In Re Falone

346 A.2d 9, 464 Pa. 42, 1975 Pa. LEXIS 1033

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

On October 29, 1974, appellee William Falone was called to testify before the January, 1974, Special Investigating Grand Jury of Philadelphia, which was investigating official corruption in Philadelphia. See generally In re Investigation of the January, 1974, Philadelphia Grand Jury, 458 Pa. 586, 828 A.2d 485 (1974). He was questioned concerning bribes allegedly paid to certain members of the Philadelphia Police Department in consideration for nonenforcement of laws prohibiting gambling. Falone invoked his privilege against self-incrimination ¹ and refused to testify.

The Commonwealth immediately petitioned the judge supervising the grand jury to grant immunity to Falone and to order him to testify, pursuant to the Act of November 22, 1968, P.L. 1080, 19 P.S. §§ 640.1-.6 (Supp. 1974). The petition was signed by then-Attorney General Israel Packel and verified by the affidavit of an assistant attorney general. It stated that the grand jury was reliably informed that Falone “is a member of organized crime who directs a major gambling operation in West Philadelphia” and that he “has conspired with other organized crime figures to make payments of money to members of the Philadelphia Police Department for the purpose of influencing them in the performance of their official duties.” The petition asserted that Falone’s testimony was necessary for the grand jury to perform its function of investigating police corruption.

An immediate hearing was held at which the supervising judge disclosed that an attorney for the Commonwealth had presented to him in camera the grounds upon which a grant of immunity was sought and the need for immunization. Falone’s counsel informed the court that he was unprepared to argue in opposition to a grant of immunity. The court accordingly continued the hearing until November 1. On that day the court afforded Fa-lone the opportunity to present testimony and argument why he should not be immunized.

On November 4, the court granted the petition, ordered Falone to testify, and conferred the immunity from prosecution permitted by the Act. Falone was called before the grand jury on November 6 and questioned, but he again invoked his privilege against self-incrimination and refused to testify. The Commonwealth immediately petitioned the court to hold Falone in contempt. A hearing was convened, but Falone’s counsel protested that he was unprepared to conduct a defense. The court continued the hearing until November 8.

When the hearing resumed, the court gave Falone a further opportunity to answer the grand jury’s questions, but he again refused. The court found Falone to be in contempt of court and ordered him to be incarcerated in the county jail for a period of six months or until he purged himself by testifying or until the term of the grand jury expired.

Falone appealed to the Superior Court, which reversed the order of contempt and discharged him.² 231 Pa.Super. 388, 332 A.2d 558 (1975). The Commonwealth petitioned this Court for allowance of an appeal,³ which we granted. Recognizing the need for an expeditious resolution of this appeal, we filed an order on July 7, 1975, reversing the order of the Superior¹ Court’s order and reinstating the order of the court of common pleas. We noted these opinions would follow.

We must preliminarily determine the manner in which the Act is to be construed. The Superior Court stated:

“[S]erious Fifth Amendment rights are involved in that under the Pennsylvania Immunity Act a person can be compelled to give testimony against himself. It follows that a statute conferring such power must be strictly construed by the government in order to minimize the judicial abuse of power which could occur otherwise. .

[Bjecause of [the Act’s] exceptional, nature and because it deals with basic constitutional rights, it must certainly require strict construction.”

231 Pa.Super. at 393, 332 A.2d at 561.

That court’s conclusion that the Act must receive a “strict construction” is based on an erroneous view of immunity and the privilege against self-incrimination. It is incorrect that under the Act “a person can be compelled to give testimony against himself” in the constitutional sense. When a witness receives a grant of immunity from prosecution that is at least as broad in scope and effect as the privilege against self-incrimination, his privilege is completely displaced because he has “complete protection from all the perils against which the [privilege] was designed to guard.”⁴ Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972); Kastigar v. United States, 406 U.S. 411, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Gardner v. Broderick, 392 U.S. 273, 276, 88 S. Ct. 1913, 1915, 20 L.Ed.2d 1082 (1968) (dictum); Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956); Hale v. Henkel, 201 U.S. 43, 65-70, 26 S.Ct. 370, 375-77, 50 L.Ed. 652 (1906); Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896); Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892); Riccobene Appeal, 439 Pa. 404, 410, 268 A.2d 104, 108 (1970) (opinion announcing the judgment). A grant of immunity is sufficient to supplant the privilege if the witness is protected against use of the compelled testimony and all its fruits. Kastigar v. United States, supra. Immunity granted under the Act is “transactional” immunity,⁵ Riccobene Appeal, supra, 439 Pa. at 412, 268 A.2d at 109, and thus is more extensive than necessary to displace the privilege.

As the Supreme Court stated in Kastigar v. United States, supra:

“[The] sole concern [of the privilege against self-incrimination] is to afford protection against being ‘forced to give testimony leading to the infliction of “penalties affixed to . criminal acts.” ’ Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.”

406 U.S. at453, 92 S.Ct. at 1661 (footnote omitted).

Accordingly, a witness who is compelled to testify under the Act is not testifying “against himself” in the constitutional sense, because his testimony cannot result in the infliction of criminal penalties. Thus, it is not necessary to accord the Act a “strict construction” for the protection of the privilege against self-incrimination. We can perceive no reason why the Act should not “be liberally construed to effect [its] objects and to promote justice.” Statutory Construction Act, 1 Pa.C.S. § 1928(c) (Supp.1974). Cf. United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974).

The Superior Court reached its result on the ground that the Commonwealth’s petition did not comply with the Act. Specifically, it noted that, under section 2 of the Act, 19 P.S. § 640.2,⁶ a petition for a grant of immunity must be filed by the Attorney General. It reasoned that the petition was required under the Act of April 9, 1915, P.L. 72, 12 P.S. § 514 (1973),⁷ and Pa.R. Civ.P. 206⁸ & 1024 ⁹ to be verified, and that, under Rule 1024(c), the verification should have been by the Attorney General or should have conformed to the requirements of Rule 1024(c) for verification by one not a “party.”

“Only the ‘Attorney General’ is designated as the petitioning party so that he is the only party to the proceeding and under Rules 206 and 1024 of the Pennsylvania Rules of Civil Procedure he should have been the one to verify the facts contained in the petition unless cogent reasons were set forth as to why his verification does not appear.

“To be effective in this petition, this verification by one other than the Attorney General must set forth the reasons why the petitioner, the Attorney General, failed to take the affidavit, the basis for the third parties’ [sic] authority to take the affidavit and the nature and source of the knowledge upon which the verification is based.”

231 Pa.Super. 393, 332 A.2d at 561.

Because the affidavit verifying the Commonwealth’s petition was not made by the Attorney General and did not comply with the requirements of Rule 1024(c) for a non-party affidavit,¹⁰ it was held that the petition was not that of the Attorney General, and was thus deficient under the Act. That deficiency, in the Superior Court’s view, rendered the trial court’s order ineffective to confer immunity, and Falone was therefore constitutionally entitled to persist in refusing to testify. We conclude that the Superior Court erred in holding the petition deficient under the Act.

It is true that any petition “alleging any matter of fact” must be “duly verified as to such allegations.” Act of April 9, 1915, P.L. 72, 12 P.S. § 514 (1953).¹¹ However, the Act of 1915 does not specify the required form of verification, and in particular it does not indicate who must verify the alleged facts. Nor does the immunity Act specify the manner of verification. The Superior Court looked for guidance to Pa.R.Civ.P. 1024, but, in our view, petitions for grants of immunity ought not be burdened with the niceties of civil pleading. We conclude that the purposes of both the Act of 1915 and the immunity Act are adequately served by the procedure here employed.

The purpose of the statutory requirement that the Attorney General petition under the Act is not difficult to discern. A grant of immunity from prosecution as to “any transaction, matter or thing concerning which he is compelled . . . to testify” (19 P.S. § 640.3 ¹²) is an extraordinary act of absolution. The decision to seek immunity requires a delicate balancing of the expected value of the witness’s testimony against forfeiture of the ability to prosecute the witness for crimes about which he might testify. Cf. Riccobene Appeal, supra, 439 Pa. at 418, 268 A.2d at 112. The Legislature concluded that for such an extraordinary and sensitive decision responsibility should lie with the Commonwealth’s chief law enforcement officer, the Attorney General. Cf. United States v. Giordano, 416 U.S. 505, 512, 94 S.Ct. 1820, 1825-30, 40 L.Ed.2d 341 (1974). In this case, the petition requesting the court to confer immunity and order Falone to testify was signed by Attorney General Israel Packel. The purpose of requiring the Attorney General to stand responsible for the petition is effectuated.

That purpose would not be further served by requiring that the Attorney General also verify the petition ; his signature on the petition is surely sufficient to render him responsible for the decision to seek immunity. Furthermore, as a general rule, affidavits must be executed by one who possesses personal knowledge of the facts alleged in the petition. See Pa.R.Crim.P. 304(c); Pa.R.Civ.P. 1024. It would be unrealistic to expect the Attorney General to possess personal knowledge of the details of “the nature of the investigation and the need for the immunization of the witness” (19 P.S. § 640.2) concerning investigations underway throughout the Commonwealth and all witnesses in those investigations. The more realistic expectation is that personal knowledge will be possessed by the Attorney General’s subordinates who are actually involved in the conduct of the investigations, which knowledge, when related to the Attorney General, will enable him to make the decision whether immunity shall be sought. The Act, when liberally construed to effectuate its purposes, requires no more than that the petition and verification reflect this reality.

The petition here satisfied the immunity Act and the Act of 1915. The Attorney General signed the petition requesting a grant of immunity. The verifying affidavit was executed by an assistant attorney general actually involved in the grand jury’s proceedings. No more is required.

Our conclusion that the petition was adequately verified removes the ground upon which the Superior Court’s order rests. However, Falone offers several other theories not passed upon by the Superior Court which, if meritorious, would be sufficient to require affirmance.¹³ We conclude that they are not meritorious.

First, he argues that the petition was not signed by the Attorney General because Israel Packel was not legally holding the office of Attorney General at the time of the filing of the petition under Frame v. Sutherland, 459 Pa. 177, 327 A.2d 623 (1974). This argument is without merit. The record is barren of any evidence concerning the circumstances of Mr. Packel’s appointment. His appointment was not before the Frame Court, and we have not been informed of any other proceeding in quo warranto in which his right to have held the office was challenged. In any event, assuming arguendo that Mr. Packel’s appointment suffered from the same defect as the defendants’ appointments in Frame, he was at least a de facto officer at the time of the filing of the petition in this'case, and thus his public acts possess the same validity as if he had been validly appointed. Falone’s argument is completely disposed of by Commonwealth ex rel. Palermo v. Pittsburgh, 339 Pa. 173, 13 A.2d 24 (1940) (holding the public acts of the Pittsburgh director of public safety were valid even if his purported “recess appointment” by the mayor or was invalid because the city council was not in fact in recess), a case identical in all material respects with Frame. See also Pleasant Hills Borough v. Jefferson Township, 359 Pa. 509, 512-13, 59 A.2d 697, 699-700 (1948), and cases cited therein.

Second, Falone argues that the trial court was without authority to grant immunity because the petition did not establish as a fact that he was involved in “organized crime or racketeering,” citing Commonwealth v. Brady, 228 Pa.Super. 233, 323 A.2d 866 (1974).¹⁴ This argument rests on a misunderstanding of the role that “organized crime or racketeering” plays in the structure of the Act. It provides in section 1 that grants of immunity and orders to testify are available “in a proceeding relating to organized crime or racketeering before a grand jury . . . .”¹⁵ Section 6 defines “organized crime or racketeering” to include “bribery or extortion.” ¹⁶ Among the areas being investigated by the grand jury are “bribery and corruption in the Philadelphia Police Department” and “extortion by officers and employees of . law enforcement agencies.” In re Investigation of the January, 1974, Philadelphia Grand Jury, 458 Pa. 586, 590 n. 1, 328 A.2d 485, 487 n. 1 (1974).¹⁷ We conclude that the proceeding in which Fa-lone’s testimony is sought is “a proceeding relating to organized crime or racketeering before a . grand jury” within the meaning of the Act. See also Crimes Code, 18 Pa.C.S. § 911 (h) (l) (i) (1973).

Third, Falone argues that the petition was fatally defective in that its “conclusionary allegation” that “it is necessary to take sworn testimony from Mr. Falone” is inadequate to satisfy the Act’s requirement that the petition “set forth . . . the need for the immunization of the witness” (19 P.S. § 640.2). He misunderstands both the statute and the petition. The Act requires the petition to set forth the need for immunization, not the need for the testimony. This petition adequately sets forth the need for immunization; it recites 1) that the grand jury is mandated to investigate police corruption; 2) that the grand jury was reliably informed that Falone had participated in a conspiracy to bribe members of the Philadelphia Police Department, from which it may be inferred that he possessed information relevant to the subject of the investigation; 3) that obtaining Falone’s information was necessary to carry out the grand jury’s mandate; and 4) that Falone, by invoking his privilege against self-incrimination, had shown that the information possessed by him would not be disclosed absent immunity.¹⁸ Thus, the petition, read as a whole, alleges that immunization is necessary for the grand jury to obtain information that is relevant to its inquiry from a witness who, it is reliably informed, possesses it. The Act requires no more.

Finally, Falone argues that the grant of immunity and order to testify were ineffective because the court failed to hold a hearing as required by the Act. Section 1 of the Act provides:

“The order to testify shall not be given except upon an order of court after a hearing in which the attorney general has established a need for the grant of immunity . .

Falone claims that the Commonwealth’s failure to present evidence in an adversary proceeding in open court establishing the need for immunization constitutes a violation of section 1. We disagree.

The purpose of the “hearing” requirement is plain. The Legislature recognized that a grant of immunity is an extraordinary benefit conferred on the witness. The public interest is usually best served by prosecuting persons guilty of crime, but in certain limited circumstances the public interest may require the conferral of that benefit in return for disclosure of information in the witness’s possession. The Legislature was not satisfied to entrust the determination that those limited circumstances exist to law enforcement officials alone. Therefore, the Act provides that the Attorney General’s decision that immunization is necessary is subject to the approval of the court.¹⁹

The “hearing” requirement is designed solely to serve as the means of conveying to the court information to enable it to perform its independent approval function. It was not designed to provide an adversary proceeding in which a witness could contend, in opposition to the Commonwealth’s presentation, that there is no need for immunization. See Riceobene Appeal, supra, 439 Pa. at 418, 268 A.2d at 112; Martorano Appeal, 225 Pa.Super. 474, 483-84, 310 A.2d 683, 688 (1973). Accordingly, if the Commonwealth establishes to the satisfaction of the court, in a manner satisfactory to the court, that immunization is necessary, the purpose of the “hearing” requirement is effectuated, and no more is required.

“ ‘The public . . . has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege . . . .” Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 2660, 33 L.Ed.2d 626 (1972). After Falone’s privilege against self-incrimination had been fully protected by a grant of immunity under the Act, the grand jury had a right to his evidence.

In accordance with the order of July 7, 1975, the order of the Superior Court is reversed; the order of the Court of Common Pleas of Philadelphia finding appellee in contempt of court is reinstated.

NIX, J., files a dissenting opinion in which EAGEN, J., joins. MANDERINO, J., did not participate in the consideration or decision of this case.

1 . See U.S.Const., amend. V; Pa.Const., art. I, § 9. The states are prohibited to infringe the privilege by U.S.Const., amend. XIV. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).

2 . Judge Jacobs dissented.

3 . See Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 204(a), 17 P.S. § 211.204(a) (Supp.1974).

4 . Counselman v. Hitchcock, 142 U.S. 547, 586, 12 S.Ct. 195, 206, 35 L.Ed. 1110 (1892).

5 . “Transactional” immunity is “immunity from prosecution for offenses to which compelled testimony relates . . . Kastigar v. United States, 406 U.S. 441, 443, 92 S.Ct. 1653, 1655, 32 L.Ed.2d 212 (1972).

6 . “The Attorney General may petition the court of the county in which such proceedings are being conducted for an order requiring any person to testify or produce evidence, which petition may be joined in by the district attorney of the county where such proceedings are being conducted. Such petition shall set forth the nature of the investigation and the need for the immunization of the witness.”

7 . “A judge of any court of record shall not, in any matter, case, or proceeding before him, receive or consider any petition, or paper in the nature of a petition, alleging any matter of fact, unless the petition or paper is duly verified as to such allegations.”

8 . “Every petition and answer containing allegations of fact which do not appear of record shall be verified by affidavit.”

9 . “(a) Every pleading containing averments of facts not appearing of record in the action or containing denials shall be verified on oath or affirmation that the averments or denials are true upon the affiant’s personal knowledge or information and belief. The affiant need not aver the source of his information or expectation of ability to prove the averments or denials at the trial. A pleading may be verified upon personal knowledge as to a part and upon information and belief as to the remainder.

“(c) The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of his information as to matters not stated upon his own knowledge and the reason why the verification is not made by a party.” ■

10 . The affidavit attached to the petition filed on October 29 consisted only of a statement by the assistant attorney general that “the facts set forth in the foregoing petition are true and correct to the best of his knowledge, information and belief.” On November 4 before the court issued its grant of immunity and order to testify, the Commonwealth filed an amended petition identical in all respects to the earlier petition except that the affidavit included an averment that the affiant “makes this affidavit on his own behalf as well as on behalf of Israel Packel, Attorney General, being thereunto duly authorized . . . .”

11 . From its position in the unofficial codification as 12 P.S. § 514 in the context of a title labelled “Civil and Equitable Remedies and Procedures,” the Act of 1915 might appear to apply only to civil actions. However, what appears in Purdon’s Statutes as § 514 was not enacted by the Legislature in that context. As enacted, the Act of 1915 is neither by its terms nor by context limited to civil actions. See Laws of Pennsylvania, at 72 (1915).

12 . “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 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.”

13 . We will affirm the judgment, order, or decree of the court below if the result is correct for any reason without regard to the ground relied upon by that court. Gilbert v. Korvatte, Inc., 457 Pa. 602, 604 n. 5, 327 A.2d 94, 96 n. 5 (1974); Prynn Estate, 455 Pa. 192, 197 n. 9, 315 A.2d 265, 267 n. 9 (1974).

14 . Allocatur was granted in Brady, which is now pending before this Court.

15 . “If, in a proceeding relating to organized crime or racketeering before a court, grand jury or investigating body set up by a legislative enactment or by order of the Governor, any person shall refuse to testify or to produce evidence of any other kind on the ground that his testimony or evidence may tend to incriminate him, that person may be ordered to give such testimony. The order to testify shall not be given except upon an order of court after a hearing in which the attorney general has established a need for the grant of immunity, as hereinafter provided.” 19 P.S. § 640.1.

16 . “As used in this act—

‘Organized crime’ and ‘racketeering’ shall include, but not be limited to, conspiracy to commit murder, bribery or extortion, narcotic or dangerous drug violations, prostitution, usury, subordination of perjury and lottery, bookmaking or other forms of organized gambling.”

19 P.S. § 640.6.

17 . As previously noted, the Attorney General previously noted, the Attorney General averred in the petition that Falone “has conspired with other organized crime figures to make payments of money to members of the Philadelphia Police Department for the purpose of influencing them in the performance of their official duties.”

18 . In fact, the written petition failed to allege that Falone had invoked his privilege and refused to testify. However, this deficiency was instantly cured.

An allegation that the witness has invoked his privilege is necessary for an adequate demonstration of need for immunization; obviously, if the witness will testify without immunity (which is not known to be false unless the witness has already been questioned and refused to answer), immunization is unnecessary. Furthermore, an allegation that the witness has refused to testify is indispensable because grants of immunity are available under the Act only if “any person shall refuse to testify on the ground that his testimony . . . may tend to incriminate him . . . .” 19 P.S. § 640.1.

The facial defect was cured when, in the immediate hearing that occurred in open court, an assistant attorney general informed the court that the witness had invoked the privilege against self-incrimination. Although this assertion was not “verified” as was the written petition, it was immediately proven when the stenographer who had been present in the grand jury room read to the court the questions that had been asked and Fa-lone’s refusals to answer.

19 . Compare 18 U.S.C. § 6003.