Commonwealth v. Nash

four for votes a total vote of TMs amended 30,615. count is to form the for basis the total arrived after the ballots with the perforated corners have canvassed and tabulated. the order of

Accordingly, the court below is vacated insofar as it is inconsistent with this opinion and case is remanded consistent proceedings herewith. The Court below is instructed supervise tearing off of the perforated corners to preserve anonymity of the voters.

Dissenting Opinion Mr. Chief Justice Jones and Mr. Justice Robeets:

We dissent and affirm orders Judge Thomas. Appellant.

Commonwealth v. Nash, Appellant. Commonwealth v. Robinson, Argued April Before C. 23, 1974. J., Jones, Eagen, Pomeroy JJ. Nix, O’Brien, Roberts, Mitchell S. Lipschutz, E. with him Neil Jokelson, appellant. for Nash, with him John Assistant Defender,

Andrea Levin, Zic- J. and Vincent Assistant Packet, Defender, W. appellant. for Robinson, cardi, Defender, District with Attorney, L. Assistant Albert Becker, Ab- Assistant District Attorney, him David Richman, A. Richard District Attorney, raham J. Deputy Gafni, F. and District Attorney, Assistant First Sprague, for Common- Attorney, District Fitzpatrick, Emmett appellee. wealth,

Opinion 1974: O’Brien, July Me. Justice On Alfred Nash 1972, appellants, February 4, tried in the of together James were Court Robinson, Nash be- Philadelphia Common Pleas County, as- aggravated robbery, convicted of aggravated ing a battery carrying weapon. concealed sault convicted All aggravated robbery. was Robinson a arose out of bread robbery truck. Post- charges denied and appellants motions were to appealed trial affirmed the which Superior Court, judgments allocatur We granted discuss whether sentence. when he prohibited erred judge appellants offering through testimony from third a witness party had had committed admitted to her that he appellants being tried. for which crimes were appellants’ called one Willis the defense At alleged he com- admitted that who was have Daniels, being appellants robbery were mitted the for which privilege. Amendment tried. Daniels asserted his Fifth girl- The defense then Eenee Edwards, called one testify appellant friend of who was to Eobinson, alleged Daniels. The out-of-court admission proof. objected requested an offer of Commonwealth tes- Miss Edwards would Defense counsel stated that tify party. The Com- an third admission from a grounds objected that such then monwealth hearsay, which ob- be inadmissible jection was sustained. support

In that Miss Edwards’ of their contention appellants cite admitted, should been have Mississippi, 93 Ct. S. v. State Chambers 225 Pa. Hackett, and Commonwealth Superior Ct. 307 A.2d 334 Supreme supra, of the United Court In Chambers, stating length, at this issue at States discussed limitation materialistic 1048-1049: “This 93 S. Ct. at hearsay exception declaration-against-interest on the accepted by appears their criminal most States although processes, have of States . . . a number . Declarations it. . . discarded under the au- courts federal excluded have also Donnelly 272- thority States, v. United although L.Ed. 820 459, Ct. 33 S. newly pro- required under not be would exclusion . . . where Exclusion, of Evidence. posed Eules Federal usually premised prevails, view the limitation frequent presentation lead admission that jury. It that is believed perjured activity by are often motivated criminal confessions are not as therefore, and, considerations extraneous pecuniary inherently statements reliable as has been rationale proprietary that While scholarly ... we subject criticism, of considerable cir- other under whether, case not decide need purpose might state valid serve some it cumstances, testimony. untruthworthy excluding case were hearsay in this statements involved “The trial under subsequently originally offered and made provided assurance considerable that circumstances reliability. confessions McDonald’s each of their First, shortly acquaintance spontaneously to a close was made one was each Second, had occurred. after the murder in the case— evidence some other corroborated eye- testimony of an sworn confession, McDonald’s shooting, that McDonald witness to the shooting, immediately gun after the with a was seen ownership prior re- proof a .22-caliber of his weapon. subsequent purchase of a new volver and provided independent ad- confessions number sheer may each. whatever Third, ditional corroboration penal-interest . . . parameters rationale, be the very self-in- real sense here was each confession unquestionably criminatory interest. See S. Ct. 403 U.S. United v. Harris, States (1971); Evans, Dutton v. L.Ed.2d 723 2075, 2082, L.Ed.2d 213 210, 219, 91 S. 400 U.S. nothing by disclos- stood to benefit McDonald shooting any ing of three friends in the his role possibility dis- been aware of the he must have prosecution. Indeed, to criminal would lead closure subsequently telling he Turner of his involvement, after up.’ Finally, urged him if there Turner not to ‘mess any question the truthfulness of the extra- about was present in judicial McDonald was court- statements, under oath. He could have been room had by and his State, demeanor and cross-examined v. Green, See California jury. responses weighed L.Ed.2d 489 Ct. 399 U.S. 90 S. distinguishes significantly The of McDonald availability Brown prior Mississippi precedent, this case from the and from the 55 So. 961 (1911)], State Miss. 719, [99 de in since both cases Donnelly-type situation, at of trial.21 clarant the time was unavailable that of more fundamental than “. . rights . New in defense. witnesses his own present an accused to S. Ct. 351, Texas, Webb v. E.g., 388 U.S. 14, Washington Texas, (1972) ; L.Ed.2d 330 In re L.Ed.2d 1019 (1967); 87 S. Ct. L.Ed. 499, 507, 68 S. 257, 273, Oliver [333 of the ac In the exercise this right, (1948)]. must with comply of the State, as is required cused, designed and evidence rules of procedure established in the ascertain reliability fairness and to assure both no perhaps innocence. Although ment guilt fre more respected more rule of has evidence than to applicable trials that jury quently applied allow exceptions tailored to the exclusion of hearsay, presence deprives argument for also the State’s “21 McDonald’s penal-interest In claim of much of its force. retention of the rule travesty change justice,’ ing ‘[t]o that the rule would work hypothetical: changed, following posited ‘If rule were State charged crime; B D that he A. could tell O and could be with go hiding crime; A’s B could into trial O committed the at testify guilt; A as to admission of could be and D B’s would provide trial; acquitted B could then B return stand and would testify to his whereabouts at the time as several witnesses testimony along A’s state of those witnesses the crime. The really in B’s committed crime would result he ment prosecution acquittal. further barred from because A be jeopardy. protection No one double could be convicted testify first B did not lie perjury at his A did not as testimony.’ in their oath, D truthful Obvious and were and O under justice- critical to the is success ly, absence ‘B’s’ ploy. subverting likely

the introduction of which fact evidence existed. re- trustworthy long have jected here bore assur- court persuasive and thus ances of trustworthiness was well within rationale exception the basic critical That also was con- defense. In these where Chambers’ circumstances, stitutional the ascertainment rights directly affecting hearsay the not be may rule guilt implicated, defeat the justice.” to ends of applied mechanistically in our and that of the Court It is view, Superior decision Hackett, supra, Commonwealth its that, in Supreme Court did not intend Chambers, supra, must be penal declaration interest every that it hear those Rather, only admitted into evidence. and sub which “were made originally say trial under that offered at circumstances sequently reliability.” assurance their provided considerable Ct. 93 S. at 1048. Id. at 300, hearsay instant admission against

In the case, previous- as indicated made, interest was allegedly only Furthermore, girlfriend. to appellant’s ly, reliability evidence offered show corroborative he had that committed crime, Daniel’s admission the testi- than the was testimony appellants, other who was arrested Paulin, originally of Nathaniel mony to the According Paulin, witness appellants. man and a named Henderson Daniels, appellants, two in an automobile day riding all were alleged before was Shortly robbery robbery. left the auto- Daniels Henderson occurred, have appellants Paulin and the two remained. but mobile, that he the appellants testified were further Paulin had taken robbery any place that until unaware totally the police from at the time the crime learned they arrest. their related Commonwealth that the evidence argues establish that

above should be deemed insufficient made allegedly the declaration Daniels reliable. reluctant to make that was We are transcript alone, decision on the basis of the since we hear witnesses. Furthermore, did not since before and Hackett de case was tried Chambers were then and under the Miss Edwards’ law cided, existing, been admissible in not would have clearly 217 Pa. any Somershoe, see Commonwealth case, 269 A.2d (1970), appellants Superior kind of had no reason to foundation which lay have before Miss required has held be Chambers since Consequently, could admitted. Edwards’ that process appellants due requires we believe of the rule announced light receive a new Hackett. Chambers held consistent a new remanded

Cases opinion. with this concurs in the result. Nix

Mr. Justice consid- part took no Mr. Justice Manderino of this case. decision eration or Opinion Concurring : Mr. Roberts Justice Alfred Nash should Robinson agree I that James reasons substantially but for new granted announc opinion proffered by from those different In my Court. judgment, the judgment ing common as law evi part adopt should Court extrajudicial declarations permitting the view dence into be admitted evidence as interest penal against No need rule. would then hearsay to the exception an presented constitutional issues to consider exist 410 v. Mississippi, Chambers 284, Cf. cases. these Ct. 1038 93 S.

304

To my there are knowledge, no decisions of this Court or of the Superior Court holding declara- tions against interest penal are inadmissible.1 No prec- edent inhibits our a rule ad- adopting permitting missibility against declarations penal law this Commonwealth has, however, long been that declarations against pecuniary or proprietary interest are admissible as a hearsay exception. E.g., v. Beardsley 402 Pa. Weaver, 166 A.2d 130, 132, 529, 530 (alternate Rudisill (1961) v. 333 holding); Cordes, Pa. 544, 5 A.2d 219 Gracie’s (1939); Estate, Pa. A. (1893); Taylor Gould, Pa. 152, 156-57 Welsh v. (1868); 8 Pa. Cooper, 221-22 Bank (1848); 3 W. & S. Harrisburg Tyler, 373 (Pa. 1842). See generally 5 J. Evidence Wigmore, (3d ed. 1940); §§1455-77 McCormick’s Handbook of Law Evidence ed. E. Cleary 1972); §§276-79 S. Pennsylvania Trial Feldman, Guide ed. (rev. §7.56 I 1973). perceive no foundation logical to support different treatment in terest.

The cases relied usually upon as for the authority proposition that declaration against penal is inadmissible are Commonwealth v. Somershoe, Pa. Superior Ct. 269 A.2d Common (1970); wealth v. 216 Pa. Honigman, Superior A.2d 424 Commonwealth v. (1970); 165 Pa. Antonini, Superior Ct. 69 A.2d Cf. S. Feldman, Trial Guide Pennsylvania (rev. ed. 1973). §7.56 Both Somershoe and Honigman were simply per curiam opinionless affirmances.2 no ratio Thus, decidendi can 1 Indeed, opined one trial court has that declarations penal interest, probative, properly where are admissible. Common County Robbins, Rptr. 158, (Pa. v. 18 Bucks L. wealth 163-64 Q.S. 1968). 2 Honigman, Superior v. In Commonwealth 303, 216 Pa. 303, Ct. Judge 424, forcefully A.2d 424 persuasively 264 Hoffman and

305 can Antonini from these decisions. be extracted a declaration, there the because easily distinguished the inculpate a offered to decedent, note was suicide introduction would violate therefore its accused, Superior the clause.3 More recently, the confrontation interest, against penal Court has permitted into evidence. admitted in circumstances,4 certain against penal admissibility argued of declarations of the in favor Superior Somershoe, Pa. v. 217 interest. also Commonwealth See opinion). (dissenting 156, 149, (1970) 157, A.2d Ct. 149 269 3 (1968) Russell, 293, v. 88 Ct. 1921 Cf. Roberts 392 U.S. S. 123, States, (per curiam); S. 1620 88 Ct. United 391 U.S. Bruton v. Douglass (1968) ; ; Page, 719, (1968) v. U.S. 88 S. Ct. 1318 Barber 390 Texas, (1965) ; Alabama, Pointer S. v. U.S. 85 Ct. 1074 380 States, (1965) ; v. United 156 S. 1065 Mattox 85 Ct. Evans, (1895). But cf. Dutton v. U.S. U.S. S. Ct. 337 Green, (1974) ; S. Ct. S. 91 Ct. 210 California completely unacceptable adoption guide the I as view Superior Hackett, in Commonwealth v. Pa. lines enunciated Superior Hackett, In instructed Court 307 A.2d 334 admissibility against penal in of declarations trial courts that they mandatory exculpate “(1) from terest when defendant was inherently trustworthy charged; (2) he is are for which the crimes orally persons they or are written made reliable in that having declarant; and, authority adverse interests to or those pre-trial during they Id. the trial itself. are made A.2d at 338. my standards, unduly judgment, restrictive These impose discretion irrelevant on the court’s conditions against penal By admissibility nature, of declarations its only decisionmaking, itself ad hoc lends evidence particular facts and circumstances of based decisions appellate court, given arena, an removed from the As case. admissibility. only all, broad contours of delimit the After canwe weigh task, duty, court’s sift the first it is the trial arguments against admissibility. for and the facts and In instance against penal my view, interest should be declaration admitted that the proponent declaration can show states facts that are il' its declarant, and that declarant 306

Commonwealth v. 225 Pa. Superior Hackett, 307 A.2d 334 of

Tbe exclusion declarations from tbe bas been hearsay exceptions severely vig and orously criticized. 5 J. Evidence Wigmore, §§1476-77 (3d 1940); ed. McCormick’s Handbook of of the Law 5 is at the time of trial. McCormick’s of the unavailable Handbook (2d Cleary 1972). Law of Evidence E. §276 ed. particularly, requirement I More find troublesome the against penal “inherently trustworthy declarations interest must be they orally persons in that are made written of author- reliable ity having or those adverse interests to the declarant.” isWho person authority? reliability of Is his at issue? Is the bartender, accused, of a who has never heard of or seen but the guilt whom declarant confesses of the the crime with which charged, not accused is to be admitted because the bartender is “adverse,” Indeed, not but rather “neutral”? under Eachett the test, Mississippi, in Chambers several witnesses v. testify S. Ct. not have been allowed to they were friends both of Chambers and of the declarant Like suppose many case, others, participants I the instant like closely betrayal. friendship in Chambers were linked opinion announcing judgment, In the view of case, Hackett; Chambers, in the see instant is constitution mandate ally compelled. my thinking, nothing there To is in the United Pennsylvania requires adoption States or Constitutions that of specific standards for such wooden such a discretion-laden admissibility question as of evidence. only practical consequences unreasoning “The this limitation admissibility against penal [on interest] shocking for, justice; application, to the sense in its commonest rejection requires confession, it in a criminal of a how authenticated, person of a ever well deceased or insane or fled from quite jurisdiction (and unavailable) therefore who has avowed culprit. absurdity wrong rejecting to be the The himself true indiscriminately patent all such evidence .... steps, too therefore not late to retrace “It is our and to discard doctrine, which would barbarous refuse let an innocent by producing himself even vindicate accused the tribunal a confession, perfectly written very authenticated made on the gallows, 1972); Donnelly Cleary ed. E. Evidence §278 33 S. Ct. 228 U.S. United States, United States An dissenting); (1913) J., (Holmes, ( J.), 293 F.2d 378 2d Cir.) nunziato, (Friendly, S. Ct. cert. denied, federal rules proposed has rejected by exclusion Pro Practice & on Rules Committee evidence, United Courts for the States Rules of Evidence cedure, draft as (rev. 1973), rule Magistrates 804(b)(4) of evidence, of the law well as earlier codifications Code of Evi 63(10); Uniform Rule of Evidence Model 509(1) dence rule permitted partial exceptions have states

Several v. 413 Ill. Lettrich, exclusion. People the rule of E.g., v. Hines 108 N.E.2d 491-92 488, (1952); 176-80, 172, Va. 117 846- Commonwealth, 843, S.E. 728, 738-50, 136 have illogical jettisoning past, (1923).6 49 Others, admit declara- evidence to their rules of modernized beyond culprit justice. who the reach of Those now true self-righteous indignation (in 1899) the course watched Dreyfus’ that, Captain proceedings remember if should spectacle Courts, in our would have had occurred own following supposed precedents, we, our no shameful if own less the French Court never moment refused to admit what had admit, authenticated confession absconded hesitated —the avowing guilty Major Esterhazy, himself the author the treason beyond charged, now known a doubt have been the real there §1477, 1940) Wigmore, Evidence ed. J. 289-90 traitor.” 5 amitted). (footnotes 6 Larsen, 42, 48-49, 685, v 91 Idaho 415 P.2d State See also 407, 609, Dyson State, 398, ; (1966) Md. A.2d v. 238 209 614 691-92 grounds, 106, on other (1965), and remanded vacated Brady ; State, 422, (1966) Md. v. 226 174 A.2d 167 S. St. 717 86 Brady Maryland, 83, v. S. nom. 373 83 sub aff’d 446, State, (1946) ; Md. (1963) ; v. 186 47 A.2d Thomas 43 1194 1952) ; (Mo. Purdone, Easterly, Sutter S.W.2d 159 v. 250 v. Osborne ; (1945) State, v. 284 Cameron 282, Tex. S.W.2d 153 Mo. 189 354 Newberry ; (1949) Commonwealth, v. 29, 23 191 Va. 217 S.W.2d Crim. 318 S.E.2d 61 308

tions against penal interest. v. E.g., People Spriggs, 60 Cal.2d 389 P.2d Cal. 841 Rptr. (1964) v. (Traynor, State J.); 465 P. Leong, Hawaii 581, 2d 560 (1970); People Brown, 26 N.Y.2d N.E.2d N.Y.S.2d 825 N.J.R. Evid. (1970); 63(10); Wis. R. Evid. In still §908.045(4). others, confession to a crime has been deemed to be also against pecuniary declarant’s proprietary interest, thus admissible. Weber R.I. P. E.g., & Chicago, Ry., 175 Iowa 358, 382-83, N.W. 864-65 852, 861, M. (1916); McKelvey G. Co. v. General Co., Casualty N,E.2d 166 Ohio St. Aetna (1957); Life Insurance v.Co. Strauch, Okla. 67 P.2d 617, 619-20, 452, 455 (1937).

A statement that subjected the declarant to possible criminal sanctions be could considered hardly anything but against The limitation of the exception in- pecuniary and proprietary terests the belief that grounded less they likely to motivated by extraneous pro- considerations vide less inducement to perjury. This is un- reasoning object sound. If the of the a present lawsuit were can one doubt that there $100,000,000 judgment, would less incentive swear any falsely? Viewing from materialistic limitation a different perspective, York Court Appeals the New stated: dis- “[T]he tinction which authorize a court to receive proof man that a admitted he had never title to an Elgin receive proof but not that had he admitted watch, over head striking Jones club, assuming of both relevancy equal statements, does not readily analysis.” People withstand Brown, N.Y.2d 257 N.E.2d N.Y.S.2d In circumstances any event, assuring reliability go evidence. Rau v. weight to the See First Nation al 490, 494-95, 97 N.H. A.2d Stores, incredible is If declaration is testified an to by the factfinder is free witness, incredible disbelieve counsel opposing cross-examination, testimony. By inconsistencies, weakness, for probe is able to admissibil- and not This, interest of a witness. or the testimony. for incredible is the safeguard ity, of declarations whether the exclusion The question been suc- rule has a sensible interest is against penal ex- Wigmore. addressed Professor by cinctly “[The The of policy. grounds cannot be justified clusion] ad- has ever that policy reason of only plausible of pro- possibility such a limitation is vanced for if admission an to such fabricated curing al- that has weapon the ancient rusty oral. This is in the reform any to oppose been brandished ways danger the argument of Evidence, viz., rules admit- against good argument This would be a abuse. that some for it is notorious at ting all, witnesses any being to avoid and that it is difficult will lie witnesses rule which any is their lies. truth deceived himself is exonerating an man in honest hampers in falsely if a villain hampers even it also bad rule, Evidence, J. Wigmore, for an innocent.” passing omitted). ed. 1940) (footnote at 288-89 §1477, penal declarations against The rule that nor neither reason hearsay supported inadmissible even sup- In it is not Pennsylvania nor policy. logic I our common law As see by precedent. it, ported in- penal permit should evidence exception. admissible as a hearsay terest to be their view that at new therefore, my It is, in- against penal the tendered declaration order appellants must show that admissible, terest facts that are in- states declaration and that the declarant is un- declarant, terest of trial. the time McCormick’s Handbook available ed. E. Evidence, Cleary the Law of 1972). §276 in the result. 1 concur Justice Jones and Mr. Justice Pomeroy Chief

Mr. concurring opinion. join

Case Details

Case Name: Commonwealth v. Nash

Court Name: Supreme Court of Pennsylvania

Date Published: Jul 1, 1974

Citation: 324 A.2d 344

Docket Number: Appeals, 99 and 163

Court Abbreviation: Pa.