¶1concurring and dissenting.
¶2I join the concurring and dissenting opinion authored by Judge Hudock and its reasoning that the testimony in question was not admissible by virtue of the Fifth Amendment of the United States Constitution. I write separately, however, to remark on the statement made in the majority opinion on page eight in footnote one which claims that the Pennsylvania constitutional right against self-incrimination found at Article 1, Section 9 is coextensive with the federal right.
¶3The Majority and the Dissent rely on a footnote in Commonwealth v. Marra, 527 Pa. 526, 594 A.2d 646 (1991) which makes that statement citing Commonwealth v. Carrera, 424 Pa. 551, 227 A.2d 627 (1967). The difficulty with relying on that footnote is twofold. First, in the Marracase, the issue of the application of the privilege was held not to be before the Court. Second, Carreradid not make such a pronouncement. Rather, while the court in Carrerareferred to the privilege existing in both the state and federal constitutions, it discussed the application of the Fifth Amendment right as now applying to both federal and state proceedings, the latter by virtue of the Fourteenth Amendment.
¶4To claim that these state and federal rights are coextensive ignores other important considerations. First, in D’Elia v. Pennsylvania Crime Commission, 521 Pa. 225, 555 A.2d 864 (1989) our Supreme Court analyzed the question of use and derivative use immunity by a non-legislative, non-administrative body. Its analysis focused solely on our state’s constitutional protection, and the court stated: “Nor have we held that for all purposes Article 1, Section 9 and the Fifth Amendment are co-extensive.” Id.at 286 ftn. 1, 555 A.2d 864.
¶5Further, while the Federal constitution establishes certain minimum levels of protection below which the states cannot go, the states may offer greater protections to their citizens. More particularly, where a state constitutional right has been held to be coextensive with a federal right as then defined, it does not follow that a subsequent reevaluation of that right by the United States Supreme Court which has the effect of limiting the right, requires continued co-extensive application.
¶6In Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) our Supreme Court established the method of reaching and deciding Pennsylvania Constitutional issues. That methodology has not and need not be utilized in the matter before us. However, under these circumstances, we should refrain from any expression of opinion on the application of the Pennsylvania Constitution.