Com. v. Russo

• Decision Date: 15 April 1957
• Citation: 131 A.2d 83,388 Pa. 462
• Parties: COMMONWEALTH of Pennsylvania v. Guy RUSSO, Appellant. COMMONWEALTH of Pennsylvania v. Alan TANSER, Appellant. COMMONWEALTH of Pennsylvania v. Martin J. SCANLON, Appellant.
• Court: Pennsylvania Supreme Court

Page 83

131 A.2d 83

388 Pa. 462

COMMONWEALTH of Pennsylvania v. Guy RUSSO, Appellant.

COMMONWEALTH of Pennsylvania v. Alan TANSER, Appellant.

COMMONWEALTH of Pennsylvania v. Martin J. SCANLON, Appellant.

Supreme Court of Pennsylvania.

April 15, 1957.

Stay of Mandate Denied April 26, 1957.

S. V. Albo, Pittsburgh, for appellant.

Edward C. Boyle, Dist. Atty., William Claney Smith, Asst. Dist. Atty., Harry A. Estep, William H. Colvin, Charles D. Coll, Pittsburgh, for appellee.

Before JONES, C. J., and BELL, CHIDSEY, MUSMANNO and JONES, JJ.

BELL, Justice.

Four defendants were indicted for obstructing public justice and for perjury. The jury convicted all of them of obstructing justice and two of them of perjury. Their appeals were reviewed and, with one exception, correctly decided by the Superior Court in an able comprehensive opinion by Judge Hirt. ¹ We allowed an allocatur in the case of Commonwealth v. Tanser, Commonwealth v. Russo and Commonwealth v. Scanlon.

Defendants were police officers of the City of Pittsburgh and members of a special detail known as the Vice Squad. Although the defendants were tried separately, their appeals were argued together before the Superior Court and before us, and we may appropriately dispose of them in this one opinion.

The crucial question is whether Tanser was convicted of perjury upon evidence which violated his constitutional right of confrontation of witnesses. Tanser testified at the magistrate's hearing that George Garis solicited him to commit sodomy, giving the time and place of solicitation. Tanser testified at the Grand Jury hearing and denied any such solicitation by Garis, consequently the Grand Jury did not have sufficient evidence to indict Garis. As a result of Tanser's testimony before the Grand Jury, he was indicted for 'wilfully, falsely, knowingly and corruptly swearing at the January (1951) Sessions of the (indicting) Grand Jury that George Garis had not solicited the said Alan Tanser to commit oral sodomy with him.'

The stenographer who took 'some' notes of testimony--those portions which she deemed to be important--at the magistrate's hearing, and the stenographer who took the notes of testimony at the (indicting) Grand Jury hearing, were produced by the Commonwealth and testified in Tanser's perjury trial. However, Garis did not testify, it being alleged that he could not be found. A transcript of the magistrate's hearing--which contained a part of the testimony which the stenographer considered to be important--which quoted Garis as saying 'I admit this', was introduced into evidence by the Commonwealth, over the objection of the defendant, in order to prove beyond a reasonable doubt that Tanser had committed perjury in his testimony before the Grand Jury. Without this transcript, the evidence was insufficient to convict Tanser of the perjury with which he was charged. The Superior Court held that the transcript was admissible and sustained Tanser's conviction of perjury at the Grand Jury hearing.

In Russo's case, the stenographer who took some notes of testimony at the magistrate's hearing, and the stenographer who took the notes of testimony at the (indicting) Grand Jury hearing, were produced by the Commonwealth and testified in Russo's perjury trial. The magistrate's transcripts were introduced into evidence by the Commonwealth, over the objection of the defendant. Those transcripts showed that the persons who had been arrested for solicitation of sodomy neither admitted nor denied the charges. The Superior Court correctly held that Russo could not be convicted of perjury as the evidence was insufficient or inadequate to prove that he had committed perjury at the time alleged in the indictment, namely, at the time he testified before the Grand Jury. The convictions of perjury cannot be sustained against either Tanser or Russo for reasons which will be hereinafter set forth.

The Commonwealth has the burden of proving beyond a reasonable doubt that Tanser was guilty of the crime with which he was charged in the bill of indictment, to wit, false swearing at the Grand Jury proceedings. Cf. Commonwealth v. Homeyer, 373 Pa. 150, 156, 94 A.2d 743. The Commonwealth could prove its charge by evidence which was direct or evidence which was circumstantial, but the evidence must be legally competent and sufficient in volume and quality to prove that Tanser was guilty of the crime charged beyond a reasonable doubt: Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820; Commonwealth v. Russo and Tanser, 177 Pa.Super. 470, 111 A.2d 359.

The so-called two witness rule in perjury cases prevails in Pennsylvania, i. e., in order to convict of perjury there must be two witnesses or one witness plus corroborating evidence: Williams v. Commonwealth, 91 Pa. 493; Commonwealth v. Mudd, 176 Pa.Super. 250, 107 A.2d 599; Commonwealth v. Sumrak, 148 Pa.Super. 412, 25 A.2d 605; Commonwealth v. Gore, 171 Pa.Super. 8, 90 A.2d 405. This rule is comprehensively stated and pinpointed in Commonwealth v. Billingsley, 160 Pa.Super. 140, at pages 143-144, 50 A.2d 703, at page 704, which was affirmed by this Court in 357 Pa. 378, 54 A.2d 705, on the opinion of Judge, now Justice Arnold. Judge Arnold said:

'As to the fact that Billingsley had procured and instigated him to testify falsely, House was the only witness and was uncorroborated except as to the meeting with Billingsley, which the latter admitted. Appellant therefore alleges that in both perjury and subornation of perjury no conviction can be had upon the testimony of one ² witness. The word 'perjury' is frequently used as synonymous with 'false testimony'. But the crime of perjury has a number of elements: (a) An oath to tell the truth must be taken by the accused, and (b) administered by legal authority, (c) in a judicial proceeding (or statutory affidavit). (d) The accused must have testified in such proceeding, and (e) his testimony must be material to the judicial proceeding. (f) The testimony assigned as perjury must be false, and (g) must be given wilfully, and corruptly, and with knowledge of its falsity (or given recklessly), and for the purpose of having it believed. As to none of these elements is there a requirement as to the quantity of proof except as to the falsity of the testimony, i. e., the assignment of perjury. As to the falsity and as to it alone, is there a rule that conviction may not be had upon the testimony of one witness.'

However, where the defendant himself makes two conflicting statements under oath, the general rule does not apply. The exception, and the difficulty of proving even obvious perjury, is well stated in Commonwealth v. Mudd, 176 Pa.Super. at pages 253-254, 107 A.2d at page 600, supra:

'(1) We will assume arguendo that appellant's testimony before the grand jury was materially different from [or diametrically opposed to] his testimony before the magistrate * * *. The conflicting statements establish that perjury was committed. The general rule that the Commonwealth must offer either two witnesses to the falsity, or one witness and corroboration, is not applicable where the defendant makes two conflicting statements under oath. Commonwealth v. Sumrak, 148 Ps.Super. 412, 25 A.2d 605. * * *

'(2) Although the making of two conflicting statements under oath establishes perjury, the Commonwealth nevertheless has the burden of adducing some competent evidence from which the jury may find that the perjury was committed on the occasion charged in the indictment. Commonwealth v. Sumrak, supra, 148 Pa.Super. 412, 25 A.2d 605. 'When such statements are made under oath, there is no doubt that the person making them has committed perjury, but the difficulty is as to which of the two statements is the false one'. Commonwealth v. Bradley, 109 Pa.Super. 294, 167 A. 471.'

In Commonwealth v. Bradley, 109 Pa.Super. at pages 296-298, 167 A. at page 471, supra, the Court said:

'* * * It has been repeatedly ruled that two or more contradictory statements of the defendant standing alone without anything else will not sustain a charge of perjury. The authorities to this effect are collected in L.R.A. 1917C, 58 and L.R.A.1918E, 927 and 21 R.C.L. 271. This is true whether such statements were made under oath or not, or whether they were spoken or contained in writing. When such statements are made under oath, there is no doubt that the person making them has committed perjury, but the difficulty is as to which of the two statements is the false one. 'A different question would be presented were it is permissible to charge perjury in the alternative without being required to elect as between the two contradictory statements. The question, however, upon this hypothesis does not seem to have arisen in any reported case, probably because the premise is untenable.'

'* * * In Greenleaf on Evidence, Vol. 1, § 259, it is said: 'If the evidence adduced in proof of the crime of perjury consists of two opposing statements of the prisoner, and nothing more, he cannot be convicted.' * * *'

The Superior Court in the present case recognized the aforesaid principles and then said, 177 Pa.Super. at page 481, 111 A.2d at page 364:

'Appellant Tanser insists that in the trial of the charges against him the Commonwealth was bound to call Garis as its witness who was accused in the Morals Court of soliciting sodomy. He contends that he had the right of confrontation by Garis who made the statement in response to the officer's testimony and that a denial of that right made the magistrate's transcript inadmissible because of hearsay.'

The Superior Court then held (1) that the Commonwealth was not obliged to produce Garis at the trial of Tanser and (2) that the magistrate's transcript was not hearsay and therefore was admissible in evidence and (3) that the transcript, together with all the other evidence in the case, was sufficient competent evidence 'of the truth of Tanser's accusations made against...