No. 1313 October Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, as of July Term, 1976, Nos. 1590, 1591, 1592, 1597.
Timothy J. Savage, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Jacobs, P. J., and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a dissenting opinion, in which Cercone, President Judge, joins. This case was decided prior to the retirement of Jacobs, former President Judge. Hoffman, J., did not participate in the consideration or decision of this case.
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Appellant was convicted below of obstruction of the administration of law*fn1 and conspiracy*fn2 to commit the same offense. After the filing and denial of post-verdict motions, the lower court sentenced appellant to a fine of $3,000 or one year imprisonment on the obstruction charge, and two years non-reporting probation on the conspiracy charge. Appellant now contends that the evidence was insufficient to sustain the charge of obstruction because the Commonwealth proved only an unsuccessful attempt, and no actual obstruction of justice. He also contends that he is entitled to a new trial on the conspiracy charge because the court admitted certain hearsay statements of an alleged co-conspirator without any extrinsic evidence that the declarant was a member of a conspiracy with appellant and because the statements were admitted in violation of the attorney-client privilege.
The facts are as follows. On June 17, 1976, in City Hall Courtroom 196 in Philadelphia, the Honorable Benjamin W. Schwartz was scheduled to preside over a suppression hearing in a case charging George Lam and Adolph Casparro with running an illegal lottery. Lam's attorney, Richard L. Brown, Esq., testified that he intended to seek a continuance, but that Lam told him that a continuance was not necessary because the case had been "fixed" by appellant and James W. Gray, who was standing in the back of the courtroom. Brown notified the District Attorney's office of the planned "fix", and Assistant District Attorney John W. Morris and Detective James Kilgore came to Courtroom 196. They testified that they observed Lam and Casparro react in surprise when Judge Schwartz denied the motion to suppress, and turn and make eye contact with Gray. Gray left the courtroom and spoke to appellant, who said that he had spoken to the judge, and the judge might still blow out the case; if not he would give Gray his money back.
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Judge Schwartz testified that around 9:45 a. m. on this day, appellant came to him in his chambers, and pointing to the names of Lam and Casparro on his trial list sheet, informed him (falsely) that Judge McCabe was interested in those two defendants. Judge Schwartz said he would consider that and give it some thought. He further testified that the contact didn't really mean much to him, and that he just decided the case on its merits, not giving any thought to the conversation again until the District Attorney's office contacted him about it.
The present obstruction of justice statute reads in pertinent part: "A person commits a misdemeanor . . . if he intentionally obstructs, impairs or perverts the administration of law. . . ." 18 C.P.S.A. § 5101. In the opinion below refusing to arrest judgment, the court relied heavily upon the American Law Institute's Comment on Section 208.30 of the Model Penal Code, from which § 5101 is wholly derived:
"(1) In General. The purpose of this section is to prohibit a broad range of behavior designed to impede or defeat the lawful operation of government. The section is therefore a general supplement to all the other provisions of Article 208 dealing with particular methods of interfering with proper functioning of the administration, e. g., bribery, intimidation, perjury, tampering with evidence, escapes . . . . [H]aving determined in Section 208.14 that the offense of corruptly influencing official behavior should be limited to 'official proceedings,' to avoid penalizing simple requests for improper favors from legislators, law enforcement officers and the like, it would be inconsistent to prohibit in Sections 208.30 all efforts to obstruct, impair or pervert governmental operations." (emphasis added).
There are no decisions on § 5101 which are directly on point, but some of the language from our prior cases indicates that § 5101 is concerned with the means used to obstruct justice, and not necessarily the end result of justice obstructed. For instance, in Commonwealth v. Kelly, 245 Pa. Super. 351, 369 A.2d 438 (1976), we upheld a § 5101
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conviction where the defendant, a Philadelphia police officer, falsely swore out an affidavit for a warrant to arrest, and thereby exposed the identity of, Andrew Maresse, an undercover agent who was investigating payoffs to defendant for noninterference with local gambling operations. We held that the arrest was a § 5101 obstruction, being "a means to an end, that being the hindrance of the investigation into the gambling operation." Id., 245 Pa. Super. at 361, 369 A.2d at 443. In Commonwealth v. Creamer, 236 Pa. Super. 168, 345 A.2d 212 (1975), the defendant was charged with obstruction of justice and conspiracy in withholding from police certain knowledge about a homicide in Crawford County. However, neither the alleged conspiracy nor any overt act took place in Crawford County. We held that even though the effect of justice being obstructed was felt in Crawford County, still venue could only lie in those counties where the alleged criminal conduct occurred. This also suggests that § 5101 is more concerned with the means or acts employed to bring about an obstruction of justice than the actual obstruction itself.
Even in the older, pre-§ 5101 cases, we notice a greater concern for the acts by which an obstruction is attempted, rather than the ultimate obstruction itself. In Commonwealth v. Frankfeld, 114 Pa. Super. 262, 173 A. 834 (1934), the defendant was convicted for obstructing an execution sale,*fn3 although bids were taken and a sale did take place, because the riotous behavior of the crowds led by the defendant threatened to prevent a sale. The Court held: "The facts above narrated amply justified the jury in concluding that the sheriff was placed in fear of bodily harm, and that what was said and one by the ...