Appeal from judgment of Court of Oyer and Terminer of Montgomery County, Nov. T., 1963, No. 363, in case of Commonwealth of Pennsylvania v. Michael Miller.
John P. Yatsko, with him Fitzgerald & Yatsko, for appellant.
Richard S. Lowe, District Attorney, for Commonwealth, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Watkins, J. Ervin, P. J., and Wright, J., would affirm on the opinion of the court below.
[ 205 Pa. Super. Page 299]
In this appeal, the defendant, Michael Miller, was tried and convicted by a jury in the Court of Oyer and Terminer of Montgomery County of burglary, robbery and conspiracy. His post trial motions for a new trial and, in the alternative, for arrest of judgment, were denied. He was sentenced to a fine and imprisonment from seven to twenty years.
The appellant's contention concerning the admission of the confession of a co-conspirator, not on trial,
[ 205 Pa. Super. Page 300]
being reversible error is without merit. As the court below explained the situation: "In the instant case, however, the trial court was faced with a somewhat novel situation. On direct examination, Knisely testified fully to his and the defendant's participation in the three armed robberies. On cross-examination, defendant in an attempt to totally impeach and discredit Knisely's testimony offered into evidence exhibit D-1, a statement written by Knisely at defendant's request, while both were in the county prison prior to Knisely's plea and defendant's trial. Said statement repudiated his confession and declared that Miller was completely innocent of these crimes. On redirect examination Knisely's confession as offered by the district attorney was then admitted into evidence by the trial court, but not for its verity as such, or as primary evidence for the Commonwealth, but rather as rebuttal evidence to the exonerating statement offered by defendant."
The rule is well stated in Commonwealth v. Martin, 124 Pa. Superior Ct. 293, 188 Atl. 407 (1936), at page 302: "When the testimony of a witness has been impeached by proof of a conflicting statement, or by a suggestion that his testimony is a recent fabrication, the party offering the witness may be permitted to support his credibility by proof of prior statements consonant with his testimony. The sole purpose of such evidence is to sustain the credibility of the witness; the prior statement cannot be received as direct or corroborative evidence of the facts stated upon the stand by the witness . . ."
And the trial judge carefully charged the jury as follows: "Now, I admitted the written statement which he gave to the police not as primary evidence for the Commonwealth, but to rebut the evidence, if you want to consider it, concerning the statement given to Mr. Miller, which Mr. Miller produced. What you will consider is the evidence as it came from the lips of Mr.
[ 205 Pa. Super. Page 301]
Knisely implicating Miller, and you can believe it or you can disbelieve it. You can find it credible or you can find ...