Commonwealth v. Jackson

• Decision Date: 03 October 1975
• Citation: Commonwealth v. Jackson, 463 Pa. 301, 344 A.2d 842 (Pa. 1975)
• Parties: COMMONWEALTH of Pennsylvania v. Michael JACKSON, Appellant.
• Court: Pennsylvania Supreme Court

344 A.2d 842

463 Pa. 301

COMMONWEALTH of Pennsylvania v. Michael JACKSON, Appellant.

Supreme Court of Pennsylvania.

October 3, 1975

Argued June 23, 1975.

Albert Ominsky, Philadelphia, for appellant.

F Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst Dist. Atty., Chief, Appeals Div., MariAnne E. Cox, Asst Dist. Atty., Philadelphia, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

JONES, Chief Justice.

Appellant stands convicted of murder in the second degree.In this appeal, he raises three grounds for reversal of that conviction.First, appellant challenges the sufficiency of the evidence to support the conviction.Second, he argues that the trial court improperly allowed the prior testimony of an absent eyewitness to be read into the record without the Commonwealth initially demonstrating a good faith effort to obtain the witness' presence.Finally, he maintains that as a principal in the second degree, his conviction cannot be upheld where the alleged perpetrator of the homicide has been subsequently found not guilty.^[1]

The evidence adduced at trial demonstrated that the appellant, Michael Land, and Earl Webster undertook to avenge an assault of a friend by a rival gang.The appellant and Land were to distract the attention of the intended victim and Webster was to attack from the rear.While the plan was developing, a shot fatally wounded a bystander.The trial testimony of Michael Land and an eyewitness' prior testimony from an earlier mistrial established that the shot came from the direction of Webster and that Webster had had a gun in his hand.Viewing this direct and circumstantial evidence, together with all reasonable inferences therefrom, in a light most favorable to the Commonwealth, Commonwealth v. Townes,460 Pa. 709, 334 A.2d 599(1975);Commonwealth v. Williams,458 Pa. 319, 326 A.2d 300(1974), one could conclude that a conspiracy was formed and that in the furtherance of that conspiracy, a participant shot and killed a bystander.Although some evidence supporting the conviction is circumstantial, the evidence taken as a whole is sufficient to sustain appellant's conviction.Commonwealth v. Vaughn,--- Pa. ---,326 A.2d 393(1974);Commonwealth v. Figueroa,456 Pa. 381, 321 A.2d 658(1974);Commonwealth v. Pierce,437 Pa. 266, 263 A.2d 350(1970).

The evidence we have considered as sufficient to support the appellant's conviction includes the testimony of an eye-witness, Mark Dorsey.Dorsey was absent from the trial, but he had previously testified under oath and subject to cross-examination in an earlier mistrial of appellant.

Appellant recognizes that prior sworn testimony is admissible in a subsequent proceeding where the witness cannot be found and the defense has had an opportunity for cross-examination.Act of May 23, 1887, P.L. 158, § 3,19 P.S. § 582;Commonwealth v. Blair,460 Pa. 31, 331 A.2d 213(1975);Commmonwealth v. Beach,445 Pa. 257, 284 A.2d 792(1971).However, '(a) witness 'cannot be found,' within the meaning of section 3 of the Act of May 23, 1887, only if a good-faith effort to locate the witness and compel his attendance at trial has failed.'Commonwealth v. Blair, --- Pa. at ---,331 A.2d at 214.

Here, the absent witness was living at St. Michael's School for Boys near Scranton, Pa.When notified by the District Attorney's office that he would be called as a witness, his grandmother contacted the school authorities who released the boy into her custody.He arrived at her home in Philadelphia the evening before trial.As the grandmother was preparing to leave for court the next morning, the child disappeared.When the grandmother could not find him, she came to court alone and informed the District Attorney of the boy's disappearance.A subsequent phone check to the grandmother's home went unanswered.To establish unavailability, the Commonwealth called the grandmother who, in addition to the facts outlined above, testified that the child had a history as a runaway.

The appellant compares the Commonwealth's efforts to secure the witness' presence in this case with those expended in Commonwealth v. Blair, supra, andUnited States ex rel. Oliver v. Rundle,417 F.2d 305(3d Cir.1969).He concludes that no good-faith attempt was made and that, therefore, the trial court erroneously allowed the prior testimony to be recorded.We cannot agree.

When a ruling is made on the admissibility of prior testimony, '(t)he question of the sufficiency of the preliminary proof as to the absence of a witness is largely within the discretion of the trial judge.'Commonwealth v. Miller,203 Pa.Super. 511, 516, 201 A.2d 256, 259(1964).AccordCommonwealth v. Beach, supra.Although the efforts to locate the witness after his disappearance were not as extensive as those in Blair or Oliver, the Commonwealth had initiated the witness' transfer from Scranton to Philadelphia.It presented evidence that the child mysteriously disappeared shortly before trial and that he had previously run away 'many times.'We cannot say that the trial court here abused its discretion when it admitted the prior testimony.^[2]

We also cannot accept appellant's argument that his conviction, premised on the existence of a conspiracy, cannot stand where the person who allegedly perpetrated the homicide has been judged not guilty.Statute rebuts this argument:

'An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.'

Act of December 6, 1972, P.L. 1482, No. 334, § 1(g), 18 C.P.S.A. § 306(g).^[3]

Judgment of sentence affirmed.

ROBERTS, J filed a dissenting opinion in which MANDERINO, J., joined.

ROBERTS, Justice (dissenting).

Because the Commonwealth failed to make a good faith effort to locate the missing witness, I must conclude that admission of the witness' prior testimony was improper under the terms of the Act of 1887 ^[1] and impermissible under the confrontation clause of the Constitution of the United States.^[2] I therefore dissent.

Appellant's trial was scheduled to begin on November 13, 1972.In preparation for trial, the Commonwealth notified the grandmother of a witness, Mark Dorsey, that Mark was to testify at trial.The Commonwealth also contacted the officials at St. Michael's School for Boys where Mark was committed and arranged to have him released to his grandmother's custody so that he would be available to testify.On the morning of the trial, Mark's grandmother left Mark alone for a few minutes in front of her house.He took advantage of the opportunity to run away.

The grandmother upon discovering that Mark had disappeared, proceeded to the courthouse alone.Upon reaching her destination she called her home to determine if mark had returned.When her call went unanswered, she informed the district attorney of Mark's flight.She later testified during trial that Mark had run away on previous occasions and that she had no idea where he might be.

Upon learning that Mark had absconded, the district attorney made no effort to contact the grandmother's neighbors or Mark's friends to determine if they had seen Mark or knew of his whereabouts.Nor did he ask the police to seek the witness in the neighborhood where he was last seen.Instead, content with the thought that he might still have Mark's testimony introduced into evidence by reading the transcript of the prior trial into the record, the district attorney did nothing.

The use of the prior testimony of a witness who is unavailable at time of trial is permissible under the confrontation clause because the previous opportunity for cross-examination "afford(s) the trier of fact a satisfactory basis for evaluating the truth of the prior statement."Mancusi v. Stubbs,408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293(1972), quotingCalifornia v. Green,399 U.S. 149, 161, 90 S.Ct. 1930, 1936, 26 L.Ed.2d 489(1970).^[3] Nevertheless, the confrontation clause requires that, where possible, the prosecution must afford the defendant an opportunity for cross-examination in which the accused may test the recollection and sift the conscience of the witness and compel him to stand face-to-face with the jury in order that they might judge from his words, his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.Barber v. Page,390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255(1968).Although use of prior testimony may be permitted by the confrontation clause, it is clear that the prosecution may avail itself of this less-preferred technique only when it makes a good faith effort to secure the attendance of the witness and fails.Barber v. Page, supra(prosecution may not use prior testimony of witness incarcerated in another state where it has failed to make a good faith...