Com. v. Bujanowski

• Decision Date: 07 August 1992
• Citation: 613 A.2d 1227,418 Pa.Super. 163
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Ronald BUJANOWSKI, Sr. and Marvin Gorelick, Appellees.
• Court: Pennsylvania Superior Court

Page 1227

613 A.2d 1227

418 Pa.Super. 163

COMMONWEALTH of Pennsylvania, Appellant, v. Ronald BUJANOWSKI, Sr. and Marvin Gorelick, Appellees.

Superior Court of Pennsylvania.

Argued June 1, 1992.

Filed Aug. 7, 1992.

Christopher H. Asplen, Asst. Dist. Atty., Doylestown, for Com., appellant.

John Fagan, Asst. Public Defender, Doylestown, for Bujanowski, appellee.

Patrick J. Egan, Doylestown, for Gorelick, appellee.

Before ROWLEY, President Judge, and WIEAND, CIRILLO, OLSZEWSKI, MONTEMURO, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.

WIEAND, Judge:

This case is before a court en banc for reargument of a Commonwealth appeal from an order which granted a defense motion in limine to prevent the Commonwealth from using an extrajudicial statement by an unavailable witness as substantive evidence implicating Ronald Bujanowski, Sr. and Marvin Gorelick, appellees, in a series of burglaries committed in Bensalem Township, Bucks County. ¹

Ronald Bujanowski, Jr. was apprehended by Bensalem Township police in connection with three burglaries which had been committed in Bensalem Township during the month of August, 1989. He gave a statement to Detective Bruce Van Zant in which he admitted that he had participated in the burglaries and implicated his father, Ronald Bujanowski, Sr., in the commission of the three burglaries and Marvin Gorelick in the commission of one of the burglaries. Bujanowski, Sr. and Gorelick were thereafter arrested and charged with various offenses related to the three burglaries. ² At the preliminary hearing, however, the younger Bujanowski recanted his prior statement to Detective Van Zant and testified that his father and Gorelick had had nothing to do with the burglaries. The Commonwealth was then permitted to introduce the statement which the younger Bujanowski had made to Van Zant, and on this basis the charges against Bujanowski, Sr. and Gorelick were returned to court.

When the Commonwealth subsequently attempted to subpoena Bujanowski, Jr. for trial, he could not be found. The parties have agreed and the trial court found as fact that he was unavailable for trial. The prosecutor proposed, therefore, to offer at trial the testimony given by Bujanowski, Jr. at the preliminary hearing. This testimony was exculpatory, and the prosecutor's sole purpose for offering the same was to provide a foundation for offering the witness's prior inconsistent statement to Detective Van Zant. The Commonwealth has conceded that it has no means by which it can prove participation by the appellee-defendants except by the statement made by Bujanowski, Jr. to Detective Van Zant and that its case will not survive a demurrer without such evidence. The trial court ruled that the statement could not be used as substantive evidence to implicate the defendant-appellees.

We agree with the Commonwealth that the testimony given by Bujanowski, Jr. at the preliminary hearing is admissible as the prior recorded testimony of an unavailable witness. See: Commonwealth v. Sandutch, 498 Pa. 536, 540, 449 A.2d 566, 567 (1982); Commonwealth v. Scarborough, 491 Pa. 300, 317, 421 A.2d 147, 155 (1980). This evidence, however, will not incriminate the defendant-appellees but will exculpate them. In reality, the Commonwealth is attempting to place before the jury as substantive evidence the extrajudicial statement made by Bujanowski, Jr. to Van Zant. It does so under the guise of attacking the credibility of the witness's prior testimony by showing an earlier inconsistent statement. This statement, however, is hearsay. We agree with the trial court that the witness's statement cannot be received as substantive evidence.

"Hearsay is an out-of-court statement offered to prove the truth of the matter asserted." Commonwealth v. Darden, 311 Pa.Super. 170, 175, 457 A.2d 549, 551 (1983). See also: Commonwealth v. Glover, 399 Pa.Super. 610, 614, 582 A.2d 1111, 1113 (1990); Commonwealth v. Cohen, 371 Pa.Super. 558, 564-565, 538 A.2d 582, 585 (1988), appeal dismissed, 488 U.S. 1035, 109 S.Ct. 858, 102 L.Ed.2d 983 (1989); Commonwealth v. Cassidy, 315 Pa.Super. 429, 433, 462 A.2d 270, 272 (1983).

When a statement is offered in evidence to prove the truth of a fact asserted therein, the speaker's credit and the circumstances of the utterance become basic to a proper evaluation of the statement. Therefore, the hearsay rule generally excludes such evidence unless the speaker is on hand to personally testify.

Commonwealth v. DiSilvio, 232 Pa.Super. 386, 391, 335 A.2d 785, 787-788 (1975). See: Commonwealth v. Underwood, 347 Pa.Super. 256, 259, 500 A.2d 820, 822 (1985) ("Hearsay is generally inadmissible as evidence because the competency and veracity of the original speaker are not subject to examination."). See also: Commonwealth v. Thomas, 372 Pa.Super. 349, 356, 539 A.2d 829, 833 (1988); Commonwealth v. Whiting, 358 Pa.Super. 465, 478, 517 A.2d 1327, 1334 (1986). "The rationale for the hearsay rule is that hearsay is too untrustworthy to be considered by the trier of fact." Commonwealth v. Haber, 351 Pa.Super. 79, 83, 505 A.2d 273, 275 (1986). Therefore, our Supreme Court "has long adhered to the principle that the use of hearsay evidence is to be discouraged, and [the] policy against its use is generally recognized as particularly strong." Heddings v. Steele, 514 Pa. 569, 574, 526 A.2d 349, 351 (1987) (footnote omitted).

It has been said that " '[t]he principle reason for excluding hearsay is the danger that the declarant's credibility cannot be assessed.' " Commonwealth v. Sanders, 260 Pa.Super. 358, 366, 394 A.2d 591, 595 (1978), quoting Commonwealth v. Dugan, 252 Pa.Super. 377, 386, 381 A.2d 967, 971 (1977) (Spaeth, J., concurring). In this regard, the Supreme Court has observed:

The predicate supporting the rejection of hearsay evidence is its assumed unreliability because the declarant from which the statement originates is not before the trier of fact and therefore cannot be challenged as to the accuracy of the information sought to be conveyed. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Stidum v. Trickey, 881 F.2d 582 (8th Cir.1989); Martinez v. Sullivan, 881 F.2d 921 (10th Cir.1989); United States v. Koskerides, 877 F.2d 1129 (2d Cir.1989); United States v. Bentley, 875 F.2d 1114 (5th Cir.1989); Commonwealth v. Galloway, 476 Pa. 332, 382 A.2d 1196 (1978); Commonwealth v. Porter, 449 Pa. 153, 295 A.2d 311 (1972); Commonwealth v. Ransom, 446 Pa. 457, 288 A.2d 762 (1972). It also offends an essential concept of this nation that an accused has a fundamental right to confront his accuser. Dutton v. Evans, supra; Commonwealth v. Galloway, supra; Ransom, supra.

Commonwealth v. Smith, 523 Pa. 577, 592-593, 568 A.2d 600, 608 (1989). The

Supreme Court has elaborated further as follows:

A hearsay statement lacks guarantees of trustworthiness fundamental to the Anglo-American system of jurisprudence. Perhaps such a statement's most telling deficiency is it cannot be tested by cross-examination. According to Dean Wigmore, cross-examination is "beyond any doubt the greatest legal engine ever invented for the discovery of truth." 5 Wigmore, supra, § 1367. Nor is the declarant under oath when the out-of-court statement is uttered. This court has long recognized the oath requirement as a further assurance of reliability. Commonwealth v. Stewart, 1 Serg. & Rawle 342, 344 (1815); Longenecker v. Hyde, 6 Binn. 1, 2 (1813). Out-of-court declarations also deprive the trier of fact of an opportunity to examine the demeanor of the declarant. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 495-496, 71 S.Ct. 456, 468, 95 L.Ed. 456 (1951). Moreover, an in-court declarant may be impressed with the solemnity of the proceeding and may be reluctant to lie in the face of the party against whom the statement is directed. Fed.R.Evid. Art. VIII, Hearsay, "Introductory Note: The Hearsay Problem," advisory committee's note, reprinted in 56 F.R.D. 183, 288 (1973). The confrontation clauses of the federal and state constitutions, U.S. Const. amend. VI; Pa. Const. art. I, § 9, are manifestations of these beliefs and attitudes.

Heddings v. Steele, supra, 514 Pa. at 573, 526 A.2d at 351. Perhaps the most eloquent explanation of the rationale underlying the hearsay rule was that provided by Justice Musmanno, who said:

The primary object of a trial in our American courts is to bring to the tribunal, which is passing on the dispute involved, those persons who know of their own knowledge the facts to which they testify. If it were not for this absolute sine qua non, trials could be conducted on paper without the presence of a single flesh and blood witness. However, with such a pen-and-ink procedure, there would be no opportunity to check on testimonial defects such as fallacious memory, limited observation, purposeful distortions, and outright fabrication. The great engine of cross-examination would lie unused while error and perjury would travel untrammeledly to an unreliable and often-tainted judgment. Accordingly, nothing is more adamantly established in our trial procedure than that no one may testify to what somebody else told him. He may only relate what is within the sphere of his own memory brought to him by the couriers of his own senses.

Johnson v. Peoples Cab Co., 386 Pa. 513, 514-515, 126 A.2d 720, 721 (1956). See also: Semieraro v. Commonwealth Utility Equipment Corp., 518 Pa. 454, 457-458, 544 A.2d 46, 47 (1988); Heddings v. Steele, supra at 574, 526 A.2d at 351-352.

Because hearsay is regarded as unreliable, "[i]t is well settled in our law that hearsay evidence is inadmissible unless it qualifies under one of the recognized exceptions to that rule." Commonwealth v. Smith, supra at 591, 568 A.2d at 607. See also: Commonwealth v. Wright, 455 Pa. 480, 484-485, 317 A.2d 271, 273 (1974); Commonwealth v. Franklin, 397 Pa.Super. 265, 277, 580 A.2d 25, 31 (1990). "Exceptions to the hearsay rule have been fashioned to...