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COMMONWEALTH v. RUSSO (04/15/57)

April 15, 1957

COMMONWEALTH
v.
RUSSO, APPELLANT.



Appeals, Nos. 70, 71, 72, 73, 74, 75, 76, and 77, March T., 1956, from judgments of Superior Court of Pennsylvania, April T., 1954, Nos. 100, 101, 102, 103, 104, 105, 106, and 107, affirming judgments of Court of Quarter Sessions of the Peace of Allegheny County, Nos. 713, 714, 645, 675, 676, 677, 742 and 743, March Sessions, 1952, in case of Commonwealth of Pennsylvania v. Guy Russo; Same v. Alan Tanser; Same v. Martin J. Scanlon. Judgment on Bill No. 645 reversed; other judgments affirmed.

COUNSEL

S. V. Albo, for appellants.

William Claney Smith, Assistant District Attorney, with him Herbert B. Cohen, Attorney General, Charles D. Coll and Harry A. Estep, Special Deputy Attorneys General, William H. Colvin, Deputy Attorney General, and Edward C. Boyle, District Attorney, for appellee.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Bell

[ 388 Pa. Page 464]

OPINION BY MR. JUSTICE BELL

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.*fn1 We allowed an allocatur in the case of Commonwealth v. Russo et al.

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

[ 388 Pa. Page 465]

    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

[ 388 Pa. Page 466]

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 ...


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