Com. v. McCracken

• Decision Date: 12 May 1988
• Citation: 540 A.2d 537,373 Pa.Super. 90
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Terrence McCRACKEN, Jr. COMMONWEALTH of Pennsylvania v. Terrence McCRACKEN, Jr., Appellant.
• Court: Pennsylvania Superior Court

Page 537

540 A.2d 537

373 Pa.Super. 90

COMMONWEALTH of Pennsylvania, Appellant, v. Terrence McCRACKEN, Jr.

COMMONWEALTH of Pennsylvania v. Terrence McCRACKEN, Jr., Appellant.

Superior Court of Pennsylvania.

Argued Sept. 16, 1987.

Filed March 1, 1988.

Reargument Denied May 12, 1988.

Dennis C. McAndrews, Asst. Dist. Atty., Wayne, for Com., appellant (at 318PHL87) and appellee (at 777PHL87).

John G. McDougall, Philadelphia, for appellant (at 777PHL87) and appellee (at 318PHL87).

Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.

HOFFMAN, Judge:

These are cross-appeals from the order below that (1) granted appellee and cross-appellant Terrence McCracken a new trial, and (2) directed that McCracken's counsel "shall be available as a witness at the new trial ... and shall not represent [McCracken] at the new trial." Appellant, the Commonwealth, contends that the court erred in granting McCracken a new trial because the evidence upon which the court's order was based (1) was inadmissible hearsay, and (2) did not fulfill the legal standards governing after-discovered evidence. Cross-appellant McCracken contends that the court erred in ordering trial counsel not to represent him at the new trial. For the reasons that follow, we find that the evidence introduced at the after-discovered evidence hearing (1) was admissible under the declaration against penal interest exception to the hearsay proscription, but (2) did not warrant the granting of a new trial under the standard governing after-discovered evidence. Accordingly, we reverse the court's order granting McCracken a new trial, reinstate the jury verdict, and remand the case for sentencing. Because we reverse the order granting a new trial, we need not address cross-appellant's contention regarding the propriety of the court's order directing present counsel not to represent McCracken at his new trial.

On October 25, 1983, following a jury trial, appellee Terrence McCracken was found guilty of murder in the second degree, two counts of robbery, and one count of criminal conspiracy. Appellee filed post-verdict motions in four stages: Motion for New Trial and/or Arrest of Judgment, Motion for New Trial based on After-Discovered Evidence, Amendment to Motion for New Trial and/or Arrest of Judgment, and Supplemental Post Verdict Motion for New Trial Based on After-Discovered Evidence. The trial court heard extensive testimony on the post-verdict motions on numerous occasions between April 6, 1984 and September 25, 1986. On January 16, 1987, the court granted appellee a new trial based on after-discovered evidence, and denied appellee's other post-verdict motions. This Commonwealth appeal followed.

In an Opinion dated March 13, 1987, the trial court made clear that the sole basis for its granting a new trial was the testimony of appellee's counsel, John G. McDougall. Trial Court Opinion at 10-11. McDougall testified that, after appellee's trial, appellee's alleged co-conspirators, William Verdekal and John Robert Turcotte, had made statements to McDougall that both implicated themselves in the robbery and murder and exonerated McCracken. The court concluded that (1) the statements that Verdekal and Turcotte made to McDougall were declarations against penal interest, and were thus admissible as exceptions to the hearsay rule; and (2) McDougall's testimony met all of the requirements governing after-discovered evidence. See id. at 10-12. The Commonwealth challenges each of these conclusions, contending that (1) the statements made to McDougall did not fall within the declaration against penal interest exception to the hearsay rule; and (2) even if the testimony were admissible, it is legally insufficient to meet the established test governing after-discovered evidence. We shall consider these contentions seriatim.

I. HEARSAY CLAIM

We note, preliminarily, that "[i]t is universally agreed that hearsay may not be received unless the declarant is unavailable as a witness." Commonwealth v. Pompey, 248 Pa. Superior Ct. 410, 414, 375 A.2d 163, 165 (1977). Cf. Commonwealth v. Brinkley, 505 Pa. 442, 453, 480 A.2d 980, 986 (1984); Commonwealth v. Colon, 461 Pa. 577, 583, 337 A.2d 554, 557 (1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976). Here, the Commonwealth concedes that John Robert Turcotte was unavailable, as he stated his intention to refuse to testify pursuant to his fifth amendment privilege against self-incrimination. The parties agree, however, that William Verdekal was available to testify, and, in fact, did testify during post-trial proceedings. Brief for Appellant at 19; Brief for Appellee at 8. Accordingly, McDougall's testimony regarding statements made by Verdekal is inadmissible, and we must limit our review to a consideration of the statements that Turcotte made to McDougall. ¹

In Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983), our Supreme Court restated the law governing the admissibility of statements that are alleged to be declarations against penal interest:

In Commonwealth v. Colon, 461 Pa. 577, 337 A.2d 554 (1975), this Court recognized the "declaration against penal interest" exception to the hearsay rule, but noted that "it is not the statement that must be against interest, but the fact stated." 461 Pa. at 583-84, 337 A.2d 554, quoting Wigmore, 5 Wigmore, Evidence § 1462, at 337. Accordingly, we held that "the fact stated in that portion of Hernandez's [Colon's accomplice] confession which exculpated any possible accomplices was not against interest and hence that portion was inadmissible." 461 Pa. at 584, 337 A.2d 554. Furthermore, that portion of Hernandez's statement which did state facts against penal interest (i.e., that Hernandez committed the crime) was deemed inadmissible because it was irrelevant to the case. Id., 461 Pa. at 585, 337 A.2d 554. In Colon, the prosecution had proceeded on an accomplice theory, i.e., that both Hernandez and Colon had acted in concert to commit the burglary/homicide, "[t]hus Hernandez's statement admitting his role in the crime was not inconsistent with the Commonwealth's theory of the crime. As such, his confession did not meet the test of relevancy because it would not tend to make the inference that Colon did not participate in the crime more likely." Id., 461 Pa. at 585, 337 A.2d 554. See also Commonwealth v. Garland, [475 Pa. 389, 380 A.2d 777 (1977) ].

Id. at 289, 461 A.2d at 215. Thus, under Anderson and Colon, we first must distinguish between those parts of the out-of-court statement that inculpate the declarant and those parts that merely exculpate another person. Secondly, we must determine whether the portions of the statement that are inculpatory are relevant to the case at bar.

We have carefully reviewed McDougall's testimony from the April 11, 1984 after-discovered evidence hearing. The portions of Turcotte's statement, as reported by McDougall, which might tend either to exculpate McCracken or inculpate Turcotte, are the following:

THE WITNESS [McDougall]: ... John Robert Turcotte indicated he wanted to talk to me about Terry [McCracken].... He said "he [McCracken] is looking bad to me. I think he is badly depressed and I am concerned."

And Turcotte said, "I don't know if the kid is going to make it. I have one life on my conscience. I don't want another." He went on to testify--excuse me--state to me that Terry had not done anything but Turcotte wanted to help him out but did not want to stick his head into a noose....

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[Turcotte said] "I want to help Terry. I don't want to stick my neck in a noose. He didn't do it. We both know that."

N.T. April 11, 1984 at 23-25.

THE WITNESS [McDougall]: Turcotte called me again in my office on the telephone sometime in the month of December....

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[Turcotte said] "I will give a statement to the District Attorney's office."

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"Indicating all that I know in my part in the homicide...."

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I received later calls from Mr. Turcotte....

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... John Turcotte said, "I want to clear Terry. I don't want to stick my neck in a noose." ...

... I asked him, "Would you plead guilty?"

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"Would you plead guilty to homicide and all of the robberies with which you have been charged in return for a single sentence of life imprisonment?" ... He said, "Yes."

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Id. at 27-29.

THE WITNESS [McDougall]: One night I was home and it had to be within 9:30 and 10:00 o'clock and I received a call from John Robert Turcotte from the Prison. He was inquiring as to the acceptability [of Turcotte's pleading guilty in return for a sentence of life imprisonment] again.

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... I said to John that I had respected what he was doing but that in pleading guilty ... there would have to be some factual representation from him in order to substantiate the plea of guilty.

John replied--

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[that] He had been doing $6 or $700 worth of coke and methamphetamine around the period of the commission of the crime. That he had been sleeping only 20 hours a week. That he remembers the whole incident. This was our conversation on the deli killing. "I remember the whole thing. It was like a dream. I was so stoned but I can't remember the man's face. The gun went off accidentally."

Id. at 29-31.

The bulk of Turcotte's communication to McDougall involves broad assertions that McCracken did not commit the robberies and homicide. These portions are clearly inadmissible as they are not declarations against Turcotte's penal interest. See, e.g., Commonwealth v. Anderson, supra; Commonwealth v. Colon, supra.

The more troublesome portion of Turcotte's statement is his assertion that, "I remember the whole thing. It was like a dream. I was so stoned but I can't remember the man's face. The gun went off accidentally." This statement was clearly against Turcotte's penal interest. See Commonwealth v. Weaver, 274 Pa. Superior Ct. 593, 603, 418 A.2d 565, 570 (19...