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COMMONWEALTH v. BOWES (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
BOWES, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Union County, No. 22 of 1973, in case of Commonwealth of Pennsylvania v. Joseph Robert Bowes.

COUNSEL

Raymond J. Lobos, and Groover & Lobos, for appellant.

James F. McClure, Jr., District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 233 Pa. Super. Page 73]

Appellant was found guilty by a jury on charges of sodomy and rape. Following denial of post-trial motions he was sentenced to concurrent terms of imprisonment of five to ten years. In this appeal from the judgment of sentence he alleges, first, that the court committed reversible error in admitting into evidence a tape-recorded confession of the appellant from which certain allegedly exculpatory portions had been erased; and second, that the evidence was insufficient to sustain the verdicts.

No questions of voluntariness or authentication are presented in the challenge to the admission of the taped confession; the only issue raised is whether it should have been excluded solely because it was incomplete. The appellant alleges, as he did at trial and in post-verdict motions, that two questions and their answers were erased, and that these answers indicated that the prosecutrix had consented to the acts of sodomy and intercourse. Because the element of consent represented his entire defense, the appellant asserts that the erasure of this portion of his confession represented an irrevocable and fundamental denial of due process.

The Commonwealth does not deny that at least one and possibly two questions and attendant answers were inadvertently erased, and does not dispute that the excised portion involved a claim by the appellant that the prosecutrix consented to the acts charged. At trial the Commonwealth offered the testimony of the police officer who recorded the confession and he testified as to the substance

[ 233 Pa. Super. Page 74]

    of the omitted questions and responses. The Commonwealth asserts that this testimony and the weight of other evidence render any error harmless.

We are compelled by the overwhelming weight of other evidence to agree with the Commonwealth that the error in this case was harmless. However, we are equally compelled to state that the act of the district attorney in using an incomplete tape recording which he knew defense counsel assumed to be complete*fn1 was improper. Were it not for the great weight of other evidence negating appellant's defense of consent we would not hesitate to grant a new trial.

It cannot be doubted that confession evidence is often decisive. See Culombe v. Connecticut, 367 U.S. 568 (1961). "[P]roof beyond reasonable doubt -- often could not be achieved . . . without the assistance of the accused's own statement." Devlin, The Criminal Prosecution in England (1958), 58, quoted in Culombe v. Connecticut, supra at 576. It is for this reason that important constitutional and procedural safeguards too numerous and too well known to require recitation here now surround the obtaining and admission into evidence of any such statements. See, e.g., Miranda v. Arizona, 384 U.S. 436 (1964).

A court, however, cannot permit that evidence once lawfully obtained to be altered, edited or censored at the whim or discretion of the prosecutor. Any such power would intolerably change our system of justice from one of accusation into one of inquisition. "Society wins not only when the guilty are convicted ...


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