Commonwealth v. Nash

Opinion by

Me. Justice O’Brien,

On February 4, 1972, appellants, Alfred Nash and James Robinson, were tried together in the Court of Common Pleas of Philadelphia County, with Nash being convicted of aggravated robbery, aggravated assault and battery and carrying a concealed weapon. Robinson was convicted of aggravated robbery. All charges arose out of the robbery of a bread truck. Post-trial motions were denied and appellants appealed to the Superior Court, which affirmed the judgments of sentence. We granted allocatur to discuss whether the trial judge erred when he prohibited appellants *299from offering testimony through a witness that a third party had admitted to her that he had committed the crimes for which appellants were being tried.

At appellants’ trial, the defense called one Willis Daniels, who was alleged to have admitted that he committed the robbery for which appellants were being tried. Daniels asserted his Fifth Amendment privilege. The defense then called one Eenee Edwards, a girlfriend of appellant Eobinson, who was to testify to the alleged out-of-court admission by Daniels. The Commonwealth objected and requested an offer of proof. Defense counsel stated that Miss Edwards would testify to an admission from a third party. The Commonwealth then objected on the grounds that such testimony would be inadmissible hearsay, which objection was sustained.

In support of their contention that Miss Edwards’ testimony should have been admitted, appellants cite Chambers v. State of Mississippi, 410 U.S. 284, 93 S. Ct. 1038 (1973), and Commonwealth v. Hackett, 225 Pa. Superior Ct. 22, 307 A.2d 334 (1973).

In Chambers, supra, the Supreme Court of the United States discussed this issue at length, stating at 299-302, 93 S. Ct. at 1048-1049: “This materialistic limitation on the declaration-against-interest hearsay exception appears to be accepted by most States in their criminal trial processes, . . . although a number of States have discarded it. . . . Declarations against penal interest have also been excluded in federal courts under the authority of Donnelly v. United States, 228 U.S. 243, 272-273, 33 S. Ct. 449, 459, 57 L.Ed. 820 (1913), although exclusion would not be required under the newly proposed Federal Eules of Evidence. . . . Exclusion, where the limitation prevails, is usually premised on the view that admission would lead to the frequent presentation of perjured testimony to the jury. It is believed that confessions of criminal activity are often motivated by *300extraneous considerations and, therefore, are not as inherently reliable as statements against pecuniary or proprietary interest. While that rationale has been the subject of considerable scholarly criticism, ... we need not decide in this case whether, under other circumstances, it might serve some valid state purpose by excluding untruthworthy testimony.

“The hearsay statements involved in this case were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability. First, each of McDonald’s confessions was made spontaneously to a close acquaintance shortly after the murder had occurred. Second, each one was corroborated by some other evidence in the case— McDonald’s sworn confession, the testimony of an eyewitness to the shooting, the testimony that McDonald was seen with a gun immediately after the shooting, and proof of his prior ownership of a .22-caliber revolver and subsequent purchase of a new weapon. The sheer number of independent confessions provided additional corroboration for each. Third, whatever may be the parameters of the penal-interest rationale, . . . each confession here was in a very real sense self-incriminatory and unquestionably against interest. See United States v. Harris, 403 U.S. 573, 584, 91 S. Ct. 2075, 2082, 29 L.Ed.2d 723 (1971); Dutton v. Evans, 400 U.S. 74, 89, 91 S. Ct. 210, 219, 27 L.Ed.2d 213 (1970). McDonald stood to benefit nothing by disclosing his role in the shooting to any of three friends and he must have been aware of the possibility that disclosure would lead to criminal prosecution. Indeed, after telling Turner of his involvement, he subsequently urged Turner not to ‘mess him up.’ Finally, if there was any question about the truthfulness of the extrajudicial statements, McDonald was present in the courtroom and had been under oath. He could have been cross-examined by the State, and his demeanor and *301responses weighed by the jury. See California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L.Ed.2d 489 (1970). The availability of McDonald significantly distinguishes this case from the prior Mississippi precedent, Brown v. State [99 Miss. 719, 55 So. 961 (1911)], and from the Donnelly-type situation, since in both cases the declarant was unavailable at the time of trial.21

“. . . New rights are more fundamental than that of an accused to present witnesses in his own defense. E.g., Webb v. Texas, 409 U.S. 95, 93 S. Ct. 351, 34 L.Ed.2d 330 (1972); Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L.Ed.2d 1019 (1967); In re Oliver [333 U.S. 257, 273, 68 S. Ct. 499, 507, 92 L.Ed. 682 (1948)]. In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. Although perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow *302the introduction of evidence which in fact is likely to be trustworthy have long existed. The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That testimony also was critical to Chambers’ defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.”

It is our view, and that of the Superior Court in Commonwealth v. Hackett, supra, that, by its decision in Chambers, supra, the Supreme Court did not intend that every declaration against penal interest must be admitted into evidence. Rather, it is only those hearsay declarations which “were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability.” Id. at 300, 93 S. Ct. at 1048.

In the instant case, the hearsay admission against penal interest was allegedly made, as indicated previously, to appellant’s girlfriend. Furthermore, the only corroborative evidence offered to show the reliability of Daniel’s admission that he had committed the crime, other than the testimony of appellants, was the testimony of Nathaniel Paulin, who was originally arrested with appellants. According to the witness Paulin, the two appellants, Daniels, and a man named Henderson were all riding in an automobile on the day of the robbery. Shortly before the robbery was alleged to have occurred, Daniels and Henderson left the automobile, but Paulin and the two appellants remained. Paulin further testified that he and the appellants were totally unaware that any robbery had taken place until they learned of the crime from the police at the time of their arrest.

*303The Commonwealth argues that the evidence related above should be deemed insufficient to establish that the declaration against interest allegedly made by Daniels was reliable. We are reluctant to make that decision on the basis of the transcript alone, since we did not hear the witnesses. Furthermore, since this case was tried before Chambers and Hackett were decided, and under the law then existing, Miss Edwards’ testimony would clearly not have been admissible in any case, see Commonwealth v. Somershoe, 217 Pa. Superior Ct. 156, 269 A.2d 149 (1970), appellants would have had no reason to lay the kind of foundation which Chambers has since held to be required before Miss Edwards’ testimony could be admitted. Consequently, we believe that due process requires that appellants receive a new trial in light of the rule announced in Chambers and Hackett.

Cases remanded for a new trial to be held consistent with this opinion.

Mr. Justice Nix concurs in the result. Mr. Justice Manderino took no part in the consideration or decision of this case.

“21 McDonald’s presence also deprives the State’s argument for retention of the penal-interest rule of much of its force. In claiming that ‘[t]o change the rule would work a travesty of justice,’ the State posited the following hypothetical: ‘If the rule were changed, A. could be charged with the crime; B could tell O and D that he committed the crime; B could go into hiding and at A’s trial O and D would testify as to B’s admission of guilt; A could be acquitted and B would return to stand trial; B could then provide several witnesses to testify as to his whereabouts at the time of the crime. The testimony of those witnesses along with A’s statement that he really committed the crime would result in B’s acquittal. A would be barred from further prosecution because of the protection against double jeopardy. No one could be convicted of perjury as A did not testify at his first trial, B did not lie under oath, and O and D were truthful in their testimony.’ Obviously, ‘B’s’ absence at trial is critical to the success of the justice-subverting ploy.