Com. v. Melson

Decision Date16 February 1994
Citation432 Pa.Super. 1,637 A.2d 633
PartiesCOMMONWEALTH of Pennsylvania, v. William MELSON, Appellant.
CourtPennsylvania Superior Court

John J. Kerrigan, Jr., Newtown, for appellant.

Stephen B. Harris, Asst. Dist. Atty., Warrington, for Com., appellee.



William Melson appeals from judgment of sentence for first-degree murder and conspiracy to commit murder. This appeal marks the second time Melson's case has come before this Court. Melson was initially found guilty of the above offenses by a jury in 1985. The trial court, however, ordered a new trial after determining that Melson's trial counsel was ineffective for failing to suppress an improper identification. We affirmed the trial court's order in Commonwealth v. Melson, 383 Pa.Super. 139, 556 A.2d 836 (1989), alloc. denied 525 Pa. 579, 575 A.2d 111 ("Melson I" ). Melson was tried again and found guilty of the same offenses. In this appeal, Melson raises a number of issues, including the question of whether a trial court may admit the prior testimony of a witness when the witness refuses to testify even under a proper court order. We find that the trial court acted properly in admitting the evidence and in all other regards. We therefore affirm.

Melson, along with Eugene Banks, was charged with the murder of Robert Malarchik. Banks and Malarchik were business partners in a swingers sex club named "The Woodlands." Business relations between the two were not good; Banks suspected that Malarchik was under-reporting the income from the club, thereby cheating Banks out of a share of the profits. The relationship further deteriorated when Malarchik excluded Banks from the club. In July of 1982, Banks asked Melson and another person to help him rough up Malarchik. In return for their services, Banks, a chemist, promised to produce methamphetamine for them. 1

Melson made several attempts to find Malarchik and intimidate him. Each of these attempts were aborted because Melson was either unable to identify Malarchik or locate Malarchik's house or the Woodlands. In the meantime, Banks's anger grew. Banks and the two men decided to kill Malarchik by injecting him with cyanide. Banks hoped that the cyanide would make Malarchik's death appear to be a natural heart attack. On July 14, 1982, Banks, Melson and the third man drove to Malarchik's home, entered the house and waited for Malarchik to arrive home. When Malarchik arrived, Banks walked outside to meet him and told him that he wanted to talk about financial matters related to the Woodlands. Malarchik said all right and went inside the house with Banks. When Banks and Malarchik began talking in Malarchik's television room, Melson and the third man entered from another room. Melson was holding a gun. Malarchik became angry and charged Melson. Melson shot him in the leg. There was a struggle and Melson shot Malarchik several more times. During the struggle, the third man strangled Malarchik with an extension cord. Malarchik fell to the ground, still breathing. Melson then shot him in the head. In an overabundance of caution, the three men also submerged Malarchik's head in a bathtub full of water. Banks later hid the body in a fifty-five gallon drum located on a friend's property.

Banks was arrested, tried and found guilty of first-degree murder. At the time of Banks's sentencing, Melson had not yet been charged with any crime. In order to obtain Banks's cooperation in its prosecution of Melson and an identification of Melson, the prosecutor used a sham subpoena to compel Melson's presence at Banks's sentencing. The use of the subpoena had its intended effect, for Banks's then-girlfriend, Fran Markowitz, identified Melson at the sentencing, and Banks thereafter agreed to cooperate in the prosecution of Melson. Melson was subsequently charged and tried for first-degree murder and convicted. Banks and Markowitz both testified at the trial. The trial court, however, ordered a new trial because Melson's first counsel failed to suppress Markowitz's identification which stemmed from the prosecution's use of the illegal subpoena. Melson was retried on the same charges and found guilty. Banks, however, refused to testify at Melson's second trial.

I. Right to Confront Witness

Melson contends that the trial court erred in admitting the prior recorded testimony of Eugene Banks in his trial. Prior to Melson's first trial, Banks was convicted for his role in the Malarchik murder. In preparation for Melson's trial, the Commonwealth negotiated for Banks's testimony against Melson and also granted Banks immunity. As a result, Banks testified against Melson in his first trial. Prior to Melson's second trial, however, Banks notified the prosecutor that he would not testify in Melson's second trial. A pre-trial hearing was called in order to decide whether Banks had a right not to testify. After argument, the trial court informed Banks that he could be required to testify and that if he refused, he would be subject to sanctions.

At Melson's second trial, Banks was called to the stand and asked his name, at which point he declared that he would exercise his constitutional right not to answer any question. The court reminded him that he did not have any such constitutional right and ordered him to answer. Banks re-asserted a right not to testify, whereupon the court found him in contempt and returned Banks to custody. The prosecution moved to have Banks declared unavailable and for the admission of Banks's testimony from Melson's first trial. The court found Banks unavailable and admitted the testimony. Melson argues that this violated his constitutional right to confront an adverse witness. We disagree.

Both the United States and Pennsylvania Constitutions guarantee the right of the accused to confront witnesses against him. U.S. Const.Amend. VI; Pa.Const. Art. I, § 9. The right of confrontation entitles a criminal defendant to physically face and cross-examine those who testify against him at his trial. Commonwealth v. Crosland, 397 Pa.Super. 622, 580 A.2d 804 (1990). The purpose behind the rule is to ensure the integrity of the fact-finding process. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Cross-examination offers a defendant a tool to sift the conscience of the witness and test the accuracy of his recollection. Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895). The presence of the witness at trial allows the jury to look at the witness during cross-examination and judge by his demeanor whether he is worthy of belief. Id. The witness's presence also ensures reliability in other ways: one, the witness will have more difficulty lying against someone if the witness is required to physically face the person at trial; and two, the witness will be required to take the oath--"thus impressing him with the seriousness of the matter and guarding against the lie by the penalty of perjury." Ohio v. Roberts, supra, 448 U.S. at 64 n. 6, 100 S.Ct. at 2537 n. 6.

The right to confront an adverse witness, however, is not absolute and must "occasionally give way to considerations of public policy and the necessities of the case." Crosland, supra, at 626, 580 A.2d at 806 (quoting Commonwealth v. Kravontka, 384 Pa.Super. 346, 351, 558 A.2d 865, 868 (1989)). Where the prosecution establishes that a witness is unavailable, hearsay evidence is admissible provided that the evidence is marked with such trustworthiness that there is no material departure from the reason for general hearsay rule. Ohio v. Roberts, supra, 448 U.S. at 65, 100 S.Ct. at 2538; see also Synder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934). In general, evidence is sufficiently reliable if it falls within a firmly rooted hearsay exception. Ohio v. Roberts, supra, 448 U.S. at 66, 100 S.Ct. at 2539. The Supreme Court has on several occasions affirmed the admission of hearsay evidence under the prior testimony exception. See e.g., Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972).

The trial court found Banks unavailable and admitted his testimony at trial pursuant to the prior testimony exception to the hearsay rule. "The rationale for admitting former testimony is that cross-examination, the oath, the solemnity of the occasion, and the accuracy with which the statement was recorded assure a high degree of reliability." Packel and Poulin, Pennsylvania Evidence, § 804.1 (West 1987); see also Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) (prior testimony substantially complies with Confrontation Clause because the defendant is given an opportunity to cross-examine the witness). Melson contends that the trial court erred in admitting Banks's testimony because the prosecution did not adequately establish that Banks was unavailable to testify. Appellant also contends that Banks's prior testimony is not sufficiently trustworthy to be admitted as an exception to his right to confrontation. We disagree with both contentions.

(a) Unavailability

The trial court declared Banks unavailable after Banks persisted in refusing to testify even under a proper court order. 2 The test for availability under the Sixth Amendment is broad: a witness is unavailable if the prosecution has made a good faith effort to introduce its evidence through the live testimony of the witness and, through no fault of its own, is prevented from doing so. Ohio v. Roberts, supra, 448 U.S. at 74, 100 S.Ct. at 2543 (the "ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness"); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (although physically present in the courtroom, witness was unavailable for Sixth Amendment purposes when the State made every effort to introduce its live...

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