Appeal from the Order of Superior Court of Pennsylvania dated September 2, 1983 at No. 2248 Philadelphia 1982, reversing the Judgment of Sentence of the Court of Common Pleas of Philadelphia County at No. 2676 July Session 1981, Pa. Super. Ct. ;
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., files a dissenting opinion which Larsen, J., joins.
In a trial by jury in the Court of Common Pleas of Philadelphia County, the appellee, Richard Syre, was convicted of the felony of witness tampering. A judgment of sentence of two years probation was imposed. On appeal to the Superior Court, the conviction was reversed, and appellee was discharged. Commonwealth v. Syre, 322 Pa. Super. 416, 469 A.2d 1059 (1983). The instant appeal ensued. The sole issue presented is whether the evidence adduced by the Commonwealth was sufficient to sustain the conviction. The witness tampering charges arose in the context of the following factual background.
In June of 1980, Teamsters Local 115 was engaged in a campaign to organize workers at the Penn Radio Cab Company
in Philadelphia. The workers at the Penn Radio Cab Company went out on strike, at the instigation of the Teamsters, and set up a picket line. One of the workers, Ezekiel Gibbs, who was employed as a cab driver, became disenchanted with the Teamsters' efforts and decided that his interests would best be served by not joining a union. Thus, on June 27, 1980, Gibbs crossed the picket line and drove his cab away to commence working again. He was then allegedly pursued and assaulted by five union members, and, in the course of the altercation, Gibbs suffered injuries to his teeth. Gibbs filed a criminal complaint against the union members alleged to have been involved in the assault.
Subsequently, Gibbs met with a business agent of Local 115 to discuss the incident. Gibbs had decided to withdraw the criminal charges, in the interest of laying to rest his difficulties with fellow employees, and he made this fact known to the agent at the start of the meeting. Gibbs sought compensation for the injuries he sustained in the assault, and a settlement in the amount of $1,600 was agreed upon. According to Gibbs' testimony, this sum was to be paid in exchange for a release of the union from civil liability, as well as for withdrawal of the criminal charges. The union's business agent testified, however, that the payment was to be for a release of the civil liability alone. In any event, no portion of the $1,600 settlement was paid to Gibbs at that time.
In the ensuing weeks, Gibbs became impatient with the union's failure to deliver the $1,600. Hence, on several occasions during August and September of 1980, Gibbs met with appellee, the union's legal counsel, to inquire as to the reasons that the settlement funds had not been paid. During that time, appellee also represented one or more of the union members against whom criminal charges had been filed. At these meetings, appellee made certain statements to Gibbs that were used by the prosecution as a basis for bringing charges of witness tampering.
It is of interest to note that the union members involved in the alleged assault were eventually brought to trial. Gibbs testified in the instant proceeding that he never withdrew the charges, despite his earlier expressed intent to do so, because he was being harassed and threatened by co-workers at the cab company, and because the union had not been prompt in delivering all of the settlement money that had been promised. It was the contention of appellee, however, that Gibbs' decision not to drop the charges was the result of pressures exerted by Philadelphia District Attorney Edward Rendell, and former Philadelphia prosecutor Richard Sprague, who allegedly conspired to wage a politically motivated vendetta against John Morris, an influential labor boss in the Philadelphia area, who was a leader of Teamsters Local 115. Indeed, at trial, appellee testified that he regarded Richard Sprague as a predatory person who framed labor boss Tony Boyle in connection with the prosecution of Boyle for the murders of the Yablonski family, a family headed by a competing labor leader. Richard Sprague's law firm served as legal counsel to the Penn Radio Cab Company during its labor dispute with Local 115. Allegations of a conspiracy between Richard Sprague and Edward Rendell appeared in appellee's testimony at trial, as well as in transcripts of certain recorded conversations between Gibbs and appellee which are discussed infra. In short, it is appellee's view that prosecution of the union members for the alleged assault upon Gibbs was an attempt to bring pressures to bear upon John Morris. Whether appellee, through his representation of the union, became a casualty of a power play between union and prosecutorial officials is not, however, within the scope of our inquiry. Irrespective of the motivations underlying the incidents which led to appellee having contact with the witness Gibbs, appellee is accountable under the law for his conduct in interacting with Gibbs, and the sole issue raised in this appeal is the sufficiency of the evidence to sustain appellee's conviction for witness tampering.
It is well established that the test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Keblitis, 500 Pa. 321, 323, 456 A.2d 149, 150 (1983); Commonwealth v. Kennedy, 499 Pa. 389, 392, 453 A.2d 927, 928 (1982). The evidence adduced at trial established the following.
On August 21, 1980, appellee delivered to Gibbs the sum of $400, as partial payment of the $1600 owed under the settlement, described supra., that had been agreed upon by Gibbs and the union's business agent. In exchange for the $400, Gibbs signed an agreement in principle to release the union from civil liability. Gibbs testified that appellee stated, at the time of delivering the $400, that the remaining $1200 of the settlement funds would not be paid until the criminal charges had actually been dropped. Appellee testified that, on the day in question, he had no discussion with Gibbs regarding the dropping of criminal charges. Indeed, as to the Bill of Information charging appellee with tampering with a witness on August 21, 1980, appellee was acquitted. Appellee was found guilty, however, upon a Bill of Information charging him with tampering with a witness on September 22, 1980.
Subsequent to his August 21, 1980 meeting with appellee, Gibbs decided, upon motivations heretofore discussed, not to withdraw the criminal charges. He did not inform appellee of this decision. On September 22, 1980, Gibbs met with members of the district attorney's office, and consented to wear a hidden recording device to record his future conversations with appellee. Later that day, Gibbs met with appellee on two occasions, and the tape recordings of those meetings form the heart of the case against appellee. We have reviewed the transcripts of the recorded conversations, and find them to be replete with instances from which the jury could have concluded that appellee employed an offer
of pecuniary benefit in an effort to exert unlawful influences upon Gibbs. In short, the conversations reveal that Gibbs was to be paid the sum of $1600, ostensibly for a release of civil liability, but with the threat that the full amount of the funds would not be paid until Gibbs had "cooperated" by doing whatever was necessary to obtain dismissal of the criminal charges. The "cooperation" required of Gibbs consisted of changing his testimony, to indicate that his earlier accounts of the assault had been exaggerated or that his memory of the assault had failed. In addition, there was a discussion of the possibility of Gibbs ignoring a subpoena in order to elude having to testify at trial.
An especially odious aspect of this case is that the taped conversations that were secured by Gibbs were obtained as a result of Gibbs making certain statements to appellee which were lies, and these lies produced further conversation from appellee. Gibbs testified that the deceptions were of his own invention, and that the lies were not suggested by the district attorney's office. Thus, in the tape recorded conversations, Gibbs told appellee that Gibbs was in urgent need of the settlement funds to repay money owed to a threatening individual known as "the man." Gibbs also told appellee that he had spoken with prosecutorial officials to ask them to withdraw the criminal charges, and that those officials threatened to prosecute Gibbs for perjury if he contradicted his previous statements regarding the assault. In addition, he told appellee that prosecutorial officials threatened to subpoena him to testify at the criminal trial. None of the foregoing statements to appellee were true. Notwithstanding the distasteful manner in which the taped conversations were obtained, the transcripts of the conversations do reveal an ample basis upon which the jury could have concluded that appellee employed an offer of pecuniary benefit to induce Gibbs to "testify or inform falsely," 18 Pa.C.S.A. § 4907(a)(1), "withhold . . . testimony," 18 Pa.C.S.A. § 4907(a)(2), "elude legal process summoning him to testify," 18 Pa.C.S.A. § 4907(a)(3), or "absent himself" from
a summoned appearance at a criminal trial, 18 Pa.C.S.A. § 4907(a)(4).*fn1
The first of the two tape recorded conversations took place at City Hall, on September 22, 1980, when Gibbs attempted to collect the remaining $1200 of settlement funds owed him. That conversation proceeded as follows.
Appellee informed Gibbs that the trial in the criminal assault case was scheduled to commence on December 15, that the district attorney refused to drop the charges, and that the funds due Gibbs for settlement of his civil action would not be delivered, in full, until the criminal case was dismissed. Gibbs was then instructed that he would have to speak with Assistant District Attorney Charles Klein to obtain dismissal of the charges. Gibbs demanded that, if he were to speak to Klein, appellee would have to pay more money, and Gibbs expressed an urgent need for funds to repay a debt owed to a threatening individual known as "the man."
Appellee then lapsed into a diatribe concerning former assistant district attorney Richard Sprague, stating that the prosecution was influenced by Sprague to "throw the book" at the union members who assaulted Gibbs, and noting that Sprague represented Penn Radio Cab Company in the labor dispute from which the assault ...