*1 Honigman, Appellant. Commonwealth Submitted December 1969. Before J., P. Wright, Watkins, Montgomery, Spaulding, Jacobs, Hoffman, JJ. Cercone, Segal,
Bernard L. with him Needleman, Needleman, Segal appellant. & Tabb, Attorney,
James D. Orawford, Assistant District Specter, Attorney, and Arlen District for Common- appellee. wealth, April
Opinion 1970: Per Curiam, Judgment of sentence affirmed. Opinion
Dissenting J.: Hoffman, appellant, Honigman, In the instant David conspiracy of arson and was convicted defraud as a result of a carrier fire which occurred Honigman restaurant. was at a not at the nor scene actually setting he accused the fire. was profes- Prnssel, Norman fire started by The tbe during burns severe who sustained sional arsonist, later. died several days blaze and course of the on the testi- depended primarily Commonwealth’s *2 who was Edward Klayman, a single witness, mony implicated Honig- coconspirator. Klayman seriously a key had received the Prussel man when stated that from Honigman. the premises ap- factual attempt allegation, In an to rebut this of Detec- a testimony introduce pellant sought in the hos- had interviewed Prussel tive Matthews who time told at allegedly Prussel Matthews pital. from man had received the named keys that he Rosen.1 this evi- refused admit judge, however,
The contradicted testi- Klayman’s dence seriously mony. state- appellant
On
contends
Prussel’s
appeal,
as
should have been received
was admissible and
conspira-
the declaration of
because
coconspirator,
pro-
claim for
including
fraudulent
cy,
Ott,
had
Commonwealth v.
ended, citing
not
ceeds,
yet
I
Superior Ct.
I from the limited record be- believe, however, statement should Prussel’s fore admitted us, 1 testimony proceeding, the record of a civil Cautin Co., Safeguard Term, 1967, Ins. No. Mutual Fire June No. C.P. 5. Phila. a declaration interest. Prus- It contained admission
sel’s that he received the key implicated him premises therefore, and, clearly crime.
The declaration exception to has hearsay rule been limited to declarations generally declarant’s inter est and his U.S., See Donnelly v. 228 U.S. 33 Ct. (1913) ; S. Evidence Wigmore, §1476, p. (3d 1940) ; ed. 162 A.L.R. cases therein. cited
It had always been that such was my understanding law this Commonwealth. Surprisingly, however, published no opinion this come Commonwealth has to my attention which has specifically enunciated doctrine as set forth above. closest most instructive opinion this
gard Pennsylvania is Commonwealth v. Antonini, Superior Pa. Ct. 69 A. 2d An- In a decedent had tonini, prepared a written statement prior to his death which stated that he and the defend- ant had together participated in a criminal Our act. Court held that such evidence could not be admitted to inculpate the defendant the crime. such our excluding evidence court made reference
to Donnelly supra, U.S., as “In explaining follows: Donnelly U.S., a defendant (supra), charged with murder offered evidence the confession of Joe one who was that Dick, deceased, the declarant killed the person with whose homicide the defendant was charged. rejected court the offer as hearsay, 833: ‘One of the page exceptions stating, to it excluding permits is that [hearsay] under certain ception, circumstances and limited of of third purposes, con- parties, made interest; to their own it trary but is almost universally be an this must of held that interest a pecuniary char- alleged to have fact that the declaration acter; subject probably extrajudieially thus made would been liability be is held to to a criminal the declarant exception the rule----’ it an to sufficient to constitute Donnelly declaration of Dick that In the certainly subject Dick to murdered the deceased would against liability his was in that sense well, civil dec- In the instant too, case, part that he received the fruits laration Foss even interest, embezzlements was his subject liability. though it the declarant to civil ex- Dick not admissible to Since the confession of was culpate a fortiori it would not have accused, inculpate. Justice Holmes dissented in admissible to joined by Donnelly and he Justice Lur- severely Wigmore Professor ton and Justice Hughes. majority opinion, and criticizes the states represents ought to law dissent what the Holmes a declaration i.e., be, But neither is admissible. Justice Holmes his dis- Wigmore nor Professor in his ever con- treatise, sent, declaration tended interest, wit, party could received be confession, deceased, inculpate [Original emphasis.] another.” evidence recognized our Court the existence of differ- Thus, opinions ing as to of declarations exculpate tend to a defendant. It never interest which question, since Antonini reached involved however, only inculpatory apparently statements. The court good may reason that there be realized exclude *4 inculpatory where the defendant unable statement, is the to declarant. The same cross-examine conclusion the not where statement follow, however, need tends exculpate the defendant. limitation on the use the of declarations
Moreover, declarant’s affect interest severely very A attacked. recent case has 26 N.Y. 2d Brown, this regard People in a N.Y.S. 2d 85 the defendant Brown, murder self-defense on the claimed ground the decedent had a when defendant shot drawn pistol him. Several witnesses that decedent did testified a A to the third admitted gun. party police after the dece- immediately up had shooting picked from floor gun dent’s used that gun apparently if in evi- in a later robbery. admission, accepted con- have tended to defendant’s support dence, tention that armed. The third party decedent was on constitutional Defendant grounds. fused to testify a 'declaration to introduce his statement sought interest as it third implicated party in the later robbery. prior overruled Appeals York Court of its New stating: evidence hearsay
decision excluding court authorize a distinction which would “[T]he man admitted he never had title proof receive that a proof to an but not to receive that he Elgin watch, as- admitted Jones over the head with a striking club, of both does equal suming relevancy statements, readily analysis. withstand attacked the distinction his notable dis-
“Holmes pp. 277-278) among in Donnelly (supra, which, sent rules of evidence in other he said: ‘The things, logic sense, and common main are based experience, parts than some sub- by history hampered less There is no decision this court law. stantive confession; of such cases English of the two do not bind separation countries since to the exception hearsay dec- us; is well no other known; state- larations interest as much a confession is so calculated far more to convince than dy- it is murder, be let which would man, ing declarations, hang *5 Mattox v. United and when we 140; 146 U.S. States, of surround the accused with so some many safeguards, me ought give which seem to I think we excessive, commonly him the benefit of fact if that, proved, and weight. would have such of history the law well the the doctrine are so against English arguments need stated Mr. there no fully by Wigmore Evi greater length. to set them forth at Wigmore, 1477.' §§1476, dence, developed argu7 as Holmes the
“Wigmore, notes, of the basis distinction, ground Eng- sheer but on the historical logic, particularly lish cases which created the distinction, Peerage the Sussex Case Cl. & Fin. were (11 109) 85, from the of departure basic rule long standing received, admissions were generally and the relevant, Peerage where declarant dead. The decision was regarded by Wigmore as ‘not ar- strongly considered of gued by judges light the precedents’ (5 §1476, Wigmore, Evidence, ed.], [3d p. 283). Wigmore comprehensive concludes his analy- problem sis of the with statement: therefore ‘It is not too late to our retrace and to discard this steps, p. 290). barbarous doctrine’ (op. cit., “The rule in New York should be to hold modernized interest, that an admission against penal will be ceived where material person and where the making admission is dead, beyond jurisdiction and thus not available; where he is court and refuses to.tes- of as to the fact the admission tify on the ground of incrimination.” People Brown, self supra at 91-94, 827-29. 2d at N.Y.S. of York
The State New is not alone this reaching Supreme conclusion. Court California Traynor opinion Justice held that admis- the. companion heroin found on defendant’s sion ground was hers was admissible. People Spriggs, 60 Cal. 2d P. 2d 377 874-875,
Justice after discussing general Traynor, concerning stated: “A declaration in interest,
terest is no less pointed trustworthy. As we out People v. One 1948 Chevrolet Conv. 2d 45 Cal. Coupe, a person’s 613, 622, criminally being implicated gives reasonable assurance of the veracity his statement made against Moreover, since the conviction of a crime entails ordinarily eco nomic the traditional loss, concept of a in ‘pecuniary ” terest’ could logically ‘penal include interest.’ one’s See also Sutter v. 2d Easterly, Mo. 189 S.W. Moore (1945); Metropolitan Ins. Co., Life S.W. 2d 210 C.A. (Mo. State v. 1951); 6 Crim. Leong, L. Rep. (Ha. S. Ct. February 19, 1970). A analysis these cases is sound. certainly
distinction which would allow the admission of dec- larations insubstantial insignificant, interests while excluding which bear potential of serious appear would punishment, be untenable and without logical support. Moreover, as our own court recognized supra: Antonini, all confessed early crimes, impose as well a to, “[N] perpetrator.” civil liability the instant Thus, exposed Prussel’s admission would him action liability any civil the restaurant owner alternative, by or, company to defraud. The distinction penal- between sought irrele- interests, therefore, illogical, undetectable. usually vant I the court hold, therefore, erred in fail- admit Prussel’s admissions against penal ing inter- I would vacate the Accordingly, est. judgment sen- tence and new grant trial.