Commonwealth v. Strickler

393 A.2d 313, 481 Pa. 579, 1978 Pa. LEXIS 1003

• Court: Supreme Court of Pennsylvania
• Decided: October 5, 1978
• Docket: 121
• Status: Published

Opinions

OPINION OF THE COURT

EAGEN, Chief Justice.

On August 27, 1973, appellant, Jimmie T. Strickler, pleaded guilty to a charge of being an accessory after the fact to an armed robbery in Union County. On April 16, 1974, he was sentenced to a term of fifteen months’ imprisonment, sentence to commence on May 1, 1973. He took no appeal from the judgment of sentence, and on June 1,1974, he was paroled to the custody of another county where he was to serve unrelated sentences of imprisonment.

Subsequently, on September 11, 1974, after he had completed his sentence on the accessory charge, Strickler was called by the Commonwealth to testify at the Union County trial of one Craig Timothy Shirk for the purpose of identifying Shirk as a principal in the same armed robbery to which Strickler had pleaded guilty as an accessory. Strickler, however, invoked his Fifth Amendment privilege against self-incrimination and refused to testify. The trial judge advised Strickler, who was represented by counsel, that, because he had pleaded guilty, been sentenced, and failed to take a timely appeal with respect to a charge based upon the same events about which he was scheduled to testify, and because, pursuant to this Court’s decision in Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), he could not then be prosecuted for any additional charges based upon these events, he had no grounds to fear self-incrimination as a result of his testimony.

Strickler, however, informed the judge that he was presently in the process of preparing a petition for post-conviction relief and that, in connection with this, he feared anything he said might later be used against him. The judge observed that no such petition was then pending before the court. The district attorney then asserted that “the Commonwealth grants the witness immunity from prosecution with regards to any other matter, transaction arising out of facts involved in the case for which he was previously sentenced.” The judge again advised Strickler that he could not be subjected to further prosecution based upon the facts about which he was to testify and that he therefore had no basis to assert his privilege against self-incrimination with regard to this testimony; he ordered Strickler to testify and warned him that if he persisted in his refusal to do so he could be found in contempt of court. When Strickler still refused to testify, the judge summarily found him in direct criminal contempt and sentenced him to imprisonment for six months “to begin and date from the time [he] is released from his present confinement.” The judge nevertheless offered him an opportunity to purge his contempt by testifying, but he again refused to do so. As a result of this refusal, the Commonwealth moved that a nolle prosequi be entered in the case against Shirk; the judge granted the motion, and Shirk was discharged. Strickler appealed his criminal contempt conviction to the Superior Court, but on October 20, 1976, the appeal was properly transferred to this Court.¹

In Commonwealth v. Carrera, 424 Pa. 551, 553-54, 227 A.2d 627, 629 (1967), this Court stated:

“When an individual ... is called to testify . in a judicial proceeding, he or she is not exonerated from answering questions merely upon the declaration that in so doing it would be self-incriminating. It is always for the court to judge if the silence is justified, and an illusory claim should be rejected. However, for the court to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration of all the circumstances, that the witness is mistaken in the apprehension of self-incrimination and the answers demanded cannot possibly have such tendency . . . .” (Emphasis in original.)

Strickler argues that the trial judge erred in overruling his claim of privilege and ordering him to testify on two grounds: (1) if his contemplated petition for post-conviction relief were to succeed in causing his conviction as an accessory to be invalidated, his testimony at the Shirk trial might be used against him in a new trial on the accessory charge, and (2) his testimony might subject him to new charges arising out of the incident about which he was to testify. He further contends that the district attorney’s purported grant of immunity from further prosecution was of no significance, since he was entitled to reject immunity for “his own reasons.”

We agree with Strickler that the purported grant of immunity is not here controlling, but not for the reason he advances. It is clear that a valid grant of immunity is constitutionally sufficient “to supplant the privilege if the witness is protected against use of the compelled testimony and all its fruits.” In re Falone, 464 Pa. 42, 48, 346 A.2d 9, 12 (1975). It is also clear, however, that since in Pennsylvania district attorneys lack the statutory authority to grant witnesses immunity in criminal prosecutions, such a promise is not legally binding or effective. Commonwealth v. Carrera, supra. Accord, Commonwealth v. Hawthorne, 428 Pa. 260, 236 A.2d 519 (1968); Commonwealth v. Kaye, 232 Pa.Super. 513, 335 A.2d 430 (1975). Thus, although Strickler is mistaken in his assertion that he was entitled to reject immunity for his own reasons, instantly the purported grant of immunity was invalid.² We turn therefore to his arguments that the judge improperly overruled his claim of privilege.

With regard to Strickler’s assertion that his testimony in the Shirk trial might subject him to new charges in connection with the armed robbery about which he was scheduled to testify, we observe that Section 110 of the Crimes Code,³ in addition to Commonwealth v. Campana, supra, cited by the trial judge,⁴ requires in general that all charges against a defendant “based on the same conduct or arising from the same criminal episode” be brought in a single proceeding. Thus, it would appear that any subsequent prosecution of Strickler based upon the armed robbery about which he was to testify and in connection with which he had already been convicted would have been barred under Pennsylvania law.

Section 110(l)(ii) does make exception for an offense which, though based on the same conduct or arising from the same criminal episode, was not “known to the appropriate prosecuting officer at the time of the commencement of the first trial,” but there is nothing in the instant record to indicate that the district attorney was not fully aware of the circumstances surrounding the criminal episode in question and the extent of Strickler’s involvement therein; indeed, the record reveals that the district attorney’s attempt to grant Strickler immunity was at least in part in response to and apparently intended to confirm the trial judge’s view that the Campana principle protected Strickler from prosecution on new charges based on his testimony. Section 110(l)(iii)(A) makes another exception where “the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to present a substantially different harm or evil” (emphasis added). Strickler argues that as a result of his testimony he might have been charged as a principal in the armed robbery, with receiving stolen goods, or with aggravated assault and battery, but he does not argue, and we are not otherwise persuaded, that the offense for which he was previously convicted, hindering apprehension or prosecution with respect to an armed robbery,⁵ was a substantially different crime or evil so as to subject him to additional prosecution on these charges.⁶ We thus conclude that the trial judge did not err in overruling Strickler’s claim of privilege on this ground.

As for his contention that he feared self-incrimination because of the possibility that his forthcoming petition for post-conviction relief might win him a new trial on the accessory charge, we observe initially that as a general rule a plea of guilty to a criminal charge is regarded as a waiver of the privilege against self-incrimination with respect to that charge. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See also Commonwealth ex rel. Blackman v. Banmiller, 405 Pa. 560, 176 A.2d 682 (1962); Commonwealth v. Tracey, 137 Pa.Super. 221, 8 A.2d 622 (1939). Nevertheless, a guilty plea may subsequently be found to be invalid and a conviction based upon it reversed. See, e. g., Boykin v. Alabama, supra; Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974). Furthermore, in Pennsylvania, Section 3 of the Post Conviction Hearing Act , (PCHA), Act of January 25, 1966, P.L. (1965) 1580, § 3, 19 P.S. § 1180-3 (Supp.1978-79), specifically provides for relief from a conviction based upon “[a] plea of guilty unlawfully induced” if this issue “has not been finally litigated or waived,” even though the issue has not been raised on appeal. Clearly, if a guilty plea may subsequently be found invalid, it cannot in itself inevitably be said to constitute a valid waiver of the privilege against self-incrimination; nor can it be inevitably concluded as a matter of law that one who has pleaded guilty to a charge can thereafter have no reasonable basis to fear self-incrimination on that charge.

Moreover, in Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977), a majority of this Court affirmed a murder conviction despite the fact that the trial judge had permitted a witness for the prosecution, whose own conviction for the murder was final but who stated he was preparing a petition for post-conviction relief, to invoke his privilege against self-incrimination and refuse to testify; the judge had thus found the witness unavailable and permitted the Commonwealth to read to the jury his testimony from the appellant’s preliminary hearing. In the opinion announcing the judgment Mr. Justice Roberts, speaking for himself and Mr. Justice O’Brien,⁷ addressed the issue this way:

“We cannot say that the possibility that an individual whose conviction is final will obtain collateral relief is so remote as to warrant a per se rule that the privilege cannot be invoked in any circumstance. We therefore reject the suggestion that a witness who is preparing a collateral attack on his conviction has no basis, as a matter of law, to apprehend a danger of future prosecution arising from the matters about which he is called to testify. Each case must be decided on its own facts and the information available to the trial judge who must rule on the claim of privilege.

“We hold that the determination whether a witness whose conviction has been finalized on appeal and who is preparing a collateral attack may invoke the privilege against self-incrimination is properly left to the sound discretion of the trial court. The trial court must consider all the circumstances and decide whether the witness has reasonable cause to apprehend danger of self-incrimination. See Commonwealth v. Carrera, supra.”

472 Pa. at 457, 372 A.2d at 781.

Even assuming, however, “the possibility that an individual whose conviction is final will obtain collateral relief is [not] so remote as to warrant a per se rule that the privilege cannot be invoked in any circumstances,” and that “[e]ach case must be decided on its own facts and the information available to the trial judge who must rule on the claim of privilege,” we cannot conclude that in the circumstances of the instant case the trial judge erred in overruling Strickler’s claim of privilege on this ground either.

Although Strickler had petitioned the court for transcripts on April 23, 1974,⁸ by the time of the Shirk trial the following September not only had he failed to take a direct appeal or file a PCHA petition, but his fifteen-month sentence on the accessory charge had by this time been completed. Although we cannot assume that because his sentence had been served he might not subsequently have been able to attack this conviction collaterally,⁹ we cannot perceive that he had any reasonable basis to fear self-incrimination in a new trial on a charge for which he had already completed his sentence.¹⁰ See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (constitutional protection against double jeopardy requires that punishment already exacted for an offense be fully credited in imposing a new sentence for the same offense; due process requires that reasons for imposition of a more severe sentence after retrial must affirmatively appear in the record and must be based on objective information concerning the defendant’s identifiable conduct after the original sentencing proceeding). Thus, in our view, the judge was justified in determining that Strickler had no reasonable basis to fear self-incrimination and in ordering him to testify at the Shirk trial. We also conclude that he was justified in summarily finding Strickler guilty of direct criminal contempt and sentencing him to a six-month term of imprisonment for his refusal to testify.

The Act of June 16, 1836, P.L. 784, § 23, 17 P.S. § 2041, in pertinent part provides:

“The power of the several courts of this commonwealth to issue attachments and to inflict summary punishments for contempts of court shall be restricted to the following cases, to-wit:

******

“II. To disobedience or neglect by officers, parties, jurors or witnesses of or to the lawful process of the court . .” (Emphasis added.)

There was clearly sufficient basis for the trial judge to find that the deliberate and persistent refusal of Strickler, who was represented by counsel,¹¹ to testify, despite appropriate and repeated orders from the judge that he do so, was in contemptuous defiance of the court’s authority.¹² Strickler’s intransigence as a witness, which ultimately caused the Shirk prosecution to be aborted, plainly warranted the exercise of the court’s recognized power to punish summarily for direct criminal contempt.¹³ See United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975); Commonwealth v. Patterson, 452 Pa. 457, 308 A.2d 90 (1973).

Strickler, however, contends that the court, in exercising this traditional power, deprived him of the constitutional right to trial by jury afforded one who is accused of a major crime. In support of this contention, he relies upon Baldwin v. New York, 399 U.S. 66, 69, 90 S.Ct. 1886, 1888, 26 L.Ed.2d 437 (1970), wherein a plurality of the Supreme Court of the United States declared that “no offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized” (footnote omitted). Strickler concedes that his sentence was actually limited to six months, but he urges that since there is no maximum sentence for direct criminal contempt, he could have been sentenced to a term greater than six months and, because of this potentially greater sentence, he had a right to a jury trial. This contention, however, was specifically rejected by the Supreme Court in Taylor v. Hayes, 418 U.S. 488, 495, 94 S.Ct. 2697, 2701, 41 L.Ed.2d 897 (1974), wherein it was stated:

“. . . our cases hold that petty contempt like other criminal offenses may be tried without a jury and that contempt of court is a petty offense when the penalty actually imposed does not exceed six months or a longer penalty has not been expressly authorized by statute.” (Emphasis added.)

Accord, Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974); Commonwealth v. Mayberry, 459 Pa. 91, 327 A.2d 86 (1974).

Finally, Strickler argues that his sentence “to begin and date from the time [he] is released from his present confinement” is “void for vagueness.” This contention is without merit. The record reveals that before he imposed sentence on Strickler the trial judge determined which of two concurrent sentences Strickler was presently serving was the longer and clearly indicated that the contempt sentence was to be consecutive to both of these concurrent terms.

Judgment of sentence affirmed.

ROBERTS, J., files a dissenting opinion in which MANDERINO, J., joins.

1 . See the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, art. II, § 202(5), 17 P.S. § 211.202(5) (Supp.1978-79).

2 . We do not here decide whether truthful testimony actually given pursuant to an unauthorized or invalid grant of immunity may ever subsequently be used against the witness in the courts of this Commonwealth. Compare United States v. Ford, 99 U.S. 594, 25 L.Ed. 399 (1878) (holding that such testimony may not be pleaded in bar of, or raised as a defense in, a subsequent prosecution but creates only an equitable right to an executive pardon which the court will take note of by staying the prosecution to permit an application to the pardoning power), with Commonwealth v. Bell, 145 Pa. 374, 391, 22 A. 641, 644 (1891) (dictum that where a court erroneously holds that immunity applies and orders a witness to testify, “[n]o court would permit the testimony of a witness, truthfully given under such circumstances, to be afterwards used against him in any judicial proceeding”).

3 . 18 Pa.C.S.A. § 110.

4 . In Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), this Court concluded that its previous decision in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded svh nom. Pennsylvania v. Campana, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), was pursuant to our supervisory power and thus rested upon a state ground independent of the federal constitution.

5 . See 18 Pa.C.S.A. § 5105.

6 . Compare Commonwealth v. Campana, 452 Pa. 233, 259-260, 304 A.2d 432, 452 (1973) (concurring opinion, Eagen, J., joined by Jones, C. J.) (“all part of a continuous and uninterrupted conduct and directed to the accomplishment of a single criminal objective”).

7 . Mr. Justice Pomeroy and the writer oí this opinion concurred in the result in Rodgers.

8 . Since Strickler was sentenced on April 16, 1974, he would have been entitled to take a direct appeal from the judgment of sentence at the time he petitioned the court for transcripts.

9 . See Commonwealth v. Doria, 468 Pa. 534, 364 A.2d 322 (1976); Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971). It appears that on March 29, 1976, Strickler did file a PCHA petition attacking the validity of his guilty plea, and the court denied this petition on the same day on the ground that it was moot. Strickler appealed the order denying his petition to the Superior Court assigning as error, inter alia, both the PCHA court’s conclusion of mootness and the fact that the judge who ruled on his petition had been the district attorney at the time he entered his guilty plea. On May 5, 1978, the Superior Court without opinion vacated the order of the PCHA court and remanded for a new hearing.

10 . Nor, in our view, was there a reasonable basis to fear self-incrimination from his testimony at the Shirk trial in the PCHA proceedings themselves. The purpose of such proceedings is to provide “relief from convictions obtained and sentences imposed without due process of law.” PCHA, 19 P.S. § 1180-2. Thus, PCHA proceedings are concerned not with determining substantive guilt or innocence but with rectifying prior violations of due process. Compare State v. Tyson, 43 N.J. 411, 204 A.2d 864 (1964), cert. denied, 380 U.S. 987, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965) (probable guilt a factor to be considered by trial court in motion to withdraw guilty plea so that privilege was properly invoked after guilty plea but before sentencing).

11 . Compare Commonwealth v. Crawford, 466 Pa. 269, 352 A.2d 52 (1976).

12 . In this context we note, as did the trial judge, Strickler’s statement before imposition of sentence: “I do have contempt of this Court.”

13 . Although Strickler was initially given an opportunity to purge himself of contempt by testifying against Shirk, the entrance of a nolle prosequi in the Shirk case because Strickler persisted in his refusal to testify left him powerless to purge his contempt civilly. Nevertheless, he remained subject to criminal punishment, since it is well-settled that the same conduct may give rise to both civil and criminal contempt. See Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957). Compare In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975).