellant also contends that the statute is Constitutionally infirm because it fails to provide immunity for Civil liability. It must first be noted that he cites No decision of this or of any other Court which Requires such immunity. As the Supreme

Page 110

Court said in Hale v. Henkel, 201 U.S. 43, 67, 26 S.Ct. 370, 376, 50 L.Ed. 652: 'The interdiction of the 5th Amendment operates only where a witness is asked to Incriminate himself,--in other words, to give...

To continue reading

Request your trial
7 cases
  • Com. v. Swinehart
    • United States
    • United States State Supreme Court of Pennsylvania
    • August 29, 1995
    ...testimony from a witness in exchange for transactional immunity were found to be valid. See Petition of Specter, Riccobene Appeal, 439 Pa. 404, 268 A.2d 104 (1970). Thus, from 1892 until 1978, Pennsylvania recognized only transactional immunity as a sufficient exchange for compelling a witn......
  • Sonder v. Sonder
    • United States
    • Superior Court of Pennsylvania
    • September 29, 1988
    ...purpose is to compel performance and not to inflict punishment. Barrett v. Barrett, 470 Pa. 253, 368 A.2d 616 (1977); Petition of Specter, 439 Pa. 404, 268 A.2d 104 (1970); Commonwealth v. Feick, 294 Pa.Super. 110, 439 A.2d 774 (1982). The characteristic that distinguishes civil from crimin......
  • November, 1975 Special Investigating Grand Jury, In re
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 15, 1977
    ...... Under our law the witness can only secure appellate review of his objections by exposing himself to the court's power of contempt. In re Petition of Arlen Specter, 455 Pa. 518, 317 A.2d 286 (1974). To conclude that because the presiding judge does not deem the objections raised by the witness ......
  • Grubb v. Grubb
    • United States
    • Superior Court of Pennsylvania
    • March 16, 1984 allowed to carry the keys to the jail in his pocket." Id. at 64, 401 A.2d at 802, citing Barrett v. Barrett, supra; Riccobene Appeal, 439 Pa. 404, 268 A.2d 104 (1970). In such cases, the "court is not permitted to impose a coercive sentence conditioned on the contemnor's performance of s......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT