Commonwealth v. Bracero
528 A.2d 936
Pa.
1987
Check Treatment

*1 355 ORDER PER CURIAM. NOW, 1987, day July,

AND this 13th the order of the vacated, Commonwealth Court is and this case is remanded light to that court for reconsideration in City Gilberti v. 100, (1986). Pittsburgh, Pa. A.2d 1321 528 A.2d 936 Pennsylvania, Appellee, COMMONWEALTH of BRACERO, Appellant. Victor M.

Supreme Pennsylvania. Court of May

Submitted 1987. July

Decided 1987. *2 Lebanon, for Coyle, appellant. Christopher J. Feather, Jr., E. Feeman, John Atty., Dist. Robert W. Lebanon, for Charles, appel- Bradford H. Atty., Asst. Dist. lee. FLAHERTY, NIX, C.J., LARSEN,

Before McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ. THE JUDGMENT ANNOUNCING

OPINION THE COURT OF LARSEN, Justice. Court1 from an order of appeal

This is burglary. of sentence for judgment affirmed a Bracero, jury tried before was appellant, Victor County, Pennsylvania, Pleas of Lebanon Court of Common house on South dwelling of a burglary and convicted appellant con- City of Lebanon. Tenth Street exculpa- certain excluding erred that the trial court tends during him his trial. offered evidence tory 14, 1981, of Mr. and Mrs. Stein- the home February On Street, Lebanon, Pennsylvania was at 225 Tenth rock South 17, 1981, appellant burglarized. February On crime. committing that Subse- charged arrested and with *3 burglary charge. to trial on the appellant came quently, trial, met in appellant’s of the counsel beginning At the prosecuting attorney. and the judge chambers with the trial pro- that counsel made an offer Appellant’s tending exculpate to jury evidence posed place before as the bur- implicating another individual appellant by among defense exchange between and glar. relevant and set out counsel, quoted and the court is prosecutor as follows: in the of the opinion Tobias, Harry for appellant]: MR. MESICS [counsel a called as Village, at 89 will be who lives Lebanon as follows: testify Bracero and he will witness for Victor of Frankie Rodri- by That he knows a fellow the name an alias of community with quez who is also known on “Spunk” this fellow spoke that he with “Spunk”; over February, Harry the 20th of 1981. was Friday, “Spunk” he saw Lounge socializing, and the Down Town to Florida. talking going about “Spunk” there. was panel Superior Court a of the This case was heard and decided 1. Montemuro, JJ.). Judge wrote (Wickersham, Wickersham Beck and Judge by Judge Beck joined Montemuro. court dissenting opinion. filed a Harry give told that he him a “Spunk” would hundred ride, he “Spunk” for the so took with him. dollars Miami, During trip Harry this between Lebanon and had a him. He “Spunk” money that lot with observed wallet, dropped “Spunk” and he money saw lot of his there, they going in Miami. down off While were he on Harry robbery told that did “Spunk” Tobias Street. Tenth Saturday, February, for Florida the 21st of

They left on They got Sunday, there on at 4:00 the afternoon. night, 22nd of at 8:00 at and drove down February, Prix Harry Alpha Romeo Grand automobile. Tobias’ committing while he was this “Spunk” Harry told that he lady screamed and then left burglary, and it heighth The house was several stories house. Lebanon, “Spunk” that on Tenth Street in —he exactly like Victor Brace- “Spunk” looks testify will ro. attorney]: object I district

MR. FEEMAN [assistant one, not admissible. Number it’s irrelevant. that. It’s two, it exclude the Defendant. Number Number doesn’t three, hearsay. it is all like to also state this on Okay.

MR. MESICS: witness, record, have another a Maria that I also * Heverling to Detective on the 5th who went Ramos essentially thing the same reported March of 1981 and had talked this Heverling; that she also Detective had her “Spunk” talked to about “Spunk” fellow he had silver rap, take the and that gonna how he wasn’t *4 taking it over to Louie’s and he was that was stolen So, my some for offer other there’s basis Action Center. comes in here and tells Harry Tobias something than that me. in

(* post that neither his trial The noted Superior Court motions, any did raise issue appeal appellant his nor alleged Maria Ramos’ admissibility concerning testimony.)

359 I you THE don’t know how can COURT: overcome the hearsay. Well, only asking

MR. MESICS: basis for my that his be on admitted because it was South Tenth other city Street of Lebanon and the facts I the case support preliminary what know about from the details, hearing know, and from the what happened you— how the Defendant or it is whoever that committed this up left the it premises; lady was when woke and saw him or parts body, person his screamed and then the left; that it was a house with one story. more that So, offer, that’s basis for my your Honor.

THE I enough COURT: don’t think that’s there. The rejected. offer is 6-23-81,

(N.T., 3-6). at At a later in the proceed- time ings, appellant again counsel to have attempted testimony Harry Tobias admitted. Now, Honor,

MR. MESICS: your again like to offer Tobias; make for the my testimony Harry something neglected there was that I today, mention morning this when I made that offer. There was another item I think which is important making his offer and hoping you will his he testimony, that admit was that also “Spunk” Harry mentioned—this fellow also mentioned to it shop Tobias that was a barber was involved this home, parlor for what that’s This is a beauty worth. here are Spanish speaking people. and these ruling THE COURT: No. still My stands. 6-23-81, (N.T., 58). Bracero, 325 473 Pa.Super.

Commonwealth A.2d (1984). to the appellant argued Superior “Spunk” through the statements of offered the testimony Tobias, though hearsay, even should have been Harry admitted as because were declarations the declarant’s interest. Court, on its relying Common- (1973), Super. wealth v. 225 Pa. A.2d by “Spunk” held statements were not made made *5 insuring they under circumstances that trustworthy were Superior and The Court affirmed the trial reliable. court’s excluding allegedly out of court ruling the statements made by “Spunk”. appellant’s petition The for allowance of appeal granted. to the court was adopted that the appellant argues by Superi

The the Hackett, supra, Commonwealth v. or and applied this In rejected by this case should be Court. the heroin of possession defendant was convicted of of and while under the influence of a operating motor vehicle drug. narcotic At trial the defendant asserted defense drugged involuntarily. sought that he had been He to call to Keyser testify one Dennis to stand as defense that preliminarily Keyser witness. It was ascertained his privilege against Fifth Amendment self-in invoke to if called The testify crimination and refuse as a witness. therefore, permit trial defendant to call judge, declined addition, into Keyser. trial court refused allow and made Key evidence certain oral written statements The exculpated ser the defendant. defendant wanted which his former counsel who would have testified that call he, heroin Keyser Keyser, put admitted to him that knowledge without of the de defendant’s soda bottle court refused to this testimony. fendant. trial allow Court reversed the trial court and appeal, On held statements made both a Keyser’s that out court and the accused relevant bar were member have admitted. court trustworthy should been said: of fairness principles the fundamental policy,

Public process of the admission declara- require and due law. it determined can be tions where (1) from exculpate the defendant that those statements: (2) charged; inherently he is are the crime they orally or made to trustworthy in that are written having or those adverse persons authority reliable declarant; and, pre- are made interests during trial itself. trial 29-30, Id., 307 A.2d at 338. The Pa.Superior Ct. admissibility requirement *6 appellant argues Hackett, that the evidence must show that the namely, interest was made to “reliable against penal declaration having of or those adverse interests to persons authority declarant,” supported by logic precedent. is not the plurali- urges adopt expressed by us to the view appellant Nash, 296, 457 Pa. of this Court Commonwealth v. ty Colon, (1974), 461 Pa. 324 A.2d 344 and Commonwealth v. (1975). 577, 337 A.2d 554 tried as a Nash,

In the defendant Alfred Nash was one Nash was convict- co-defendant with James Robinson. assault and aggravated robbery, aggravated battery ed of was weapon. and a concealed Robinson convicted carrying the of The trial court refused allow aggravated robbery. Edwards, Robinson, girlfriend Renee testimony of one a defense witness. Ms. Edwards would who was called as Daniels had admitted to her that have testified that a Willis Nash and Robinson were he committed the crimes for which as inadmissible hear- testimony rejected on trial. The was Nash, and while that case was Following the trial say. decided Common- appeal, on the Court pending Supreme and the U.S. supra v. wealth Mississip- its v. State handed down decision Chambers (1973). 284, 1038, 297 Each 35 L.Ed.2d 410 U.S. S.Ct. pi, circumstances, that, under certain of these cases decided interest is admissible of court declaration out rule. exception hearsay into evidence as an to introduce Chambers, permitted the accused was not testified would have of three witnesses who he the murder for which confessed to person that another Mississippi ruling being Finding tried. reversed and error, Supreme Court the U.S. court was The Court said: remanded. recognized and rule, long has been hearsay State, experience is on every based by virtually

respected untrustworthy evidence in the notion that grounded and fact. to the triers of Out-of- presented should not be traditionally court statements are excluded they because reliability: lack conventional indicia of are usual not under oath or other ly made circumstances statements; impress speaker solemnity with the his cross-examination; subject declarant’s word not and he is not available in order that his demeanor credibility jury. be assessed may California 149, 158, Green, 399 U.S. 90 S.Ct. 26 L.Ed.2d (1970). A have over exceptions developed number years to allow admission of statements made to assure under circumstances tend thereby for the of the oath and compensate absence most Among for cross-examination. opportunity prevalent exceptions of these is the one applicable interest —an on declarations founded *7 person a assumption unlikely the is to fabricate his own at the time it made. against statement is Mississippi only this but it recognizes exception applies no against pecuniary recognizes declarations interest. It declarations, like in this such McDonald’s case, that interest of declarant. against are State, 719, (1911). v. Miss. 961 Brown 99 55 So.

$ [*] [*] [*] [*] [*] Exclusion, prevails, usually where limitation is premised on the view that admission would lead presentation jury. of frequent perjured testimony to activity It is that confessions of criminal are believed and, there- by often extraneous considerations motivated fore, inherently against are as statements not as reliable interest. While that rationale pecuniary proprietary or criticism, subject scholarly has been the considerable whether, case under the we need not decide this circumstances, by valid state might purpose it serve some excluding trustworthy testimony. in this case were statements involved offered at trial under

originally subsequently made and provided considerable assurance of circumstances that reliability. their

363 than that of more fundamental rights New are E.g., in his own defense. present witnesses an accused 351, L.Ed.2d 330 Texas, 95, 93 S.Ct. 409 U.S. v.Webb 14, 19, Texas, 388 U.S. S.Ct. (1972); Washington (1967); Oliver, 1923, In re 333 U.S. 1920, 18 L.Ed.2d 1019 499, (1948). the exercise of 257, 92 L.Ed. 682 68 S.Ct. State, accused, must required as is right, this and evidence procedure rules of established comply with to assure fairness and designed both Although perhaps and innocence. guilt ascertainment of more respected more rule of evidence has been no applicable than that applied jury trials frequently to allow the exceptions tailored hearsay, exclusion of to be likely fact introduction of evidence rejected long existed. trustworthy have assurances persuasive court here bore by the trial the basic ratio and thus was well within trustworthiness interest. exception for declarations nale of the 298, 299 and Mississippi, U.S. v. State Chambers 1048 and 1049. 93 S.Ct. at in the decision participated All who of the Justices trial.2 to have new agreed appellants were Nash this conclusion. Two on the reasons for split The Court J.) heavily Justices, (O’Brien, by Eagen, relying joined J. re- the view that the adopted on Chambers applied should be and Hackett quirements Chambers appellants. Then Justice offered the declarations *8 The trial Nix) in the result. (now concurred Chief Justice light “in ” conduct a retrial instructed to court was other On the and Hackett. rule announced Chambers Jones, (Roberts, C.J. hand, joined by J. three of the Justices against J.) that declarations position took the Pomeroy, and exception on the hearsay as a are admissible penal interest and pecuniary against as statements same basis determination preliminary interest without a proprietary reliability. O’Brien, Roberts, Jones, Eagen, Pomer- argued C.J. before

2. Nash was Manderino, Nix, part in the consideration or J. took no oy JJ. and decision. Colon, 577, In v. 461 Pa. 337 A.2d 554 Commonwealth (1975), again this Court once considered the issue of out of court declara- hearsay exception, as a admissibility Colon, the entire court against penal tions interest. it not error for the trial court to refuse to agreed that was offer of the statement of another admit the accused’s to the crime for which the accused was person confessing announcing the of Justice Roberts charged. Justice Jones joined by decision of the Court was Chief Eagen, O’Brien and Nix and Justice Manderino. Justices (now Justice) in the result and Justice concurred Chief In the separate concurring opinion. opin- Pomeroy wrote Court, announcing ion the decision of the Justice Roberts stated: the issue of the admissi- recently

The Court addressed interest in of declarations Common- bility 296, (1974). Al- Nash, 457 Pa. 324 A.2d 344 wealth v. that such declara- though unanimously agreed the Court circumstances, in some there tions should be admissible no as to the rationale for or the majority was view admissibility. conditions of (Mr. Jones, A Mr. plurality of the Court Chief Justice writer) concurring in a Pomeroy, opinion, and this Justice id., Pa. at 324 A.2d at concluded that there upon against no which declarations logical ground distinguished could from declarations penal interest be plurality interest. The against pecuniary proprietary interest are admissi- recognized against that declarations their exception hearsay as an to the because ble safeguarded by improbability trustworthiness is is contrary a declarant would fabricate statement which to his interests. It resolved that this rationale was own pe- the interest involved was equally applicable whether penal. cuniary, proprietary, Colon, 581, 337 461 Pa. at A.2d 554. Conmmonwealth recognize accept that a decla It is clear we the declarant’s interest is admissible ration rule. Common- as an evidence *9 Nash, Colon, supra, v. supra, Commonwealth wealth v. however, We, have supra. v. Commonwealth against that all such declarations endorsed the view never as a automatically are admissible penal interest against to they are or tend be exception merely because admissible, considerable interest. To be penal declarant’s required. a declaration is of such reliability assurance of Mississippi, supra, Commonwealth Chambers v. State of Hackett, supra. Courts, of declarations admissibility In the Federal Rules of the Federal governed by against 804(b)(3), Evidence, provides: Rule Interest. Against Statement far making at the time of its so A statement which was inter- proprietary or pecuniary to the declarant’s contrary criminal him to civil or est, subject far tended to so himby a claim to render invalid liability, or not another, position in his that a reasonable man it to unless he be true. made the statement believed have to criminal expose the declarant tending A statement not admis- exculpate the accused is liability and offered indi- clearly circumstances corroborating unless sible (Emphasis the statement. cate the trustworthiness of supplied.) requiring assurance

We believe that a statement, out of court of an trustworthiness Chambers, and as in Hackett and such as that announced (Rule 804(b)(3)), the Federal Rules Evidence mandated that it is not rare teaches us Experience view. is the better go to extraordi friends, family members peers acquittal an or avoid accused win lengths help nary Chambers, Court noted the Supreme sentence. jail following hypothetical: crime; tell D B could C & charged

“A with a could be crimes; go hiding B could into he committed the admission D as to B’s testify & would and at A’s trial C *10 A B guilt; acquitted could be and would return to trial; B provide stand could then several witnesses to testify as to his whereabouts at the time of the crime. testimony along of those witnesses with A’s state- really ment that he committed the crime could result in acquittal. B’s A from further prosecu- would be barred the protection jeopardy. tion because of double A perjury testify No one could be convicted of as did not trial, oath, at his first B did not lie under D and C & were in in testimony.” (emphasis original) truthful their Mississippi, Chambers v. State S.Ct. at 1049. The Commonwealth, brief, proposes hypothetical its a similar situation as follows: charged a crime upon with based circumstantial

[A] A girlfriend family evidence. convinces his or a member B testify heard state that he committed the crime. A Perhaps might people convince two or three story state the same court. Such evidence would be powerful very and could well raise a reasonable doubt Moreover, the minds of the if B is not if jury. located or unidentified, B is way there would be no to test A’s friends and veracity might what relatives state. (Commonwealth’s Brief, 10) p.

Furthermore, it must be remembered that such cases we are often dealing with “witnesses” who themselves are in a criminal actively engaged lifestyle. “Telling story” help rap,” a friend or relative to “beat the can not be an extraordinary Accordingly, viewed as occurrence. we hold that declarations against penal interest are admissible as an to the rule exception hearsay only when there are provide circumstances that clear assurance that such decla- trustworthy rations are and reliable. case,

In the instant we find no error in the trial conclusion, Superior court’s which was affirmed Court, alleged against penal that the statements interest “Spunk” were not made under circumstances attributed required assurance of and there- provide fore, inadmissible. are Court is affirmed.

The order NIX, C.J., concurring files a JJ., ZAPPALA, join. HUTCHINSON J., concurring opinion. FLAHERTY, files a NIX, Justice, concurring. Chief properly exclud- agree proffered Announcing holding Opinion my judgment ed. that declarations of the Court Judgment where may provide *11 a provide the surrounding declaration the circumstances gratui- purely of their trustworthiness was clear assurance Announcing Judgment of the Opinion the the tous. Since guidance as to what circumstanc- any fails to provide establishing for necessary reliability the supply es would as regarded should be I the discussion exception, believe a value. When situa- any precedential without pure dicta recognition of presents justify itself that would tion can properly rule we then an such exception. acknowledge such ZAPPALA, JJ., in this join HUTCHINSON opinion. concurring

FLAHERTY, Justice, concurring. inter- that, declaration before a disagree admitted, that there determination preliminary est be a may required. reliability” of is “considerable assurance exists a reliability inheres in outset, some assurance At stated, the declar- being against that the fact “circumstance untruthful- interest, to have been stated likely not ant’s question 1455. The ultimate Evidence Wigmore, ly.” § should be attributed reliability which degree of the the fact-finder. by for resolution a one proper evidence is counsel, vehicle through the trial, opposing During the weaknesses, inconsisten- cross-examination, may probe cíes, and the bias the witness attesting to the out-of-court declaration. In closing, the fact-finder’s attention may again be upon focused the declaration through proper argument. Ultimately, question degree of reliance to placed be on the declaration should be by determined the fact-finder.

Those courts which have imposed requirement of addi- have, tional indicia of reliability as by authored Mr. Justice Larsen notes, correctly been largely motivated out of fear of opening a door to perjured testimony regard- ing declarations that were never made. the words of Professor Wigmore, however, “This good would be a argu- against ment admitting any all, witnesses at for it is notori- ous that some witnesses liewill and that it is difficult to being avoid deceived their lies. The truth is any hampers an honest man in exonerating himself is rule, a bad even if it hampers also villain falsely passing for an Wigmore, innocent.” 5 Evidence 1477. § Thus, where the out-of-court declarant is unavailable to trial, I testify at would admit evidence of his declaration interest, and allow this evidence to be tested in the traditional fashion.

Because it has not been demonstrated that the out-of- court declarant was indeed trial, unavailable at the time of *12 however, I would exclude the evidence in this case. The witness Tobias would have testified that the declarant left for Florida on the 21st of February. The trial of the instant matter was conducted year. in June the same It seems likely the declarant intended to absent himself from the jurisdiction purpose for the of avoiding prosecution, and Tobias’s testimony would have indicated the same. But whether the declarant was still absent at the time of trial is not admitting known. Before declaration, out-of-court require party offering the evidence to show that the declarant’s presence trial could not have been se- done, cured. As this was not the evidence was properly Thus, excluded. I concur in the result.