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COMMONWEALTH PENNSYLVANIA v. JAMES J. WEITKAMP (04/28/78)

decided: April 28, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES J. WEITKAMP, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. ELMER C. BORTNER, APPELLANT



No. 62 March Term, 1977, No. 69 March Term, 1977, Appeal from the Judgments of Sentence of January 30, 1976, of the Court of Common Pleas of Dauphin County, Criminal, at No. 2392 Criminal Division 1974 and No. 1765 Criminal Division 1974.

COUNSEL

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 District Attorney, Harrisburg, with him LeRoy S. Zimmerman, District Attorney, Harrisburg, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Spaeth, J., joins the majority opinion except as to the Rule 1100 issue, as to which he notes his dissent based on his dissenting opinion in Commonwealth v. Braithwaite, Author: Price

[ 255 Pa. Super. Page 313]

On January 20, 1975, following a joint trial before a jury, appellants were convicted of perjury.*fn1 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

[ 255 Pa. Super. Page 314]

    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.*fn2 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

[ 255 Pa. Super. Page 315]

    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, 5 Pa. Commw. 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.

[ 255 Pa. Super. Page 316]

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 extra-judicial 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,*fn3 while its powers and duties are listed in section 923 of the Administrative Code.*fn4 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,*fn5 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

[ 255 Pa. Super. Page 317]

    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.*fn6 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*fn7 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

[ 255 Pa. Super. Page 318]

    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 designated employes of the Commission, the sole remaining question is whether such a delegation was properly and effectively accomplished through the rule-making power invested in the Commission by 71 P.S. § 307-7(10).

The above rules specifically designate those individuals authorized to administer oaths. We find this to be a manifestly reasonable exercise of the delegatory function set forth in the enabling legislation. Appellant's claim is therefore without merit.

Appellants next allege that the lower court erred in denying their requests to be tried separately. Pa.R.Crim.P. 219 governs the joinder or severance of offenses and defendants in criminal trials. In pertinent part, it provides:

(b) Two or more offenses, of any grade, other than murder, may be charged in the same indictment if they are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common

[ 255 Pa. Super. Page 319]

    scheme or plan. There shall be a separate count for each offense charged.

(c) Subject to the limitations of paragraph (b), two or more defendants may be joined in the same indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. They may be charged in one or more counts together or separately. All defendants need not be charged in each count.

Although an argument might be advanced that Rule 219 refers only to consolidation within a single indictment and that it therefore provides no authority for joining two defendants charged in separate indictments, our supreme court has foreclosed such a contention. In Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973), the court held as follows:

In order to facilitate our disposition of this appeal, we adopt the approach to the consolidation of indictments embodied in Fed.R.Crim.P. 13, which provides: "The court may order two or more indictments, or informations or both to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single indictment or information." 453 Pa. at 192, 307 A.2d at 266-67.

Our inquiry thus becomes whether appellants could have been charged in a single indictment under Pa.R.Crim.P. 219. Appellants point out that their allegedly perjurious statements took place on separate occasions during different hearings of the Crime Commission. They further contend that because they were not charged with subornation of perjury or conspiracy to commit perjury there was no connection between the two distinct instances of false testimony. It is asserted that the situation in this case is similar to that in Commonwealth v. ...


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