COMMONWEALTH of Pennsylvania v. Daniel Lee GRAVES, Appellant.
Supreme Court of Pennsylvania.
Decided March 14, 1979.
398 A.2d 644
Argued Oct. 19, 1978.
John E. Gallagher, Dist. Atty., Richard J. Shiroff, Asst. Dist. Atty., Easton, for appellee.
Before EAGEN, C. J., and O‘BRIEN, ROBERTS, NIX, MANDERINO and LARSEN, JJ.
OPINION OF THE COURT
NIX, Justice.
Appellant, Daniel Lee Graves, was tried for the first time before a jury on June 26, 1972, and found guilty of murder of the first degree, robbery and burglary. On appeal, we reversed the judgment of sentence and awarded a new trial. Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975). Appellant‘s retrial, also before a jury, resulted in verdicts of guilty of murder of the first degree, robbery and burglary. Sentence of life imprisonment was imposed on the murder conviction with concurrent five to ten year sentences for the
Appellant‘s first contention is that the evidence is insufficient to support a finding that his actions caused the victim‘s death. As with all challenges to the sufficiency of the evidence, we consider the evidence in a light most favorable to the verdict winner, here the Commonwealth. See, e. g., Commonwealth v. Williams, 476 Pa. 557, 560, 383 A.2d 503, 504 (1978). The salient facts are as follows:
On September 28, 1971, appellant and two others burglarized the residence of Sebastiano Patiri, who, at the time, was seventy-five years of age. During the course of the robbery and burglary, Patiri sustained certain injuries for treatment of which he was admitted to a local hospital. While in the recovery room following the surgery that was necessitated by the injuries received in the robbery/burglary, Patiri died.
The prosecution produced two expert witnesses, who testified as to the victim‘s physical condition when admitted to the hospital, and gave their opinions as to the cause of his death. The first of these witnesses was Dr. Isadore Mihalakis, the pathologist who performed the autopsy on Mr. Patiri‘s body. Dr. Mihalakis testified, in part, that the seventy-five year old victim‘s general health condition was poor, and that he was arteriosclerotic, with cardiac and brain arteries functioning at only 30% of their normal capacity. Dr. Mihalakis also testified that “death was due to cardiopulmonary arrest, meaning lung and heart stoppage.” The witness expressed the opinion that the injuries sustained in the assault combined with a general state of health caused his death.
The prosecution‘s second expert witness was Dr. Donald Smith, a physician who had examined the victim while he was yet alive. This witness testified that the wounds “were quite likely compatible with survival,” and “that he had
The evidence also revealed that the victim had sustained seven knife-stab wounds to the body. Four of these seven stab wounds were of sufficient depth to penetrate internal organs; two wounds, one of which was two and one-half inches deep and the other of which was two and one-quarter inches deep, penetrated the victim‘s lung; another three inches deep, perforated the lower lobe of the lung, perforated the diaphragm, and penetrated the liver to a depth of three-fourths of an inch; another, two and one-half inches deep, penetrated the right lobe of the liver to a depth of one inch. The stab wounds caused extensive hemorrhaging in the abdominal cavity. Additionally, the victim had received blows to the face and chest which resulted in multiple bruises, a laceration over the right eye, a fracture to the nasal bone, and two fractured ribs.
The above evidence is clearly sufficient to support a finding that the wounds inflicted by appellant initiated the chain of events which ultimately led to the victim‘s death. Furthermore, appellant cannot insulate himself from criminal liability on the theory that the victim‘s pre-existing physical infirmities contributed to his demise. See Commonwealth v. Hicks, 483 Pa. 305, 313, 396 A.2d 1183, 1187 (1979) quoting Commonwealth v. Hicks, 466 Pa. 499, 505, 353 A.2d 803, 805 (1976). Therefore, appellant‘s challenge to the sufficiency of the evidence of causation is without merit.
Next appellant contends that the trial judge erred in admitting, over defense objection, the prior testimony given by a prosecution witness at appellant‘s first trial. The
The instant appeal is from appellant‘s second trial on these charges. The prosecution called one Edward Mathis as a witness at both trials. According to the record, Mathis was an accomplice to the offense for which appellant was being tried and had been convicted on a guilty plea of lesser offenses than those for which appellant was charged. At the time of appellant‘s second trial Mathis had served his minimum sentence and was on parole (at the time of appellant‘s first trial, Mathis had not yet been sentenced.) At appellant‘s first trial Mathis’ testimony implicated appellant. At the second trial Mathis denied recollection of many of the events surrounding the crimes for which appellant was charged.3 At that point the prosecution was permitted to attempt to refresh Mathis’ memory by questioning him regarding testimony he gave at appellant‘s first trial. The trial court then ordered Mathis to submit to a mental examination by a court-appointed psychiatric specialist. An examination lasting approximately one and one-half hours was conducted by the psychiatrist, following which, the psychiatrist testified, out of the hearing of the jury, regarding Mathis’ competency. Following this testimony, the defense asked for a ruling on the competency of the witness. The Court refused to rule that the witness was incompetent.
The jury was reconvened, and Mathis was again called to the stand and questioned by the assistant district attorney. He then testified that reading the transcript had refreshed his recollection to some extent; that he knew appellant, who
Following this testimony, the trial judge again ordered the jury removed from the court room. Out of the jury‘s hearing, Mathis testified in answer to questions by the Court that he could “sit down and read the book and remember from the book . . . .” (referring to the transcript of his testimony at the first trial). Mathis protested to the Court that he simply could not remember all the events of the day in question.
The trial court then ruled that these recollections were so general in nature that the witness was “unavailable” to the prosecution, that such unavailability resulted from his memory loss, and that the prosecution was therefore entitled to have the transcript of the testimony given by Mathis at appellant‘s first trial read to the jury. Appellant contends that this ruling was erroneous. For the following reasons, we disagree.
Whenever any person has been examined as a witness, either for the Commonwealth or for the defense, in any criminal 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, or be out of the jurisdiction so that he cannot be effectively served with a subpoena, or if he cannot be found, or if he become incompetent to testify for any legally sufficient reason properly proven, notes of his examination shall be competent evidence upon a subsequent trial of the same criminal issue; but, for the purpose of contradicting a witness, the testimony given by him in another or in a former proceeding may be orally proved. Id. (emphasis added).
From this premise, appellant would have us conclude that because none of four enumerated conditions in the Act have been satisfied with respect to the witness Mathis, Mathis’ prior testimony was inadmissible. This conclusion would be correct if the premise was correct. However, the Act of 1887 clearly contemplates only those situations where the witness is physically absent or incompetent to testify, and this Court has stated that the common law hearsay exception for prior testimony was not affected by the Act. Commonwealth v. Stasko, 471 Pa. 373, 370 A.2d 350 (1977); Commonwealth v. Clarkson, 438 Pa. 523, 265 A.2d 802 (1970); Commonwealth v. Ryhal, 274 Pa. 401, 118 A. 358 (1922); see Commonwealth v. Rodgers, 472 Pa. 435, 452 n.7, 372 A.2d 771, 779 n.7 (1977). See generally, McDonnell v. United States, 472 F.2d 1153 (8th Cir. 1973);
We cannot see any substantial reason why the testimony of a witness once duly taken in a pending cause may not afterwards be read in evidence in another cause between the same parties in regard to the same subject-matter, when in the interval the witness has lost his memory by reason of old age and ill health. The justice and propriety of receiving the evidence are as strong as if the witness were dead, insane, out of the jurisdiction of the court, or unable to attend by reason of sickness. Although bodily present, yet if shown to have become so bereft of memory by senility or sickness, that he is unable to recall a past transaction to which he had once testified and has forgotten that he ever testified in regard to it, he may be considered as practically absent, and his former testimony, if otherwise admissible, may be read in evidence.
Rothrock v. Gallaher, supra, 91 Pa. at 112-13.
The Federal Rules of Evidence embrace this view also
The inconvenience of this narrow view, that forgetfulness is not a ground of unavailability, it seems, should be avoided by treating lapse of memory if complete as a ground of unavailability, or if partial as a ground for admitting both the former, and the present testimony of the witness.
McCormick, supra, at 611-12 (emphasis added) (citation omitted), citing Anderson v. Gaither, 120 Fla. 263, 162 So. 877, 879 (1935) (citing other authority). This approach has the value of fairness to both parties in that necessary testimony is admitted, with the opponent being permitted to cross-examine the witness both as to his asserted lack of memory as well as to his present testimony. This in fact is what happened at trial in the instant case.5 Therefore, we hold that the trial judge properly admitted Mathis’ prior testimony.6
Accordingly, judgment of sentence is affirmed.
MANDERINO, J., filed a dissenting opinion in which ROBERTS, J., joined.
MANDERINO, Justice, dissenting.
I dissent. The majority states that the witness‘s former testimony was admissible at appellant‘s second trial because of a common law exception to the hearsay rule allowing use of prior testimony. In support of this proposition, the majority quotes from Rothrock v. Gallaher, 91 Pa. 108, 112-113 (1879), as follows:
“We cannot see any substantial reason why the testimony of a witness once duly taken in a pending cause may not afterwards be read in evidence in another cause between the same parties in regard to the same subject-matter, when in the interval the witness has lost his memory by reason of old age and ill health. The justice and propriety of receiving the evidence are as strong as if the witness were dead, insane, out of the jurisdiction of the court, or unable to attend by reason of sickness. Although bodily present, yet if shown to have become so bereft of memory by senility or sickness, that he is unable to recall a past transaction to which he had once testified and has forgotten that he ever testified in regard to it, he may be considered as practically absent, and his former testimony, if otherwise admissible, may be read in evidence. (Emphasis added.)
The majority then concludes that although “. . . no Pennsylvania authority on point . . . ,” has been located, we should extend the Rothrock rationale to a situation such as present here, where the witness, otherwise normal and in good health, experiences a partial memory loss. I strongly disagree. Extension of the Rothrock rationale to cases like the instant case was correctly and unequivocally
“Under the second assignment we are asked to reverse the court below for its refusal to extend the doctrine of Rothrock v. Gallaher, 10 Nor. 108, to the case of a witness of ordinary health and memory. This we cannot do. There was no evidence tending to show that the witness, Clayton Smith, had, in the interval between the time of the arbitration and trial in court, by old age or otherwise, lost his memory. He but failed to recollect what he had previously sworn to, but if this were enough to admit the notes of a former trial, we might as well abandon original testimony altogether, and supply it with previous notes and depositions. It would certainly be an excellent way to avoid the contradiction of a doubtful witness, for he could always be thus led to the exact words of his former evidence. As we are not yet prepared for an advance of this kind, we must accept the ruling of the court below as correct.” Id. at 333.
See also Reed v. Orton, 105 Pa. 294 (1884) and Putnam v. United States, 162 U.S. 687, 16 S.Ct. 923, 40 L.Ed. 1118 (1895) (both courts quoting with approval the above portion of Velott v. Lewis).
The instant case is controlled by Commonwealth v. Turner, 389 Pa. 239, 133 A.2d 187 (1957). Turner, like appellant here was tried for the second time. The principal prosecution witness at Turner‘s prior trial had been a co-defendant. At the prior trial, this witness had implicated Turner in the crimes for which he was on trial, but after that trial the witness denied that Turner had anything to do with the crimes. Despite this recantation, the prosecution called the co-defendant to testify at the second trial, and when the witness denied knowledge of the crime, the prosecution pleaded surprise and was permitted to introduce his prior testimony.
We reversed, concluding that the witness was not “unavailable” according to the Act of May 23, 1887, P.L. 158, § 3 (
“Whenever any person has been examined as a witness, either for the commonwealth or for the defense, in any criminal 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, or be out of the jurisdiction so that he cannot be effectively served with a subpoena, or if he cannot be found, or if he become incompetent to testify for any legally sufficient reason properly proven, notes of his examination shall be competent evidence upon a subsequent trial of the same criminal issue; . . . .” (Emphasis added.)
The above Act permits the notes of a prior trial to be introduced in a subsequent trial in four situations. None of these is present in this case. Like the witness in Turner, supra, Mathis was not an unavailable witness. He was not dead, nor was he out of the court‘s jurisdiction; he was present in court, on the witness stand, and willing to testify as to what he then avowed to be the truth. Like the witness
Reading the notes of the witness’ prior testimony leaves the jury with double impact. First, its incriminating nature is self-evident. The witness’ testimony at appellant‘s first trial was extremely damaging, directly and unequivocally implicating appellant in the incident which resulted in death, whereas at appellant‘s second trial, the witness said he could not remember whether or not appellant wielded the murder weapon. We will not speculate as to which was the more truthful version. At the time of appellant‘s first trial the witness had been convicted but not yet sentenced. It may be that he felt it would be to his advantage to falsely implicate appellant at that time. At appellant‘s second trial the witness was no longer in danger of prosecution, and may have been telling the truth. Nevertheless, permitting the prosecution to read his previous testimony allowed the jury to draw the additional inference that this now freed accomplice was limiting his present testimony in order to protect his cousin who was still on trial, and the concomitant inference that he was trying to hide his prior testimony so as not to injure his cousin. As we said in Commonwealth v. Turner, supra, 389 Pa. at 256, 133 A.2d at 195,
“It is wholly unrealistic to pretend that the jury was capable of eradicating from their minds [the witness‘] former testimony except for its effect in currently
impeaching him. Even if the jurors tried ever so conscientiously to so limit the effect of the witness’ prior testimony and concluded that, by reason thereof, he was not presently worthy of belief, the resultant psychological effect would be to cause the jury to deduce that what [the witness] had first testified to was the truth. The harm to the defendant from the improper cross-examination is . . . manifest . . . .” Id., 389 Pa. at 256, 133 A.2d at 195.
Judgment of sentence should be reversed, and a new trial granted.
ROBERTS, J., joins in this dissenting opinion.