Lead Opinion
Appellant was convicted below of obstruction of the administration of law
The facts are as follows. On June 17, 1976, in City Hall Courtroom 196 in Philadelphia, the Honorable Benjamin W. Schwartz was scheduled to preside over a suppression hearing in a case charging George Lam and Adolph Casparro with running an illegal lottery. Lam’s attorney, Richard L. Brown, Esq., testified that he intended to seek a continuance, but that Lam told him that a continuance was not necessary because the case had been “fixed” by appellant and James W. Gray, who was standing in the back of the courtroom. Brown notified the District Attorney’s office of the planned “fix”, and Assistant District Attorney John W. Morris and Detective James Kilgore came to Courtroom 196. They testified that they observed Lam and Casparro react in surprise when Judge Schwartz denied the motion to suppress, and turn and make eye contact with Gray. Gray left the courtroom and spoke to appellant, who said that he had spoken to the judge, and the judge might still blow out the case; if not he would give Gray his money back.
The present obstruction of justice statute reads in pertinent part: “A person commits a misdemeanor ... if he intentionally obstructs, impairs or perverts the administration of law. . . .”18 C.P.S.A. § 5101. In the opinion below refusing to arrest judgment, the court relied heavily upon the American Law Institute’s Comment on Section 208.30 of the Model Penal Code, from which § 5101 is wholly derived:
“(1) In General. The purpose of this section is to prohibit a broad range of behavior designed to impede or defeat the lawful operation of government. The section is therefore a general supplement to all the other provisions of Article 208 dealing with particular methods of interfering with proper functioning of the administration, e. g., bribery, intimidation, perjury, tampering with evidence, escapes ....
[HJaving determined in Section 208.14 that the offense of corruptly influencing оfficial behavior should be limited to ‘official proceedings,’ to avoid penalizing simple requests for improper favors from legislators, law enforcement officers and the like, it would be inconsistent to prohibit in Sections 208.30 all efforts to obstruct, impair or pervert governmental operations.” (emphasis added).
There are no decisions on § 5101 which are directly on point, but some of the language from our prior cases indicates that § 5101 is concerned with the means used to obstruct justice, and not necessarily the end result of justice obstructed. For instance, in Commonwealth v. Kelly,
Even in the older, pre-§ 5101 cases, we notice a greater concern for the acts by which an obstruction is attempted, rather than the ultimate obstruction itself. In Commonwealth v. Frankfeld,
For further illumination of what is meant by the concept of “obstruction” of justice, we may also look to the cases decided under 17 P.S. § 2041, granting summary criminal contempt рowers to our trial courts, which reads in pertinent part: “The power of the . . . courts to inflict summary punishments for contempts of court shall be restricted to the following cases: .
III. To the misbehavior of any person in the presence of the court, thereby obstructing the administration of justice.”6 The cases under § 2041 definitely require that an obstructive effect be caused by the actor’s conduct before*270 summary criminal contempt may be inflicted. The Supreme Cоurt recently said in Commonwealth v. Garrison,478 Pa. 356 , 372,386 A.2d 971 , 979 (1978): “An obstruction of the administration of justice is a significant disruption of judicial proceedings. . . . What is required is a showing of actual, imminent prejudice to a fair proceeding or the preservation of the court’s authority.”
See also In re November 1975 Special Investigating Grand Jury,
Federal cases construing the power of federal court judges to inflict summary criminal contempt also require that the act punished have an obstructive effect upon the court’s proceedings. See In re Michael,
We conclude that § 5101 includes intentional, albeit unsuccessful, attempts to influence, obstruct, or delay the administration of law. The Comment of the drafters of Section 208.30 of the Model Penal Code, from which § 5101 is wholly derived, indicates as much. Clearly the interest sought to be protected by § 5101 is the same as the federal obstruction of justice statute. Accordingly, notwithstanding the absence of the word “endeavor” in § 5101, we think that the federal cases, holding that a corrupt attempt to influence the judicial process is a criminal obstruction, are instructive in this regard. Although the holding we announce today is new, the result was foreshadowed by our opinions in Commonwealth v. Kelly, supra, and Commonwealth v.
It is one thing to say that a judge’s power to inflict summаry criminal contempt for obstruction of justice should be limited to actual obstructions, and quite another to place that restriction upon the substantive offense of obstruction of justice. The contempt cases indicate that while a judge must have summary power to preserve a fair trial and his own authority, this power of summary disposition must be limited to actual obstructions of the judicial proсess to protect the actor’s own due process rights to notice and a hearing prior to the imposition of criminal sanctions. See In re Michael, supra; Commonwealth v. Garrison, supra.
In this case, appellant admits in his brief, and the record amply supports the conclusion, that we have a corrupt, intentional attempt to influence a judge’s decision in a pending criminal case. As such, we hold that the evidence was sufficient to provе the charge of obstruction of justice under § 5101.
Appellant also contends that Brown’s testimony should not have been admitted in evidence against him. This contention is without merit. As to the alleged lack of extrinsic evidence connecting the hearsay declarant (Lam) in a conspiracy with appellant, we note first that it is permissible to prove participation in a conspiracy by circumstantial evidence. Commonwealth v. Weitkamp,
As to the claim based on the attorney-client privilege between Lam and Brown, appellant has no standing to invoke it. Commonwealth v. McKenna,
Judgments of sentence affirmed.
Notes
. The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1; 18 C.P.S.A. § 5101.
. The Crimes Code, supra; 18 C.P.S.A. § 903.
. Act of March 31, 1860 P.L. 382, § 8. This statute read, in pertinent part: “If any person shall knowingly, willfully and forcibly obstruct, resist or oppose any sheriff ... in serving or attempting to serve or execute any process, he . . . shall be guilty of a misdemeanor.”
. This statute reads in pertinent part: “Whoever corruptly . . . endeavors to influence, intimidate, or impede any witness or juror ... or officer ... or endeavors to influence, obstruct or impede the due administration of justice, shall be fined . . . .” 18 U.S.C. § 1503.
. See also Romans v. State,
. Act of June 16, 1836 P.L. 784, § 23; 17 P.S. § 2041. This statute has recently been re-enacted with no substantive changes in the Act of July 9, 1976 P.L. 586, No. 142, § 2, eff. June 27, 1978; 42 Pa.C.S.A. § 4131.
. This statute reads in pertinent part: “Nor shall counsel be competent or permitted to testify to confidential communications made to him by his client. . . . ” Act of May 23, 1887 P.L. 158, § 5; 28 P.S. § 321.
Dissenting Opinion
dissenting:
I disagree with the majority’s construction of Section 5101, and also with its view of the admissibility of the conspirator’s out-of-court statement.
-1-
Section 5101 provides: “A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the administration of law or other governmental function . . . .” The majority says that “a corrupt, intentional attempt to influence a judge’s decision in a pending criminal case . . . . [is] sufficient to prove the charge of obstruction of justice under § 5101.” Majority oрinion at 1204.
It is not enough, however, to note the majority’s error in construing “obstructs” as meaning “obstructs or attempts to obstruct”; the question remains: What does “obstruct” mean?
In answering this question it is enough to apply the general rule that we are to assume that the legislature usеs ordinary words in their ordinary meaning. Vitolins Unempl. Compensation Case,
Here there was no evidence that appellant’s conduct had any of these effects. As the majority says: “Judge Schwartz testified that around 9:45 a. m. on this day, appellant came to him in his chambers, and pointing to the names of Lam and Casparro on his trial list sheet, informed him (falsely) that Judge McCABE was interested in those
Given this evidence that appellant’s conduct h^d no discernible effect on Judge SCHWARTZ’s disposition of the Lam and Casparro cases, the lower court should have granted appellant’s motion in arrest of judgment on the charge of obstruction of justice.
-2-
I believe that attorney Brown’s testimony of what Lam said to him was inadmissible as hearsay, because the Commonwealth did not show by a “fair preponderance of the evidence,” Commonwealth v. Hirsch,
Before discussing just what the proof was, it may be well to put the point abstractly: In a trial against D, W may say what C said, if the prosecutor proves that D and C were conspirators, and that C’s statement was made in the course of the conspiracy. Here, W (attorney Brown) did not say what C (Gray) said but what C-l (Lam) said. Therefore, if C-l’s statement is to be admissible against D, the record must show by a preponderance of the evidence that D, C, and C-l were conspirators. I don’t think it does. I agree that a conspiracy between D and C (appellant and Gray) was shown. I also agree that there was some evidence of a conspiracy between C and C-l (Gray and Lam). However, in my opinion this evidence was too slight to show that C and C-l were conspirators, and furthermore, even if one stretches and says it was not too slight, still, it was not shown that D, C, and C-l were conspirators.
Thus, even if one were to accept the majority’s construction of Section 5101, a new trial should be ordered, for the admission of attorney Brown’s testimony of what Lam said was not error harmless beyond a reasonable doubt, Commonwealth v. Story,
I should order appellant discharged on the obstruction оf justice charge, and remand for a new trial on the conspiracy charge.
. The majority does not treat the question of whether appellant’s action “impairfedj or pervertfed] the administration of law or other governmental function . . . .” This question has not been briefed by the parties.
. It may be that as a practical matter the legislature did not have to express itself so fully in Section 5101, since attempts are separately punishable, i. e., are punishable as attempts, under Section 901 of the Crimes Code. In other words, the legislature might have reasoned: If someone obstructs justice, let him be charged under Section 5101; if he “attempts to obstruct justice”, let him be charged under Section 901. This consideration is not pertinent here, however, for appellant was not charged under Sectiоn 901, but only under Section 5101.
. Thus, the federal cases cited by the majority are not in point. Moreover, I am not convinced that any prior Pennsylvania case law supports the majority’s result. Sheldon Toll says that Section 5101 has “no similar provision in existing law.” Toll, Pennsylvania Crimes Code Annotated 576 (1974). Commonwealth v. Kelly,