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COMMONWEALTH v. VELASQUEZ (11/17/72)

decided: November 17, 1972.

COMMONWEALTH
v.
VELASQUEZ, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1965, No. 1337, in case of Commonwealth of Pennsylvania v. Antonio Velasquez.

COUNSEL

Leonard Turner, for appellant.

Martin H. Belsky and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Manderino.

Author: Roberts

[ 449 Pa. Page 601]

Appellant Antonio Velasquez was tried by jury in Philadelphia in 1970 and found guilty of second degree murder. Post-trial motions were denied and a sentence of not less than ten nor more than twenty years imposed. Appellant in this direct appeal argues that the Commonwealth introduced notes of testimony of a witness from an earlier proceeding*fn1 in contravention of the Act of May 23, 1887, P. L. 158, § 3, 19 P.S. § 582.*fn2 We affirm.

The Act of 1887 permits the admission of notes of testimony of a prior proceeding of a witness now deceased if the defendant was present at the prior proceeding and had "an opportunity to examine or cross-examine" the witness; and the issue at the two proceedings remains substantially the same.*fn3 To properly

[ 449 Pa. Page 602]

    apply the Act of 1887, it is necessary to review the records of the two proceedings to determine the Commonwealth's case, the nature of the defense, and the factual and legal issues actually in controversy. Only after such review can it be decided whether the issues in the two proceedings were substantially the same and the opportunity to cross-examine and the adequacy of the cross-examination conducted were sufficient to justify admission of the notes of testimony. Here such review of the record demonstrates beyond question that the issues in controversy were substantially the same.

At the first proceeding in 1965 appellant Velasquez entered a guilty plea. The Commonwealth sought to prove at the degree of guilt hearing that appellant, after a bitter argument with the deceased bartender Carlos Rodriquez, returned to the bar and repeatedly shot Rodriquez intentionally causing his death. One of the Commonwealth witnesses, Nathaniel Willingham, testified that he saw appellant approach the bar armed with a gun, enter the bar, and start shooting.

Appellant's guilty plea was set aside and at appellant's subsequent jury trial the Commonwealth offered, over objection, the same evidence which had been introduced at the degree of guilt hearing -- inter alia, the testimony of Nathaniel Willingham, deceased at the time of trial. Appellant did not try to establish an alibi or contend that he was unarmed or that he did not fire any shots. Instead, appellant's evidence at

[ 449 Pa. Page 603]

    trial was offered to negate the Commonwealth's proof of first degree murder -- precisely the same defense relied upon at the degree of guilt hearing.

Appellant during the jury trial attempted to impeach Willingham's testimony at the degree of guilt hearing with the notes of Willingham's testimony given at an earlier preliminary hearing.*fn4 Willingham testified at the preliminary hearing: "Velasquez went in and I heard about three or four shots, so then Velasquez ran out, and Jamieson ran in, and he shot about three or four times, and he ran out." Later at the degree of guilt hearing Willingham gave the ...


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