Com. v. Johnson

• Decision Date: 30 October 1990
• Citation: 582 A.2d 336,399 Pa.Super. 266
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Leonard JOHNSON.
• Court: Pennsylvania Superior Court

Page 336

582 A.2d 336

399 Pa.Super. 266

COMMONWEALTH of Pennsylvania, Appellant, v. Leonard JOHNSON.

Superior Court of Pennsylvania.

Argued June 21, 1990.

Filed Sept. 17, 1990.

Reargument Denied Oct. 30, 1990.

Laurie Magid, Asst. Dist. Atty., Philadelphia, for Com., appellant.

Luther E. Weaver III, Philadelphia, for appellee.

Before ROWLEY, McEWEN and JOHNSON, JJ.

ROWLEY, Judge:

On the basis of testimony given by appellee Leonard Johnson in a personal injury action, the Commonwealth of Pennsylvania, appellant herein, charged appellee with two counts of perjury, 18 Pa.C.S. § 4902, two counts of false swearing in official matters, 18 Pa.C.S. § 4903(a), and one count of tampering with or fabricating physical evidence, 18 Pa.C.S. § 4910. In response to a motion in limine filed by appellee, the trial court barred the Commonwealth from introducing into evidence expert testimony that, based on the results of ink analysis, two pages of handwritten notes referred to by appellee during the trial could not have been written in 1979, as appellee testified they were. In this appeal, the Commonwealth contends that the trial court abused its discretion in granting the motion in limine. For the reasons set forth below, we reverse the order of the trial court and remand for further proceedings.

This case had its origin in the 1985 civil trial of Bolton v. Southeastern Pennsylvania Transportation Authority, No. 4895 July Term 1981, an action brought by Yvonne Bolton to recover damages for injuries allegedly suffered as the result of a 1979 accident involving a trolley operated by the Southeastern Pennsylvania Transportation Authority (SEPTA). During discovery, SEPTA issued a subpoena for all of the medical records maintained on Ms. Bolton by appellee, her treating physician.

At trial appellee referred to several pages of notes that he had allegedly written after Ms. Bolton's visits to his office in 1979. The notes indicated that in her early visits Ms. Bolton had complained of lower back pain. According to the Commonwealth, these notes had not been included in the records supplied by appellee in response to SEPTA's subpoena, and the office report included in the records supplied to SEPTA made no reference to complaints of lower back pain during Ms. Bolton's early visits to appellee.

Later in the trial, SEPTA called as a witness Albert Lyter, a forensic consultant whose specialty was document analysis. Mr. Lyter testified that two of the pages of handwritten notes could not have been written before January 1984. This could be determined, he explained, because Formulabs, the manufacturer of the ink with which the notes were written, had added a different chemical "tag" to its ink every year since 1979, and the ink on the pages in question contained the tag that had been added to ink manufactured in 1984.

As the result of Albert Lyter's testimony, the Commonwealth charged appellee with perjury, false swearing in official matters, and tampering with or fabricating physical evidence. At the preliminary hearing, the Commonwealth offered the testimony of Mr. Lyter and of counsel for SEPTA in the Bolton case. After considering the evidence offered at the preliminary hearing, the trial court dismissed the charges against appellee. Appellee was later re-arrested on the same charges, and the Commonwealth notified the defense of its intention to present expert testimony concerning the ink used by appellee to write the notes.

Appellee then filed an omnibus pretrial motion, which included a motion in limine asking the court to rule that the Commonwealth's expert testimony was inadmissible. At a hearing on the motion, the Commonwealth offered the testimony of two experts, Richard Brunelle and Dr. Antonio Cantu, concerning the reliability and acceptance in the scientific community of ink analysis as a method of dating ink. On May 18, 1989, the trial court entered an order, accompanied by findings of fact and conclusions of law, granting appellee's motion in limine. The Commonwealth's subsequent motion for reconsideration was denied, and this timely appeal followed.

The Commonwealth has certified, pursuant to Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), that the court's order substantially handicaps its prosecution of appellee. Because the effect of the court's order was to suppress the testimony at issue, we conclude that the present appeal is properly before us. See Commonwealth v. Deans, 388 Pa.Super. 521, 565 A.2d 1230 (1989) (trial court granted motion in limine in part, thereby suppressing expert testimony, and this Court entertained Commonwealth's appeal after certification pursuant to Dugger).

A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered. L. Packel & A.B. Poulin, Pennsylvania Evidence § 103.3 (1987). This Court has reviewed rulings on motions in limine by applying the scope of review appropriate to the particular evidentiary matter at issue. Commonwealth v. Laskaris, 385 Pa.Super. 339, 351-53, 561 A.2d 16, 22-23 (1989). With regard to the type of evidence at issue here, our Supreme Court has held that

expert opinion testimony is proper only where formation of an opinion on a subject requires knowledge, information, or skill beyond what is possessed by the ordinary juror. As stated in Commonwealth v. Leslie, 424 Pa. 331, 334, 227 A.2d 900, 903 (1967) (quoting Commonwealth v. Nasuti, 385 Pa. 436, 443, 123 A.2d 435, 438 (1956)), " 'Expert testimony is admissible in all cases, civil and criminal alike, when it involves explanations and inferences not within the range of ordinary training, knowledge, intelligence and experience.' "

Commonwealth v. Seese, 512 Pa. 439, 442, 517 A.2d 920, 921 (1986). The decision to admit or refuse expert testimony lies within the sound discretion of the trial court, whose decision will not be reversed absent a clear abuse of that discretion. Commonwealth v. Emge, 381 Pa.Super. 139, 141, 553 A.2d 74, 74 (1988).

Appellee argued to the trial court, and argues on appeal, that 1) ink analysis does not meet the legal standard of admissibility in Pennsylvania, and 2) owing to the "two-witness rule," perjury cannot be proved by opinion testimony. The majority of the trial court's thirty-four findings of fact dealt with the experts' qualifications and their testimony concerning ink analysis, and the court expressed concern that "the process required to prove the falsity of Dr. Johnson's notes lies in the hands of only a select group of individuals throughout this country, most of whom were trained by or who follow the procedures outlined by Mr. Brunelle" (Trial Court Opinion at 11-12). However, the court decided the motion on the basis of the second issue rather than the first and did not decide whether ink analysis meets the legal standard of admissibility in Pennsylvania.

The trial court's ruling presents a procedural problem that must be addressed. In its initial brief on appeal, the Commonwealth--understandably, in light of the trial court's failure to rule on the ink analysis issue--challenged only the trial court's interpretation and application of the "two-witness rule." In his brief on appeal, appellee not only supported the trial court's ruling on that issue but also argued that ink dating is not a recognized area of expertise in Pennsylvania. The Commonwealth then addressed the ink analysis issue in a reply brief, which was followed by a reply brief for appellee. However, despite the extensive discussion of the ink analysis issue by the parties, we, as a reviewing court, decline to assume the role of factfinder by making an initial ruling on the issue. Accordingly, the admissibility of ink analysis is a matter that remains to be decided by the trial court, if and when the issue is raised on remand.

With this understanding, we turn to the trial court's opinion. Section 4902(f) of the perjury statute, 18 Pa.C.S. § 4902(f), states that

"[i]n any prosecution under this section, except under subsection (e) of this section [perjury based on inconsistent statements under oath], falsity of a statement may not be established by the uncorroborated testimony of a single witness."

According to the trial court,

the "corroboration" section of the statute is the codification of case law's "two witness rule", which protects a defendant by requiring that there be testimony of at least two witnesses to prove the falsity of the matter on which the perjury is assigned, or one witness and corroboration. Commonwealth v. Russo, 388 Pa. 462, 464, 131 A.2d 83, 86 (1957). The "two witness rule" was later refined in Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313, 322 [ (1981) ], in that corroboration ["]may be accomplished by the direct testimony of two witnesses or by direct testimony of one witness plus corroborating evidence."

Trial Court Opinion at 13. Because expert testimony is opinion only, not proof of a fact, the court held, it does not substitute for direct or factual testimony and therefore cannot satisfy the corroboration requirement of § 4902(f). ¹

In response, the Commonwealth contends that the "two-witness rule" is not applicable where, as here, the evidence consists of proof in the form of documents. In any event, the Commonwealth argues, the rule prescribes only the necessary quantity, not the quality, of evidence. Thus, it does not prohibit the use of opinion evidence in a perjury prosecution.

As this Court explained in Commonwealth v. Broughton, 257 Pa.Super 369, 390 A.2d 1282 (1978), the crime of perjury has traditionally been subject to special requirements of proof. Id. at 373, 390 A.2d at 1284. Case law accompanying the previous perjury statute, Act of June 24, 1939, P.L. 872, § 322, 18 P.S. § 4322, held that "[t]he two-witness rule, as it is applied in Pennsylvania, requires that the falsity element of a perjury conviction be supported either by the...