Commonwealth v. Johnson

626 A.2d 514, 534 Pa. 51, 1993 Pa. LEXIS 117

• Court: Supreme Court of Pennsylvania
• Decided: May 28, 1993
• Docket: 169 E.D. Appeal Docket 1991
• Status: Published

Opinions

OPINION OF THE COURT

FLAHERTY, Justice.

This is a perjury prosecution arising from allegedly perjured testimony given by Dr. Johnson, appellant in the case at bar, when he testified in a civil trial in 1985. The civil action, Bolton v. Southeastern Pennsylvania Transportation Authority, No. 4895 July Term 1981, was a claim for damages for injuries allegedly suffered by Bolton in a 1979 trolley accident. Dr. Johnson was Bolton’s physician. During discovery in the Bolton trial, SEPTA issued a subpoena for all of Bolton’s medical records maintained by Dr. Johnson. The records submitted pertain to each office visit and indicate no complaint of low back pain during Bolton’s early visits to Johnson and no order for x-rays of the lower back. At trial, Dr. Johnson made reference to handwritten notes which indicate that Bolton complained of lower back pain during office visits in 1979, that he ordered x-rays of the lower back, and that he treated Bolton for lower back pain. Further, he testified that he wrote the notes in 1979 immediately after her office visits. These notes were not contained in the medical records which Dr. Johnson submitted pursuant to SEPTA’s subpoena.

At trial on the Bolton matter, SEPTA called an expert witness who testified that Dr. Johnson could not have written the notes in 1979, as he claimed, because the ink used to write the notes was not manufactured until 1984. The expert was able to date the ink by way of chemical markers which the manufacturer used to date its ink every year since 1979.

Based on the expert’s testimony, Dr. Johnson was charged with perjury, false swearing in official matters, and tampering with or fabricating physical evidence. These charges were dismissed at preliminary hearing. However, Dr. Johnson was thereafter re-arrested, whereupon he filed a motion in limine, requesting that the court suppress the expert testimony. The Commonwealth offered two experts on the reliability of ink analysis as a method for dating ink. After hearing, the court granted Johnson’s motion in limine. On appeal, Superior Court reversed, and thereafter, this court granted allocatur.

The sole question on this appeal, as presented by Johnson in his petition for allowance of appeal, is whether the Superior Court erred in reversing the decision of the trial court which held that in a prosecution for perjury, the two-witness rule codified in 18 Pa.C.S. § 4902(f) may not be satisfied by opinion evidence alone.¹,²

The “two-witness rule,” as explained by Superior Court, required at common law that the falsity element of a perjury conviction be supported either by the direct testimony of two witnesses or by the direct testimony of one witness and corroborating evidence. This rule was modified by the adoption of 18 Pa.C.S. § 4902(f), and by Commonwealth v. Broughton, 257 Pa.Super. 369, 390 A.2d 1282 (1978), which stated:

We read this provision [§ 4902(f) ] to mean that a witness may testify as to his direct observation, or he may provide circumstantial evidence; but in either case, he must be corroborated by the testimony of another witness, whose testimony may provide either direct or circumstantial evidence.

Id. at 380, 390 A.2d at 1288.

Superior Court in its opinion in the instant case explained its Broughton opinion as follows:

Although this change from the common law two-witness rule permitted a perjury conviction to rest on circumstantial evidence alone, “in such event the different pieces of circumstantial evidence must fit together so tightly as to preclude any reasonable doubt of guilt,” id, 257 Pa.Super. at 380, 390 A.2d at 1288. Such an interpretation, this Court observed, would serve the principal purposes of the common law two-witness rule, namely, protecting the defendant against good-faith mistakes and against the grudge witness.

Commonwealth v. Johnson, 399 Pa.Super. 266, 273, 582 A.2d 336, 339 (1990).

The perjury statute, 18 Pa.C.S. § 4902, in pertinent part, provides:

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

# * * * * *

(e) Inconsistent statements. — Where the defendant made inconsistent statements under oath or equivalent affirmation, both having been made within the period of the statute of limitations, the prosecution may proceed by setting forth the inconsistent statements in a single count alleging in the alternative that one or the other was false and not believed by the defendant. In such case it shall not be necessary for the prosecution to prove which statement was false but only that one or the other was false and not believed by the defendant to be true.

(f) Corroboration. — In any prosecution under this section, except under subsection (e) of this section, falsity of a statement may not be established by the uncorroborated testimony of a single witness.

(Emphasis added.)

The Commonwealth asserts that it intends to offer not only the evidence of its expert (ink dating of the handwritten notes), but also evidence that the records submitted pursuant to its subpoena did not include the notes referred to at trial. This evidence, presumably, would include the subpoena and the documents submitted pursuant to the subpoena.

Such evidence, on the face of Section 4902(f), would seem to meet the statute’s requirement that falsity may not be established by the uncorroborated testimony of a single witness, for the evidence would consist not only of witness testimony, but also of circumstantial evidence which tends to support the witness.³

Superior Court writes:

[A]s 18 Pa.C.S. § 4902(f) “does not purport to establish affirmatively the type or quality of the evidence necessary to convict” a defendant of perjury, it does not preclude the possibility that the Commonwealth will be able to prove beyond a reasonable doubt, based upon the evidence available in the present case, that appellee committed perjury....

399 Pa.Super. at 275-76, 582 A.2d at 340.

We agree with Superior Court that section 4902(f) does not preclude the admission of expert testimony bolstered by other evidence in support of the expert testimony, including circumstantial evidence. Commonwealth v. Russo, supra, n. 3. The order of Superior Court is, therefore, affirmed and the case is remanded for further proceedings.⁴

CAPPY, J., files a dissenting opinion which is joined by ZAPPALA and LARSEN, JJ.

1 . Johnson's reference to "opinion evidence” means "expert testimony.”

2 . Johnson also raises the question of whether his re-arrest violated his right to due process and to equal protection in violation of the Fourteenth Amendment. We do not address this claim because it was not raised in the petition for allowance of appeal.

3 . Although Johnson claims that Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980) supports his position that the Commonwealth must present direct evidence of falsity and that the corroboration must be strong, the Hude case, a plurality opinion, is inapplicable. Hude concerned whether a defendant could be tried for perjury arising out of statements he made in a prior trial that resulted in his acquittal of the charges against him. A plurality of this court ruled that he could not, because the direct evidence of falsity that was produced in the perjury trial was the same evidence that had been rejected in the original trial, and thus, was barred by collateral estoppel.

This court’s most recent discussion of the evidence required in a perjury case is as follows:

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 [defendant] guilty of the crime charged [false swearing] beyond a reasonable doubt....

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....

Commonwealth v. Russo, 388 Pa. 462, 466, 131 A.2d 83, 86 (1957). See also, Commonwealth v. Butler, 529 Pa. 7, 21, 601 A.2d 268, 274 (1991), dissenting opinion of Mr. Justice Papadakos, citing Russo with approval.

4 . The trial court has not yet ruled on the admissibility of the ink analysis, having disposed of the case, as it thought, on the basis of section 4902(f). Superior Court also did not rule on that issue, and it has not been raised before us.