Commonwealth v. Weitkamp

Decision Date28 April 1978
Citation255 Pa.Super. 305,386 A.2d 1014
PartiesCOMMONWEALTH of Pennsylvania v. James J. WEITKAMP, Appellant. COMMONWEALTH of Pennsylvania v. Elmer C. BORTNER, Appellant.
CourtPennsylvania Superior Court

Argued Nov. 8, 1976; Argued March 16, 1977. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Robert L. Knupp, Harrisburg, with him Knupp & Andrews, Harrisburg, for appellant James J. Weitkamp.

Harold N. Fitzkee, Jr., York, submitted a brief for appellant Elmer C. Bortner.

Reid H. Weingarten, Deputy Dist. Atty., Harrisburg, with him LeRoy S. Zimmerman, Dist. Atty., Harrisburg, for Commonwealth, appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.

PRICE, Judge.

On January 20, 1975, following a joint trial before a jury, appellants were convicted of perjury. [1] After the denial of post-trial motions, appellant Weitkamp was sentenced to pay costs and a fine of $500, and to imprisonment for one year. Appellant Bortner was sentenced to one year in prison. These appeals raise numerous, substantially identical claims of error in regard to the proceedings below. After a careful review, we have found appellants' claims to be without merit and affirm the judgments of sentence.

In May of 1973, the Pennsylvania Crime Commission received a letter from the solicitor of York, Pennsylvania, requesting its aid in the investigation of an alleged kickback or payoff scheme involving the York Police Department. Stories had appeared in the news media charging that some York police officers had accepted payments from tow truck operators for the referral of towing business. Agents of the Commission conducted a preliminary investigation, and on that basis, the Commission passed a resolution mandating a full scale investigation and authorizing private hearings. The Executive Director of the Pennsylvania Crime Commission at that time, Lawrence T. Hoyle, Jr., designated Deputy Attorney General Curtis Pontz to conduct the investigation and hearings.

Appellant Weitkamp, who had been a tow truck owner and operator in the York area in the late 1960's and early 1970's, was subpoenaed as a witness and appeared at a Crime Commission hearing on November 7, 1973. Appellant Bortner, a York police officer for a number of years, appeared before the Commission on December 20, 1973. In response to direct questioning, Weitkamp denied ever having made cash payments to York police officers for towing referrals. Bortner similarly denied ever paying cash to York police officers on behalf of tow truck operators for business referred to them. Based on the testimony of a number of York police officers contradicting appellants' asseverations, the Crime Commission brought the possibility of perjury charges against appellants to the attention of the District Attorney of Dauphin County. [2] Criminal complaints were subsequently issued, and appellants were arrested, given preliminary hearings and indicted. A joint trial resulted in guilty verdicts against both appellants.

We will first examine the issues raised on appeal by both Weitkamp and Bortner.

Appellants allege that the Crime Commission hearings wherein they testified were, for various reasons, violative of their constitutional rights. This claim was not preserved in appellant Weitkamp's written post-trial motions and he has therefore waived it. Commonwealth v. Bronaugh, 459 Pa. 634, 331 A.2d 171 (1975); Commonwealth v. Keysock, 236 Pa.Super. 474, 345 A.2d 767 (1975). In his brief, appellant Bortner contends that the proceedings of the Crime Commission involved herein were accusatory rather than investigatory and that he was thus improperly denied his right to confront and cross-examine the witnesses against him. This argument regarding the nature of the Crime Commission was considered and rejected by our supreme court in Pennsylvania Crime Commission Subpoena, 453 Pa. 513, 309 A.2d 401 (1973), citing with approval Pennsylvania Crime Commission v. Nacrelli, Pa.Cmwlth. 551 (1972). Thus there is no merit to this contention.

The next issue is a challenge to the oath-administering authority of the Deputy Attorney General who administered the oaths at the Crime Commission hearings. Appellant Weitkamp has waived his claim by failing to raise it in his written post-trial motions. We will thus address the issue as framed by appellant Bortner. The offense of perjury is defined in section 4902 of the Crimes Code as follows:

A person is guilty of perjury, a felony of the third degree, if in an official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of the statement previously made, when the statement is material and he does not believe it to be true.

In Commonwealth v. Russo, 388 Pa. 462, 131 A.2d 83 (1957), the elements of the crime receive further elaboration:

(T)he 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. 388 Pa. at 467, 131 A.2d at 86.

The official who administered the oath to appellant Bortner was Mr. Curtis Pontz, a staff attorney for the Crime Commission. Appellant contends that Mr. Pontz was without legal authority to administer oaths, asserting that (1) the authority to administer an oath in an extrajudicial proceeding requires a specific legislative mandate; (2) the legislature has not made such a delegation to the Crime Commission; and (3) even assuming that members of the Crime Commission have the ability to administer oaths, no proper or effective delegation of that authority was made to transmit it further along the administrative chain to Mr. Pontz.

The composition and organization of the Crime Commission are set forth in section 469 of the Administrative Code, [3] while its powers and duties are listed in section 923 of the Administrative Code. [4] Under the latter heading, 71 P.S. § 307-7(9) provides, in pertinent part, that the Commission has the power:

To require the attendance and testimony of witnesses and the production of documentary evidence relative to any investigation which the commission may conduct in accordance with the powers given it.

This provision presumes that some personages within the Crime Commission have the authority to administer oaths, as the ability to compel testimony would avail little without the concomitant prerogative of applying the full force of the law to assure its veracity. This presumption is borne out in section 517 of the Administrative Code, [5] which states:

The head of every administrative department, all deputy heads of administrative departments, every member of an independent administrative or departmental administrative board or commission, the Commissioner of the Pennsylvania State police, every workmen's compensation referee, and such officers or employes of the several administrative departments, boards, or commissions, as the heads of such departments or such boards or commissions shall designate, shall have the power to administer oaths or affirmations anywhere in this Commonwealth, with regard to any matter or thing which may properly come before such department, board, commission, commissioner or referee, or any member of a board or commission, as the case may be.

The Pennsylvania Crime Commission is a departmental commission. Administrative Code § 202. [6] Thus the four commissioners and the Attorney General as chairman of the Commission, 71 P.S. § 179(a), have the power to administer oaths, and additionally, are able to delegate this power to designated employes of the Commission. Such a delegation has taken place under 71 P.S. § 307-7(10), which empowers and requires the Commission:

To compile and publish rules for the calling of meetings and to carry out the provisions of this act. Such rules may be altered or amended at any time but shall not take effect until filed with the Secretary of State.

By resolution dated February 26, 1972, Attorney General J. Shane Creamer and the three other members of the Pennsylvania Crime Commission formally ratified [7] the rules of the Crime Commission, which were published at 1 Pa. Bulletin 2231 on December 4, 1971.

At least two provisions of the Rules of the Pennsylvania Crime Commission authorized the administration of the oath at issue in this case. Section 2.2(a) empowered Curtis Pontz to administer oaths in his capacity as a staff counsel to the Crime Commission.

The Chairman may appoint such staff members as he deems necessary. Staff members designated as the executive director, chief counsel, assistant counsel, and special agents shall have the authority to administer oaths and affirmations, conduct interviews, receive and record testimony, receive and inspect documents and records, and otherwise obtain evidence and gather information by any lawful means.

Section 2.5(b) authorized Mr. Pontz to administer oaths as presiding officer of the hearing.

The presiding officer shall administer oaths and affirmations to witnesses, rule upon matters arising in the course of the hearing, and take such actions as may be necessary to insure that the hearing proceeds in an orderly and proper manner.

Having determined that 71 P.S. § 197 gives the commissioners and the Attorney General the authority to administer oaths and the power to delegate this function to...

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