No. 756 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, of Philadelphia County, Nos. 2172/2177 October Term, 1978.
Donald G. Joel, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Cavanaugh and Beck, JJ.
[ 294 Pa. Super. Page 552]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, by the appellant, Christina Lobel, after conviction by a jury of perjury and false swearing in official matters, and from the denial of post-trial motions. She was sentenced to concurrent terms of imprisonment of three to twenty-three months for her three perjury convictions.
The charges arose from false testimony appellant provided on April 20, 1978 to a Special Investigative Grand Jury inquiring into fraudulent charity solicitations in Philadelphia County ostensibly aiding handicapped children.
[ 294 Pa. Super. Page 553]
Appellant was asked before that grand jury whether she had conducted canister solicitations on March 24, April 1, April 8 and April 15, 1978 at four different shopping malls. She denied having been at the described locations on the above dates. Appellant subsequently received a message from the Philadelphia Police Department asking her to meet with detectives about her grand jury testimony. On April 25, 1978, appellant met with Detective DiGiacomo and the assistant district attorney assigned to the grand jury. She was shown photographs in which she was holding canisters at the shopping malls on the dates asked about in the above proceedings. She admitted that it was she who was depicted in the photographs and admitted the falsity of her previous testimony. On April 28, 1978, Detective DiGiacomo testified before the grand jury that he had observed appellant soliciting at those shopping malls and presented the photographs. The grand jury subsequently recommended that charges of perjury and false swearing be brought against appellant, and she was indicted on those charges.
Appellant claims that the Commonwealth was required to present evidence of the absence of a retraction -- this being an element of the offense of perjury which must be proved beyond a reasonable doubt by the Commonwealth.*fn1 This claim is without merit. The absence of retraction is not an element of the offense of perjury. The language of 18 Pa.C.S.A. 4902(a) which defines the offense of perjury does not include the absence of retraction as one of its elements.
A person is guilty of perjury, a felony of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms
[ 294 Pa. Super. Page 554]
the truth of a statement previously made, when the statement is material and he does not believe it to be true.
See: Commonwealth v. Broughton, 257 Pa. Super. 369, 390 A.2d 1282 (1978); Commonwealth v. Yanni, 208 Pa. Super. ...