dissenting:
The majority holds that Williams’s preliminary hearing testimony is admissible as substantive evidence. Because I disagree, I must respectfully dissent.
Appellant challenges his conviction, by alleging trial court error in admitting Williams’s prior inconsistent statements as substantive evidence. The majority finds first that the prior statements were not inconsistent. I cannot agree. In his preliminary hearing testimony and hospital statements, Williams positively identified appellant as his assailant; however, at trial, he testified that he did not know whether appellant or his companion had fired the shots. (N.T. November 9, 1981 at 66, 83). Clearly, these statements are not consistent. Furthermore, at trial, Williams’s prior statements were specifically admitted under the authority of Commonwealth v. Loar, 264 Pa.Superior Ct. 398, 411-13, 399 A.2d 1110, 1117-18 (1979) (witness’s prior inconsistent statements may be admitted as substantive evidence). The trial court’s reliance upon Loar formed the basis of this appeal because our Supreme Court subsequently rejected the Loar rationale in Commonwealth v. Waller, 498 Pa. 33, 39 n. 2, 444 A.2d 653, 656 n. 2 (1982), and reaffirmed the traditional rule that prior inconsistent statements may only be admitted for the purposes of impeachment and may not be used as substantive evidence. See also Commonwealth v. French, 501 Pa. 134, 460 A.2d 725 (1983). Subsequent decisions by this Court have adhered to the Waller rule. See, e.g., Commonwealth v. Matthews, 314 Pa.Superior Ct. *14638, 460 A.2d 362 (1983); Commonwealth v. Thirkield, 311 Pa.Superior Ct. 413, 457 A.2d 954 (1983). I would hold, therefore, that Williams’s prior inconsistent statements were improperly admitted as substantive evidence in the instant case.
The majority, however, also finds that Williams’s preliminary hearing testimony was admissible under the hearsay exception for prior testimony of an unavailable witness. A witness’ prior recorded testimony from a preliminary hearing is admissible provided that the defendant had counsel and a full opportunity to cross-examine the witness during the earlier proceeding. Commonwealth v. Sandutch, 498 Pa. 536, 449 A.2d 566 (1982); Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980). A witness may be deemed unavailable due to a partial or total memory loss. Commonwealth v. Graves, 484 Pa. 29, 398 A.2d 644 (1979) (partial memory’loss); Commonwealth v. Von Smith, 303 Pa.Superior Ct. 534, 539-540, 450 A.2d 55, 58 (1982) (total memory loss). In the instant case, however, I find that the Commonwealth failed to show that Williams suffered from any memory loss. At trial, Williams testified in considerable detail regarding the events of April 3, 1981. Although he stated that he could not recall whether appellant had a gun, N.T. November 9, 1981 at 53, 55, his subsequent testimony, rather than indicating a loss of memory, demonstrated that he never knew whether appellant had a gun. (Id. at 55, 65-66, 83, 155). Williams further explained that, while he had previously assumed that appellant had shot him, upon reflection he could not be sure that appellant, rather than his companion, had fired the shots. (Id. at 63, 83, 127, 146, 153). I am therefore unable to agree with the majority’s characterization of Williams’s testimony as indicating that he was unable to recall who shot him. Accordingly, I would not admit the prior testimony under the unavailable witness exception.
I do agree with the majority, however, that Williams’s prior statements are also inadmissible under the hearsay exceptions for a prior statement of identification, see Com*147monwealth v. Floyd, 327 Pa.Superior Ct. 569, 476 A.2d 414 (1984), past recollection recorded, see Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982); Commonwealth v. Cooley, 484 Pa. 14, 398 A.2d 637 (1979), or a dying declaration, see Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978).
Accordingly, because I find no valid basis for admitting Williams’s prior statements, I would reverse the judgment of sentence and remand for a new trial.