Commonwealth v. Syre , 507 Pa. 299 ( 1985 )

OPINION OF THE COURT

FLAHERTY, Justice.

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).¹

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 upon Gibbs arose. In short, appellee portrayed himself and Gibbs as “little guys” caught up in a prosecution that was brought at the behest of Sprague, whom appellee regarded as a very powerful individual in Philadelphia.

(a) Offense defined. — A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted, he attempts to induce or otherwise cause a witness or informant to:

(1) testify or inform falsely;

(2) withhold any testimony, information, document or thing except on advice of counsel;

(3) elude legal process summoning him to testify or supply evidence; or

(4) absent himself from any proceeding or investigation to which he has been legally summoned.

(b) Grading. — The offense is a felony of the third degree; if the actor employs force, deception, threat or offer of pecuniary benefit. Otherwise it is a misdemeanor of the second degree.

Gibbs then accused appellee of breaching their agreement as to the time for payment of the civil action settlement funds. Appellee replied that he had never promised to deliver the funds by that date, and that he had only hoped to do so. Appellee informed Gibbs that the assistant district attorney had declared that the criminal case would proceed regardless of whether Gibbs requested otherwise, and that this presented an obstacle to paying for the civil settlement. Gibbs was then warned that if he proceeded with the criminal trial on December 15 there would be no point in appellee and Gibbs engaging in any further conversations. Appellee offered to perhaps “sweeten the deal” by paying more than had been agreed upon as the “civil settlement,” but conditioned any additional payments upon Gibbs taking certain steps to secure dismissal of the charges.

The measures which Gibbs would be required to take were expressly set forth by appellee, and they consisted of the following. Gibbs would have to speak with Charles Klein and tell him that he, Gibbs, of his own free will, had decided to drop the charges. Appellee cautioned Gibbs that Klein would inquire as to whether Gibbs had been threatened, or offered money, as an inducement for withdrawing the charges, and Gibbs was further warned that, if trouble from the prosecutor were to be avoided, Gibbs would have to deny any such inducements. To explain his motives for withdrawing the charges, Gibbs was instructed to say that there had been a misunderstanding, that Gibbs wanted to retain his friendships with co-workers who were defendants in the criminal action, that reports of the assault had been greatly exaggerated, that Gibbs’ injuries were not very serious, that Gibbs had not anticipated that the prosecution would pursue charges other than simple assault, such as theft and conspiracy, and, finally, that Gibbs did not want to discuss the matter any further with prosecutorial officials.

Appellee told Gibbs that, after meeting with Charles Klein, Gibbs would have to go to the office of the district attorney and speak with Edward Rendell. Appellee explained that Gibbs would have to do a lot of “tap dancing” in his conversations with Klein and Rendell. Gibbs was apprised that, even after speaking with Klein and Rendell, he would not receive the full balance of the promised funds until the criminal charges were in fact dismissed. In the event charges were not dismissed, and trial commenced as scheduled on December 15, Gibbs was told that he would have to do “whatever was required” to assist in terminating the criminal action if he were to secure full payment for settlement of his civil claim. Appellee stated that he could deliver, later that day, an additional portion of the promised settlement funds, if Gibbs would first speak with Charles Klein and report to appellee regarding that conversation. Gibbs stated that he would accept that arrangement, and, after Gibbs was repeatedly directed to deny having had this conversation with appellee, appellee demanded that Gibbs promise to follow through with the actions they had discussed.

After the foregoing discussion at City Hall concluded, Gibbs met with appellee again later that same day at a Burger King restaurant. At this meeting, Gibbs was again wearing a hidden recording device. The conversation at the restaurant proceeded as follows.

Gibbs reported that he had conferred, as requested, with Klein and Rendell, and that they were pressuring him by threatening to subpoena him to testify at the December 15 trial. He further reported that he had been threatened with the possibility of being prosecuted for perjury. This news evoked another discourse from appellee regarding the perceived evils of Richard Sprague. Appellee then delivered to Gibbs an additional portion of the settlement funds, to wit $400, this sum having been promised to Gibbs earlier that day in exchange for Gibbs’ talking with Charles Klein. Delivery of this sum reduced to $800 the balance of settlement funds still owed to Gibbs. Appellee reiterated that Gibbs “must cooperate” with him if the criminal cases go to trial, with the additional admonition that they were “playing with the big guys.” Appellee told Gibbs that the district attorney would continue to try to pressure him, but that the district attorney could not force Gibbs to do anything. The political motivations of the district attorney, and of Richard Sprague, were cited by appellee as the reasons for Gibbs being pressured to proceed with the criminal action, and appellee expressed his opinion that Sprague and the district attorney were engaged in a scheme to create pressures upon John Morris, a labor boss in the Philadelphia area.

Appellee advised Gibbs as to how to avoid being forced by the district attorney to testify in the criminal trial. Specifically, appellee explained that Gibbs would be subject to prosecution for perjury if, when called as a witness at trial, Gibbs testified contrary to a signed statement given under oath. To avoid such a prosecution, Gibbs was instructed to testify falsely that his memory had failed, and to testify falsely that he had instigated the affray with the union members by calling one of them a name. Appellee told Gibbs to testify that he had not previously mentioned this latter act of provocation because he was too emotional to remember it at the time of issuing his statement under oath.

Gibbs was then informed that he would have to talk to the district attorney again, and appellee suggested that if the district attorney chose to subpoena Gibbs to testify at trial, Gibbs could, ignore the subpoena. Appellee stated that only if Gibbs could be located by the sheriff and transported into the courtroom would it be necessary for Gibbs to testify. Appellee reiterated that Gibbs’ testimony should be that the entire incident had become grossly exaggerated, and that Gibbs could safely claim that his recollection of the incident had failed. For instance, despite Gibbs’ repeated statements to appellee that his recollection of the incident was clear, and in spite of Gibbs’ assertions that he knew and could clearly identify the five union members who assaulted him, appellee persisted in telling Gibbs that Gibbs’ memory had failed. Appellee then asked Gibbs to tell the district attorney that, at the time of identifying the persons who committed the assault, Gibbs had been under pressure which caused him to make identifications of which he was not certain.

As this conversation proceeded, appellee directed that if Gibbs were ever asked about the reasons for money having been delivered to Gibbs by appellee, Gibbs should respond that the money was for settlement of the civil action, and appellee commented that much of their arrangement would have to rest upon trust in one another. Appellee explained that the remaining $800 in settlement funds would be paid whenever the criminal case was over, provided that Gibbs demonstrated the cooperation that was required of him, Gibbs then reminded appellee that earlier that day appellee had agreed to “sweeten the pot a little,” whereupon appellee again promised to secure some extra money for Gibbs. Appellee warned Gibbs, however, not to “push his luck,” because Gibbs was dealing with some “very dangerous” people, people who “play with knuckles” and who play “hard ball.”, and appellee characterized himself as one of those “honorable” but “rough” people. Appellee concluded the conversation by saying that Gibbs was “playing it fairly well,” and after again stressing the need for Gibbs to cooperate in order to receive the promised funds, appellee once again stated his view that the district attorney was acting under political motivations in prosecuting the union members.

Subsequent to these conversations with appellee, Gibbs, on October 29, 1980, signed a final release agreement, superseding the agreement in principle to release claims of civil liability that had been executed circa August 21, 1980, the latter date being that on which appellee delivered to Gibbs the first $400 installment of the settlement amount. The final release contained language stating that it was applicable to civil liability alone, and further stating that no obligation was thereby created for Gibbs to refrain from prosecution of any criminal actions. In reversing appellee’s conviction, Superior Court placed much emphasis upon this language in the final release, regarding it as clear evidence that no effort had been made to unlawfully influence Gibbs. We believe Superior Court disregarded the clear import of the conversations heretofore described, and that, in view of the contents of those recorded conversations, the jury no doubt regarded the language in the final release as a subterfuge designed to conceal the witness tampering that the jury found to have occurred on an earlier date, September 22, 1980. Indeed, the tape recorded meetings contained numerous instances of conversation between appellee and Gibbs from which the jury could have concluded that appellee unlawfully influenced Gibbs.

Thus, we reverse the order of the Superior Court, reinstate the judgment of sentence, and remand this case to Superior Court for disposition of appellee’s remaining appellate claims.

Order reversed, judgment of sentence reinstated, and case remanded.

ZAPPALA, J., files a dissenting opinion which LARSEN, J., joins.

1 . The elements of the offense of witness tampering applicable to appellee’s prosecution were set forth in 18 Pa.C.S.A. § 4907, which provided as follows: