Commonwealth v. Atwood

CAVANAUGH, Judge,

dissenting.

I respectfully dissent, and would affirm all of the appellant’s convictions.

The majority would overturn the appellant’s conviction for perjury before the grand jury1 because the evidence was insufficient, in that “it cannot be said that the Commonwealth has sustained its burden of proving beyond a reasonable doubt that appellant knew his answer to be false.” I do not agree.

The Commonwealth presented testimony from the victim, Anna Gates, that Atwood had asked for a loan to buy television time. The victim’s son, Alan Gates, testified that Anna Gates had loaned money to the appellant. One Eugene Kennett testified that the appellant had promised to repay the money advanced by the victim. Finally, Jay Altland testified that he was aware that appellant had *165borrowed money from Mrs. Gates and that the appellant had no intention of repaying it.

We must sustain the conviction, when viewing the evidence in the light most favorable to the Commonwealth, as the verdict winner, and drawing all reasonable inferences favorable therefrom, the evidence is sufficient to find every element of the crime shown beyond a reasonable doubt. Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986).

Perjury is defined by statute as follows:

A person is guilty of perjury, a felony of the third degree, if in any official proceeding he makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement, when the statement is material and he does not believe it to be true.

18 Pa.C.S.A. § 4902(a).

The appellant was under oath before a grand jury, and he stated that he thought the monies were a gift, and not a loan. The Commonwealth placed several witnesses on the stand who testified that the opposite was true, and that the appellant was aware of it. The loan-gift distinction clearly was material to the investigations. All the elements of the crime, therefore, were satisfied by the evidence of record. My colleagues place undue emphasis on a statement supposedly made to an investigator from the Attorney General’s office by the victim that “she would not mind if he didn’t repay her as long as he continued to do the Lord’s work.” At the very most, this created an issue of credibility for the finder of fact to rule upon. The finder of fact ruled against the appellant on this issue. The statement does not, in my opinion, mandate a reversal of the penury conviction.

My colleagues also would grant the appellant a new trial based upon the exclusion of the testimony of other “evangelical ministers” that their business practices often consisted of precisely what activities resulted in appellant’s convictions-not paying loans when due, floating debts by borrowing from others and then using that borrowed money to pay *166initial lenders, and running up expensive bills financed by this fiscal manipulation. This testimony was properly excluded by the lower court as irrelevant. The issue before that court was whether the appellant had committed the crimes with which he was charged, not whether the other “evangelical ministers” were also committing the crime as well or were engaged in loose financial practices. I would not grant a new trial, but would affirm the judgment of sentence.

. Count 10 of the criminal information.