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COMMONWEALTH v. NASH (07/01/74)

decided: July 1, 1974.

COMMONWEALTH
v.
NASH, APPELLANT. COMMONWEALTH V. ROBINSON, APPELLANT



Appeals from order of Superior Court, Oct. T., 1972, Nos. 1460 to 1462, inclusive, and 1399, affirming judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1971, Nos. 529 to 531, inclusive, and 527, in cases of Commonwealth of Pennsylvania v. Alfred Nash; Commonwealth of Pennsylvania v. James Robinson.

COUNSEL

Neil E. Jokelson, with him Mitchell S. Lipschutz, for Nash, appellant.

Andrea Levin, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for Robinson, appellant.

Albert L. Becker, Assistant District Attorney, with him David Richman, Assistant District Attorney, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Nix concurs in the result. Mr. Justice Manderino took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones and Mr. Justice Pomeroy join in this concurring opinion.

Author: O'brien

[ 457 Pa. Page 298]

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

[ 457 Pa. Page 299]

    from 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 Renee Edwards, a girlfriend of appellant Robinson, 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 Rules of Evidence. . . . Exclusion, where the limitation prevails, is usually premised ...


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