Com. v. Neckerauer
| Decision Date | 10 December 1992 |
| Citation | 421 Pa.Super. 255,617 A.2d 1281 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. John Raymond NECKERAUER, Jr. |
| Court | Pennsylvania Superior Court |
John A. Kopas, III, 1st Asst. Dist. Atty., Fairchance, for Com.
Irving L. Bloom, Greensburg, for appellee.
Before ROWLEY, President Judge, and WIEAND, CIRILLO, OLSZEWSKI, MONTEMURO, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
The Commonwealth appeals from the October 19, 1990 Order granting John R. Neckerauer, Jr.'s Omnibus Pretrial Motion to Quash Information/Petition For Writ of Habeas Corpus and dismissing the charges. Mr. Neckerauer, appellee, had been charged with obstructing administration of law or other governmental function (18 Pa.C.S.A. § 5101), tampering with or fabricating physical evidence (18 Pa.C.S.A. § 4910), hindering apprehension or prosecution (18 Pa.C.S.A. § 5105(a)(3, 5)), and two counts of criminal conspiracy (18 Pa.C.S.A. § 903).
This case resulted from a Pennsylvania State Police investigation of the disappearance of Ada J. Groomes from Scottdale, Pennsylvania, in October 1988. According to the preliminary hearing testimony of Trooper Hill, the State Police contacted many people and conducted interviews. Donald and Ada Groomes owned a 1976 Dodge motor home which Mr. Groomes reported missing on October 26, 1988. Mrs. Groomes was believed to be missing on October 7, 1988, and the motor home was believed to be missing about one day prior to her disappearance. It was very important to locate the motor home because it might provide evidence as a crime scene or provide information as to the whereabouts of Mrs. Groomes. The police used several methods to locate the missing motor home including the dissemination of fliers with a photo of Mrs. Groomes and of the motor home, and the news media was also contacted.
Police initially talked to appellee by telephone regarding the motor home and Mrs. Groomes' disappearance in early November of 1988. Trooper Hill inquired about a garage rental in Uniontown, and they discussed the two one-hundred dollar bills with the name Bud written on them found in Mr. Groomes' truck; appellee's nickname is Bud. Trooper Hill spoke with appellee again in May 1989 at his residence and in the presence of his girlfriend, Linda Gettemy, regarding Mrs. Groomes and the motor home. Both denied having any knowledge of the location of the woman or the motor home. Appellee told Trooper Hill that he was familiar with the motor home since Mr. Groomes parked it in his driveway and lived in it on one occasion when Mr. Groomes left his wife. Based upon information from Mr. Groomes, appellee and his girlfriend told the trooper they believed that Mrs. Groomes was driving the motor home out in Arizona because she had joined some kind of a cult.
At the preliminary hearing, Trooper Taylor testified that, in October 1989, a Mr. Lofstead, from Tampa, Florida, indicated that he was in possession of the motor home involved in the Groomes case. Mr. Lofstead informed the trooper that appellee had driven the motor home to his property and told him that the motor home was being stored there for a friend entangled in a divorce dispute and that the friend did not want his wife to have access to the motor home. After Trooper Taylor obtained information that the motor home on Lofstead's property was in fact the Groomes' motor home, he immediately received a call from appellee explaining that he had been in possession of the motor home and had been given the motor home by Mr. Groomes to use two days prior to the disappearance of Mrs. Groomes. Appellee also stated that he was aware of the location of the motor home since that time. Appellee told Trooper Taylor that prior to bringing the motor home to Florida, he had taken the motor home to Virginia where he was working on a construction site. Trooper Taylor asked appellee why he had not apprised Trooper Hill of the location of the motor home when Hill interviewed him earlier, and appellee responded that Hill had never specifically asked him about the motor home, only about Mrs. Groomes' disappearance.
Trooper Craig also testified at the preliminary hearing that he continued the investigation to Williamsburg, Virginia, where he talked to several people. During an interview, Mr. Shaulis, told the trooper that he worked as a mechanic at the job site where appellee was working. Mr. Shaulis became acquainted with appellee in May of 1988 and he saw appellee with the motor home in October of 1988. Appellee's girlfriend, Ms. Gettemy, was also present on two occasions with the motor home. The trooper proceeded to Fair Oaks Campgrounds in Williamsburg where he spoke with a Ms. Rigleman who informed him that, based on her documents, appellee stored a twenty-six foot Diplomat motor home at the campground from November 19, 1988, until March 23, 1989. Upon contacting Mr. Lofstead in Florida by telephone, Trooper Craig was told that appellee transported the motor home to Lofstead's residence on March 27, 1989. None of the Pennsylvania troopers who testified at the preliminary hearing went to look at the motor home after it was found, and, when the motor home was processed by the Hillsborough Sheriff's Department in Florida, they found no evidence of a crime. Mrs. Groomes has not been located.
The magistrate determined that the Commonwealth had presented sufficient evidence to show that appellee and Linda Gettemy willfully concealed evidence knowing that it was the focal point in a police investigation, and that a prima facie case had been established on the charges filed against the defendants. Appellee then filed the omnibus pretrial motion to quash information/habeas corpus petition which was granted by the trial court based on the identical reasoning applied in Commonwealth v. Gettemy, No. 1139 1/5-4/5, Franks, J. (Fayette Co. 1989), 1 and the Commonwealth appealed the dismissal of the charges. On appeal, the Commonwealth argues that there was sufficient evidence presented to establish a prima facie case with respect to all of the charges against appellee. We affirm in part and reverse in part.
Initially, the Commonwealth submits that providing false answers in response to questions by law enforcement officials is conduct constituting the crime of hindering apprehension or prosecution in violation of 18 Pa.C.S.A. § 5105(a)(5) 2, which states:
(a) Offense defined.--A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime, he:
. . . . .
(5) volunteers false information to a law enforcement officer.
The Commonwealth argues that since false information regarding the location of the motor home was provided by appellee in response to Trooper Hill's questions, that a crime has been made out under the statute.
The Commonwealth disagrees with this court's recent opinion in Commonwealth v. Gettemy, supra, wherein we affirmed the trial court's dismissal of the charges against appellee's girlfriend, Linda Gettemy. In that case, we were presented with an issue of first impression and the Commonwealth raises the very same legal question today, urging us to overrule Gettemy. Ms. Gettemy argued that section 5105(a)(5) did not apply in her case because she did not volunteer the false information to the police as prohibited by the statute. We agreed with this contention and found it necessary to consider the legislative intent to ascertain exactly what conduct was contemplated and proscribed by section 5105(a)(5). Our analysis began with the definition of the term "to volunteer" and we stated, Gettemy, 404 Pa.Super. at 509, 591 A.2d at 323. We further noted that
[T]he courts of New Jersey were faced with this exact issue in State v. D'Addario, 196 N.J.Super. 392, 482 A.2d 961 (1984). The New Jersey Superior Court stated that this definition, particularly the emphasized language, supports the conclusion that the meaning of 'volunteer' as used in N.J.S.A. 2C:29-3a(7), is that the accused must take the initiative in giving false information. We point out that the wording of the New Jersey statute is identical to that of the Pennsylvania statute, as both statutes are derived from the Model Penal Code. The court in D'Addario, stated that the statute applied only to those persons who take the initiative in supplying false information to law enforcement officials.
Recognizing that we are not bound by the decisions of a sister state, we, nevertheless find the reasoning of the New Jersey Court to be persuasive. The facts of the instant case make it clear that Appellee did not take the initiative in supplying false information to the law enforcement officers. Her answers, misleading as they were, were given in response to the officers questions. Additionally, the Official Comment to 18 Pa.C.S. § 5105 states that this section is derived from Section 242.3 of the Model Penal Code. The comment to this section provides:
Paragraph (5) prohibits volunteering false information to the law enforcement authorities. Mere failure to report a crime is not proscribed by this section. Neither is giving misleading or even false answers to inquiries initiated by the police.... This provision is intended to reach those who take the initiative in throwing the police off track.
Gettemy, at 509, 591 A.2d, at 323. We concluded that providing fallacious statements in response to questions initiated by law enforcement officers does not constitute the type of conduct defined as hindering apprehension or prosecution under 5105.
Appellee also cites the New Jersey supreme court case State v. Valentin, 105 N.J. 14, 519 A.2d 322 (1987), which...
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