No. 2399 October Term 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Phila. County, Trial Division, Criminal Section, as of December Sessions, 1975, No. 1246.
David Richman, Philadelphia, with him Ronald W. Morrison, Sr., Philadelphia, for appellant.
Stephen S. Seeling, Assistant District Attorney, with him F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Com., appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Cercone, JJ., concur in the result. Watkins, former President Judge, and Van der Voort, J., did not participate in the consideration or decision of this case.
[ 257 Pa. Super. Page 371]
This appeal is from a judgment of sentence for perjury under the Crimes Code, Act of Dec. 6, 1972, P.L. 1482 No. 334, § 1, eff. June 6, 1973, 18 Pa.C.S.A. § 4902(a).
Appellant was indicted for perjury and false swearing after he testified before a Special Investigating Grand Jury, empaneled to investigate possible corruption and mismanagement in the Food Services Division of the School District
[ 257 Pa. Super. Page 372]
of Philadelphia. Appellant's testimony was sought in connection with allegations that certain senior executives in the Food Services Division were receiving kickbacks from food brokers for waiving bid specifications.
Appellant appeared before the grand jury on a number of days in November, 1975. He was questioned about the source of a $2500 cash deposit to his bank account, made on September 3, 1974; the amount was one percent of a $250,000 contract received by the Shane Meat Company during the period of August and September, 1974. Appellant testified that about the first of September, 1974, he had placed a bet in a numbers lottery, which resulted in his winning $6,400. He said he usually bet the number 529, which represented the final digits of his military serial number, but that on this occasion his bet must have been misrecorded because he was paid on the basis of a "hit" on number 579. When asked with whom he placed the bet, he replied: "The person I was dealing with was one Roger Kellcy or Kesley," who operated in West Philadelphia; that a woman named Penny, who "took the numbers," had notified him that he had hit; and that another man, unknown to him, had paid him off. Part of the proceeds, he said, was deposited in the account and represented some or all of the $2,500 in question.
This explanation was the basis of the indictment. At the trial, which was without a jury, the Commonwealth presented lay and expert evidence to prove the following:
1. That appellant worked in the Food Services Division, and that his duties included acting as a liaison between the Food Services Division and the Purchasing Division.
2. That sometime in the period of September to November, 1974, appellant asked one Thomas Lloyd, a co-worker of appellant's at the time, about the date a particular number had paid off, and that appellant and Lloyd examined a "Lucky 13 Red Horseshoe Number Card" published July 1, 1972. There was no discussion concerning the card, and Lloyd was unable to recall the number in question.
[ 257 Pa. Super. Page 3733]
. That 579 was the winning number on September 4, 1974, or one day after appellant's deposit; that it was the winning number on no other day between September 1 and September 7, 1974; and that there was only one winning three digit number each day for the Philadelphia area.
4. That if a numbers bettor consistently played one "pet" number, it would be unlikely for that bettor to be paid if the number were misrecorded and won.
5. That one Roger Kelsey was a known figure engaged in the numbers racket, and operated in West Philadelphia, but that he died on February 10, 1973.
Appellant was convicted of perjury, with the trial judge making no finding on the charge of false swearing. After post-trial motions were denied, and sentence of imprisonment from nine to twenty-three months was imposed, this appeal was taken.
The evidence will be discussed in some detail later, but from the foregoing recitation it may be seen that the evidence is strong that appellant's testimony about a numbers hit was false. Appellant, however, argues that the evidence is nevertheless fatally deficient in that it is circumstantial.
Perjury has traditionally been subject to special requirements of proof.*fn1 See VII Wigmore on Evidence § 2040 et seq. (3d ed. 1940). In Pennsylvania, the special requirements were part of the case law accompanying the previous perjury statute, Act of June 24, 1939, P.L. 872, § 322, 18 P.S. § 4322. In Commonwealth v. Field, 223 Pa. Super. 258, 298 A.2d 908 (1972), we stated:
The two-witness rule, as it is applied in Pennsylvania, requires 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 plus corroborating evidence.
[ 257 Pa. Super. Page 374223]
Pa. at 262, 298 A.2d at 911 (emphasis supplied).
The distinction between "direct" and "circumstantial" evidence has been stated as follows:
The basic distinction between direct and circumstantial evidence is that in the former instance the witnesses testify directly of their own knowledge as to the main facts to be proved, while in the latter case proof is given of facts and circumstances from which the jury may infer other connected facts which reasonably follow, according to the common experience of mankind.
29 Am.Jur.2d, Evidence § 264 at 312.*fn2
Here, the evidence against appellant is circumstantial in that no one testified to having seen appellant get money from another source, that is, from a source other than the numbers bet, and deposit it in the bank. Accordingly, if the rule of Commonwealth v. Field, supra, is applicable, appellant's conviction cannot stand.
After Field was decided, however, the perjury statute was changed to read as it now does:
(a) Offense defined. -- A person is guilty of perjury . . ., if in any official proceeding he makes a false statement under oath . . ., 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.
(f) Corroboration. -- In any prosecution under this section . . ., falsity of a statement may not be established by the uncorroborated testimony of a single witness.
[ 257 Pa. Super. Page 375]
In construing these provisions the first difficulty we encounter is in the comment prepared by the Reporter for the Crimes Code; he expressed the opinion that the provisions of subsection (f) comported with existing law. Toll, Pennsylvania Page 375} Crimes Code Annotated 541 (1974). The correctness of this opinion is by no means apparent. Existing law, i. e., the rule of Commonwealth v. Field, supra, requires corroboration by "direct testimony." Subsection (f), however, only requires corroboration by "testimony"; since "testimony" is not limited by any descriptive characterization, it would seem to refer to both direct and circumstantial testimony, in other words, to change the rule of Commonwealth v. Field.
In his comment Toll included portions of the comments on corroboration from the Model Penal Code. Model Penal Code, § 208.20, Comment (Tent. Draft # 6, 1957). The Model Penal Code entirely abolishes the special proof requirements for perjury; but it also includes a bracketed alternative, which retains some special proof requirements, and which is substantially the same as subsection (f), later adopted in Pennsylvania.*fn3 In editing the Model Penal Code comments for his comment to the Crimes Code, Toll writes that he included only so much of the Model Penal Code comments as he considered relevant to the Crimes Code, Toll, supra at VI, that is, those comments that he considered related to the bracketed, or Pennsylvania, alternative. We quote his comments below. In quoting them, however, we include, in italics, a portion of the Model Penal Code's comments that he excluded. (What Toll refers to as subsection (e) is now subsection (f), the provision under discussion.)
A number of qualifications of the "one-witness-plus-corroboration" rule have been introduced. Thus, no contradicting witness is required where direct observation is impossible, as where defendant is accused of perjury as to his own mental state, e. g., "I don't remember." Such a prosecution can proceed entirely on circumstantial evidence. An authenticated record of conviction suffices to demonstrate the falsity of the defendant's sworn denial that he had ever been convicted of crime. If defendant on trial for perjury admits the falsity but defends on the ground of good faith, no other witness to falsity is required;
[ 257 Pa. Super. Page 376]
and out-of-court admissions by the defendant, for example in letters which he has written, may perform the same function.
The Model Penal Code Advisory Committee recommended elimination of the corroboration rule; and this position was adopted by the Council.
The Reporter continues to favor retention of some special proof safeguards in this area, as indicated in . . . [Subsection (e)]. This would apply to a narrow class of cases, which would rarely be prosecuted anyway: namely, where there is no other evidence but the testimony of a single contradicting witness. Under this rule a case can be established without any directly contradicting witness, e. g., circumstantially, by record of conviction, by defendant's admissions. Also, contrary to the Weiler case it would not be necessary to charge the jury as to a special legal rule requiring corroboration, although an admonition on this point would often be appropriate in connection with the general charge on reasonable doubt, in cases where there is little more than the single witness' testimony.
This comment and its significance for the Crimes Code are unclear, to say the least. Specifically: In the middle of the comment appears the phrase that "[u]nder this rule a case can be established without any directly contradicting witness, e. g., circumstantially." One must therefore ask, what, does "this rule" refer to? As quoted by Toll, "this rule" seems to refer to the rule of subsection (e), (that is, of what became subsection (f) in the Crimes Code). However, this cannot be so, for subsection (e) -- or (f) -- does not abolish but retains the special requirement that falsity cannot be proved only by the testimony of a single witness. We conclude, therefore, that Toll misread the Model Penal Code comments,
[ 257 Pa. Super. Page 377]
and that the discussion he quotes from those comments, about "[u]nder this rule," pertains to the preferred Model Penal Code variation, which abolishes special proof requirements, not to the bracketed alternative variation, which precludes proof of falsity by the testimony of a single witness. With this reading, the comment makes sense, but we are left in irremediable doubt as to what the Pennsylvania legislature meant when it passed the statute, with the comment we have been discussing here before it, which, presumably, it carefully studied. Did it rely on Toll's opinion, and think it was passing a law that comported with existing law? Or, after comparing the previous cases with the wording of the statute, and after reading the long quotation from the Model Penal Code, did it think it was changing the law to permit proof by circumstantial evidence? We can only conclude that the legislative history is too confused to be of help to us, and so we must construe the statute without it.
At this point, there is a rule of construction that must be discussed: the rule that a penal statute must be strictly construed in favor of the defendant. Commonwealth v. Duncan, 456 Pa. 495, 321 A.2d 917 (1974); Commonwealth v. Teada, 235 Pa. Super. 438, 344 A.2d 682 (1975); Commonwealth v. Masters of Lancaster, Inc., 199 Pa. Super. 36, 184 A.2d 347 (1962); Statutory Construction Act, Act of Nov. 25, 1970, P.L. 707, No. 230, added 1972, Dec. 6, P.L. 1339, No. 290, § 3, 1 Pa.C.S.A. § 1928(b)(1) (Supp.1977-78).
We acknowledge this rule of construction but do not find it dispositive here. The rationale behind strict construction of a penal statute is the injustice of convicting a person without clear notice to him that his contemplated conduct is unlawful, as well as notice of the penalties. See Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244 (1976). Thus, the cases that apply -- or find a reason not to apply -- this rule of construction are concerned with ambiguities in the wording of a statute, and thus with uncertainty about the sort of conduct covered. See, e. g., Commonwealth v. Duncan, supra; Commonwealth v. Shafer, 414 Pa. 613, 202
[ 257 Pa. Super. Page 378]
A.2d 308 (1964); Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959); Commonwealth ex rel. Varonne v. Cunningham, 365 Pa. 68, 73 A.2d 705 (1950); Commonwealth v. Cunningham, 248 Pa. Super. 219, 375 A.2d 66 (1977); Commonwealth v. Teada, supra; cf. Commonwealth v. Heinbaugh, supra. The statutory ambiguity we are considering here, however, does not concern the definition of conduct made illegal. As regards conduct, the clarity of the perjury ...