Commonwealth v. Rizzo

688 A.2d 185, 455 Pa. Super. 311, 1996 Pa. Super. LEXIS 4065

• Court: Superior Court of Pennsylvania
• Decided: December 16, 1996
• Docket: 1183, 1184
• Status: Published

Opinions

FORD ELLIOTT, Judge.

These appeals arose out of the investigation of the Eighth Statewide Investigating Grand Jury concerning the drug dealing activities of Dominick “Butch” Rizzo. The Grand Jury issued a presentment on March 12, 1993, which found a basis for the initiation of criminal charges. Rizzo was charged with ten counts of delivery of a controlled substance in violation of 35 P.S. § 780-113(a)(30) and two counts of criminal conspiracy to violate the Controlled Substance Drug Device and Cosmetic Act, 18 Pa.C.S. § 903. Both Hyland and Reighard (appellants herein) testified concerning Rizzo’s drug activities. Due to their relation in time and subject matter, we shall address the issues presented by both appellants in this single opinion. The factual background of these appeals is as follows.

On March 18, 1992, appellant James Hyland gave State Police Trooper Kenneth Karas and Deputy Attorney General William Jones a statement concerning the drug activities in which he engaged with Rizzo. On April 16, 1992, Hyland testified before the Investigating Grand Jury regarding this same information. He had not been granted immunity for his testimony. On September 18, 1992, appellant Bradley Reighard testified before the Investigating Grand Jury regarding his drug activities with Dominick Rizzo. Unlike Hyland, Reighard testified pursuant to an order of use immunity.

On January 18, 1995, with Rizzo’s trial approaching, the Commonwealth moved for, and the trial court granted, orders of use immunity for the testimony of Hyland and Reighard. The Court of Common Pleas of Somerset County issued the orders because Hyland’s and Reighard’s reluctance to testify had previously been communicated to the prosecution by their respective counsel. The orders of immunity for both Hyland and Reighard apply prospectively to any later proceedings at which they would testify, including the Rizzo trial.

On May 22, 1995, Deputy Attorney General Jones moved the Court of Common Pleas of Somerset County to schedule a pretrial hearing, for the purpose of taking and recording the testimony of Hyland and Reighard for use at Rizzo’s trial. Argument was scheduled on the Commonwealth’s motion for May 26,1995.

On May 26,1995, the court ordered Reighard and Hyland to appear and testify at a hearing later that day, pursuant to Rule 9015, Pa. R.Crim. P., 42 Pa.C.S.A., entitled “Preservation of Testimony After Institution of Criminal Proceedings.” The court found that Rule 9015 was an appropriate vehicle by which to convene the hearing, because it found the existing circumstances to be exceptional, that a hearing was required to protect the judicial process and administration of justice, and necessary to insure a fair trial. The court deemed a hearing was necessary to eliminate the disruption of the trial process which it found would occur if the pre-trial testimony were not taken. The Commonwealth argued that the court should receive the testimony at that time because if it waited until a jury in Rizzo’s case was seated to find that Hyland and Reighard would not testify, jeopardy would attach and the prosecution would be frustrated. The court deemed it necessary to hold a hearing to avoid the possibility of a miscarriage of justice. Nonetheless, on May 26th, both men refused to testify.

At the hearing, Reighard was called by the court to testify. (Notes of testimony, Rule 9015 Hearing, 5/26/95 at 4.) Reighard’s counsel stated that Reighard was refusing to testify because he feared for his life, having received threats from unknown individuals as a result of the possibility of testifying against Rizzo. (Id. at 4-6.) The court asked counsel:

[THE COURT:] From your argument on behalf of the witness, as I understand it, the refusal to testify is not based on Constitutional rights protecting against self-incrimination. Would that be right?

[REIGHARD’S COUNSEL:] No — that’s right. Our argument is that the Supreme Court has held that, even though you have a grant of immunity, you are not required to testify if you’re in fear of your life and if there is duress present.

(Id. at 9.)

Hyland also refused to testify, stating the following:

I believe that the Order granting me immunity has not properly been granted. I’ve requested through my attorney that the matter be cleared up before I testify under the [sic] immune order.

I’ve seen deceptive procedures of the State Police and Attorney General’s office to accomplish their goals, I know they made a letter that was supposed to be from [another co-conspirator], which they made me take to Dominick Rizzo.

I feel they have lied to me, and I cannot trust what they may do to me, regardless of what I say in my testimony.

Further, I assert my Fifth Amendment and Article 1, Section 9 rights, and will not testify at this time. I feel that I have been treated unfairly by the police and the Attorney General’s office.

I have been denied my due process rights by the Court to determine whether the immunity granted to me is valid. As a result of this, I refuse to answer any questions at this point. I am not intentionally disobeying the immunity order by the Court. I truly believe that I am entitled under due process to have a hearing to determine whether this immunity order is a valid replacement of my Fifth Amendment and Article 1, Section 9 right against self-incrimination. [THE COURT:] Mr. Hyland, at least the video record of this will probably reflect that you are reading from a document — but certainly unless you concede such, the printed record will not.

[HYLAND’S COUNSEL:] That’s accurate Your Honor. He intends to answer each and every question in the same fashion as he has that first question ...

(Id. at 84-86, emphasis supplied.)

The court adjourned the hearing until May 30,1995, to allow Hyland and Reighard an opportunity to reconsider their refusals to testify. On May 30, 1995, at the reconvened hearing, each appellant refused to answer the questions posed to them concerning their dealings with Rizzo. Both Reighard and Hyland were held in civil contempt for refusing to answer, until such time that they would appear before the court and respond to the questions previously asked. Both were committed to the Somerset County Jail.

On July 21, 1995, the court issued an opinion detailing its rationale for the May 30th finding of contempt. These timely appeals followed. Appellant Reighard raises a single question on his appeal: whether an immunized witness may properly be incarcerated for contempt as a result of refusing to testify at a proceeding which was improperly convened under Pa. R.Crim. P. 9015.

Appellant Hyland raises two issues. Similar to Reighard’s argument, Hyland has alleged as error the trial court’s characterization of his failure to testify as “unavailability,” given that he would allegedly be available, subject to a subpoena. He argues that the Rule 9015 hearing was improper. Hyland’s second issue is whether the court may grant immunity to a witness who cannot avail himself of the privilege against self incrimination, where he has already waived it and given the same testimony hoped to be gained through the grant of immunity.

We turn now to Reighard’s argument and Hyland’s first argument, which both are based upon the propriety of the hearing held pursuant to Rule 9015. Essentially, appellant Reighard argues that since the hearing at which he stated he would not testify was improperly convened, he was entitled to refuse to testify, and thus the adjudication of contempt as to his refusal is a nullity. In the same vein, appellant Hyland argues that he was not “unavailable” as that term is defined pursuant to Rule 9015, because he was available to testify at trial as a subpoenaed witness, and that a hearing under Rule 9015 was improper. We reject these arguments.

Rule 9015 of the Rules of Criminal Procedure, entitled “Preservation of Testimony After Institution of Criminal Proceedings,” does not exclude a proceeding such as the one presently under review. The Rule provides that:

(a) At any time after the institution of a criminal proceeding, upon motion of any party, and after notice and hearing, the court may order the taking and preserving of the testimony of any witness who may be unavailable for trial or for any other proceeding, or when due to exceptional circumstances, it is in the interests of justice that the witness’ testimony be preserved.

Rule 9015, 42 Pa.C.S.A. A Comment to the Rule explains that:

this rule is intended to provide the means by which testimony may be preserved for use at a subsequent stage in the criminal proceedings.....

Although the Rule may be invoked to preserve the testimony of a witness who will be unavailable for trial, it may also be invoked when “due to exceptional circumstances, it is in the interests of justice that the witness’ testimony be preserved.”¹ Such language allows the trial court broad discretion concerning the decision to preserve testimony.

Instantly, the trial court stated in its order convening the hearing that it elected to proceed under Rule 9015 to effectuate the interests of justice. The Rules of Criminal Procedure lend support to the trial court’s election to hold a hearing pursuant to Rule 9015. For example, a comment to the rules which govern pretrial proceedings makes clear that one of the main goals is to “provide adequate information ..., expedite trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process. ...” Pa. R.Crim. P. Rule 305, 42 Pa.C.S.A., section 1.2 Comment. Our research reveals that there has apparently been no recorded challenge to the use of Rule 9015 in any setting.

Despite Reighard’s argument that he was available to testify at trial, or amenable to subpoena, it is clear that he had manifested his intention not to testify because he was in fear for his life. We find that the instant case presents a proper exercise of the court’s discretion pursuant to Rule 9015. Nothing in Rule 9015 precludes a court from scheduling a hearing, in these exceptional circumstances, to take testimony to further the goal of avoiding a miscarriage of justice. Moreover, we know of no right that a witness could otherwise assert as to when or where his testimony is to be taken. This hearing arose in the context of Rizzo’s prosecution, and the record discloses that Rizzo’s counsel did object to the timing of the hearing; he has, however, taken no position on this appeal.

To support his claim regarding Rule 9015, Hyland points to the comment to Rule 9015, which states that unavailable is “intended to include situations ... [where] the witness will be unable to be present or to testify ..., such as when the witness is dying, ... out of the jurisdiction ..., or may become incompetent to testify for any legally sufficient reason.” On the basis of Commonwealth v. Wood, 432 Pa.Super. 183, 637 A.2d 1335 (1994), Hyland argues that the preceding list from the comment is an exhaustive list defining unavailability which must be strictly construed, and that he does not fit within these parameters. Hyland argues that he is “available” for the Rizzo trial, because none of the situations described in the Comment apply to his refusal to testify, and he is available to be subpoenaed to attend. (Hyland Brief at 14-15.)

Initially, we point out that Hyland did specifically invoke his Fifth Amendment privilege not to testify at the May 26th hearing. The refusal to testify pursuant to a claim of fifth amendment privilege renders an individual “unavailable.” See, e.g., Commonwealth v. Smith, 436 Pa.Super. 277, 286-87, 647 A.2d 907, 911 (1994) (the “true test of unavailability is whether the prosecution has made a good faith effort to produce the live testimony of the witness and, through no fault of its own, is prevented from doing so”);² Commonwealth v. McGrogan, 523 Pa. 614, 568 A.2d 924 (1990) (a witness is unavailable for purposes of testifying where a witness’s concern with self-incrimination is legitimate); Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977) (witness unavailable where he invokes privilege against self-incrimination).

Appellants’ challenges to the Rule 9015 hearing based upon the assertion that they cannot be held unavailable because they are subject to a subpoena for trial are specious. Each had been served with subpoenas which their respective counsel notified the prosecution and the court they would not honor. (See notes of testimony, 5/26/95 at 32, 37.) The trial court found, compelling the reasons cited by the Commonwealth; for example, that awaiting Rizzo’s trial to determine whether the witnesses would testify would create a miscarriage of justice. Not only would trial be disrupted, but jeopardy would then attach to the prosecution of Rizzo.

In addition, although the challenged hearing was scheduled for the purpose of taking appellants’ testimony pursuant to Rule 9015, such did not occur. Rather, appellants each refused to testify and attempted to challenge the validity of the orders granting them immunity. The remainder of the proceedings was focused primarily on the grant of immunity, from which the contempt citations which are the basis of this appeal arose.

There is no provision in the Immunity Act for a challenge to a court’s grant of immunity. See 42 Pa.C.S.A. § 5947. Despite this fact, courts have entertained challenges to orders granting immunity. See Commonwealth v. Russell, 225 Pa.Super. 133, 310 A.2d 296 (1973); Commonwealth v. Wardrop, 72 Pa. D. & C.2d 151 (1975). Accordingly, although not identified as such below, we conclude after a careful review of the record that the “Rule 9015 hearing” was de facto a hearing regarding the validity of the grant of immunity to appellants. Here, the prosecution requested and obtained orders of immunity after learning that Hyland and Reighard would not testify at Rizzo’s trial. At that point, the holding of a hearing was not an abuse of discretion. Whether it occurred pursuant to Rule 9015 or the immunity statute is a distinction without a difference. As the Commonwealth points out, it has an ethical duty not to call as witnesses any individual whom it knows will refuse to testify. Commonwealth v. Collins, 420 Pa.Super. 358, 365-366, 616 A.2d 1012, 1015 (1992). (Commonwealth’s Hyland Brief at 19-20.) The Commonwealth’s failure to explore appellants’ desire not to testify would have been wholly improper.

We conclude that, even assuming arguendo that appellants were not “unavailable” for purposes of a hearing pursuant to Rule 9015, a hearing regarding the validity of the orders granting immunity was appropriate at that time, Smith, supra; we find no abuse of discretion in the trial court’s decision to hold a hearing. Accordingly, appellants’ assertions of error in this regard are without merit.

We now turn to appellant Hyland’s remaining argument. Hyland questions whether a court may grant immunity to a witness who cannot avail himself of the privilege against self-incrimination, where, as Hyland argues, he has already waived it and testified to the same information hoped to be gained through the grant of immunity, so that that information could incriminate him in the future.

The Fifth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution bestow a privilege against self-incrimination which prevents an individual from giving testimony which may lead to his own prosecution. Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Commonwealth v. Swinehart, 541 Pa. 500, 664 A.2d 957 (1995) (also holding that Pennsylvania has followed the decisions of the United States Supreme Court concerning immunity). An individual who invokes the privilege must have a reasonable basis for believing that the testimony to be given will be incriminatory. Commonwealth v. Allen, 501 Pa. 525, 462 A.2d 624 (1983); Rodgers, supra.

The Supreme Court has recognized that of equal importance in our system of justice is the “ancient adage that the public has the right to every man’s evidence.” Kastigar v. United States, 406 U.S. 441, 443, n. 5, 92 S.Ct. 1653, 1655, n. 5, 32 L.Ed.2d 212 (1972); Swinehart, 541 Pa. at 520-22, 664 A.2d at 967, citing Kastigar. To balance the inviolable right of individuals not to incriminate themselves against the right to “every man’s evidence,” the concept of immunity evolved. In Kastigar, the Supreme Court found that use immunity, as opposed to transactional immunity, which grants a witness complete amnesty from the crimes testified to, is sufficient to protect the privilege against self-incrimination contained within the Fifth Amendment. Use immunity protects against the use of compelled testimony as a source for evidence. Kastigar, 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212. The Kastigar Court also outlined the procedure to be utilized in determining when a prosecution’s case is based upon evidence obtained through immunized testimony.

The immunization of witnesses has always been a feature of Pennsylvania jurisprudence. Swinehart, 541 Pa. at 520-22, 664 A.2d at 967. Pennsylvania has adopted the practice of granting “use immunity” in exchange for the protection bestowed by the Pennsylvania Constitution which an immunized witness is forced to give up when compelled to testify. Use immunity does not, however, totally preclude the prosecution from prosecuting the witness for transgressions which arise from the transaction to which he testified. Swinehart, supra. Following Kastigar, our supreme court has held that in the event there is a later prosecution of the witness, “the Commonwealth must prove, of record, by the heightened standard of clear and convincing evidence, that the evidence upon which a subsequent prosecution is brought arose wholly from independent sources.” Swinehart, supra at 526, 664 A.2d at 969 (emphasis in original).

The novel issue presented by appellant Hyland is whether immunity is a proper avenue where the independent source will yield exactly the same information as the immunized testimony. The basis of Hyland’s argument is that it was improper, albeit impossible, for the court to issue an order compelling his testimony in exchange for immunity, because he had already waived his right against self-incrimination when he gave the same testimony in a grand jury proceeding against Rizzo. Indeed, the record before us establishes that the Commonwealth stipulated that the information proposed to be elicited from Hyland was the same as that used to support the charges against him. (Notes of testimony, 5/26/95 at 96-99.)

Appellant Hyland’s assertion that he has forever waived his right against self-incrimination by testifying before a grand jury is incorrect. Even where a witness has been convicted of a crime, he still has the right to later refuse to testify concerning the crime for which he was convicted, due to the effect that testimony may have on a collateral proceeding. Rodgers, supra. In Rodgers, appellant argued that the trial court erred in permitting a witness (Rodgers’ accomplice) to invoke the privilege against self-incrimination at Rodgers’ trial, the invocation of which caused the witness to be declared “unavailable,” and resulted in the admission of his preliminary hearing testimony which incriminated appellant. Id. at 452, 372 A.2d at 779.

The court rejected Rodgers’ argument, recognizing that the question presented was one of first impression. In Rodgers, the court recognized that “the waiver of the privilege against self-incrimination in one proceeding does not affect the right to invoke it in an independent proceeding.” Id. at 451 n. 6, 372 A.2d at 778 n. 6 (citations omitted). This was so even though the witness had been tried and convicted based on his own culpability, but was in the process of pursuing collateral relief.

On this basis, we conclude that although Hyland waived his right against self-incrimination before a grand jury, prior to the Rizzo trial, he has not forever jettisoned his privilege not to incriminate himself. At the time of the contempt citation, Hyland had been charged with crimes arising from his involvement in drug activity with Dominick Rizzo, but had not yet been tried. Accordingly, he does not stand on the same procedural ground as the witness in Rodgers. Nonetheless, we find Rodgers to be relevant guidance, in part, for the question Hyland presents. We conclude, therefore, that Hyland did not forever waive his privilege against self-incrimination by virtue of his grand jury testimony. He still had a right to refuse to testify, a “bargaining chip,” and the court’s order granting immunity was the foil to, and coextensive with, that right. Accordingly, the trial court’s corresponding grant of immunity was not void, as Hyland argues. Prospectively, if and/or when Hyland is tried for charges stemming from his involvement in drug trafficking with Rizzo, the grant of immunity will require the Commonwealth to prove, by a heightened standard of clear and convincing evidence, that the evidence upon which Hyland’s prosecution is based arose wholly from independent sources. Swinehart, supra at 524-26, 664 A.2d at 969. Hence, contrary to Hyland’s protests of a nugatory grant of immunity, he may yet derive some benefit from it. Moreover, we find appellant’s protestations to be specious. As set forth above, Hyland did in fact invoke his Fifth Amendment privilege not to testify. However, even theoretically, if Hyland was correct that he was precluded from invoking his privilege, he then can properly be held in contempt for refusing to testify.

The orders adjudicating appellants to be in contempt are affirmed.

JOHNSON, J., filed a dissenting opinion.

1 . From the text of the Rule, it appears that "may be unavailable,” as used in sub-paragraph (a) above, includes situations in which the court has reason to believe that the witness will be unable to testify at trial or other proceeding, such as when the witness is dying, or will be out of the jurisdiction and therefore cannot be effectively served with a subpoena, or may become incompetent to testify for any legally sufficient reason. “Criminal proceeding” is defined in the rules of criminal procedure, as “all actions for the enforcement of the Penal Laws". Pa.R.Crim.P. 3 (Definitions), 42 Pa. C.S.A.

2 . In Smith, as in this case, the witness was held in contempt prior to the defendant's trial, after the witness expressed his reluctance to testily. The trial court at that point held a hearing to determine the reasons for the witness' refusal, which he indicated was on the basis of the Fifth Amendment privilege against self-incrimination. The Commonwealth offered the witness immunity, but he persisted in refusing to testify. As here, the trial court held the witness in contempt.