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COMMONWEALTH v. MERVIN (09/23/74)

decided: September 23, 1974.

COMMONWEALTH
v.
MERVIN, APPELLANT



Appeal from judgments of sentence of Court of Common Pleas of Chester County, March T., 1972, Nos. 185 and 186, in case of Commonwealth of Pennsylvania v. John A. Mervin.

COUNSEL

Malcolm W. Berkowitz, and Berkowitz and Gutkin, for appellant.

F. Ned Hand and Timothy H. Knauer, Assistant District Attorneys, and William H. Lamb, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 230 Pa. Super. Page 554]

Appellant was tried in 1970 on charges of assault with intent to kill, aggravated assault and battery, and

[ 230 Pa. Super. Page 555]

    assault and battery in connection with a shooting incident which occurred at the Horse and Hound Lounge in West Chester, Pennsylvania. After a trial which lasted from October 13, to October 22, 1970, appellant was acquitted by a jury on all charges.

In his defense at that trial, appellant called four witnesses who testified that they were at the Horse and Hound on the night in question, and that during an argument between appellant and the victim of the shooting, the victim appeared to draw a knife and made an attempt to stab the appellant. As a result of investigations which occurred after the trial,*fn1 appellant was arrested in April of 1972 on charges of perjury, conspiracy, and subornation of perjury. At his trial in December of 1972, appellant was convicted of four counts of subornation of perjury and one count of conspiracy. The four counts upon which the convictions were based involved the four witnesses previously discussed. From the judgments of sentence imposed thereon, this appeal was taken.

Appellant's first contention*fn2 is that the trial court erred in refusing to charge the jury that in order to sustain its burden of proof of subornation of perjury, the Commonwealth must prove the offense in accordance with the so-called "two witness rule" applicable to perjury. That rule, in a perjury prosecution, requires proof of the falsity element of the crime by the direct testimony of two witnesses or the direct testimony of one witness plus corroborating evidence. See Commonwealth v. Field, 223 Pa. Superior Ct. 258, 298 A.2d 908 (1972).

[ 230 Pa. Super. Page 556]

In its charge on the perjury counts, the trial court carefully delineated each of the elements of perjury explaining the "two witness rule" as applied in Pennsylvania. The court then immediately charged the jury that the crime of subornation of perjury requires proof of perjury by a witness plus proof that the accused induced, persuaded, and instigated the witness to commit the crime of perjury. The additional element does not require proof by more than one witness. Commonwealth v. Billingsley, 160 Pa. Superior Ct. 140, 144, 50 A.2d 703 (1947), aff'd., 357 Pa. 378 (1947). Appellant has not alleged that the Commonwealth failed to meet the "two witness rule" in proving the falsity of the perjured testimony, and his argument that the subornation of those witnesses must be proved in the same manner must be rejected.

Appellant's second contention is that he was denied the right to make a meaningful summation to the jury. Throughout the final two days of the trial, the court warned the attorneys for both sides that they should be prepared to make a summation as soon as all of the evidence was in. When the testimony was concluded, defense counsel was given forty-five minutes to prepare his summation which lasted for ninety minutes. Following his summation, a recess of one and one-half hours was taken for the jurors to have dinner following which the district attorney addressed the jury. In light of the trial judge's repeated admonition to both sides to be prepared to make argument, we cannot say that the trial judge abused his discretion or deprived appellant of the right of summation by limiting preparation time to forty-five minutes following the close of ...


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