Petition of Start

• Decision Date: 18 June 1958
• Citation: 142 A.2d 449,186 Pa.Super. 509
• Parties: In re Petition of Raymond R. START, District Attorney, for Grand Jury Investigation. Appeal of Max A. ROSENBERG. Appeal of Edward HELLER.
• Court: Pennsylvania Superior Court

Page 449

142 A.2d 449

186 Pa.Super. 509

In re Petition of Raymond R. START, District Attorney, for

Grand Jury Investigation.

Appeal of Max A. ROSENBERG.

Appeal of Edward HELLER.

Superior Court of Pennsylvania.

June 18, 1958.

Charles F. Mayer, Media, for Rosenberg.

Lester J. Schaffer, Gray, Schaffer & Malloy, Philadelphia, for Heller.

Raymond R. Start, Dist. Atty., J. Harold Hughes, 1st Asst. Dist. Atty., Clement J. McGovern, Asst. Dist. Atty., Media, for appellee.

Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.

RHODES, President Judge.

These appeals have been taken by Max A. Rosenberg and Edward Heller from sentences summarily imposed by the Court of Quarter Sessions of Delaware County for contempt of court because of their refusal to testify before a special grand jury,

On January 17, 1958, the District Attorney of Delaware County filed a petition in court alleging that crimes had been committed in connection with negotiations between officials of the Township of Darby and Max A. Rosenberg and Minnie Rosenberg, his wife, the owners of land in the township, for a proposed lease-purchase of the land to be used for a dumping and incinerator site. Appellants were specifically named in the petition as parties involved in the negotiations, and it was alleged therein that a criminal conspiracy existed for the purpose of defrauding the township.

The Court of Quarter Sessions of Delaware County, on January 17, 1958, granted the petition and ordered that the grand jury for the December Sessions, 1957, convene on January 29, 1958, and 'make full inquiry into all matters concerning the negotiations, actions and conduct of the Board of Commissioners of Upper Darby Township, its members, employees, agents or representatives, and of all other persons, corporations on associations, in the matters of the selection purchase, lease or acquisition by said Township of ground for an incinerator or for the disposal of refuse material, with particular reference to the site designated in the District Attorney's said Petition; * * *' The grand jury met on January 29, 1958, as ordered, and was charged by the court prior to its investigation. The court read the petition of the district attorney to the grand jury and instructed them to investigate the matter and to make a presentment or suggestion to the court thereafter whether certain individuals should be indicted by a future grand jury. Although the grand jury was instructed that it could inquire into any violations of the criminal code, the court stated: '* * * the specific charge which seems to be preliminarily in this matter is that of a criminal conspiracy.' The persons subpoenaed by the district attorney, including the two appellants, were sworn as witnesses.

On February 5, 1958, appellants were called as witnesses before the grand jury, at which time they apparently refused to answer questions, claiming the privilege against self-incrimination under article I, § 9 of the Constitution of Pennsylvania, P. S. Appellants were brought before the court with their counsel and oral argument was had on the matter. The court then entered orders that appellants 'be compelled to testify before the said investigating grand jury to any matters relevant to the subject matter under investigation, and against any person who may be charged with having committed the offense of bribery, or corrupt solicitation, or practices of solicitation, and he shall not be permitted to withhold his testimony before said investigating grand jury upon the ground that it may criminate himself, or subject him to public infamy; but such testimony shall not afterwards be used against him in any judicial proceeding, except for perjury in giving such testimony.' The orders as they related to immunity were entered by the court in reliance upon article III, § 32 of the Constitution of Pennsylvania.

It seems that appellants were not called thereafter as witnesses until February 21, 1958. On that day they again refused to testify, claiming the privilege not to do so. Appellants, their counsel, and the assistant district attorney appeared before the court and a lengthy colloquy ensued concerning their refusal to testify. At the conclusion of the discussion appellants were adjudged in contempt of court and committed to the Delaware County Jail until they purged themselves of the contempt.

The court refused requests for bail pending appeals to this Court. Appeals were filed together with petitions for supersedeas. On February 24, 1958, this Court issued rules upon the district attorney to show cause why supersedeas should not be granted. We fixed March 4, 1958, for a hearing and released appellants on bail until our disposition of the rules. On March 11, 1958, we made the rules absolute and granted supersedeas upon the entering of bail by each appellant in the amount of two thousand five hundred dollars, pending the argument and determination of the appeals. The matter is now before us for disposition on the merits of the adjudications for contempt. ¹ The judgments of sentence will be reversed.

The power of a court to punish for contempt is essential to the administration of justice; it enables the court to protect itself from insult and to enforce obedience to its process. The power to punish summarily contempt committed in the actual view of the court has been generally believed to have existed in England from an early period. ² Proceedings before the grand jury are regarded as proceedings in the court itself and contempts occurring in the presence of the grand jury are considered as taking place in the presence of the court or so near thereto as to obstruct the administration of justice or interfere with its immediate business. When a witness before a grand jury refuses to testify he may be brought before the court, compelled to testify, and sentenced for contempt upon his refusal to answer proper questions. Com. v. Butler, 171 Pa.Super. 350, 356, 90 A.2d 838. Summary punishment for contempt of this nature, however, must be based upon a refusal to answer proper questions. If a witness called before a grand jury declines to answer a question on the ground that it might tend to incriminate him and his exercise of this constitutional privilege is well founded, he may not be held in contempt for refusing to obey the order of court. Manko Appeal, 168 Pa.Super. 177, 77 A.2d 700; Com. v. Gross, 172 Pa.Super. 85, 89, 92 A.2d 251. If the witness refuses to testify but does not claim the privilege he may be adjudged in contempt for his refusal. Com. v. Butler, supra, 171 Pa.Super. 350, 353, 90 A.2d 838.

Article I, § 9 of the Constitution of Pennsylvania provides in part: 'In all criminal prosecutions the accused * * * cannot be compelled to give evidence against himself, * * *'. The constitutional protection applies to witnesses as well as to parties (Com. v. Tracey, 137 Pa.Super. 221, 224, 8 A.2d 622; Schwinger's Appeal, 181 Pa.Super. 532, 538, 124 A.2d 133) and to proceedings before a grand jury (Manko Appeal, supra, 168 Pa.Super. 177, 179, 180, 77 A.2d 700). Where, as here, the witnesses are named as persons implicated in the criminal acts in the petition requesting the convening of the investigating grand jury, such persons are not merely witnesses but they are the accused. Manko Appeal, supra, 168 Pa.Super. 177, 180, 77 A.2d 700. Such persons should not be called as witnesses and they should not be adjudged in contempt for the refusal to testify on a proper claim of privilege. Com. v. Gross, supra, 172 Pa.Super. 85, 89, 92 A.2d 251. It is to be noted that these appellants were accused in the petition of violating the criminal law and in particular of participating in a criminal conspiracy for the purpose of defrauding the Township of Upper Darby in the matter of the proposed leasepurchase agreement. ³ The petition of the district attorney was read to the grand jury by the court in its charge. Since the primary purpose of the grand jury investigation, according to the charge of the court, was to examine into a possible criminal conspiracy involving these appellants, their refusal to answer questions with reference to this matter certainly could not form the basis for a judgment of contempt. The court could not compel appellants to testify to all matters 'which are with reference to the investigation now in being' under these circumstances and grant immunity with respect to 'any statement or statements' which they might make before the grand jury, as it attempted to do.

It is true that the appellants could not claim the privilege under Article I, § 9 of the Constitution if the investigation and the questions related to the offenses of bribery and corrupt solicitation. Article III, § 32 of the Constitution of Pennsylvania makes an exception to the general privilege in such cases and provides: 'Any person may be compelled to testify in any lawful investigation or judicial proceeding against any person who may be charged with having committed the offense of bribery or corrupt solicitation, or practices of solicitation, and shall not be permitted to withhold his testimony upon the ground that it may criminate himself or subject him to public infamy; but such testimony shall not afterwards be used against him in any judicial proceeding, except for perjury in giving such testimony, * * *'. This exception to the privilege against compulsory self-incrimination, however, is a very limited one, and the proscription against the later use of testimony against a witness whose claim of privilege has been overruled by reason of article III, § 32, is confined to the testimony which has been given under the compulsion. Com. v. Haines, 171 Pa.Super. 362, 371, 90 A.2d 842. For this reason a witness who is compelled to give what may be incriminating testimony...