Com. v. Smith

• Decision Date: 07 September 1994
• Citation: 436 Pa.Super. 277,647 A.2d 907
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. William SMITH.
• Court: Pennsylvania Superior Court

Page 907

647 A.2d 907

436 Pa.Super. 277

COMMONWEALTH of Pennsylvania, Appellant v. William SMITH.

Superior Court of Pennsylvania.

Argued April 5, 1994.

Filed Sept. 7, 1994.

Kenneth A. Osokow, Asst. Dist. Atty., Williamsport, for Com., appellant.

Jay Stillman, Williamsport, for appellee.

Before ROWLEY, President Judge, and KELLY and POPOVICH, JJ.

KELLY, Judge:

The Commonwealth asks us to determine whether the trial court erred in its order entered May 19, 1993, denying the Commonwealth's motion to use the transcript of the preliminary hearing for purposes of introducing the substantive testimony of its key witness, Blaine Cain. The specific circumstances of this case compel us to affirm.

The relevant facts and procedural history are as follows. On June 25, 1992, appellee was charged by criminal complaint with possession of a controlled substance with intent to deliver and delivery of a controlled substance. ¹ A preliminary hearing occurred on July 10, 1992 where the Commonwealth's chief witness, Blaine Cain, testified against appellee. Mr. Cain testified that he had been acting as a confidential informant for the Commonwealth, something he had done on several past occasions. On this particular incident of February 20, 1992, Mr. Cain allegedly purchased cocaine from appellee. This purchase was the basis for the charges against appellee and the substance of Mr. Cain's testimony at the preliminary hearing. Defense counsel did cross-examine Mr. Cain at the preliminary hearing about the drug purchase, but he did not question Mr. Cain about his custodial status although Mr. Cain appeared at the preliminary hearing wearing prison garb and in the custody of the deputy sheriff's office. The Commonwealth, however, had not disclosed to defense counsel that Mr. Cain had a prior criminal record or that he had a pending robbery charge. Mr. Cain's preliminary hearing testimony was duly recorded and preserved. Following the preliminary hearing, appellee was bound over to the Court of Common Pleas for trial.

On the day scheduled for trial, May 19, 1993, Mr. Cain informed the Commonwealth that he did not intend to testify. The Commonwealth immediately notified all interested parties, and a hearing was held to determine why Mr. Cain would not testify. Mr. Cain indicated an intention to invoke his Fifth Amendment privilege against self-incrimination. The Commonwealth offered Mr. Cain use immunity ² for his testimony, but Mr. Cain steadfastly refused to testify. The trial court advised Mr. Cain that his testimony could not be used against him under a grant of use immunity. The trial court then ordered Mr. Cain to testify. Mr. Cain refused, and the trial court held him in contempt of court. The Commonwealth then asked the trial court to declare Mr. Cain unavailable and to admit his prior testimony at trial.

On the following day, May 20, 1993, Mr. Cain again refused to testify. As a result, the trial court sentenced him to one year imprisonment in a state correctional institution for contempt. The trial court proceeded to hear arguments from both the Commonwealth and defense counsel on whether Mr. Cain's prior testimony should be admitted at trial. Defense counsel argued in his oral motion in limine that Mr. Cain's testimony should not be admitted at trial because defense counsel, lacking information about Mr. Cain's prior record and pending robbery charge, did not have a full and fair opportunity to cross-examine Mr. Cain at the preliminary hearing. At the conclusion of the May 20, 1993 hearing, the trial court found that Mr. Cain was unavailable but that his testimony would not be admissible at trial because defense counsel had not been aware of Mr. Cain's prior record and his pending robbery charge, both of which the trial court deemed relevant to Mr. Cain's credibility. The trial court granted appellee's oral motion in limine, thus precluding the Commonwealth from introducing the preliminary hearing transcript of Mr. Cain's testimony.

In making its decision, the trial court stressed that "charges of significant nature, a felony" against Mr. Cain had been dismissed in November of 1991. (N.T. 5/20/93 at 15). Other charges, not specified by the trial court, were also dismissed in November of 1991. Again, in January of 1992, charges against Mr. Cain were dismissed. In addition, the trial court emphasized that Mr. Cain had been charged with robbery in March of 1992, which was between the time of the alleged drug purchase from the defendant (February 2, 1992) and appellee's preliminary hearing (July 10, 1992). (N.T. 5/20/93 at 15). The March, 1992 robbery charge was dismissed prior to the preliminary hearing; Mr. Cain pled guilty to theft. To further complicate his history, Mr. Cain had yet another robbery charge pending against him when he testified at appellee's preliminary hearing. He was thereafter tried and convicted of this robbery offense at a jury trial. (N.T. 6/17/93 at 9). In light of Mr. Cain's long and complicated criminal history, the trial court determined, now that defense counsel knows of these matters, counsel could have challenged Mr. Cain's credibility, but only if given the opportunity to question Mr. Cain at trial. (N.T. 5/20/93 at 15; N.T. 6/17/93 at 10). Accordingly, the trial court granted appellee's oral motion in limine to exclude Mr. Cain's preliminary hearing testimony at trial, thereby preventing the Commonwealth's use of the transcript in lieu of Mr. Cain's actual appearance and live testimony at appellee's trial. The trial court's order also continued appellee's case pending an appeal to this Court based on the Commonwealth's representation that the trial court's ruling substantially handicapped the prosecution from going forward with its case against appellee.

The trial court reconsidered its order at a hearing held on June 17, 1993. At the hearing, stipulations were offered to place on the record additional facts which had not been presented at the May 20, 1993 hearing. The Commonwealth offered for stipulation that (1) Mr. Cain was not on parole at the time of the preliminary hearing; (2) a robbery charge against Mr. Cain was dismissed due to insufficient evidence, not because of any agreement with Mr. Cain in exchange for his testimony; and, (3) Mr. Cain actually received no deal for his cooperation at the preliminary hearing. Defense counsel agreed to the above stipulations with the proviso that he would stipulate only to what objectively had occurred, not to any subjective expectation for leniency which Mr. Cain might have had at the time of his preliminary hearing testimony. Following the June 17, 1993 reconsideration hearing, the trial court again denied the Commonwealth's petition to admit Mr. Cain's testimony from appellee's preliminary hearing. Thus, the Commonwealth timely instituted this appeal.

The Commonwealth raises the following issue for our review:

DID THE LOWER COURT ERR IN PRECLUDING THE COMMONWEALTH FROM USING AT TRIAL THE TRANSCRIPT OF THE PRELIMINARY HEARING TESTIMONY OF A MATERIAL WITNESS WHO SUBSEQUENTLY REFUSED TO TESTIFY AT TRIAL AND THUS BECAME UNAVAILABLE TO THE COMMONWEALTH?

Commonwealth's Brief at 4.

The admissibility of evidence is a matter committed to the sound discretion of the trial court; absent an abuse of that discretion, the trial court's rulings on admissibility will not be overturned on appeal. Commonwealth v. Wharton, 530 Pa. 127, 607 A.2d 710 (1992). Hearsay is an out-of-court statement offered in court to prove the truth of the matters asserted therein. Commonwealth v. Bujanowski, 418 Pa.Super. 163, 613 A.2d 1227 (1992), appeal denied, 533 Pa. 642, 622 A.2d 1374 (1993). Hearsay statements are generally inadmissible as evidence because the declarant's competency and credibility cannot be assessed. Id.

"Exceptions to the hearsay rule have been fashioned to accommodate certain classes of hearsay that are substantially more trustworthy than hearsay in general, and thus merit exception to the hearsay rule." Id. at 169, 613 A.2d at 1230 (quoting Commonwealth v. Haber, 351 Pa.Super. 79, 83, 505 A.2d 273, 275 (1986)). Proponents of hearsay testimony must demonstrate the reliability and trustworthiness of the proposed statements before those statements will be admitted as substantive evidence. Id. The oath requirement is one assurance of reliability. Id. "The trustworthiness of a statement should be analyzed by evaluating not only the facts corroborating the veracity of the statement, but also the circumstances in which the declarant made the statement and the incentive he had to speak truthfully or falsely." United States v. Bailey, 581 F.2d 341, 349 (3d Cir.1978).

Pennsylvania common law permits, as an exception to the hearsay rule, the admission of prior recorded testimony from a preliminary hearing provided that (1) the witness responsible for that testimony is presently unavailable; (2) the defendant had counsel; and (3) the defendant had a full and fair opportunity to cross-examine the declarant during the earlier proceeding. Commonwealth v. McGrogan, 523 Pa. 614, 568 A.2d 924 (1990); Commonwealth v. Chestnut, 511 Pa. 169, 512 A.2d 603 (1986); Commonwealth v. Melson, 432 Pa.Super. 11, 637 A.2d 633 (1994); Commonwealth v. Carbaugh, 423 Pa.Super. 178, 620 A.2d 1169 (1993); Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988). As well, the issues in the prior proceeding and the purpose for which the testimony was there offered "must have been such that the present opponent had an adequate motive for testing on cross-examination the credibility of the testimony now offered." Commonwealth v. Velasquez, 449 Pa. 599, 601 n. 3, 296 A.2d 768, 770 n. 3 (1972); Commonwealth v. Taylor, 299 Pa.Super. 113, 445 A.2d 174 (1982).

The true test for unavailability of a witness is whether the prosecution has made a good faith effort to produce the live testimony of the witness and, through no fault of its own, is prevented from doing so....