LARSEN, Justice, dissenting.

Because of the denial to the investigating grand jury, by the majority, of the ability to safeguard an individual against possible abuse of its awesome powers by the prosecution, and because of misrepresentations by the majority as to the record in this case, I dissent.

On June 22, 1979, the Honorable David N. Savitt, Court of Common Pleas of Philadelphia County, accepted for submission to the June 1, 1979 Investigating Grand Jury of Philadelphia County an investigation into alleged tampering with water pollution monitoring and sampling equipment at Mrs. Paul's Kitchens, Inc. (Mrs. Paul's). After 15 months of investigation, the grand jury issued a presentment against, inter alia, Richard Drapczuk, petitioner herein, David Bohannon and Richard Wolf, petitioners at Nos. 184 and 187 E.D.Misc.Dkt. 1981, recommending that each be charged with theft of services ( 18 Pa.C.S.A. § 3926), unsworn falsification ( 18 P. S. § 4904), obstructing the administration of law ( 18 Pa.C.S.A. § 5101), conspiracy ( 18 Pa.C.S.A. § 903), and corrupt organizations ( 18 Pa.C.S.A. § 911). Following five days of preliminary hearing, petitioners were held over for court on these charges on March 9, 1981.

Petitioner Drapczuk, whose trial was scheduled for June 8, 1981, was subpoenaed before the grand jury on February 23, 1981, ostensibly to inquire about possible involvement in the alleged conspiracy by Drapczuk's superiors. He presented a motion to quash the subpoena to Judge Savitt, the supervising judge of the grand jury, which motion was denied on March 26, 1981. Having been informed of Drapczuk's intention to refuse to testify before the grand jury on self-incrimination grounds, the Commonwealth petitioned Judge Savitt for a grant of immunity pursuant to section 5947 of the Judicial Code, 42 Pa.C.S.A. § 5947, which petition was granted on March 30, 1981 over petitioner's objection.

After being sworn before the grand jury on that same day, Drapczuk read a prepared statement to the jury in which he declined to answer any questions. His reasons set forth in that statement were, essentially, that the immunity order of Judge Savitt was, under the facts of his case, insufficient to safeguard his Fifth Amendment privilege against self-incrimination because of prior abuse by the same prosecutors of grand jury testimony in a criminal trial also stemming from the Mrs. Paul's investigation (in the case of one Gary Zanecosky). The statement explained to the grand jury its obligation to protect the individuals who come before it from such asserted abuse, and requested the grand jury to refuse to ask questions and to refuse to obtain the initiation of contempt proceedings against him. After refusing to answer questions propounded by the prosecutor, Drapczuk and his counselor left the grand jury room while the grand jury presumably discussed Drapczuk's statement with the prosecutors. (Although the court stenographer apparently recorded the discussion between the prosecutors and the grand jury, the record of the contempt proceeding does not disclose what actually transpired before the grand jury after Drapczuk left the room.)

A contempt proceeding was then held before Judge Savitt, also on March 30th. At this hearing, counsel for Drapczuk attempted to make a record concerning the grand jury deliberations while she and her client were outside of the grand jury room. Her offer of proof was that the record would reveal whether the grand jury had requested the prosecutor to obtain the initiation of contempt proceedings, arguing that without such a request it was improper for the court or the prosecutor to initiate a contempt proceeding under section 4548 of the Investigation Grand Jury Act, (the Act) 42 Pa.C.S.A. § 4548, (formerly 19 P. S. § 265-278 (Supp. 1980-81), Act of Nov. 22, 1978, P.L. 1148, No. 271).

Judge Savitt declined counsel's offer, stating "frankly, I'm not concerned with what the grand jury wants as far as this witness is concerned." The court then found Drapczuk in contempt of court and ordered him confined to the county jail until he purged himself of his contempt by agreeing to testify before the grand jury or until the grand jury expired (scheduled expiration date was May 30, 1981). The judgment of contempt was stayed by this Court pending determination of the instant petition.

Petitioner comes before this Court and asks us to find that the lower court erred in adjudicating him in contempt of court, and seeks reversal of the judgment of contempt. This petition raises the issue, whether under the Investigating Grand Jury Act, the record must disclose that the grand jury "obtain[ed] the initiation of contempt proceedings" before a witness may be adjudicated in contempt of court. I would answer this issue in the affirmative and would hold that the record fails to make the requisite disclosure. Accordingly, I would reverse the judgment of contempt.

The Act delineates the powers and structure of the grand jury, the roles to be played by the supervising judge and the attorneys for the Commonwealth and for the witness and the procedures to be followed in grand jury proceedings. 42 Pa.C.S.A. § 4548 sets out the powers of the investigating grand jury:

(a) The investigating grand jury shall have the power to inquire into offenses against the criminal laws of the Commonwealth. . . . Such power shall include the investigative resources of the grand jury which shall include but not be limited to the power of subpoena, the power to obtain the initiation of civil and criminal contempt proceedings, and every investigative power of any grand jury of the Commonwealth. . . . (emphasis added).

"Investigative resources of the grand jury" is defined as follows:

The power to compel the attendance of investigating witnesses; the power to compel the testimony of investigating witnesses under oath; the power to take investigating testimony from witnesses who have been granted immunity; the power to require the production of documents, records and other evidence; the power to obtain the initiation of civil and criminal contempt proceedings and every investigative power of any grand jury of the Commonwealth. 42 Pa.C.S.A. § 4542 Definitions (emphasis added).

The Act does not specify whether the supervising judge, acting either sua sponte or upon the motion of the attorney for the Commonwealth, may initiate contempt proceedings. I would conclude that no such action may be commenced absent a request by the investigating grand jury.

Initially, the only mention made in the Act of the contempt powers of the supervising judge is in a very narrow context. Section 4549, investigating grand jury proceedings, provides in subsection (c)(3) that a witness is permitted to have counsel present in the grand jury room during questioning, but does not permit counsel to address the jury or to make objections or arguments. The supervising judge has the same power to remove such counsel as a judge has with respect to an attorney in any proceeding. The subsection then provides "[v]iolation of this subsection shall be punishable as contempt by the supervising judge." (emphasis added). The Act seems to be designed, therefore, to grant the power to control recalcitrant witnesses to the grand jury, while reserving for the supervising judge the powers he has in all other proceedings to control the conduct of the attorneys by the contempt sanction.

This repose of contempt power over the witness in the grand jury is necessary to maintain in good working order a traditional and essential function of the grand jury — the protection of the individual against the sometimes awesome power of the investigating grand jury. The grand jury must perform the dual functions of "determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions." Branzburg v. Hayes, 408 U.S. 665, 687-88, 92 S.Ct. 2646, 2659-60, 33 L.Ed.2d 626 (1972). As was stated in Wood v. Georgia, 370 U.S. 375, 390, 82 S.Ct. 1364, 1373, 8 L.Ed.2d 569 (1962):

Historically, this body has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.

The investigating grand jury can — and must — serve as a buffer between the government and the individual, and must attempt to balance the interests of society in effective investigative techniques against the interests and rights of the individual as guaranteed by the Constitutions of the United States and this Commonwealth.

The courts must preserve this balance, taking care to ensure that neither side be elevated to a position of importance above the other. When a witness is called before the grand jury and compelled by a grant of immunity to give testimony against his desire to remain silent, the potential damage to the Fifth Amendment privilege must trigger close scrutiny of the proceedings. See generally In re: County Investigating Grand Jury of June 1, 1979: Appeals of Bohannon and Wolf, 495 Pa. 211, 433 A.2d 18 (1981) (Larsen, J., dissenting).

This Court has stated, in Commonwealth v. Brady, 470 Pa. 420, 424-25, 368 A.2d 699 (1977):

The Fifth Amendment thus defines the relationship between the government and the citizenry. It serves the function in our constitutional democracy of balancing the privacy and dignity of the individual with the power of the government to obtain testimony. While it may generally be asserted that the public "has the right to every man's evidence," that right is clearly limited by and subject to the Fifth Amendment. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892).

It has been recognized, however, that a grant of immunity may "supplant" the Fifth Amendment privilege, provided that it is coextensive with that privilege. This principle is premised upon the view that immunity leaves the witness and the government in substantially the same position as if the witness had claimed his privilege. See, e. g., Kastigar v. United States, 405 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1971); Counselman v. Hitchcock, supra. While we recognize that immunity can be a valuable prosecutorial tool, we must also consider, however, that it constitutes an extraordinary exercise of power. It cannot be denied that a grant of immunity authorizes and even encourages interrogation which would otherwise be prohibited by the Fifth Amendment. Therefore, if a grant of immunity is to erase the line drawn by the privilege between government and citizen, it must be done so with the utmost care, and with the least possible infringement of Fifth Amendment rights. (emphasis added).

This Court's concerns in Brady are amplified herein. The petitioner read statements to the grand jury indicating that its powers had been abused — by the same attorneys for the Commonwealth who were still "guiding" the grand jury — by the misuse of supposedly immunized grand jury testimony of a previous witness/defendant. In light of these assertions, and given the "extraordinary exercise of power" in the use of immunity before an investigating grand jury as an investigative tool, it was incumbent upon the attorney for the Commonwealth and the supervising judge to allow the grand jury a meaningful opportunity to consider petitioner's statement and request, and to decide whether to proceed with the questioning of the witness. Accordingly, I would hold that, before a supervising judge can find a witness in contempt of court for failure to testify before an investigating grand jury, it must appear on the record that the grand jury had requested the initiation of contempt proceedings.

As stated before, counsel had attempted, at the contempt proceeding, to discover the substance and outcome of the grand jury's deliberations after she and Drapczuk had left the grand jury room. The supervising judge refused, however, to permit such inquiry as he was "frankly . . . not concerned with what the grand jury wants. . . ." Since the record is devoid of any indication that the grand jury had requested the Commonwealth attorneys to obtain the initiation of contempt proceedings, it was improper to hold Drapczuk in contempt of court.

In part II of the majority opinion, the majority express their concern with a perceived conflict between the above interpretation of the Act and the "realties" of an investigating grand jury proceeding as reflected in the procedures adopted by this Court in Robert Hawthorne, Inc. v. County Investigating Grand Jury, 488 Pa. 373, 412 A.2d 556 (1980). The conflict vanishes upon consideration of the differences between a proceeding on a motion to quash a subpoena and a hearing on a charge of contempt.

The contempt hearing was held to determine whether petitioner had refused to answer questions of the grand jury on the basis of the privilege against self-incrimination despite the grant of immunity. The statement which petitioner read to the grand jury (which the majority opinion does not even mention) requested the grand jury to refuse to ask any further questions because of prior abuse of its powers. Counsel for petitioner attempted to discover, at the contempt hearing, whether the grand jury had responded to petitioner's request favorably, but was met with the supervising judge's steadfast refusal to allow her to make a record on this point. Under my interpretation of the Act, the grand jury's refusal to ask further questions would render the ruling on the motion to quash moot, as there would have been, therefore, no refusal to answer.

As the majority notes, a preliminary hearing on the motion to quash the subpoena under Hawthorne is to determine whether the information sought from the witness is relevant to an investigation properly within the grand jury's jurisdiction and whether the information is not sought primarily for another purpose. Id., 488 Pa. at 382-83, 412 A.2d at 560-61. These issues were not before the court at the contempt hearing (as discussed above). It is misleading, therefore, for the majority to assert that "petitioner impermissibly seeks to avoid review by this Court of the validity of the subpoena based on the standards adopted in Hawthorne." The "standards adopted in Hawthorne" are simply not germaine to the determination of the validity of the judgment of contempt.

The majority attempts to buttress its argument by criticism of petitioner's so-called " 'presumption' that a grand jury does not intend its subpoenas to be enforced." This is a bogus argument as petitioner never offers such a presumption, either explicitly or implicitly. The petitioner asks, instead, that the grand jury which has issued a subpoena should be given an opportunity to change its mind when confronted with evidence of prosecutorial abuse of its powers. "Common sense" does not dictate that a grand jury will be deaf and dumb to allegations of such abuse. The majority seems to believe the subpoena has been carved in stone, unalterable for all eternity.

The majority also utters the "presumption of regularity [which] attaches to the grand jury's proceedings" as the magic charm which will scare away the spectre of prior grand jury abuse. Since the majority chooses to ignore the salient facts regarding the irregularity of the grand jury proceedings because of prior grand jury abuse, it is predisposed to stand pat on asserted "presumptions." While invocation of such legal chants as "presumption of regularity" must be soothing to the majority, it has apparently dulled their senses to the fact of irregularity; in effect, the majority has fashioned an irrebuttable presumption of the regularity of grand jury proceedings despite evidence which shatters that presumption.

In part III, the majority takes a wholly unprecedented and dangerous tack. Part III is a disingenuous attempt by the majority to sua sponte create a new record. The majority states "petitioner Drapczuk's argument that the order adjudging him in contempt of court should be reversed because of an asserted void in the record regarding the desire of the grand jury to hear his testimony is defeated by the grand jury's own words." Incredibly, the majority fills the "void" in the record with the asserted "words" of the grand jury spoken some two months after the adjudication of contempt.

The "grand jury's own words" were apparently contained in a final report which, according to the majority, evince a desire "to hear [petitioner's] testimony" which desire the majority implicitly suggests is equivalent to a desire to obtain the initiation of contempt proceedings against petitioner. Presumably, this final report, which the majority characterizes as a "public record", was filed with the prothonotary of the Court of Common Pleas of Philadelphia County (see 42 Pa.C.S.A. § 4552(b). By no stretch of existing authority can resort to such matters which are totally dehors the record be countenanced, especially where, as here, these matters have never been brought to the attention of the court by any of the parties to the litigation.

There should be no need to remind the majority what constitutes the "record" before an appellate court. The Rules of Appellate Procedure, Pa.R.A.P. 1921, provide:

Composition of Record on Appeal

The original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases. (emphasis added).

Rule 1921 is in accord with the common law usage of the word "record" for appellate purposes, and is intended as a codification of prior practice. See Note Pa.R.A.P. 1921. (The note states "An appellate court may consider only the facts which have been duly certified in the record on appeal. Commonwealth v. Young, 456 Pa. 102, 115, 317 A.2d 258, 264 (1974).")

Indeed, the prior practice was, and is, so firmly established that the principle — that an appellate court will consider only the official record of what has occurred in the proceedings before the lower tribunal and upon which that tribunal has premised its determination — has been referred to at various times as "black letter"; "axiomatic," "fundamental", and the "absolute rule."

In Commonwealth v. Young, supra, the appellant had argued that the trial court's charge to the jury was inadequate. The judge asserted in his opinion that, although the charge on the official record was concededly inadequate, he had also read a more complete, sufficient charge from a xeroxed copy of an approved charge that he kept in his desk. Justice Roberts spoke for the majority of the Court; he stated:

Appellate review has become such an integral part of our criminal procedure that it may properly be viewed as an extension of the trial itself. (citations omitted). The fundamental tool for appellate review is the official record of what occurred at trial. Only the facts that appear in this record may be considered by a court.

In In re Estate of England, 414 Pa. 115, 200 A.2d 897 (1964), one of the parties attempted to "supplement" the record with certain documents after the appeal had been docketed. Speaking for a unanimous court, Justice Roberts, again, summarily dismissed this attempt, opining: "[i]t is sufficient to observe that the record sought to be suppressed [by appellee] consists entirely of matters not offered before the auditing judge or the court en banc and not made part of the audit proceedings from which this appeal is taken. Therefore, the petition to suppress is granted." Id., 414 Pa. at 122, 200 A.2d at 901.

Kilian v. Allegheny County Distributors, 409 Pa. 344, 185 A.2d 517 (1962) similarly involved attempts by one of the parties to supplement the record with a stipulation as to an amended complaint. The Court stated:

This stipulation will not be considered. The scope of our review on the question under discussion is whether or not the lower court abused its discretion in denying the proposed amendment. That issue must be resolved on the basis of the facts before the lower court and in the record upon the date the court rendered its decision. Clearly, under the facts then present, there was no abuse of discretion. To permit the proposed addition to the record at this late date would be grossly unfair and established a very dangerous precedent. If counsel had filed the stipulation involved in the court below before decision, it would be a horse of another color. The delay was his, as is the responsibility for the resulting consequences. It is fundamental that an appellate court will not consider on appeal a question not raised in the court below. . . . Nor are questions depending upon certain facts available on appeal, where such facts are not in the record. . . .

Id., 409 Pa. at 348-49, 185 A.2d at 518-19. (emphasis added — citations omitted).

In Roth v. Columbia Distributing Co., 371 Pa. 297, 89 A.2d 825 (1952), the plaintiff below appealed the denial of an injunction. After the appeal had been docketed, plaintiff amended the complaint in equity and sought leave to amend the record on appeal in conformance with the amended complaint which had been filed in the prothonotary's office of the lower court. This Court said:

"we do not think enlargement of the record in this court in order to include therein amendments made below subsequent to the taking of an appeal would be justified. . . . orderly procedure requires that the action appealed from stand or fall on the record whereon the court below acted in entering the appealed order or decree." Id., 271 Pa. at 305, 89 A.2d at 828-29 (emphasis added).

The principle embodied in these cases is, indeed, axiomatic. An appellate court is necessarily — and quite properly — confined to the official record which the parties have made before the lower court and which has been certified and transmitted to the reviewing court. On appeal, it is obvious that events that have occurred subsequent to the challenged determination in the lower court cannot be "on the record" nor could such events have any bearing on the validity of the lower court's ruling — that ruling must stand or fall on the record whereon the court below acted in entering the appealed order or decree. Id.

How far will the majority's innovation go? Where the parties in a property dispute fail to introduce a prior deed which they had believed to be irrelevant, can an appellate court which finds that deed relevant then go to the recorder of deeds in the appropriate county and obtain a copy? Where the parties in a civil litigation have failed to include documents demonstrating that certain required notice had been given, is the appellate court permitted to send its staff to the prothonotary and obtain the missing documents? The answers to these questions are obvious — these documents may be "public records" in that they have been filed and/or duly recorded in the proper government office. However, neither such documents, nor the final grand jury report in this case, automatically become part of the record on appeal simply because they are matters of "public record."

This Court cannot — on its own or by motion of a party — permit enlargement of the record by incorporation of subsequent events. Such a practice would produce an administrative nightmare as the record on review would remain open indefinitely, presumably at least until the appellate court rendered its decision. (Perhaps beyond since the parties might petition for reargument on the basis of subsequent events. One must wonder whether the majority's peculiar view of what constitutes a "record" would permit such a practice). The rules of appellate procedure and the overwhelming weight of authority (according to Justice Roberts, the "authorities are legion" in support of the proposition that an appellate court cannot consider anything which is not part of the record. Commonwealth v. Young, supra, 456 Pa. at 115 and n. 15, 317 A.2d at 264 and n. 15.) precludes such openendedness of a record on appeal. How then, can the majority ignore the "black letter" law and stretch out its own resources to create a new record? Is there some perceived distinction between the authority discussed above and the instant proceedings. I think not — the majority would be hard-pressed to advance a distinction with a straight face and any such attempt would be intellectually dishonest.

In the case of Commonwealth v. Robinson, 474 Pa. 313, 378 A.2d 809 (1977), a majority of this Court affirmed per curiam a conviction for criminal contempt. The exact reasons for the contempt did not appear on the transcript of the case, (the stenographer had merely noted "disturbances" at trial) although the trial judge specifically enumerated the instances of contemptuous conduct in its opinion filed eight months later. Despite the fact that the opinion was before this Court and described sufficient evidence to uphold the contempt conviction, Justice Roberts wrote a vigorous dissent (joined by Justice Manderino) wherein he took the majority to task for apparently relying on evidence not on the official record.

Justice Roberts stated:

This Court has held without exception that only facts appearing in the record may be relied upon to support a criminal conviction. (citations omitted). Recently, this Court, reiterated that "we will not consider any question which depends upon facts not contained in the record." (citations omitted).

Accordingly, we have refused to accept assertions of fact contained in opinions of the trial curt where the record was deficient as to these facts. (citations omitted) In [ Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976) (plurality opinion)] . . . [a]lthough we had "no doubt that the court has accurately recited what transpired," id., supra, 466 Pa. at 625, 353 A.2d at 866, we nonetheless discharged the convictions [for contempt] because they were not founded on evidence in the record.

Here, the trial court announced in open court that it was holding appellant in contempt for defying court orders and challenging the integrity of the court. The court could have dictated to the court reporter a description of the contumacious conduct, as the trial court did in Commonwealth v. Patterson, 452 Pa. 457, 308 A.2d 90 (1973). However, it failed to do so. Thus, there is no evidence of record of the disturbances noted by the court reporter which would support appellant's conviction for contempt.

" When a matter is brought to this Court on appeal it necessarily comes before us on a printed record and the litigants are entitled to have their rights adjudicated on the basis of what the record shows and not upon what the court below may intimate or suggest is not shown. If the record in this case is in any way deficient, it is the fault of the trial judge for not having had it truly and fully reflect all material and important trials matters." (emphasis in original).

Commonwealth v. Lofton, 389 Pa. 273, 282, 133 A.2d 203, 207 (1957). Id., 474 Pa. at 317-18, 378 A.2d at 811-12. (emphasis added).

It seems that the concern of Justice Roberts for the absence of evidence on the record to support a judgment of contempt has evaporated into thin air. The final report of the grand jury in the instant case, asserted by the majority to have been filed pursuant to 42 Pa.C.S.A. § 4552, is even further off the record than the trial judge's recitation in his opinion in Robinson of the contumacious behavior supporting that judgment of contempt. Counsel for petitioner attempted to make a record concerning the grand jury's intent but the supervising judge explicitly stated he was not concerned with the desire of the grand jury and, thus, ensured that no indication of the jury's intent would appear on the record.

At the contempt hearing, counsel moved to dismiss the contempt charge on the "ground that the Commonwealth has failed to meet the burden of showing that they are authorized to ask you to hold him in contempt; that they have the authority to make that request." Notes of Testimony, March 30, 1981, 27. The failure of the Commonwealth to make a showing on the record that would sustain their burden of proof cannot be rectified retroactively either at the request of a party or by the sua sponte action of the Court.

Perhaps the most distressing aspect of the majority opinion, in addition to an unwarranted redefinition of "record" and an abolition of Pa.R.A.P. 1921, is the majority's willingness to become an active participant in this litigation. To venture off the record on its own initiative in an attempt to plug a gap in the record caused by the failure of the parties to supply relevant information to the court below or, as here, by a legal ruling of the court preventing such information to come to light, is appalling, especially where the information sought to be subsequently engrafted onto the official record would remain outside the record even if it had been submitted by way of supplemental briefs of a party. Such affirmative manipulation of the proceedings is profoundly disturbing and shocking — it distorts the role of an appellate court as a neutral and unbiased arbiter which is to review the merits of the case in light of the evidence and information which the adversaries have brought before it, not to formulate the evidence in the first instance.

When members of this Court, or their staff, engage in the process of ferreting out information which they deem relevant, not only is the neutral position of the Court destroyed, but the party which is prejudiced by such information is denied due process. Petitioner has had no opportunity to respond to the "final report" of the grand jury. Petitioner might be able to discover errors in the transcript, or point to other portions of the report to refute the inferences which the majority has gleaned from it. (It should be noted that, as the report is not now, and never has been, a part of the record before us, we have only the majority's conclusions as to the inferences raised by that report.) Reasonable men can and do differ on the inferences raised from statements and facts and, for this reason alone, the opportunity to examine the whole report and argue its inferences to this Court must exist. The actions of the majority have denied petitioner that opportunity.

While I do not doubt that a final report of the grand jury has been filed with the prothonotary of the Court of Common Pleas of Philadelphia pursuant to 42 Pa.C.S.A., § 4552, it is not the responsibility, function or privilege of this Court to seek out and utilize such information on its own initiative, without the benefit of the arguments and participation of the parties.