Com. v. Cargo

• Decision Date: 23 April 1982
• Parties: COMMONWEALTH of Pennsylvania v. Kevin CARGO a/k/a Kevin Davis, Appellant.
• Court: Pennsylvania Supreme Court

Page 639

444 A.2d 639

498 Pa. 5

COMMONWEALTH of Pennsylvania v. Kevin CARGO a/k/a Kevin Davis, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 23, 1981.

Decided April 23, 1982.

[498 Pa. 7] James J. DeMarco, Philadelphia (Court-appointed), for appellant.

Robert B. Lawler, Chief, Appeals Div., Sarah Vandenbraak, Philadelphia, for appellee.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY, KAUFFMAN and WILKINSON, JJ.

OPINION OF THE COURT

O'BRIEN, Chief Justice.

This is a direct appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia. Appellant, Kevin Cargo, was convicted in a non-jury trial of murder of the first degree ¹ and possession of an instrument of crime, ² and sentenced to life imprisonment and a consecutive sentence of two and one-half to five years. We affirm.

The evidence presented by the Commonwealth established the following. ³ At approximately four a. m. on May 8, 1977, appellant was sitting in a taxicab he had stolen the previous evening, waiting for the victim, Gerald Kramer, appellant's former employer, outside Kramer's store at 17th Street and Belfield Avenue in Philadelphia. When Kramer left his store, appellant shot him twice from inside the cab with a twelve-gauge sawed-off shotgun, causing Kramer's death. Appellant left Philadelphia the next day, spending the next several months in North Carolina, Georgia and Virginia. He returned to Philadelphia on September 9, 1977, and was arrested in his mother's home on outstanding warrants for Kramer's murder and the earlier robbery of Kramer's store, as well as for a second, unrelated murder, ⁴ on September 10, 1977. Appellant gave statements to the police confessing to both murders at that time.

Trial counsel filed a timely post-verdict motion, seeking arrest of judgment and a new trial, in which he asserted that the verdict was against the weight of the evidence, that appellant's confession was fabricated by the police and his signature thereon obtained by coercion, and that a prior statement made to the police by a Commonwealth witness was impermissibly read into the record by the detective who recorded the statement. The motion was denied. New counsel entered his appearance at the post-verdict stage and was granted leave to file post-verdict motions nunc pro tunc. No written post-verdict motion was subsequently filed. New counsel did, however, submit a brief, styled as a "Brief in Support of Defendant's Post Trial Motions," to the trial judge. This brief was not included in the record certified to this Court. ⁵ The record shows that new counsel requested that the post-verdict court incorporate his brief into the record in lieu of oral argument. ⁶ The post-verdict court did not address this request; it did indicate that it had read the brief, and denied the relief requested therein. N.T. June 13, 1978 at 2-3. Appellant was sentenced on September 15, 1978. This direct appeal followed. ⁷

Appellant argues first that it was prejudicial error for the trial court to admit as substantive evidence the prior written statement of a Commonwealth witness who, at trial, denied any present recollection of the events about which he was asked to testify. The statement established that the witness had seen appellant in a yellow cab on the evening preceding Kramer's murder. Appellant contends that the Commonwealth failed to lay a proper foundation for the admission of that statement. We are convinced that the trial court properly admitted the statement under the past recollection recorded exception to the hearsay rule in light of the foundation laid by the Commonwealth.

The witness, Santos Thornton, a sixteen year old boy, testified initially that he did not remember hearing of Kramer's murder or being interviewed by a police detective on the morning following the murder. ⁸ The Commonwealth pleaded surprise, but later withdrew that plea, attempting instead to lay a foundation for the admission of Thornton's prior statement as past recollection recorded. This Court set forth the requisite elements of such a foundation in Commonwealth v. Cooley, 484 Pa. 14, 21-22, 398 A.2d 637, 641 (1979):

"Before the content of a writing becomes admissible under that exception, the proponent must lay a foundation to show that four requirements are met: '1) the witness must have had firsthand knowledge of the event; 2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it; 3) the witness must lack a present recollection of the event, and 4) the witness must vouch for the accuracy of the written memorandum.' McCormick, Evidence § 299 at p. 712 (2d Ed. 1972). See Miller v. Exeter Borough, 366 Pa. 336, 342, 77 A.2d 395, 399 (1951); Christian Moerlein Brewing Co. v. Rusch, 272 Pa. 181, 187, 116 A. 145, 147 (1922)."

Commonwealth v. Shaw, 494 Pa. 364, 431 A.2d 897 (1981). See Commonwealth v. Canales, 454 Pa. 422, 426, 311 A.2d 572, 574 (1973); Commonwealth v. Butts, 204 Pa.Super. 302, 309-310, 204 A.2d 481, 485-486 (1964) (allocatur denied ); 1 Henry, Pa. Evidence § 460.5 (Supp.1978); McCormick, Evidence §§ 300-303 (2d ed. Cleary 1972); 2 Wharton, Crim. Evidence § 417 (13th ed. Torcia 1972 & Supp.1981); 3 Wigmore, Evidence §§ 736, 744-748 (Chadbourn rev. 1970 & Supp.1981); Fed.R.Evid. 803(5), 28 U.S.C.A.; Model Code of Evidence, rule 504 (1942); Uniform Rule of Evidence 803(5).

The trial court explained its basis for admitting Thornton's statement in its opinion:

"Defendant next asserts as error the admission of a signed statement of Santos Thornton which Mr. Thornton gave to Detective Robert Kane on May 9, 1977. Detective Kane read one question and answer from the statement after Mr. Thornton indicated that he had no independent recollection of the incident in question, and the District Attorney's attempt to refresh his recollection had failed. Since Mr. Thornton indicated he was on the steps at the time of his observation (N.T. 3.9), recalled giving a statement to a police officer (N.T. 3.14), told the police officer the truth (N.T. 3.15), and identified his signature on each page of the statement (N.T. 3.12), this Court admitted Mr. Thornton's statement under the past recollection recorded exception to the hearsay rule. Although trial counsel asserted that defendant [sic ; should read 'Mr. Thornton'] on cross-examination and occasionally on direct denied any personal knowledge of the facts in the statement, the above cited portions of his testimony indicate that he testified both ways on at least some of the questions by which the Commonwealth laid its foundation, and it is, of course, up to the fact finder to believe some, all, or none of a witness's testimony. Commonwealth v. Lopez, 455 Pa. 353 (1974)."

Commonwealth v. Cargo, supra at n. 7, at 4.

It is clear from the record that the first and second requirements of Cooley, supra, that the witness have "firsthand knowledge of the event," and that the "written statement [be] made at or near the time of the event and while the witness had a clear and accurate memory of it," have been satisfied. The fourth requirement, that "the witness must vouch for the accuracy of the written memorandum," has been met in spite of Thornton's conflicting testimony. Thornton identified his signature on the statement, stated that he told the police the truth, and recalled making and signing the statement. We are satisfied that the trial court properly resolved any inconsistencies and believed only that portion of the witness' testimony which tended to show that he adopted the statement. Commonwealth v. Duncan, 473 Pa. 62, 68, 373 A.2d 1051, 1053-1054 (1977).

Cooley's third requirement, that "the witness must lack a present recollection of the event," becomes problematic in the instant circumstances. In Commonwealth v. Shaw, supra, this Court stated:

"... By lack of present recollection, we mean that the witness must lack 'sufficient present recollection to enable [him] to testify fully and accurately.' McCormick, Law of Evidence § 302 (2d ed. 1972) (emphasis added). With respect to this requirement, we do not regard Miller's contrary affirmations as dispositive. In fact, Miller's acknowledgments that his memory had been refreshed were belied by his behavior on the witness stand--by his repeated inability to remember relevant facts and by his constant references to the existence of his confession as a substitute for substantive responses. Furthermore, the fact that Miller's lack of recall may have been the product of a 'selective memory'--a conscious desire to withhold certain information--is not a bar to the establishment of this requirement. See United States v. Williams, 571 F.2d 344 (6th Cir.), cert. denied, 439 U.S. 841, 99 S.Ct. 131, 58 L.Ed.2d 139 (1978). We therefore conclude that the record also establishes that Miller lacked sufficient present recollection to enable him to testify fully and accurately and thus, that his written confession was admissible as past recollection recorded."

Id. at 369, 431 A.2d at 899 (emphasis supplied; footnote omitted). See United States v. Klein, 488 F.2d 481, 483 (2d Cir. 1973), cert. denied, 419 U.S. 1091, 95 S.Ct. 683, 42 L.Ed.2d 684 (1974); McCormick, supra, § 302; cf. United States v. Senak, 527 F.2d 129, 137-138 (7th Cir. 1975), cert. denied, 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 758 (1976); but cf. Annot., Denial of Recollection as Inconsistent with Prior Statement so as to Render Statement Admissible, 99 A.L.R.3d 934, 954-957 (1980).

Further, Pennsylvania case law requires only that the proponent of the prior statement present evidence of the witness's lack of present recollection. Commonwealth v. Cooley, supra, 484 Pa. at 22, 398 A.2d at 641 (prosecutor failed to show on the record that detective had no present recollection of contents of writing after reviewing it); Commonwealth v. Canales, supra, 454 Pa. at 426, 311 A.2d at 574 (...