A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

Com. v. Lewis, 800 MDA 2010, 2012 WL 259324, 2012 PA Super 17 (1/30/12). Click for Opinion

This was an appeal from a Judgment of Sentence in the Court of Common Pleas of Lebanon County, Criminal, No. CP–38–CR–0001113–2008. The panel was composed of Judges GANTMAN, LAZARUS, and MUNDY. Judge Gantman wrote the Opinion for the Panel.

A jury convicted the Appellant of tampering with public records or information, 18 Pa.C.S.A. § 4911. 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. 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, as the 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.

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. Mr. Gardner came 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. 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 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.

The trial court noted the lack of Pennsylvania precedent on the issue of a “collusive” marriage and the interplay of that concept with Section 5913. The trial court, Judge Charles Bradford, concluded that Section 5913 was unavailable to Mr. Gardner if he had married Appellant to avoid testifying against her. 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. The jury found the Appellant guilty of tampering with public records or information but not guilty of obstructing administration of law or other governmental function.

On appeal, the Appellant argued that the trial court’s interpretation of Section 5913 ignored the unambiguous language of the statute and was inconsistent with the Pennsylvania rules of statutory construction. Judge Gantman agreed and concluded that the trial court had improperly compelled Mr. Gardner to testify at trial in violation of Section 5913. Under this Section, the witness spouse owns the privilege to refuse to give testimony against the defendant spouse in a criminal proceeding. The conventional purpose of this privilege is to preserve and protect marital harmony. The testifying spouse can waive a Section 5913 privilege.

The issue in the present case was whether the spousal testimony privilege of Section 5913 was available to Mr. Gardner who allegedly married Appellant partly to avoid giving testimony against her in a criminal proceeding. Section 5913 defines the spousal testimony privilege as available to a lawful spouse in a criminal proceeding against the other spouse, and the statute lists four exceptions: (1) actions for desertion and maintenance; (2) criminal cases where one spouse is charged violence against the other spouse or against any minor child in their care or custody; (3) cases where the testimony is applicable to proof of marriage in support of a criminal charge of bigamy; or (4) criminal cases involving charges of murder, rape, or involuntary deviate sexual intercourse.

Here, the Appellant and Mr. Gardner were lawfully married when he asserted his Section 5913 spousal testimony privilege. Notably, neither the statute nor the exceptions eliminate or limit the privilege for collusive marriages or pre-marriage events or actions. The statutory text of Section 5913 is clear in this instance, and any public policy concepts arguably implied in the statute are irrelevant. Thus, the Court refused to adopt the trial court’s rationale for creating an exception to the spousal testimony privilege for a “collusive” marriage on policy grounds and also rejected the trial court’s conclusions regarding the applicability of Section 5913 under the circumstances of this case. Therefore, Mr. Gardner owned the spousal testimony privilege when he invoked it, and the court erred in compelling Mr. Gardner to testify at Appellant’s trial.

Nevertheless, the question still remained whether this error compelled a new trial because the Commonwealth’s evidence against Appellant was sufficient to prove Appellant’s guilt beyond a reasonable doubt as to the tampering with public records charge. In this respect, Mr. Gardner’s testimony was merely cumulative of other untainted evidence. Therefore, the court’s ruling compelling Mr. Gardner’s testimony at trial was harmless error.

The attorney for the Appellant was Bryan Eugene DePowell, Jr. of the Mcshane Firm of Harrisburg, PA.


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