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COMMONWEALTH PENNSYLVANIA v. ELDIMIRO COLON (05/13/75)

decided: May 13, 1975.

COMMONWEALTH OF PENNSYLVANIA
v.
ELDIMIRO COLON, APPELLANT (TWO CASES)



COUNSEL

Eugene John Lewis, Lewis & Granoff, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Jr., Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, O'Brien and Nix, JJ., concur in the result. Pomeroy, J., filed a concurring opinion.

Author: Roberts

[ 461 Pa. Page 579]

OPINION

Appellant Eldimiro Colon was tried before a jury and found guilty of murder in the first degree, burglary, and aggravated robbery. Post-verdict motions were filed and denied. The court sentenced appellant to serve a term of life imprisonment for the murder conviction. The court also sentenced him to serve concurrent terms of ten to twenty years imprisonment for the burglary and the aggravated robbery convictions, both to be served concurrently with the life sentence. This appeal ensued.*fn1

In this appeal, appellant raises a single issue: whether the trial court improperly excluded from evidence the confession of one Jose Hernandez in which Hernandez admitted killing the victim while acting alone. Although appellant concedes that Hernandez's statement is hearsay, he argues that it was a declaration against penal interest and therefore admissible. See Commonwealth v. Nash, 457 Pa. 296, 324 A.2d 344 (1974). See also Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). We conclude that the relevant portions of Hernandez's confession were not contrary

[ 461 Pa. Page 580]

    to Hernandez's penal interest and were therefore inadmissible hearsay and affirm.

On April 17, 1972, the corpse of Michael Kochmanowicz, age 91, was discovered on his living room floor. Examination of the scene revealed that Kochmanowicz had been murdered in the course of a burglary.

The following day the police arrested Jose Hernandez. After a period of interrogation, Hernandez gave the police a formal statement in which he admitted murdering Mr. Kochmanowicz and burglarizing his home. At the end of his statement, Hernandez stated in response to a police question:

"I was alone. I went there alone and came out alone."

On May 7, 1972, the police arrested appellant. After interrogation, appellant also confessed to the murder and burglary. The account given by appellant was virtually identical to Hernandez's. However, appellant's statement maintains that Hernandez and he had acted in concert.

At trial, the Commonwealth proceeded on the theory that both appellant and Hernandez were responsible for the murder. To establish this theory, the Commonwealth introduced into evidence appellant's confession and the testimony of an alcoholic shopkeeper who ...


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