Com. v. Taylor

• Decision Date: 30 April 1982
• Citation: 299 Pa.Super. 113,445 A.2d 174
• Parties: COMMONWEALTH of Pennsylvania v. Robert TAYLOR, Appellant.
• Court: Pennsylvania Superior Court

Page 174

445 A.2d 174

299 Pa.Super. 113

COMMONWEALTH of Pennsylvania v. Robert TAYLOR, Appellant.

Superior Court of Pennsylvania.

Argued April 7, 1981.

Filed April 30, 1982.

Applying these principles to the instant case we note that there was no genuine issue at trial as to appellant's motive, intent, or identity, or as to the absence of a mistake or accident. Appellant admitted that he knew he was dealing in drugs, and the eyewitness testimony of Krushinski and Roderick was corroborated by that of two nearby backup officers who observed each of the meetings. The Commonwealth contends that the June 1 and April 6 and 7 transactions were so intertwined into a common scheme or plan that "proof of one tend[ed] to prove the other." Commonwealth v. Peterson, supra at 197-98, 307 A.2d at 269-70. See Commonwealth v. Bond, supra at 317, 396 A.2d at 416. We agree. After each of the April transactions appellant discussed the eventual June transaction. Thus, at a separate trial for the April transactions, the prosecution could introduce the fact of the June transaction to explain these discussions. At a separate trial for the June transaction the Commonwealth could refer back to the April discussions to establish how the charged criminal activity was arranged. Applying the balancing test, we note that judicial economy is greatly served by the consolidation because all witnesses for all charges were identical. Though the Commonwealth's need for evidence of each crime at a separate trial for the other would not be particularly pressing, neither would the prejudice to appellant be great, given that all crimes were with the same individuals and of a similar nature. The consolidation imposed no undue burden on appellant in asserting his entrapment defense, because it applied equally to all three offenses. "Consolidation or separation of indictments is a matter within the sound discretion of the trial judge, whose decision will be reversed only for a clear abuse of discretion or in cases of clear prejudice of injustice to an accused." Commonwealth v. Vickers, supra at 475, 394 A.2d at 1025. Accordingly, the lower court did not abuse its discretion in denying appellant's motion for severance and consolidating the informations for trial. Cf. Commonwealth v. Fiorini, supra (5 drug transactions over several weeks consolidated); Commonwealth v. Vickers, supra (2 drug transactions hours apart consolidated); Commonwealth v. Jones, supra (2 drug transactions hours apart consolidated).

III.

Appellant contends the lower court erred in refusing to allow him to introduce the prior recorded testimony of the unavailable witness John Randy Globisch. ³ We agree. Prior recorded testimony of an unavailable witness may be admitted in a criminal trial either by statute, 42 Pa.C.S.A. § 5917, or by common-law rule. Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980); Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977). For the prior recorded testimony to be admissible "the issues in the first proceeding and hence the purpose for which it was there offered must have been such that the present opponent (or some person in like interest) had an adequate motive for testing on cross-examination the credibility of the testimony now offered." Commonwealth v. Velasquez, 449 Pa. 599, 601, 296 A.2d 768, 770 n.3 (1972). See Commonwealth v. Scarborough, supra; McCormick on Evidence §§ 255-57 (2d ed. 1972). Appellant sought to introduce Globisch's testimony from his own trial on a theft by deception charge arising from a drug transaction with Krushinski and an undercover police officer. Globisch had been asserting an entrapment defense similar to appellant's and the Commonwealth had had an opportunity to cross-examine. Globisch's testimony was that on June 1, 1978, a few hours before appellant's alleged drug sale, he had seen thirty vials of liquid cocaine in Krushinski's apartment. This testimony "was not cumulative[,] but different in nature from the evidence otherwise admitted," therefore it was not harmless error to exclude it. Kubit v. Russ, 287 Pa.Super. 28, 36, 429 A.2d 703, 707 (1981). See Commonwealth v. Laws, 474 Pa. 318, 378 A.2d 812 (1977). It was relevant to appellant's entrapment defense by showing Krushinski's ability to supply the drugs at the June transaction. It corroborated appellant's and a defense witness's testimony, and tended to impeach Krushinski's, and may thus have influenced the jury's credibility determinations. Moreover, the April and June charges were so closely intertwined that they could be tried together, and appellant's entrapment defense alleged a pattern of police misconduct embracing each, and thus the error prejudiced his defense to each. Accordingly, we must reverse the judgment of sentence and remand for a new trial. ⁴

Judgment of sentence reversed, and the case is remanded for a new trial.

VAN der VOORT, J., files a concurring and dissenting opinion.

VAN der VOORT, Judge, concurring and dissenting.

I concur in the Opinion of the Majority in this case except that part of said Opinion labelled part III to which I respectfully dissent.

John Globisch had testified in his own trial (in a case different from the instant case) that he had on June 1, 1978, when in Krushinski's apartment seen thirty (30) vials of cocaine there. In my judgment such testimony of Globisch has no relevancy at all to the drug sale offenses with which appellant is charged to have committed on the dates of April 6th and 7th, 1978.

While the trial court may have erred in refusing admission of Globisch's transcript testimony as to the offense charged against the appellant on June 1, 1978, and thereby warrant a new trial as to that offense. I believe it was correct in refusing the admission of such testimony as to the April 6th and 7th offenses.

I would affirm the convictions as to the April 6th and 7th transactions.

1 See also Commonwealth...