170 Pa. Super. 292 | Pa. Super. Ct. | 1952
Opinion by
This is the appeal of the defendant, Vincent Rossi, from judgment of sentence on his conviction of subornation of perjury. On the testimony of Ernest Twyman, á numbers writer, a true bill had been found
Twyman was a numbers writer in and about Coatesville. In the present trial he testified that it was Eossi who conducted the lottery and that he wrote numbers exclusively for him. Eossi lived in Eeading but also maintained an apartment in Coatesville. There is evidence that he was the proprietor of a cigar store on North Second Avenue in Coatesville; this he denied contending that the store was operated by his son. But the evidence clearly charges him with some dominion over the premises. Twyman testified that during August 1949 he had delivered numbers slips and the proceeds in money to Eossi at the cigar store every' day for about a week but the arrangement was then terminated and Eossi notified him that thereafter he would pick them up at Twyman’s home. Early in the afternoon of August 17, 1949, Eossi was seen by four State Police officers, alone in his automobile, parked in front of Twyman’s house on the easterly edge of the City of Coatesville. As the officers approached they saw Twyman standing beside the driver’s seat leaning against the car and talking to Eossi. One of them observed Twyman holding something in his hand. The officers ordered Eossi to remain in his automobile while all four of them went into Twyman’s house and searched the premises. There the officers found slips,
Whether Twyman committed perjury as a Commonwealth witness in the trial of Rossi on the lottery charge, depends upon the truth of the following incident, as related by him under oath in the present trial. He testified that Rossi came to his home on the above occasion of August 17, 1949, to pick up the returns of the numbers written by him on that day; that he had a paper bag in his hand for delivery to Rossi, containing numbers slips and money, and was standing at the curb alongside of Rossi’s car talking to him; that at the approach of the police officers he “got rid of the bag quick” and dropped it with its contents into Rossi’s car. He was positive in his statement under oath to that effect. Perjury is alleged to have been committed by him when he testified, as a witness in the prior trial of Rossi on the lottery charge, that he never had any dealings “with him relating to numbers” and that he “never turned numbers slips to Vincent Rossi”. In emphasizing the importance of determining the truth of the above incident, the trial judge, in all fairness to the defendant, charged the jury:“. . . to establish the falsity of Twyman’s testimony on October 6, [1949, the date of Rossi’s trial on the lottery charge] the Commonwealth must establish that Twyman in fact did deliver number slips to Rossi on August 17, 1949. If that is not done, if that is not a fact, if no such delivery was
The extent of the burden on the Commonwealth in proving the perjury is succinctly stated in Commonwealth v. Antico et al., 146 Pa. Superior Ct. 293, 319, 22 A. 2d 204, thus: “The rule is well established in this Commonwealth that upon a charge of perjury it is unnecessary for the prosecution to make out a case by the testimony of two witnesses; all that is required is the direct testimony of one witness and ‘strong circumstances conducing to that end’ (Steinman v. McWilliams, 6 Pa. 170, 177), or ‘corroborative evidence’ (Com. v. DeCost, 35 Pa. Superior Ct. 88, 95; Com. v. Rogo, 71 Pa. Superior Ct. 109; Com. v. Haines, 130 Pa. Superior Ct. 196, 196 A. 621), or ‘substantial corroborating circumstances’ (Com. v. Bobanic, 62 Pa. Superior Ct. 40, 45), or ‘any material circumstance . . . proved by other witnesses in confirmation’ (Williams v. Com., 91 Pa. 493, 501).” In Commonwealth v. Billingsley, 160 Pa. Superior Ct. 140, 143, 50 A. 2d 703
Twyman clearly was a competent witness to testify to his own perjury. Commonwealth v. Billingsley, supra; Hammer v. United States, 271 U. S. 620, 46 S. Ct. 603. He then had not yet been convicted of perjury and therefore was not disqualified as one sentenced for the offense.
Twyman as a Commonwealth witness testified in the trial of the present case that he was arrested on August 17, 1949, the day of the search of his home by the State Police and that he was not released on bail until three days later; that he then saw Rossi “at his store” on Second Avenue and told him that he had given a statement to the police, inferentially implicating Rossi; that Rossi said: “That statement would have to be changed that I gave the police” and that “I could say that the police pushed me around and I talked” and further that “I could have told the police . . . that he [Rossi] was there getting his car washed”. Twyman also testified that some time later when Rossi came to Ms house at 42 Carver Court to inquire as to what occurred before the grand jury Twyman replied “I told the grand jury who I was turning money and slips in to” and that Rossi said: “I should not have done it, I should have come and seen him first”; that Rossi appeared again the following morning and took Twyman to Rossi’s lawyer saying that he would pay the charges for his acting for Twyman if he would discharge counsel he had previously retained. Twyman testified further that on October 5, 1949, Rossi called for Twyman at his house and took him in his ear to the court house
By way of corroboration of Twyman’s testimony that he had delivered numbers slips and money to Rossi on August 17, 1949, and that his statement under oath to the contrary, at Rossi’s previous trial, was perjured, the Commonwealth relied upon the following circumstances: that Rossi had driven his car to the house of Twyman, a negro, on the edge of Coatesville in Carver Court, in a district largely inhabited by negroes, for a meeting between them; that in view of the racial difference and the admitted absence of personal friendship between them it was highly unlikely that the purpose of Rossi’s visit was unrelated to Twyman’s only business, that of numbers writing; that Twyman was seen to have something in his hand as he stood beside Rossi’s
In Wigmore on Evidence, Vol. VII, §2042, it is authoritatively stated: “(2) As to the nature of the corroboration, no detailed rule seems to have been laid down, nor ought to be laid down. The jury should be instructed not to convict unless the testimony of the principal witness has been so corroborated that they believe it to be true beyond a reasonable doubt.” Insofar as the corroboration is purely circumstantial , the required proof is beyond a reasonable doubt merely and not that the circumstances be absolutely incompatible with the defendant’s innocence. The authorities reflecting. the changed rule in Pennsylvania are cited in Commonwealth v. Grosso, 169 Pa. Superior Ct. 606, 84 A. 2d 239. Section 2042 of Wigmore, supra, contains the following additional discussion: “(3) . . . the corroboration is required for the perjured fact as a whole, and not to every detail or constituent part of it.” Cf. Com. v. Bobanic, supra. This phase of the case was adequately submitted to the jury. There is corroboration of Twyman’s direct testimony of the perjury in the above circumstances, sufficient to satisfy the requirements of the law as to the nature and degree of the proof required.
. ~ Although not essential to proof of the crime, there is abundant corroboration of Twyman in the circumstances, as to- the subornation of perjury by Rossi. The Commonwealth established that Twyman and Rossi were seen in furtive conversation in the Court House a number of times, the last of which was on October 6th immediately before Rossi’s trial. From the fact that Rossi kept in such close contact with Twyman shortly before and during Rossi’s trial, where he was exculpated by Twyman’s testimony, it was a fair inference that Rossi’s sole motive was to keep Twyman under control and hold him in line. This conclusion is all the more reasonable from the ■ absence of testimony that Rossi ever associated with Twyman on any other occasion.
When Twyman appeared as a witness before the grand jury he was sworn by the district attorney, and not by the foreman or by a member of the grand jury
And finally, the contention of the defendant that he was prejudiced by the statement.of the trial judge in his charge that Twyman was a “self-admitted perjurer” is wholly without merit. The label had already been put upon Twyman by Rossi’s counsel when on cross-examining Twyman he asked: “You realize that you admitted that you are a perjurer?” to which Twyman answered: “Yes, I do.” Moreover the court by merely calling the jury’s attention to the above admission of Twyman did not in any way infringe upon the prerogative of the jury to find the facts. The charge as a whole adequately instructed the jury as to the degree of proof necessary to establish perjury and fairly left to the jury the question whether Twyman in fact had perjured himself when he testified in the trial 'of Rossi ón the lottery charge as well as whether his perjury was suborned. ■ -
- - There is ho merit in any of the contentions of the appellant in seeking a new trial. v,v-'
Affirmed in 357 Pa. 378, 54 A. 2d 705.