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COMMONWEALTH PENNSYLVANIA v. KEVIN LEE DAVENPORT (04/13/78)

decided: April 13, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
KEVIN LEE DAVENPORT, APPELLANT



COUNSEL

Charles B. Swigart, Huntingdon, for appellant.

Stewart L. Kurtz, II, District Attorney, Huntingdon, submitted a brief for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Hoffman, J., concurs but would remand the case for resentencing under Commonwealth v. Lockhart, Author: Spaeth

[ 255 Pa. Super. Page 135]

Appellant was convicted at a non-jury trial on an indictment charging in two counts that appellant had made inconsistent statements under oath in violation of the Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 4902(e). Post-trial motions were denied, and on the first count appellant was sentenced to costs, a $100 fine, and one to three years in prison; on the second count sentence was suspended.

The charges against appellant arose from the following events.

On February 1, 1974, a police officer stopped a speeding car with five men in it; appellant was the driver. Various items, such as loose money, ski masks, and bank bags, immediately linked the car's occupants to a bank robbery that had taken place minutes before. Two of the men fled from the car; appellant, one Grover Cleveland Posey, and a third man were arrested.

[ 255 Pa. Super. Page 136]

Appellant was tried on May 16, 1974, for bank robbery and theft. He testified that he had participated in the robbery under duress. He said three of the men had gone into the bank and that Posey had stayed at the car, pointed a gun at him, and commanded him to get into the front seat of the car and drive them all away from the scene. The jury acquitted him.

On May 23, 1974, at Posey's habeas corpus hearing (Posey was charged with the same robbery and theft) appellant again testified that Posey had pointed a gun at him and commanded him to drive.

However, on August 5, 1974, at Posey's trial, appellant testified that he did not know Posey had had a gun, and on August 6, that Posey had had no gun "that I know of," and that no one had threatened him. Appellant being the only witness who could incriminate Posey, the trial judge sustained Posey's demurrer. Lower court opinion at 12.

The provision of the Crimes Code under which appellant was indicted, 18 Pa.C.S.A. § 4902(e), reads:

Where the defendant made inconsistent statements under oath . . . 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.

-1-

Appellant argues that the indictment should have set forth the exact language of the statements said to be inconsistent. The indictment reads:

Count I: That on (or about) May 16, 1974, and August 5, and August 6, 1974, respectively, in said County of Huntingdon, Kevin Lee Davenport, the Defendant, did intentionally and knowingly make inconsistent statements under oath, each of which was made in an official proceeding, to wit, the trial by jury of a felony in the Huntingdon

[ 255 Pa. Super. Page 137]

County Courtroom, and each of which was made when it was material:

Statement No. 1, made by defendant as a witness on May 16, 1974, during the trial in the case of Commonwealth v. Kevin Lee Davenport, No. 32 Criminal Action 1974, which statement was in substance that one Grover Cleveland Posey pointed a gun at the defendant, Kevin Lee Davenport, at a certain time and place.

Statement No. 2, made by defendant on August 5, and August 6, 1974, during the trial in the case of Commonwealth v. Grover Cleveland Posey, No. 33 Criminal Action, 1974, which statement was in substance that one Grover Cleveland Posey did not point a gun at the defendant, Kevin Lee Davenport, at the said time and place,

     and that of Statement No. 1 and Statement No. 2, one or the other was false and not believed by the defendant to be true.

Count II: That on (or about) May 23, 1974, and August 5, and August 6, 1974, respectively, in said County of Huntingdon, Kevin Lee Davenport, the Defendant, did intentionally and knowingly make inconsistent statements under oath, each of which was made in an official proceeding in the Huntingdon County Courtroom, and each of which was made when it was material:

Statement No. 1, made by defendant as a witness on May 23, 1974, during the hearing for application of a writ of habeas corpus in the case of Commonwealth v. Grover Cleveland Posey, No. 50 September Term, 1974, which statement was in substance that one Grover Cleveland Posey made threats to the defendant, Kevin Lee Davenport, by holding a gun, at a certain time and place.

[ 255 Pa. Super. Page 138]

Statement No. 2, made by defendant as a witness on August 5, 1974, and August 6, 1974, during the trial in the case of Commonwealth v. Grover Cleveland Posey, No. 33 Criminal Action, 1974, which statement was in substance that said Grover Cleveland Posey did not Page 138} make threats to the defendant, Kevin Lee Davenport, by holding a gun, at the said time and place,

     and that of Statement No. 1 and Statement No. 2, one or the other was false and not believed by the defendant to be true. (Emphasis supplied)

Appellant concedes that Pennsylvania law has not required an indictment to set forth the exact testimony alleged to be perjurious. Commonwealth v. Buford, 179 Pa. Super. 312, 116 A.2d 759 (1955) (requiring that "the language in question [be] sufficient to inform appellant of the charge which he was called upon to answer and to protect him against a second conviction for the same offense," 179 Pa. Super. at 315, 116 A.2d at 760). But appellant argues that since § 4902(e) of the Crimes Code has now relieved the Commonwealth of its former burden of proving which statement is false, the requirements for specificity in the indictment should be stiffened. Appellant also argues that a defense against inconsistent statements requires knowledge of the specific words in question, more so than a defense against other types of perjury.

These arguments are not persuasive. A defendant's right to notice of the charges is not linked to the ease or difficulty of the prosecution's burden of proving its case, but rather, to a basic standard of fairness. See Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974). Here, the indictment gave the substance of the inconsistency, thereby meeting the Buford test. We do not see how a conviction for making inconsistent statements turns on the exact wording to any greater degree than does a conviction for perjury. As regards appellant's ability to prepare a defense, we note that the indictment was supplemented by a bill of particulars with specific passages of the transcripts marked to show the testimony in question.

-2-

Appellant next argues that his statements were in fact not inconsistent. The lower court found the statements

[ 255 Pa. Super. Page 139]

    inconsistent insofar as they concerned whether Posey had or had not ...


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