*1
577
fact, intentionally
weapon upon
used
part
a vital
body.
24,
Thomas’
Act
1939,
872,
June
416,
P.L.
§
amended;
4416;
Townsend,
18 P.S.
Commonwealth
v.
Pa.Super. 135,
(1967);
A.2d
Commonwealth
Festa,
Pa.Super.
v.
145 (1950). judgment of sentence is affirmed.
MANDERINO, J., concurs the result.
Submitted Nov. 1974. May
Decided *2 Eugene Lewis, Philadelphia, Granoff, Lewis John & appellant. for Fitzpatrick, Jr., Atty.,
F. Emmett A. Dist. Richard Sprague, Atty., 1st Asst. Dist. Steven H. Asst. Goldblatt, Atty., Chief, Appeals Div., appel- Philadelphia, Dist. for lee. JONES, J., EAGEN, O’BRIEN,
Before C. ROB- POMEROY, ERTS, MANDERINO, NIX and JJ.
OPINION ROBERTS, Justice.
Appellant jury Eldimiro Colon was tried before a guilty degree, found burglary, murder first aggravated robbery. filed Post-verdict motions were *3 appellant and denied. The court sentenced to serve imprisonment term of life for the murder conviction. The court also sentenced him to concurrent terms serve twenty years imprisonment of ten burglary for the aggravated convictions, and the robbery both to be concurrently served appeal with the life sentence. This ensued.1
In appeal, appellant single raises a issue: whether the trial court improperly excluded from evidence confession of one Jose Hernandez in which Hernandez killing admitted acting Although the victim while alone. appellant concedes Hernandez’s argues hearsay, he against pe was a declaration nal interest and therefore Common admissible. See wealth v. 296, 457 Pa. (1974). 324 A.2d See also Chambers v. Mississippi, 410 U.S. S.Ct. 35 L.Ed.2d We conclude that the rele portions vant of Hernandez’s con- were not Appellate 31, 1970, Court Jurisdiction of July Act of Act II, 202(1), § P.L. 211.202(1) art. 17 P.S. (Supp.1974). therefore
trary and were Hernandez’s hearsay and affirm. inadmissible April 17, corpse Kochmanow- On Michael living Ex- age 91, room floor. icz, was discovered on had amination that Kochmanowicz scene revealed burglary. in murdered the course of a been following police day arrested Jose Hernandez. po- period interrogation, gave Hernandez After murdering in he lice a formal statement burglarizing his home. At Mr. Kochmanowicz and response statement, Hernandez stated end police question: came out alone.”
“I was I there alone. went alone appellant. May police After 7, 1972, the arrested On appellant also to the murder interrogation, confessed virtually given by burglary. appellant The account appellant’s state- However, identical to Hernandez’s. in con- he ment maintains that Hernandez and cert. theory proceeded on the
At the Commonwealth appellant responsible for were that both and Hernandez theory, To the Commonwealth establish this murder. appellant’s confession and introduced into evidence testimony shopkeeper alcoholic who testified an discussing appellant with Her- overheard murder he nandez. Her-
Appellant’s strategy was to establish defense Appellant stand took the nandez had acted alone. *4 signing into a state- he had been coerced testified that police. prepared by The Hernan- defense called ment confes- questioned him the murder his dez and about and Hernandez, however, constitutional sion. asserted no privilege against answer self-incrimination and would ap- presentation of evidence questions. of the At end pellant that Hernandez’s confession be moved in ruling obtained earlier Pursuant to a into evidence. ground on the motion was denied that hearsay. Appellant con- was inadmissible now statement that, ruling error and this that this was state- tends theory that Hernandez admitted, his ment been plausible jury. seemed more to the alone would have recently of the addressed the issue admissi Court The Common in bility of declarations Pa. A.2d 344 wealth v. unanimously agreed decla Although that such the Court circumstances, there in rations should be admissible some majority or the con to the rationale for was no view as admissibility. ditions of Jones, Mr. plurality (Mr. of the Justice
A Chief opin- concurring writer) Pomeroy, and this Justice at-, concluded that there ion, 324 A.2d at id. against logical ground upon no which declarations against distinguished from declarations interest could be plurality recog- pecuniary proprietary interest. against admissible that interest are nized declarations trustwor- exception hearsay their an to the rule because by improbability a declar- safeguarded thiness is contrary which is ant would fabricate statement equally own It resolved that rationale interests. pecuniary, applicable whether the interest involved was proprietary, penal. or possi- subjected
“A the declarant any- hardly considered could be criminal sanctions ble ex- of the thing limitation but interest. The pecuniary proprie- ception to declarations they are tary grounded in the belief interests considera- likely by to be extraneous less motivated perjury. This provide inducement less tions present object reasoning If is unsound. doubt judgment, can one $100,000,000 were a lawsuit false- any to swear less incentive there would be dif- from a Viewing materialistic limitation ly? *5 Appeals perspective, York Court of ferent New stated: court would authorize a distinction which
‘[T]he proof title man he never had receive that a admitted proof watch, that he had Elgin not to receive an but club, striking with a as over the head Jones statements, not relevancy does suming equal both People 26 N. analysis.’ Brown, readily withstand 16, 17 88, 825, N.E.2d Y.2d 308 N.Y.S.2d (1970).” Nash, supra, at A.2d at 349.
Commonwealth v. Pennsylvania precedent plurality no noted also penal against be held should that declarations against pecuniary differently treated from declarations declarations it concluded that interest.3 Therefore practical consequences unreasoning only limitation 2. “The are admissibility against penal interest] of declarations [on for, applica- shocking justice; in its commonest the sense of requires, rejection of a confes- tion it sion, in a criminal authenticated, or in- person of a deceased however well quite jurisdiction (and unavaila- fled sane or from the therefore culprit. The ab- ble) who avowed himself to be the true has indiscriminately such evi- surdity wrong rejecting all patent . dence . steps, and to discard “It is therefore not too late to retrace our doctrine, innocent let an this accused vindicate himself even would refuse to barbarous a by producing to the tribunal confession, very perfectly on made written authenticated justice. gallows, by culprit (in 1899) reach of beyond the true now indignation self-righteous Those who watched the member with re- proceedings Captain Dreyfus’ trial should course of courts, that, own if trial in our had occurred we, following spectacle would been less if have no shameful supposed our what the precedents, own to admit had refused admit, au- French never for moment hesitated to —the Major Esterhazy, thenticated the absconded avowing charged, guilty there himself author of the treason beyond and now real traitor." known to have been the doubt Wigmore, rev.1974) (Chadbourn 5 J. Evidence at 289-90 (footnotes omitted). supra, omitted); (footnote at proposi- upon authority usually “The cases relied as for the tion are declaration inadmissible interest is against interest are on the basis admissible same pecuniary proprietary statements Thus, proponent if interests.4 can that the show dec- pe- facts that were laration states the declarant’s *6 they nal interest at the time were made and the declar- ant is at the time is unavailable of the declaration hearsay not at- made under Id. inadmissible the rule. 4,n. 318 n. 4.4a present having
In case, the Hernandez, availed himself privilege against self-incrimination, of constitutional the anwas unavailable witness. Handbook See McCormick’s Cleary (2d of the 1971); Law Evidence 280 ed. 5 E. § supra Wigmore, Therefore, question J. 1409. the sole § is whether his statement were facts contained against penal his interest. clearly police
Hernandez’s
confession to
against
penal
However,
re-
not
this does
interest.
controversy
Wigmore
solve the
for as
states:
merely
“It must be
not
the state-
remembered that
is
interest,
against
stated.
ment
must be
but the fact
Somershoe,
Pa.Super.
Commonwealth v.
217
We conclude that fact stated in that exculpated any possible confession which Hernandez’s por accomplices not interest and hence By telling police that he acted tion was inadmissible. subjected alone, crime, Hernandez admitted no additional punishment. not it was no Since himself additional alone, contrary to assert to Hernandez’s interest he portion in which claimed to have of the statement he safeguards trustworthi does not have the acted alone truly against interest. On ness attributed to *7 to this basis, this court’s decision was correct the trial part of the statement. in the feder
This result is in accord with cases decided Seyfried, F.2d 435 696 al courts. In United States v. (7th denied, 1970), 402 91 S.Ct. cert. U.S. Cir. appellant (1971), accused was 654 L.Ed.2d robbery. getaway being car in a bank driver sought place to into evidence At his accused trial for the portion of another rob of the confession indicted per stated, alia, other bery. inter “No This de participated in the above knowledge of or son had robbery.” Circuit held that The Seventh scribed any possible accomplices not “exonerating did charges more any or subject to declarant additional to way be considered punishment in no could and severe The adversely Id. at 697-98. interest.” affect quoted admit refusal court therefore ruled part not error. was of the statement (2d Marquez, Cir. v. F.2d
In United States possess- selling and appellant was accused 1972), the ing conspiring possess cocaine and of to sell and cocaine. appellant The contended an out-of-court statement stated, co-defendant, in which mine. he “Cocaine guys nothing yes- to with it. Other have do Got cocaine terday. got from,” Don’t I know who declara- tion interest hence admissible. The Court of Appeals portion exculpat- ruled that the the statement ing appellant not The interests. court said:
“This declaration did not admit an additional
or
crime
subject
charges or
to more serious
declarant]
[the
punishment.
merely
more severe
[The declarant]
sought
exculpate
friends,
the statement
justifies
reliability
therefore lacks the inherent
which
exception
the declaration
to the
Seyfried,
hearsay rule. See United States v.
435 F.2d
(7th
denied,
1970), cert.
697-98
Cir.
U.S.
1393, 28
(1971).”
L.Ed.2d 654
S.Ct.
McKee,
United
mainder of the supra trary interest, McCormick, was admissible. See that it was not 677. We conclude inadmissible because relevant.5
Throughout appellant’s it was the Common- appellant theory wealth’s Hernandez together committing Hernandez’s Thus crime. *8 admitting incon- in the crime was not statement role his theory of crime. Commonwealth’s the sistent with the relevancy such, of not meet the test As his confession did make inference that Co- not tend to the would because likely. Mc- participate more in the crime lon did not course, if it is ruling below cor- may, affirm a court 5. We Dancer, v. See, 460 Pa. Commonwealth any ground. g., e. rect on 435, 438 n. 5. 101 n. 331 A.2d Cormick, supra 185. We therefore conclude that there was no error in the court's to refusal admit the confes- sion.
Judgments of sentence affirmed.
EAGEN, NIX, JJ., O’BRIEN in concur the result. J., concurring opinion. POMEROY, filed a POMEROY, (concurring). Justice correctly agree I the trial in not ad court acted mitting into the evidence Jose Hernandez. sepa however, I conclusion, come to at his because (the rate trial for the murder of Michael Kochmanowicz Hernan tried), for whose Colon same victim murder charged repudiated dez his statement under oath. He giving the because he was coerced into statement the police agree I Mr. Roberts beaten him. with Justice opinion in Common plurality in his statement (1974), which wealth Pa. joined, “recognized I that declarations exception hearsay rule be are as an admissible safeguarded by the im is their trustworthiness cause probability a state that a would fabricate declaration Here, contrary his own interests.” ment which is improbability however, been undercut element of has himself has denied by declarant the fact testimony.* in prior declaration sworn truth of forms basis presumed trustworthiness lacking, the statement hearsay exception therefore properly excluded. I do not case at bar approach to the In of this view by Roberts question Mr. Justice addressed reach the * suppression hearing, this dis- ‘a previously excluded Unless by charge physical coercion by and his claimer Hernandez out of evidence keep police not serve would weight. go to its would but own *9 to whether statements “divisi- are purpose determining admissibility. ble” for the their Wigmore, See V J. Evidence
Appellant, COMPANY, Edgecomb WILLIAMS BROTHERS successor to Corporation, Steel and Central Bank. Penn National
Supreme Pennsylvania.
Argued Nov. 1974. April 25,
Decided 1975. Rehearing May 30, Denied