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 opinion at 1204.1 Thus the majority construes “obstructs”, in Section 5101, as including “attempt to obstruct [influence a judge’s decision]”. This construction, I submit, violates settled principle. A penal statute must be strictly construed; if the statute says “A”, it must not be construed as saying “A or B.” Commonwealth v. Teada, 235 Pa.Super. 438, 344 A.2d 682 (1975). If the legislature wished to make it criminal under Section 5101 to “obstruct” or “to attempt to obstruct” justice, it could, and should, have said so.2 Consider what the Congress did. Its enactment provides: “Whoever corruptly . . . endeavors to influence, intimidate, or impede any witness ... or juror . or officer ... or endeavors to influence, obstruct or *274impede the due administration of justice, sháll be fined . .” 18 U.S.C. § 1503 (emphasis supplied).3
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 uses ordinary words in their ordinary meaning. Vitolins Unempl. Compensation Case, 203 Pa.Super. 183, 199 A.2d 474 (1964); Ross Unempl. Compensation Case, 192 Pa.Super. 190, 159 A.2d 772 (1960). Webster’s Third New International Dictionary defines “to obstruct” as follows: “1: to block up; stop up or close up: place an obstacle in or fill with obstacles or impediments to passing . i . . 2: to be or come in the way of: hinder from passing, action, or operation: IMPEDE, RETARD . . . 3: to cut off from sight: shut out ... to place obstacles in the way: IMPEDE syn see HINDER.” Thus, to be punishable under Section 5101, conduct need not “block up” but it must at least “hinder” or “impede” the administration of law or other governmental function.
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 *275two defendants. Judge Schwartz said he would consider that and give it some thought. He further testified that the contact didn’t really mean much to him, and that he just decided the case on its merits, not giving any thought to the conversation again until the District Attorney’s office contacted him about it.” Majority opinion at 1202.
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, 225 Pa.Super. 494, 497, 311 A.2d 679, 681 (1973), that appellant and Lam were conspirators. My review of the record reveals that while the Commonwealth proved a conspiracy between appellant and Gray, it failed to prove that Gray and Lam were so linked as to make Lam’s statement admissible against appellant.
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.
*276The only two pieces of evidence that link Gray (C) and Lam (C — 1) are the following. John Morris of the District Attorney’s office testified: “Well, I noticed that one of the defendants [Lam or Casparro] from time to time, particularly toward the end of the hearing on the motion, turned around and looked to the back of the courtroom, making eye contact with Mr. Gray, the co-defendant in this case. And Gray — Mr. Gray made certain gestures to him.” N.T. at 122. Morris was then asked whether it was Lam or Casparro that was making eye contact with Gray. N.T. at 123. Morris replied: “I don’t know because I never did learn the names of the respective — of the individuals.” N.T. at 123. Later, one Detective Kilgore testified: “At this time [conclusion of the suppression hearing before Judge SCHWARTZ] I observed the defendant [not clear which defendant] look in the rear of the courtroom towards a white male who was unknown to me at this time.” N.T. at 165. Kilgore subsequently testified that he thought the defendant who had looked to the rear of the courtroom was Lam. N.T. at 165. Evidence that two people “looked” at each other, and that one “made certain gestures” to the other, is too slight to show more than that they knew each other, and in some undefined way were cooperating with each other; it in no way shows that they were conspirators with still another person, appellant, who was not present.
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, 476 Pa. 391, 383 A.2d 155 (1978), either on the obstruction of justice charge or the conspiracy charge.
I should order appellant discharged on the obstruction of justice charge, and remand for a new trial on the conspiracy charge.
CERCONE, President Judge, joins in this dissenting opinion.. 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 Section 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, 245 Pa.Super. 351, 369 A.2d 438 (1976), contains a fleeting mention of Section 5101, but no clear indication whether the conviction was based on an attempt to obstruct justice or on a completed obstruction. Commonwealth v. Creamer, 236 Pa.Super. 168, 345 A.2d 212 (1975), was predicated on jurisdictional precedent, not a close reading of Section 5101. The last case the majority cites, Commonwealth v. Frankfeld, 114 Pa.Super. 262, 173 A. 834 (1934), involved a different, earlier, statute.