No “collusive marriage” exception to privilege against testifying against a spouse

Commonwealth v. Lewis, 2012 PA Super 17 (1/30/12) (25 pages)

Ms. Lewis was convicted of tampering with public records or information. The Commonwealth alleged Ms. Lewis falsified records regarding her supervision of one Mr. Gardner’s probation.  Ms. Lewis fell in love with Mr. Gardner while supervising him, and among other things, noted in his file that he was going to Atlantic City to visit his family one weekend when in fact he was traveling with her. Ms. Lewis left her job after that, and her successor learned of the romantic relationship and investigated how it might have affected the supervision of Mr. Gardner. During the course of the investigation Mr. Gardner admitted the details of the relationship. Ms. Lewis, when interviewed by the investigators, confirmed Mr., Gardner’s statements. The criminal charges were then filed against Ms. Lewis.

After the charges were filed Ms. Lewis and Mr. Gardner married. From that point on, Mr. Gardner asserted his privilege against testifying against his spouse pursuant to 42 Pa.C.S. § 5913. In the face of Mr. Gardner’s assertion of the privilege, the Commonwealth filed a motion in limine asking that he be compelled to testify on the grounds that his marriage was collusive. The lower court granted the motion, finding that even though Ms. Lewis and Mr. Gardner loved one another, the timing of their marriage demonstrated that it was collusive and occurred to allow Mr. Gardner to assert the privilege.

The Superior Court concluded that the plain meaning of §5913 excludes any exception for “collusive marriages.” Only the Legislature can create such an exception, and it had not. Therefore, the lower court erred in compelling Mr. Gardner’s testimony at trial. The conviction was affirmed though, as the Court found the rest of the evidence of Ms. Lewis’ guilt was overwhelming.

The case can be found by following the links from here.

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