Commonwealth v. Brown

Justice SAYLOR,

concurring.

I join Parts I and IV of the majority opinion.

I also join Part II, although in my view, Appellant’s brief makes a colorable case for establishing a floor to the critical concept of beyond-a-reasonable doubt where the crucial statements of Commonwealth witnesses are inherently self-contradictory. Moreover, while cross-examination certainly serves as a cornerstone of the American trial process, it is by no means a perfect means of adducing truth. Thus, I regard our rejection of Appellant’s position as representing more of a policy choice in light of competing considerations than a foregone conclusion resulting from the absence of any creditable counter-argument.

As for Part III, I support the majority’s decision to adopt a narrow construction of Rule 804(b)(3) based substantially on the reasoning expressed by the Supreme Court in Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), in its similar interpretation of the rule’s federal counterpart, as highlighted by the majority. See Majority Opinion, at 1180-81 (quoting Williamson, 512 U.S. at 599-600, 114 S.Ct. at 2435). I also agree with the majority that the portion of Ja-saan Walker’s confession recounting that the killings were accomplished as part of a three-man conspiracy were self-inculpatory as to the offense of conspiracy. Accord U.S. v. Cruz, 797 F.2d 90, 97 (2d Cir.1986). With regard to Rule 804(b)(3)’s specification that declarations against penal interest may only be admitted where corroborating circumstances clearly indicate the statement’s trustworthiness, I am in alignment with the majority to the degree it finds this prerequisite satisfied based upon external circumstances, primarily: the fact that the ballistics evidence recovered by the police aligned with Walker’s description of the number and types of weapons used in the crime, accord U.S. ex rel. Gooch v. McVicar, 953 F.Supp. 1001, 1009 (N.D.Ill.1997); and that the responding officers’ finding of an unfired handgun under Williams’s body comported with Walker’s recitation that Williams dropped such a weapon when he was shot. See Majority Opinion, at 1178.

I have a different view, however, of some of the internal facets of the confession. Most notably, I would not assign any weight to Walker’s assertion that he was threatened with death if he cooperated with the police, or his denial that the police offered him leniency in return for his confession. These do not seem like the type of items that can supply corroboration for Rule 804(b)(3) purposes, as the majority seems to indicate. The statements — which the majority appears to accept as fact, see Majority Opinion, at 1176-77 — constitute untested allegations in the declaration itself. I am circumspect about relying on such allegations as “circumstances” tending, on their own, to bolster the reliability of the statement in which they appear. See generally Fed.R.Evid. 804(b)(3), Advisory Committee Note (“The requirement of corroboration should be construed in such a manner as to effectuate its purpose of circumventing fabrication.”).

Additionally, although I agree with the majority that the exclusion of Walker’s entire declaration amounted to error, like Mr. Chief Justice Castille I am not certain that the names of the co-conspirators, in themselves, tended to inculpate Walker. See Concurring and Dissenting Opinion, at 1193-94 (Castille, C.J.). Nevertheless, I do not understand this Court’s present holding to encompass a specific requirement that Walker’s identification of his half-brothers as his co-conspirators be placed before the jury. In my reading, the majority leaves room for the trial court to redact such names if it finds that they do not tend to inculpate Walker. Even as*1186suming such a redaction occurs, however, I concur with the majority that the trial court’s error was not harmless because an alleged three-man conspiracy, together with ballistics evidence indicating that three weapons were used, could have raised a reasonable doubt as to whether the prior statements of Lawrence, Garvin, and Lanier were trustworthy. See Majority Opinion, at 1183-84.

I recognize that the number of participants in the conspiracy itself might also not be regarded as being against Walker’s penal interests (so long as one other co-conspirator is recognized). Nevertheless, in the unique circumstances of this case— that is, where the Commonwealth’s main proofs consist of prior inconsistent witness statements offered for substantive effect— I believe Appellant should have been permitted to go so far as to introduce Walker’s conflicting statement that there were three participants. I acknowledge Mr. Chief Justice Castille’s point that the trial court was not asked to introduce such a limited portion of Walker’s statement, see Concurring and Dissenting Opinion, at 1190-91 (Castille, C.J.); however, Appellant did ask the trial court to admit the statement as a whole, of which the conspiracy information is a subset. In this regard, I am not sure that a criminal defendant should be required to present a potentially endless series of fallback positions to preserve a challenge to a trial court’s raling excluding evidence, where such ruling is partially incorrect. See generally Majority Opinion, at 1183 n. 69.

I also have substantial concerns regarding Appellant’s due process claim centered on the Commonwealth’s asserted procurement of Walker’s unavailability to testify. In this regard, although the Commonwealth vigorously denies the factual allegation, there is record support for it. See Commonwealth v. Walker, Nos. 0106-0562, 0106-0563, Guilty Plea Colloquy, at 52, 63 (C.P.Phila., Jan. 24, 2006) (reciting Walker’s testimony that he had made a “deal” with the Commonwealth, and that the agreement included Walker’s “promise” not to testify at Appellant’s trial).1 While the record is not definitive on the point, it does suggest that Appellant is correct in asserting that Walker was unavailable because the Commonwealth extracted from him a promise not to testify at Appellant’s trial. See Brief for Appellant at 51-52. At Walker’s guilty plea hearing — which preceded Appellant’s trial — the following exchange took place:

The Court: ... Now, Mr. Walker, we talked about the fact that for the two cases, the two murders and the agg assault, the conspiracy and the PIC, the Commonwealth is going to nol pros all the other charges. That’s just Latin for drop the charges. And you have also promised that you will not testify in Dwayne Brown’s case. Is that true? [Walker]: Yes, Your Honor.

N.T., Jan. 24, 2006, at 62-63 (emphasis added).2

*1187If Walker had been available to testify at Appellant’s trial, and if he had failed to exculpate Appellant, the portion of his videotaped confession in which he expressly exculpates Appellant would have been admissible as substantive evidence, see Pa. R.E. 803.1(1) (pertaining to prior inconsistent statements of a witness); Commonwealth v. Wilson, 550 Pa. 518, 527, 707 A.2d 1114, 1118 (1998) (holding that, under the standard announced in Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992), a prior inconsistent statement may be used as substantive evidence when it is an au-diotaped or videotaped recording), as the Commonwealth concedes. See Brief for Appellee at 53. In my view, these aspects raise substantial due process concerns.

. The record of Walker’s guilty plea colloquy was sealed by the common pleas court. It was unsealed after Appellant's trial concluded and is part of the record before us.

. The Commonwealth asserts that the court's “promise” terminology was mistaken, and argues, as well, that Walker's written plea agreement only includes a “statement” that Walker would not testify in Appellant's case. The Commonwealth additionally alleges that such statement was included at Walker’s behest. See Brief for Appellee at 15 & n. 7, 47-48 n. 27. However, the Commonwealth never objected to the plea court’s terminology, and there is no indication as to who requested that the statement be inserted into the written plea agreement. Moreover, as it would be unreasonable assume that Walker meant that had promised himself that he would not testify, the only inference that can reasonably be drawn from the record presently before this Court is that, through a quid pro quo arrangement, the Commonwealth extracted a promise from Walker not to testify at Appellant's *1187trial in return for whatever benefit Walker expected to receive from the plea agreement.