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COMMONWEALTH v. KENDIG (09/11/69)

decided: September 11, 1969.

COMMONWEALTH
v.
KENDIG, APPELLANT



Appeals from judgment of Court of Common Pleas of Lancaster County, March T., 1968, Nos. 218, 219, 220, and 267, in case of Commonwealth of Pennsylvania v. Lynne Stevenson Kendig, Jr.

COUNSEL

Wayne G. Hummer, Jr., Public Defender, for appellant.

H. Rutherford, Assistant District Attorney, with him D. Richard Eckman, Assistant District Attorney, and Clarence C. Newcomer, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 215 Pa. Super. Page 140]

Appellant Lynne Stevenson Kendig, Jr., was convicted by a jury on four indictments charging burglary and larceny. At his trial, the Commonwealth introduced into evidence a written incriminating statement of one Donald Tankesley, an alleged accomplice who previously pleaded guilty to similar indictments. The confession named appellant as Tankesley's partner in all of the crimes for which appellant was tried. Appellant contends that introduction of the confession as evidence of his guilt was error requiring a new trial.

Tankesley, as a witness for the Commonwealth, testified that he alone committed the crimes and appellant did not participate. The District Attorney, pleading surprise, requested leave to cross-examine. When this request was denied, Tankesley was shown the confession implicating appellant for the purpose of "refreshing his recollection." Although Tankesley stated that he had an independent recollection and that the confession

[ 215 Pa. Super. Page 141]

    was false insofar as it implicated appellant, the court directed it admitted into evidence and read aloud by Tankesley to the jury.

The Commonwealth concedes that the statement was not admitted for the limited purpose of impeaching Tankesley's credibility. However, it argues that it was admissible as evidence of appellant's guilt under the evidentiary rules governing the use of written memoranda to refresh recollection.*fn*

The limitations upon the use of written memoranda to refresh recollection are stated in Miller v. Exeter Borough, 366 Pa. 336, 342, 77 A.2d 395 (1951): "Where a witness has a present recollection of a past event, although his memory is refreshed by a memorandum made at the time of the event, he testifies from such recollection; but where he has no present recollection of such past event, even when aided by his memorandum, the latter itself may be offered in evidence, on proof by the witness of his knowledge of its accuracy when made . . . ."

Under Miller, the foundation for admitting a document as a recording of a witness's recollection of past events is laid only if, after reviewing the document, the witness testifies (1) he has no present recollection and (2) he knows the writing to be accurate.

Neither of these conditions was met here. Tankesley had an independent recollection of the crimes and indicated that the ...


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