Com. v. Jones

• Decision Date: 14 June 1994
• Citation: 434 Pa.Super. 469,644 A.2d 177
• Parties: COMMONWEALTH of Pennsylvania v. Germaine B. JONES, Appellant.
• Court: Pennsylvania Superior Court

Page 177

644 A.2d 177

434 Pa.Super. 469

COMMONWEALTH of Pennsylvania v. Germaine B. JONES, Appellant.

Superior Court of Pennsylvania.

Argued March 29, 1994.

Filed June 14, 1994.

Ronald J. Sharper, Philadelphia, for appellant.

Sheilann P. Hewitt, Asst. Dist. Atty., Philadelphia, for the Com., appellee.

Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.

WIEAND, Judge:

Germaine Jones was tried non-jury and was found guilty of first degree murder, possession of an instrument of crime and recklessly endangering another person. Post-trial motions were denied, and Jones was sentenced to imprisonment for life on his conviction for first degree murder and to concurrent terms of imprisonment for not less than one (1) year nor more than two (2) years on his convictions for possessing an instrument of crime and recklessly endangering another person. On direct appeal from the judgment of sentence, Jones's principal argument is that the trial court erred by allowing the Commonwealth to introduce as substantive evidence the prior inconsistent statement of one of its witnesses, Jamal Williams. Jones also contends that the Commonwealth's evidence was so unreliable and contradictory that his convictions should not be allowed to stand. After careful review, we affirm the judgment of sentence.

The evidence presented by the Commonwealth established that, on the evening of October 15, 1992, appellant and the victim, Lorenzo Brison, had an argument over a girl. The argument culminated when appellant "sucker punched" Brison and then ran away. On the following day, at or about 6:00 p.m., Brison was driving in a southerly direction on 15th Street in Philadelphia in his blue Chevy Blazer jeep, with his seven year old nephew riding as a passenger. When Brison passed the intersection of 15th and Dickinson Streets, appellant approached the jeep, pulled out a gun and fired several shots at Brison. One of the bullets fired by appellant struck Brison in the head, fatally wounding him. Brison's young nephew escaped without injury.

At trial, the Commonwealth called Jamal Williams, who testified that he had been present on the corner of 15th and Dickinson Streets at the time of the shooting and had heard the gunshots. Williams, however, denied that he had observed the person who had fired the shots. This was inconsistent with a prior statement which Williams had given to police on October 28, 1992, twelve days after the shooting, in which he had told police that he had observed appellant firing the shots at Brison. This statement had been reduced to writing and had been signed by Williams, using the name Jamal Cannon. When confronted with his prior statement, Williams said that he had given police a false name and address because he did not want to get involved. He also testified that his prior statement to police was false and that he had implicated appellant because he was angry with appellant and did not like him. Williams conceded, however, that the prior statement with which he was confronted at trial accurately reflected what he had told police on October 28, 1992. Williams also admitted that, after he had made the statement to police, he had read it and made corrections before signing the same.

Appellant objected to the admission of Williams's prior statement on grounds that it had been made under unreliable circumstances, i.e., because Williams had given police a false name and address. He also asserted that the statement was inadmissible because the witness did not adopt it as being the truth at the time of trial, but, in fact, said that the prior statement had been false. In response to these objections, the trial court ruled as follows:

THE COURT: Okay. I'm satisfied that the statement meets the test of Brady. It's a signed statement given to the police under circumstances in which he was not forced or pressured. He says that it indicates that which he told them at that time. The weight of it is a question that you may argue, but the use of it by the Commonwealth to question the witness is appropriate under the circumstances here. Your exception is noted.

In Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), the Pennsylvania Supreme Court rejected the longstanding rule that prior inconsistent statements of a non-party witness could only be used for purposes of impeaching the credibility of the witness. The Court held "that otherwise admissible prior inconsistent statements of a declarant who is a witness in a judicial proceeding and is available for cross-examination may be used as substantive evidence to prove the truth of the matters asserted therein." Id. at 131, 507 A.2d at 70. In adopting this new rule, the Supreme Court reasoned as follows:

The simple fact is that "the usual dangers of hearsay are largely nonexistent where the witness testifies at trial." California v. Green, supra at 399 U.S. [149 at 155, 90 S.Ct. [1930] at 1933 [26 L.Ed.2d 489 (1970) ]. By hypothesis in these situations, the out-of-court declarant is now a witness in-court where he or she is placed under oath, subject to cross-examination and under observation by the finder of fact. See Commonwealth v. Thirkield, supra at 502 Pa. 542, 467 A.2d 323 [ (1983) ] (McDermott, J. dissenting: "the fact that [the oath and cross-examination requirements] are supplied in the current trial defuses hearsay concerns and provides the fact-finder with ample opportunity to determine truth."). Indeed, the cross-examination to which a recanting witness is subjected will likely be meaningful and vigorous since the witness is already "on the spot" in having to explain the discrepancies between earlier statements and direct testimony, or deny that the earlier statements were made at all.

....

The availability of cross-examination at trial also assures a meaningful opportunity for the trier of fact to observe the declarant who has been called upon and sworn as a witness and questioned as to the discrepancy between the prior statement and the direct testimony. The trier of fact may bring to bear his or her sensory observations, experience, common sense and logic upon the witness to assess credibility and to determine the truth and accuracy of both the out-of-court declarations and the in-court testimony. In one of the earlier opinions rejecting the orthodox position, Judge Learned Hand made this classic statement: "If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court." DiCarlo v. United States, 6 F.2d 364, 368 (2d Cir.1925).

Moreover, the prior statement can be viewed as possessing superior indicia of reliability as it was rendered at a point in time closer to the event described--usually much closer--when memory will presumably be fresher and opportunity for fabrication lessened. McCormick, supra at § 251; Graham, supra at 1571. Indeed, this is the rationale behind the past recollection refreshed exception to the hearsay rule. McCormick, supra at § 301.

Commonwealth v. Brady, supra 510 Pa. at 128-130, 507 A.2d at 69.

Six years later the Supreme Court revisited its decision in Brady, and, in Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992), clarified the Brady holding as follows [T]he important components of the Brady rule are that otherwise admissible prior inconsistent statements be given under highly reliable circumstances and the non-party declarant be subject to cross-examination in the proceeding where the prior statement is to be admitted.

....

Although the statement of the holding in Brady was that "otherwise admissible prior inconsistent statements of a declarant who is a witness in a judicial proceeding and is available for cross-examination may be used as substantive evidence to prove the truth of the matters asserted therein," 510 Pa. at 131, 507 A.2d at 70, we noted that Ms. Traxler's tape recorded...