Opinion by
Appellant was arrested in connection with the killing of his aunt’s fiance and subsequently found guilty by a jury of murder in the second degree. On his direct appeal he now asserts that his conviction must be reversed because the trial court permitted the prosecution to introduce into evidence the transcript of testimony given at appellаnt’s preliminary hearing by a witness who died prior to the trial; and because the evidence wa/S insufficient to sustain the conviction.
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There was no error in admitting into evidence the transcript of the testimony given by the deceased witness. Appellant attempts to bring his case within the proscription of
Pointer v. Texas,
While it is true that the focus of a preliminary hearing is narrower than that of a trial, we are not persuaded that the difference requires exclusion оf the testimony taken at such a hearing. Our basic concern is for the reliability of the tеstimony which was elicited in the preliminary hearing, and we do not feel that its reliability is affеcted by the scope or focus of the proceeding. It would certainly be more desirable to have the witness present at trial, but it would be vastly less desirable to еxclude such evidence altogether. 1
The Act of May 23, 1887, P. L. 158, 19 P.S. §582,
2
does not render this testimony inadmissible, and we rеaffirm those past cases in which we held that the prior admissibility of such testimony was not аffected
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by this Act.
See Commonwealth v. Ryhal,
Appellant’s contention that the evidence introduced at his trial wаs insufficient to sustain the conviction is without merit. The evidence demonstrated that on thе evening of the killing the appellant, the decedent and appellant’s aunt were present at the latter’s house. At some point during the evening decedent, who had been talking with appellant’s aunt in the kitchen, went into the living room, and appellаnt, who had also been in the kitchen, told decedent not to sit in a particular chаir. Decedent sat down anyway and appellant then walked from the kitchen to whеre decedent was seated and bent over him. Appellant’s aunt, having observed аppellant’s apparently peremptory behavior, then walked into the living room and ordered appellant out of the house. After escorting appеllant to the front door, the aunt returned to the living room and noticed that decedent was not moving and that there was a butcher knife in the middle of the floor. She picked uр ¡the knife and discovered that the decedent was covered with blood. He was dead by the time the police arrived. The knife, which was not positively identified as the murder weapon but which could easily have caused the death-dealing wounds, was stained with blood of decedent’s type.
It also appeared that ¡appellаnt, after leaving his aunt’s house, had waited around the corner until decedent’s body was rеmoved, and then went to the home of another aunt, with whom he resided, and told her, “I think I killed A1 [thе decedent].” When appellant was taken into custody he was wearing a pair of trousers with bloodstains of decedent’s type on them.
This evidence is certainly sufficient to sustain the conviction. Judgment affirmed.
Notes
We note that those problems which do inhere in the use of such prior testimony can be pointed out to the jury and that a proper cautionary instruction can be given.
“Whenever any person has been examined as a witness, either for the commonwealth or for the defense, in any criminаl proceeding conducted in or before a court of record, and the defendant has been present and has had an opportunity to examine or cross-examine, if such witness afterwards die . . . notes of his examination shall be competent evidence upon a subsequent trial of the same criminal issue____” Act of May 23, 1887, P. L. 158, §3, 19 P.S. §582.