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COMMONWEALTH v. SOMERSHOE (09/18/70)

decided: September 18, 1970.

COMMONWEALTH
v.
SOMERSHOE, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas of Bucks County, Nos. 143 and 143-1 of 1967, in case of Commonwealth v. William Carl Somershoe.

COUNSEL

Charles H. Dorsett, Jr., with him Eastburn and Gray, for appellant.

Stephen B. Harris, Assistant District Attorney, with him Ward F. Clark, District Attorney, for Commonwealth, appellee.

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

Author: Per Curiam

[ 217 Pa. Super. Page 157]

Judgment of sentence affirmed, and the defendant is directed to appear in the court below at such time as he may be there called, and that he be by that court committed until he has complied with the sentence, or any part thereof which had not been performed at the time the appeal was made a supersedeas.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

Appellant, together with a Charles Moltesen, was tried before a jury on charges of burglary, larceny, receiving stolen goods, conspiracy, and possession of burglary tools. During the trial, two of the jurors became ill, and Moltesen requested and was granted a mistrial. Somershoe, however, elected to have the case continued as to him alone with a diminished number of jurors.

After the mistrial had been granted as to Moltesen, appellant attempted to introduce a stenographic statement wherein Moltesen had exonerated appellant and had admitted that he alone had committed the crime. The first attempt to offer such testimony was made by calling Moltesen to the stand as a witness. Moltesen, however, invoked the Fifth Amendment in view of the possible incriminatory nature of his testimony and refused to answer any of the questions. Thereafter, appellant sought to introduce into evidence the written statement of Moltesen. The trial court refused to admit this statement on the ground that it was hearsay.

In my dissenting opinion in Commonwealth v. Honigman, 216 Pa. Superior Ct. 303, 264 A.2d 424 (1970), I indicated that such a statement should be deemed an exception to the hearsay rule as a declaration against penal interest. Moreover, I indicated in that opinion that such declarations have been declared admissible even where the declarant ...


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