Appeal from the Judgment of Sentence November 18, 2009 In the Court of Common Pleas of Lebanon County Criminal, No. CP-38-CR-0001113-2008
The opinion of the court was delivered by: Gantman, J.
BEFORE: GANTMAN, LAZARUS, AND MUNDY, JJ.
Appellant, Erin M. Lewis, appeals from the judgment of sentence entered in the Lebanon County Court of Common Pleas, following her jury trial conviction for tampering with public records or information.*fn1 We affirm.
The relevant facts and procedural history of this appeal are as follows. Between February 14, 2005 and February 25, 2008, the Lebanon County Office of Adult Probation and Parole employed Appellant as a probation officer. In August 2007, Appellant started supervising the probation of Jeffrey Gardner, who was on electronic monitoring. In December 2007, while Appellant was supervising Mr. Gardner's probation, they began an intimate relationship. Appellant and Mr. Gardner made plans to travel together to Atlantic City during the weekend of February 17, 2008.*fn2 On February 12, 2008, Appellant released Mr. Gardner from electronic monitoring, eleven days ahead of schedule of his six-month period of court-ordered electronic monitoring. When Mr. Gardner discovered that Probation Officer Megan Fertenbaugh planned to be in Atlantic City at the same time, he and Appellant changed their plans and rescheduled their trip for during the weekend of February 24, 2008. Part of Appellant's duties required her to maintain case files on the probationers she was supervising and to make notations of their progress, plans, and whereabouts. Shortly before their planned trip to Atlantic City, Appellant wrote a note in Mr. Gardner's file stating he was visiting Atlantic City with his family; Appellant did not want anyone to know that she and Mr. Gardner were actually traveling together. Appellant left her job with the Lebanon County Office of Adult Probation and Parole on February 25, 2008, for other employment.
Probation Officer Megan Fertenbaugh took over the supervision of Mr. Gardner. In March 2008, Ms. Fertenbaugh learned about the romantic relationship between Appellant and Mr. Gardner. She informed Chief Probation Officer Sally Berry, who asked Chief County Detective John Leahy to assist in investigating the matter. On March 10, 2008, they called Mr. Gardner to the probation office where he admitted his relationship with Appellant. When asked, Appellant confirmed the truth of Mr. Garner's statements. On March 28, 2008, the Commonwealth charged Appellant with tampering with public records or information and obstructing administration of law or other governmental function.
Appellant and Mr. Gardner married on June 17, 2008. At Appellant's preliminary hearing on July 8, 2008, Mr. Gardner asserted his spousal testimony privilege under 42 Pa.C.S.A. § 5913 and refused to testify. The magisterial district justice honored the privilege but permitted Chief Berry to testify about the information that Mr. Gardner had given during their March 2008 interview. The charges were bound over for trial.
Appellant filed an omnibus pre-trial motion to preclude the Commonwealth from calling Mr. Gardner to testify at trial, based on the Section 5913 spousal testimony privilege. The Commonwealth filed its own motion in limine to compel Mr. Gardner's testimony at trial. The Commonwealth argued the Section 5913 spousal testimony privilege should not apply in this case because Appellant and Mr. Gardner married so Mr. Gardner would not have to testify as a witness against Appellant.
Addressing the parties' motions, the court noted the lack of Pennsylvania precedent on the issue of a "collusive" marriage and the interplay of that concept with Section 5913. (See Trial Court Opinion, dated February 12, 2009, at 8-14). The court examined how other jurisdictions treated the issue of a "collusive" marriage. After considering what constitutes a "collusive" marriage, and its effect on the spousal testimony privilege, the court concluded Section 5913 was unavailable to Mr. Gardner if he had married Appellant to avoid testifying against her. Id. at 14. As a result, the court ordered an evidentiary hearing to determine whether the marriage between Appellant and Mr. Gardner was genuine and in good faith or a scheme to keep Mr. Gardner off the stand.
At the April 1, 2009 hearing, the court heard testimony from Mr. Gardner, his parents, and Appellant's parents. At the conclusion of the hearing, the court made two factual findings: (1) genuine love existed between Appellant and Mr. Gardner, which motivated the marriage; but (2) the marriage was hastily conducted several weeks before Mr. Gardner was scheduled to testify at Appellant's preliminary hearing and so scheduled for the express purpose of preventing Mr. Gardner from testifying against Appellant. Relying on In re Grand Jury Subpoena of Witness, 884 F. Supp. 188 (D. Md. 1995) and Osborne v. State, 623 P.2d 784 (Alaska 1981), the trial court reasoned that a marriage timed even partly to prevent testimony was "collusive" under Pennsylvania law. Thus, the court barred Mr. Gardner from asserting the Section 5913 spousal testimony privilege at Appellant's trial. (See Trial Court Opinion, dated June 18, 2009, at 8). The court granted the Commonwealth's motion to compel Mr. Gardner's testimony, denied Appellant's request to certify the interlocutory order for immediate appeal, and scheduled the matter for trial.
Following trial on September 17, 2009, the jury found Appellant guilty of tampering with public records or information but not guilty of obstructing administration of law or other governmental function. On November 18, 2009, the court sentenced Appellant to six months' probation and imposed a fine of $100.00, plus the costs of prosecution. Appellant timely filed a post- sentence motion for a new trial, which the court denied on April 20, 2009. Appellant timely filed a notice of appeal on May 3, 2009. On May 4, 2009, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on May 24, 2009.
Appellant raises two issues on appeal:
DID THE TRIAL COURT ERR IN ITS EMPLOYMENT OF 42 PA.C.S.A. § 5913, RELATING TO THE SPOUSAL TESTIMONIAL PRIVILEGE, BECAUSE THE JUDICIAL INTERPRETATION OF THE STATUTE WAS CONTRARY TO WELL ESTABLISHED CANONS OF STATUTORY CONSTRUCTION, HAD NOT BEEN STRICTLY CONSTRUED IN FAVOR OF THE ACCUSED AS REQUIRED BY THE RULE OF LENITY, AND WAS SUBJECTIVELY APPLIED IN DEROGATION OF THE LEGISLATIVE INTENT EMBODIED IN THE STATUTE?
DID THE TRIAL COURT ERR WHEN IT PERMITTED THE DISTRICT ATTORNEY TO MAKE IMPROPER STATEMENTS DURING BOTH HIS OPENING AND CLOSING ARGUMENTS AND SUBSEQUENTLY REFUSED TO GIVE A CURATIVE INSTRUCTION BECAUSE SUCH STATEMENTS SERVED ONLY TO INFLAME THE JURY'S EMOTIONS AND ...