Commonwealth v. Swinehart

OPINION OF THE COURT

This case presents the question of whether the use and derivative use immunity provided in 42 Pa.C.S. § 5947, is consistent with the Pennsylvania constitutional privilege at Article 1, Section 9, against compelled self-incrimination. 1 For *505 the reasons that follow we find that use and derivative use immunity is consistent with the protection provided under our state constitution. Thus, for the reasons that follow, the judgement of the Superior Court is affirmed.

The issue before the Court arises from the investigation into the murder of David Swinehart on January 15, 1982. The appellant herein, Thomas DeBlase, is the nephew of the decedent. DeBlase was arrested and charged with the murder of Swinehart on May 11, 1985. DeBlase was originally called for trial on these charges in October of 1985. Prior to trial, DeBlase’s motion to suppress evidence which was obtained through the use of a wiretap and body wire worn by his brother, Jeffrey DeBlase, was granted. The Commonwealth appealed the suppression ruling. The Superior Court reversed the trial court ruling on the suppression on September 22, 1986. This Court granted allowance of appeal and subsequently dismissed the appeal as having been improvidently granted on January 25, 1988.

DeBlase was again scheduled for trial on the murder charges on June 20,1988. The motion to suppress the wiretap and bodywire evidence was renewed by DeBlase, and again granted by the trial court. The trial court granted the motion the second time relying on the en banc decision of the Superior Court in Commonwealth v. Schaeffer, 370 Pa.Super. 179, 536 A.2d 354 (1987), aff'd by an equally divided court, 539 Pa. 272, 652 A.2d 294 (1994). The Commonwealth again appealed from the suppression ruling to the Superior Court. The Superior Court reversed the trial court, relying upon the decisions of this Court in Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988) aff'd Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990), and Commonwealth v. Rodriguez, 519 Pa. 415, 548 A.2d 1211 (1988). *506 DeBlase filed a Petition for Allowance of Appeal from this second ruling by the Superior Court on the wiretap issue with this Court on April 24, 1989.

In January of 1991, while awaiting disposition of the Petition for Allowance of Appeal, DeBlase, who had been incarcerated since his arrest in May of 1985, filed with this Court an emergency petition for dismissal citing his constitutional right to a speedy trial as guaranteed under the United States and Pennsylvania Constitutions and pursuant to Rule 1100, Pa. R.Crim.P. On May 15, 1991, DeBlase filed a Petition for Habeas Corpus in the United States District Court for the Eastern District of Pennsylvania. The United States District Court ordered DeBlase released on bail subject to electronic home monitoring in November 1991.

On December 2, 1992, the United States District Court rendered a report and recommendation that DeBlase’s Writ of Habeas Corpus be granted and all charges dismissed if he were not tried within 120 days of said report. DeBlase and the Commonwealth both filed objections to the report and recommendation. Upon consideration of the objections, the District Court subsequently denied the Writ of Habeas Corpus but found probable cause existed to appeal. A Notice of Appeal was filed with the Third Circuit Court of Appeals. The Appeal in the Third Circuit was ultimately discontinued.

Subsequent to the activity in the District Court on the Writ of Habeas Corpus, this Court on December 28, 1992 denied DeBlase’s Petition for Allowance of Appeal from the opinion of the Superior Court regarding the suppression of the wiretap and body wire evidence, without prejudice, and dismissed his emergency petition for dismissal pursuant to Rule 1100 as moot.

Thereafter DeBlase was again brought before the Court of Common Pleas of Montgomery County on the homicide charges. On April 19, 1998, after hearing argument on pretrial motions, the trial court dismissed all charges against DeBlase finding that his right to a speedy trial under the Fifth, Sixth and Fourteenth amendments of the United States *507 Constitution, and Pa.R.Crim.P. 1100, had been violated. 2 On January 7, 1994, the Superior Court reversed the trial court ruling on the speedy trial issue and remanded the case back to the Court of Common Pleas. DeBlase petitioned this Court for Allowance of Appeal, which was granted. 3

In the meantime, on July 28, 1992, Patricia Swinehart, the wife of the decedent, was arrested and charged with the murder of her husband, and with being a co-conspirator of DeBlase. DeBlase was subpoenaed as a witness in the Patricia Swinehart trial and offered a grant of immunity pursuant to 42 Pa.C.S. § 5947 (hereinafter “the Act”). DeBlase moved to quash the subpoena and objected to the grant of immunity. A hearing was held on the motions on January 19, 1994. The trial court refused to quash the subpoena, approved the grant of immunity to DeBlase, and then when DeBlase still refused to answer, found him to be in both civil and criminal contempt.

Pursuant to the Act, DeBlase was sentenced to a period of incarceration of 5 months and 29 days on the criminal contempt and was advised that he could purge himself of the civil contempt whenever he chose to testify in the Commonwealth’s case against Patricia Swinehart. The trial of Patricia Swinehart began the next day and concluded in a not guilty verdict. Thus, DeBlase now has no opportunity to purge himself of the civil contempt. However, as he is still suffering under the onus of a criminal conviction the matter is not moot and shall be fully reviewed by this Court. 4

*508 Having traced the extraordinarily indirect route which brought DeBlase once again to this Court, we will now turn to the substantive issue to be resolved in this case. Simply put, DeBlase asserts that the Act, which grants an immunized witness use and derivative use immunity, offers insufficient safeguards in exchange for the considerable protection guaranteed under Article I, Section 9 of the Pennsylvania Constitution which the immunized witness is forced to forsake. DeBlase acknowledges that the United States Supreme Court has upheld use and derivative use immunity as sufficient protection under the Fifth Amendment to the United States Constitution in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). He argues, however, that the Pennsylvania Constitutional protection is broader and can only be satisfied by a grant of transactional immunity. 5

We begin our analysis of this issue by setting forth our standard of review. Duly enacted legislation carries with it a strong presumption of constitutionality. Commonwealth v. Parker White Metal Co., 512 Pa. 74, 515 A.2d 1358 (1986). The presumption of constitutionality will not be overcome unless the legislation is clearly, palpably, and plainly in violation of the constitution. Commonwealth v. Blystone, 519 Pa. 450, 549 A.2d 81 (1988), aff'd Blystone v. Pennsylvania, 494 *509 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990). Further, as to the specific claim that the Pennsylvania Constitution provides greater protection than the United States Constitution, this Court stated in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), that when reviewing such a claim

[hjere in Pennsylvania, we have stated with increasing frequency that it is both important and necessary that we undertake an independent analysis of the Pennsylvania Constitution, each time a provision of that fundamental document is implicated. Although we may accord weight to federal decisions where they “are found to be logically persuasive and well reasoned, paying due regard to precedent and the policies underlying specific constitutional guarantees,” Commonwealth v. Tarbert, 517 Pa. 277, 283, 535 A.2d 1035, 1038 (1987), quoting, Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L.Rev. 489, 502 (1977), we are free to reject the conclusions of the United States Supreme Court so long as we remain faithful to the minimum guarantees established by the United States Constitution.

Edmunds, 526 Pa. at 389-390, 586 A.2d at 894-895.

Having properly established the degree of scrutiny under which we must consider the arguments raised, we find that the four-pronged method of analysis established in Edmunds to be the most thorough manner of accomplishing our task. 6 Accordingly, we will begin our analysis with a review of the text of the constitutional provision at issue, the history of that provision as related through legislative enactments and prior decisions of this Court, related case law from our sister states, and finally, policy considerations which include matters unique to our Commonwealth. Edmunds, 526 Pa. at 390, 586 A.2d at 895.

*510 I. Text

Article I, Section 9 reads as follows, with the phrase at issue highlighted:

In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land. The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself.

The privilege against compelled self-incrimination has been included in the Pennsylvania- Constitution since 1776. The original provision in the 1776 Constitution was worded “no man can be compelled to give evidence against himself.” Although the language was slightly modified between 1790 and 1838, the alteration was stylistic only, and the phrase has read as highlighted since 1838.

The last sentence of Section 9 which speaks to the use of suppressed confessions was added to the Constitution in 1984. The legislative debate which culminated in this amendment reveals that the amendment was a response to the decision of this Court in Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975). In Triplett, this Court interpreted Article I, Section 9 to afford greater protection than the Fifth Amendment of the United States Constitution. Specifically, Triplett held that an accused could not be impeached by his own statements, even though voluntary, when the statements had been suppressed.

The holding in Triplett was in direct contradiction to the holding of the United States Supreme Court in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). In *511 Triplett, just as in Harris, the accused had made statements upon arrest which were suppressed on the basis that he had not been given his Miranda warnings. During the Harris trial, the accused took the stand and testified in a manner inconsistent with the earlier suppressed statements. The prosecution then used the suppressed statements to impeach the credibility of the accused. On appeal, Harris argued that the use of the impeached statements violated his Fifth Amendment right against self-incrimination. The United States Supreme Court disagreed, stating that “[t]he shield provided by Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ] cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” Harris, 401 U.S. at 226, 91 S.Ct. at 646.

This Court rejected Harris and found that the protection of Article I, Section 9 was more expansive. In Triplett, we held that once a statement has been found constitutionally infirm it could not be utilized against the accused. In direct response to Triplett, the 1984 amendment to Article I, Section 9 was adopted. 7 Of particular significance in the process of passing the amendment is this passage taken from the Senate debate; the Speaker is Senator Greenleaf who proposed the bill which ultimately became the 1984 amendment:

Mr. President, Senate Bill No. 496 is in support of and in conformance with the United States Supreme Court decision of Harris v. New York in which the majority opinion held that it is not a violation of the United States Constitution to introduce a previously suppressed voluntary statement of a defendant to impeach his credibility once he takes the stand. They reasoned to allow otherwise would allow legalized perjury.

*512 The Pennsylvania Supreme Court, ultimately, in the Triplett case, came down with a different decision and found that such a procedure was a violation of the Pennsylvania Constitution, although the United States Supreme Court, as I indicated before, has found that it was not a violation of the United States Constitution.

A review of both provisions would indicate that they are almost identical and that it was really a difference of philosophy rather than a difference in law.

Mr. President, I think it is incumbent upon this Legislature to rectify this wrong.

Legislative Journal-Senate, S.B. 496, p. 790, June 9, 1981.

In drafting the 1984 amendment, the legislators intended to ensure that the protection against self-incrimination under Article I, Section 9 would be interpreted similarly to the Fifth Amendment of the United States Constitution which states: “No person ... shall be compelled in any criminal case to be witness against himself.” A comparison of the actual language in Article I, Section 9 and the Fifth Amendment does not reveal any major differences in the description of the privilege against self-incrimination within the two Constitutions: As the words themselves are not persuasive of either interpretation on the issue at bar, we turn to the prior decisions of this Court which interpreted the right against self-incrimination as contained within the Pennsylvania Constitution.

II. History

In reviewing the history of Article I, Section 9 we find that the earliest decisions of this Court considering the scope of the right against self-incrimination under our Constitution extended the privilege to protection of a citizen’s reputation: In Commonwealth v. Gibbs, 3 Yeates 429 (1802), this Court found that the privilege must be broadly interpreted to include not only answers which would incriminate the witness in criminal conduct, but also to protect the witness from answering any *513 questions which would bring him into “disgrace or infamy.” Id. at 437.

This concept of protection to reputation was again addressed by the Court in Lessee of Galbreath v. Eichelberger, 3 Yeates 515, in 1803. Galbreath was concerned with a fraudulent transfer of title which had allegedly taken place in order to avoid a creditor. When faced with questions regarding the transfer, the witness asserted his protection against self-incrimination. The Court agreed that the witness could not be compelled to answer, even though the information probably would not result in a criminal indictment, but because the nature of the accusation was “nefarious and immoral, and would subject every person concerned in it to ignomy and contempt.” Id. at 516.

Although Gibbs and Galbreath interpreted Article I, Section 9 to include protection from incriminating information that would damage reputation, they did not address the question of whether an immunized witness would be required to forsake the constitutional privilege and answer questions exposing him to “ignomy and contempt.” It was not until after the United States Supreme Court decision in Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892), that this Court addressed the question of immunity in relation to the privilege against self-incrimination.

In Counselman, the United States Supreme Court rejected a federal statute which conferred only use immunity as being an insufficient substitute for the privilege guaranteed under the Fifth Amendment. In reaching its decision, the Counsel-man Court reviewed the language of various state constitutions containing similar guarantees against self-incrimination, including the Pennsylvania Constitution. Counselman, 142 U.S. at 565, 12 S.Ct. at 199. The Court concluded that any differences in the language of the provisions themselves as between the various states and the federal constitution were irrelevant as the “manifest purpose” of all of the constitutions examined was the same, to protect the witness

*514 “from being compelled to disclose the circumstances of his offense, the sources from which, or the means by which, evidence of its commission, or of his connection with it, may be obtained, or made effectual for his conviction, without using his answers as direct admission against him.”

Counselman, 142 U.S. at 585,12 S.Ct. at 206, quoting Emery’s Case, 107 Mass. 172, 182 (1871).

The Court then went on to conclude that a statutory grant of immunity, in order to be valid as against the Fifth Amendment, “must afford absolute immunity against future prosecution for the offense to which the question relates.” Counselman, 142 U.S. at 586, 12 S.Ct. at 206. In the wake of Counselman, only those legislative grants of immunity which compelled testimony from a witness in exchange for transactional immunity were found to be valid. See Petition of Specter, Riccobene Appeal, 439 Pa. 404, 268 A.2d 104 (1970).

Thus, from 1892 until 1978, Pennsylvania recognized only transactional immunity as a sufficient exchange for compelling a witness to forsake the privilege against self-incrimination. 8 The courts in Pennsylvania followed the lead of the United States Supreme Court on this issue. In re Falone, 464 Pa. 42, 346 A.2d 9 (1975); Riccobene Appeal, 439 Pa. 404, 268 A.2d 104 (1970); Commonwealth v. Carrera, 424 Pa. 551, 227 A.2d 627 (1967); Commonwealth v. Katz, 414 Pa. 108, 198 A.2d 570 (1964); Commonwealth v. Kilgallen, 379 Pa. 315, 108 A.2d 780 (1954); Commonwealth v. Frank, 159 Pa.Super. 271, 48 A.2d 10 (1946); In re Contempt of Myers, 83 Pa.Super. 383 (1924); In re Kelly, 200 Pa. 430, 50 A. 248 (1901).

*515 The Pennsylvania Legislature also adhered to the dictates of the United States Supreme Court when drafting legislation on the issue of immunity grants for witnesses. Prior to the 1978 revisions, which are at issue in this case, the immunity conferred under the Act was transactional immunity. 9 This shift in the type of immunity authorized by the Act can easily be traced to the United States Supreme Court decision in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

In Kastigar, the United States Supreme Court found use and derivative use immunity to adequately protect the privilege against compulsory self-incrimination contained within the Fifth Amendment. The Court reconsidered its opinion in Counselman and determined that although use immunity offers insufficient protection under the Fifth Amendment, transactional immunity offers greater protection than is necessary and thus concluded that use and derivative use immunity would thereafter be sufficient.

We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being “forced to give testimony leading to the infliction of ‘penalties affixed to ... criminal acts.’ ” [footnote omitted]. Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecu *516 torial 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.

Kastigar, 406 U.S. at 453, 92 S.Ct. at 1661. [emphasis in original].

This shift by the United States Supreme Court away from transactional immunity in favor of use and derivative use immunity was commented upon by this Court in In re Falone, 464 Pa. 42, 346 A.2d 9 (1975). In Falone, this Court upheld the grant of transactional immunity provided under the previous version of the present Act with the declaration that:

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, Riccobene Appeal, supra. 439 Pa. at 412, 268 A.2d at 109, and thus is more extensive than necessary to displace the privilege.

Falone at 47, 346 A.2d at 12. Following this Court’s decision in Falone, the immunity statute was revised to its present form wherein transactional immunity was replaced with use and derivative use immunity.

This case presents the first opportunity for this Court to consider the constitutionality of the 1978 revision of 42 Pa.C.S. § 5947. 10 Based upon the above review of our prior cases on the privilege against self-incrimination, and the history of the legislative grant of immunity which impacts upon that privilege, it is clear that Pennsylvania, for the most part, followed the lead of the United States Supreme Court. 11 There are two *517 points at which Pennsylvania could be said to have deviated from the lead of the United States Supreme Court.

First, Pennsylvania has always interpreted the protection afforded an individual under the self-incrimination clause of Article I, Section 9 to extend to questions which would damage the reputation of the witness. See Gibbs and Galbreath. However, the testimony at issue in Gibbs and Galbreath was not compelled from the witness under a grant of immunity: thus, the relevancy of those decisions to the issue at bar is questionable. 12

The second departure from the lead of the United States Supreme Court occurred in the decision in Commonwealth v. Triplett. Triplett, however, was specifically overruled by the 1984 Constitutional Amendment to Article I, Section 9.

Having reviewed our prior case law, it comes as little surprise that Pennsylvania followed the decisions of the United States Supreme Court in the area of immunity. Through its decisions the United States Supreme Court set the minimum level of protection guaranteed by the Declaration of *518 Rights, under which the states must not fall. See Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983). Up until the Kastigar decision in 1972, the United States Supreme Court afforded the most extensive protection available to a witness being compelled to testify: transactional immunity. Thus, the states had no ability to provide greater protection under their own constitutional provisions of like character because the law could provide no greater protection. Therefore, a review of what our sister states have decided on the issue of self-incrimination and legislative grants of immunity since Kastigar would be most instructive.

III. Related Case Law from other States

Turning to our sister states, we find that they are evenly split on the issue of whether their state constitutions afford protection against compulsory self-incrimination greater than the Fifth Amendment in the wake of Kastigar. The six states that have rejected Kastigar and found their constitutions to require transactional immunity are South Carolina, State v. Thrift, 312 S.C. 282, 440 S.E.2d 341 (S.C.1994); Alaska, State v. Gonzalez, 853 P.2d 526 (Alaska 1993); Mississippi, Wright v. McAdory, 536 S.2d 897 (Miss.1988); Oregon, State v. Soriano, 68 Or.App. 642, 684 P.2d 1220 (1984); Massachusetts, Attorney General v. Colleton, 387 Mass. 790, 444 N.E.2d 915 (1982); and Hawaii, State v. Miyasaki, 62 Haw. 269, 614 P.2d 915 (1980). 13

*519 In each of the cases cited, the state courts, relying upon their constitutional self-incrimination clauses, rejected legislation that had been developed post-Kastigar replacing transactional immunity with use/derivative use immunity. South Carolina and Alaska found the protection of use/derivative use immunity to be too cumbersome to enforce, citing the practical problems in determining whether or not later prosecutions stemmed from the immunized testimony. Thrift, 440 S.E.2d at 350; Gonzalez, 853 P.2d at 530. Mississippi had the same practical reasons for rejecting Kastigar as South Carolina and Alaska. Mississippi more bluntly phrased the problem as being one of having to rely upon the good faith of the prosecutor in use/derivative use situations. The Wright Court concluded:

When a prosecutor decides to grant immunity to a witness such as John Wright — and thus strip that witness of his right to remain silent, he must be prepared to make final peace with that witness, subject only to a possible perjury charge. To assure that this be so, we hold that Article 3, Section 26 of the Mississippi Constitution requires a transactional immunity grant.

Wright,