Lead Opinion
OPINION OF THE COURT
This is a perjury prosecution arising from allegedly perjured testimony given by Dr. Johnson, appellant in the case at
At trial on the Bolton matter, SEPTA called an expert witness who testified that Dr. Johnson could not have written the notes in 1979, as he claimed, because the ink used to write the notes was not manufactured until 1984. The expert was able to date the ink by way of chemical markers which the manufacturer used to date its ink every year since 1979.
Based on the expert’s testimony, Dr. Johnson was charged with perjury, false swearing in official matters, and tampering with or fabricating physical evidence. These charges were dismissed at preliminary hearing. However, Dr. Johnson was thereafter re-arrested, whereupon he filed a motion in limine, requesting that the court suppress the expert testimony. The Commonwealth offered two experts on the reliability of ink analysis as a method for dating ink. After hearing, the court granted Johnson’s motion in limine. On appeal, Superior Court reversed, and thereafter, this court granted allocatur.
The sole question on this appeal, as presented by Johnson in his petition for allowance of appeal, is whether the Superior Court erred in reversing the decision of the trial
The “two-witness rule,” as explained by Superior Court, required at common law 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 and corroborating evidence. This rule was modified by the adoption of 18 Pa.C.S. § 4902(f), and by Commonwealth v. Broughton,
We read this provision [§ 4902(f) ] to mean that a witness may testify as to his direct observation, or he may provide circumstantial evidence; but in either case, he must be corroborated by the testimony of another witness, whose testimony may provide either direct or circumstantial evidence.
Id. at 380,
Superior Court in its opinion in the instant case explained its Broughton opinion as follows:
Although this change from the common law two-witness rule permitted a perjury conviction to rest on circumstantial evidence alone, “in such event the different pieces of circumstantial evidence must fit together so tightly as to preclude any reasonable doubt of guilt,” id,257 Pa.Super. at 380 ,390 A.2d at 1288 . Such an interpretation, this Court observed, would serve the principal purposes of the common law two-witness rule, namely, protecting the defendant against good-faith mistakes and against the grudge witness.
Commonwealth v. Johnson,
(a) Offense defined. — 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 the truth of a statement previously made, when the statement is material and he does not believe it to be true.
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(e) Inconsistent statements. — Where the defendant made inconsistent statements under oath or equivalent affirmation, both having been made within the period of the statute of limitations, the prosecution may proceed by setting forth the inconsistent statements in a single count alleging in the alternative that one or the other was false and not believed by the defendant. In such case it shall not be necessary for the prosecution to prove which statement was false but only that one or the other was false and not believed by the defendant to be true.
(f) Corroboration. — In any prosecution under this section, except under subsection (e) of this section, falsity of a statement may not be established by the uncorroborated testimony of a single witness.
(Emphasis added.)
The Commonwealth asserts that it intends to offer not only the evidence of its expert (ink dating of the handwritten notes), but also evidence that the records submitted pursuant to its subpoena did not include the notes referred to at trial. This evidence, presumably, would include the subpoena and the documents submitted pursuant to the subpoena.
Such evidence, on the face of Section 4902(f), would seem to meet the statute’s requirement that falsity may not be established by the uncorroborated testimony of a single witness, for
Superior Court writes:
[A]s 18 Pa.C.S. § 4902(f) “does not purport to establish affirmatively the type or quality of the evidence necessary to convict” a defendant of perjury, it does not preclude the possibility that the Commonwealth will be able to prove beyond a reasonable doubt, based upon the evidence available in the present case, that appellee committed perjury....
We agree with Superior Court that section 4902(f) does not preclude the admission of expert testimony bolstered by other evidence in support of the expert testimony, including circumstantial evidence. Commonwealth v. Russo, supra, n. 3. The order of Superior Court is, therefore, affirmed and the case is
Notes
. Johnson's reference to "opinion evidence” means "expert testimony.”
. Johnson also raises the question of whether his re-arrest violated his right to due process and to equal protection in violation of the Fourteenth Amendment. We do not address this claim because it was not raised in the petition for allowance of appeal.
. Although Johnson claims that Commonwealth v. Hude,
This court’s most recent discussion of the evidence required in a perjury case is as follows:
The Commonwealth could prove its charge by evidence which was direct or evidence which was circumstantial, but the evidence must be legally competent and sufficient in volume and quality to prove [defendant] guilty of the crime charged [false swearing] beyond a reasonable doubt....
The so-called two witness rule in perjury cases prevails in Pennsylvania, i.e., in order to convict of perjury there must be two witnesses or one witness plus corroborating evidence....
Commonwealth v. Russo,
. The trial court has not yet ruled on the admissibility of the ink analysis, having disposed of the case, as it thought, on the basis of section 4902(f). Superior Court also did not rule on that issue, and it has not been raised before us.
Dissenting Opinion
dissenting.
I respectfully dissent. I disagree with the majority’s conclusion that the “two-witness rule” codified in 18 Pa.C.S. § 4902(f) may be satisfied by the admission of expert testimony plus corroborating evidence in support of the expert testimony.
The majority correctly notes that under the common law the two-witness rule required 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 and corroborating evidence. Williams v. Commonwealth,
I strongly disagree with the majority’s conclusion that the two-witness rule was modified by the General Assembly when they promulgated Section 4902(f) or by the Superior Court in Commonwealth v. Broughton,
Direct evidence is “[e]vidence in form of testimony from a witness who actually saw, heard or touched the subject of interrogation ... which, if believed, proves [the] existence of [a] fact in issue without inference or presumption.” Black’s Law Dictionary 413 (5th ed. 1979). Circumstantial evidence, as distinguished from direct evidence, is “testimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved.” Id. at 221. Direct evidence is obviously more reliable and probative than circumstantial evidence because direct evidence proves a fact without the necessity for the fact-finder to make additional deductions or inferences or presumptions. Thus, although direct evidence and circumstantial evidence are both factual in nature, they are clearly distinct and for purposes of Section 4902(f), circumstantial evidence is an illegitimate and
The proper application of the evidentiary requirements of the two-witness rule was illustrated by the Superior Court in Commonwealth v. Field,
At defendant’s trial, the following testimony was offered: defendant had demanded “lead bank” designation prior to instituting the lawsuit and defendant had negotiated with the Redevelopment Authority with respect to the “lead bank” designation within a week of settling suit. Both parties agreed that such testimony was circumstantial in nature and that no direct testimony was offered to support two of the assignments of perjury.
As discussed above, direct evidence is factual in nature. Opinion evidence, on the other hand, is not factual in nature.
An opinion is only that: it creates no fact. It is what someone thinks about something, and the thought may be precisely accurate or totally inaccurate, and yet represent the absolutely honest conviction of the person who expresses it. Because of this, opinion evidence is generally considered of a low grade, and not entitled to much weight against positive testimony of actual facts. There is a great difference between factual and opinion testimony. In the one the witness testifies to the fact and certifies that what he says of it is true. In the other, he only testifies to his opinion that such a thing is true, and certifies only to his integrity of belief. He says he believes his opinion to be correct, but he does not warrant it to be true, and does not pretend that he cannot be mistaken.
In re Pochron’s Estate,
The majority opinion, taken to its logical conclusion, implies the dubious proposition that without any direct evidence at all, the General Assembly intended now to make it possible for the first time to convict someone of perjury under Section 4902(f) through the testimony of two expert witnesses offering their opinions or one expert witness plus corroborating circumstantial evidence. In the former case, not only is there no direct evidence but more importantly, there is no fact evidence whatsoever. In the latter case, utilizing an expert witness plus corroborating circumstantial evidence, there is again no direct evidence. Moreover, the latter case depends entirely upon circumstantial evidence, evidence which requires the fact-finder to make further deductions, inferences or presumptions in order to lead to a conclusion, beyond a reasonable doubt, that the fact in issue has been proved. This is precisely the sort of indirect evidence the two-witness rule was designed to prevent unless properly supplemented with direct evidence. Simply stated, opinion evidence is neither direct nor fact evidence and both the common law and the General Assembly have wisely mandated that no one can or should be convicted of perjury on that evidence alone.
For the foregoing reasons, I would reverse the order of the Superior Court and reinstate the Court of Common Pleas order granting the motion in limine.
. There were two principal purposes of the common law two-witness rule: to protect the defendant against good faith mistakes and against grudge witnesses. Commonwealth v. Broughton,
. The Official Comment in relevant part reads as follows: "[e]xisting law is in accord with Subsection (f).”
. I do agree with, the majority that Commonwealth v. Hude,
. The “lead bank” designation refers to the financially advantageous position occupied by one of several banks that handle the Redevelopment Authority funds.
. Defendant had been charged with five assignments of perjury.
. The majority also quotes Commonwealth v. Russo,
. It is not clear whether the majority considered the opinion evidence as direct evidence or as circumstantial evidence. It is clear, however, that the majority considered the opinion evidence as witness testimony and not as corroboration evidence. What the majority failed to consider is that opinion evidence is not factual and, as such, it cannot be admitted as direct testimony of a witness. If it is to be admitted at all pursuant to the two-witness rule, it can only be admitted as corroborating evidence.
. I agree with the majority's conclusion that corroborating evidence can be either direct or circumstantial. Indeed, I would go further and also hold that opinion evidence can also be admitted as corroborating evidence.