Commonwealth v. Bracero

• Decision Date: 16 March 1984
• Citation: 473 A.2d 176,325 Pa.Super. 494
• Parties: COMMONWEALTH of Pennsylvania v. Victor M. BRACERO, Appellant.
• Court: Pennsylvania Superior Court

473 A.2d 176

325 Pa.Super. 494

COMMONWEALTH of Pennsylvania v. Victor M. BRACERO, Appellant.

Superior Court of Pennsylvania.

March 16, 1984

Submitted March 10, 1983.

Joseph C. Mesics, Public Defender, Lebanon for appellant.

William L. Thurston, Asst. Dist. Atty., Lebanon, for Commonwealth appellee.

Before WICKERSHAM, BECK and MONTEMURO, JJ.

WICKERSHAM Judge:

On February 17, 1981, appellant, Victor Bracero, was arrested and charged with the commission of a burglary ^[1] at the home of Mr. and Mrs. Steinrock, 225 South Tenth Street in Lebanon Pennsylvania on February 14, 1981. On June 24, 1981, after a trial held before the Honorable John A. Walter, a jury found the appellant guilty as charged. Post trial motions were filed and denied. On January 22, 1982, appellant was sentenced to pay costs and a fine of $200.00 and to undergo imprisonment for not less than five (5) years or more than twenty (20) years. This appeal timely followed.

Appellant states the sole issue on appeal as follows:

Whether the Trial Court erred in refusing to admit the testimony of a Harry Tobias, a witness whose testimony was offered in Chambers, on two occasions, during the jury trial of the case?

Brief for Appellant at 2.

The record indicates that counsel for the appellant offered the following information in chambers prior to trial:

MR. MESICS [counsel for appellant]: Harry Tobias, who lives at 89 Lebanon Village, will be called as a witness for Victor Bracero and he will testify as follows: That he knows a fellow by the name of Frankie Rodriquez who is also known in the community with an alias of "Spunk"; that he spoke with this fellow "Spunk" on Friday, the 20th of February, 1981. Harry was over at the Down Town Lounge socializing, and he saw "Spunk" there. "Spunk" was talking about going to Florida. "Spunk" told Harry that he would give him a hundred dollars for the ride, so he took "Spunk" with him.

During this trip between Lebanon and Miami, Harry observed that "Spunk" had a lot of money with him. He saw a lot of money in his wallet, and he dropped "Spunk" off in Miami. While they were going down there, "Spunk" told Harry Tobias that he did a robbery on Tenth Street.

They left for Florida on Saturday, the 21st of February, at 4:00 in the afternoon. They got there on Sunday, the 22nd of February, at 8:00 at night, and they drove down in Harry Tobias' Alpha Romeo Grand Prix automobile. "Spunk" told Harry that while he was committing this burglary, that the lady screamed and then he left the house. The house was several stories in heighth and it was on Tenth Street in Lebanon, and that "Spunk"--he will testify that "Spunk" looks exactly like Victor Bracero.

MR. FEEMAN [assistant district attorney]: I object to that. It's not admissible. Number one, it's irrelevant. Number two, it doesn't exclude the Defendant. Number three, it is all hearsay.

MR. MESICS: Okay. I would like to also state this on the record, that I also have another witness, a Maria Ramos ^[2] who went to Detective Heverling on the 5th of March of 1981 and reported essentially the same thing to Detective Heverling; that she had also talked to this fellow "Spunk" and that "Spunk" had talked to her about how he wasn't gonna take the rap, and that he had silver that was stolen and he was taking it over to Louie's Action Center. So, there's some basis for my offer other than something that Harry Tobias comes in here and tells me.

* * *

* * *

THE COURT: I don't know how you can overcome the hearsay.

MR. MESICS: Well, the only basis for my asking that his testimony be admitted was because it was on South Tenth Street in the city of Lebanon and the other facts support what I know about the case from the preliminary hearing and from the details, what happened--you know, how the Defendant or whoever it is that committed this left the premises; it was when the lady woke up and saw him or parts of his body, screamed and then the person left; and that it was a house with more than one story. So, that's the basis for my offer, your Honor.

THE COURT: I don't think that's enough there. The offer is rejected.

(N.T., 6-23-81, at 3-6). At a later time in the proceedings, counsel for appellant again attempted to have the testimony of Harry Tobias admitted.

MR. MESICS: Now, your Honor, I would again like to make my offer for the testimony of Harry Tobias; and there was something that I neglected to mention today, this morning when I made that offer. There was another item I think which is important in making his offer and hoping that you will admit his testimony, was that he also mentioned--this fellow "Spunk" also mentioned to Harry Tobias that it was a barber shop that was involved in this home, for what that's worth. This is a beauty parlor here and these are Spanish speaking people.

THE COURT: No. My ruling still stands.

(N.T., 6-23-81, at 58).

Appellant acknowledges that the evidence offered through Harry Tobias is hearsay evidence and is generally inadmissible. Brief for Appellant at 4. Appellant argues, however, that the statements made to Tobias by Rodriguez ("Spunk") were declarations against penal interest and therefore admissible as an exception to the hearsay rule.

Although our courts have now recognized the admissibility of the declaration against penal interest as an exception to the hearsay rule, it is also clear that not all such statements are per se admissible in evidence. Such declarations must be made under circumstances that provide considerable assurance of their reliability in order to be admissible as exceptions to the hearsay rule.

Commonwealth v. Ayala, 277 Pa.Super. 363, 368, 419 A.2d 1187, 1189 (1980) (citations and quotations omitted).

This court first recognized a declaration against penal interest as an exception to the hearsay rule in Commonwealth v. Hackett, 225 Pa.Super. 22, 307 A.2d 334 (1973). In that case, the defendant was found unconscious in his automobile. Heroin was detected in his bloodstream. Defendant was charged with possession of heroin and operating an automobile under the influence of a narcotic drug. Hackett's defense was that he had involuntarily consumed heroin when he drank an unfinished soda left at the gas station where he worked by one Dennis Keyser. Defense counsel made an offer of proof, seeking to call the defendant's former private counsel who would have testified that Keyser told him that he (Keyser) had "fixed" the defendant by putting heroin in the soda bottle. The defense also sought to introduce a signed written statement made by Keyser describing the incident as Hackett alleged it had occurred. The trial court refused to admit either the oral or written statements.

This court reversed. In doing so, the court stated:

Public policy, the fundamental principles of fairness and due process of law require the admission of declarations against penal interest where it can be determined that those statements: (1) exculpate the defendant from the crime for which he is charged; (2) are inherently trustworthy in that they are written or orally made to reliable persons of authority or those having adverse interests to the declarant; and, that they are made pre-trial or during the trial itself.

Id. at 29-30, 307 A.2d at 338.

Since the Pennsylvania Supreme Court has not as yet issued an opinion concerning declarations against penal interest which has received a majority of votes from its members, ^[3] we look to our own Hackett, supra, decision for guidance in determining the admissibility of the alleged statements in the instant case.

Basically, Hackett indicates that statements offered as declarations against penal interest are admissible only if they exculpate the defendant and are inherently trustworthy in that they were made to persons of authority or to persons having adverse interests to the declarant. Neither of these criteria are present in the instant case.

First, the offer of proof did not establish that Rodriguez' alleged statements would exculpate appellant. In contrast, the statements sought to be admitted in Hackett would have actually shown that Hackett's ingestion of the heroin was involuntary and was caused by Keyser. Instantly, we note that the evidence sought to be admitted through Harry Tobias does not actually exculpate the appellant. Rodriguez apparently never explicitly stated that he committed the burglary with which appellant is charged and that appellant was not involved. Furthermore, it is not clear that the burglary to which Rodriguez allegedly admitted is the same offense with which appellant is charged. The offer of testimony did not indicate on what date Rodriguez allegedly committed the burglary. Also, Rodriguez said only that he burglarized a house on Tenth Street; we do not know that it is the same house as that involved in the instant case.

Neither is the second Hackett criteria met in the instant case. In Hackett, the statements against penal interest were made to defendant and his counsel. One of the statements was written and signed by the declarant. Obviously, both the defendant and his counsel were in a position adverse to that of the declarant. Therefore, the statements were deemed to be trustworthy.

Instantly the factual situation is much different. The declarations were not made under circumstances that assure us of their reliability. Rodriguez ("Spunk") allegedly made these statements to Tobias while Tobias was driving him to Florida. We do not believe that it was necessarily against Rodriguez' penal interest to make these statements to the man who was driving him out of the jurisdiction in which the crime allegedly occurred. Also, Rodriguez never made these statements to anyone in authority or to anyone with an interest adverse to...