Commonwealth v. Brady

368 A.2d 699, 470 Pa. 420, 1977 Pa. LEXIS 539
CourtSupreme Court of Pennsylvania
DecidedJanuary 28, 1977
Docket141
StatusPublished
Cited by11 cases

This text of 368 A.2d 699 (Commonwealth v. Brady) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Brady, 368 A.2d 699, 470 Pa. 420, 1977 Pa. LEXIS 539 (Pa. 1977).

Opinions

OPINION

NIX, Judge.

The case presently at bar raises questions concerning the authority of a court, under the Act of November 22, [422]*4221968, 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, 1978, 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, 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 [423]*423Carmerlengo 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; [424]*424our 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 by law-enforcing agencies. Ullman 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 are 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 sub[425]*425ject 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 [426]*426contrary, 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.

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Commonwealth v. Brady
368 A.2d 699 (Supreme Court of Pennsylvania, 1977)

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Bluebook (online)
368 A.2d 699, 470 Pa. 420, 1977 Pa. LEXIS 539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-brady-pa-1977.