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decided: March 29, 1976.


Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, April T., 1973, No. 78, and No. 1192, in case of Commonwealth of Pennsylvania v. Allan Gamsby, a/k/a Allan Jackson.


Raymond B. Reinl, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, with him William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion in Support of Reversal by Hoffman, J. Opinion in Support of Reversal by Cercone, J. Opinion in Support of Reversal by Van der Voort, J. Opinion in Support of Reversal by Spaeth, J. Dissenting Opinion by Price, J. Watkins, P.j., and Jacobs, J., join in this dissenting opinion.

Author: Per Curiam

[ 239 Pa. Super. Page 567]

Judgment of sentence reversed and case remanded for further proceedings.


Judgment of sentence reversed and case remanded.

Opinion in Support of Reversal by Hoffman, J.:

Appellant contends that the trial court erred in refusing to grant him a new trial based upon sworn affidavits of two persons*fn1 who heard another person confess to the crime for which appellant was convicted.

On February 8, 1973, Jill Jones, a fourteen year old high school student, was apprehended at Keith Valley Middle School in Horsham Township with several pills of demerol and darvon. On February 14, 1973, she told the Horsham Township police that she had purchased the pills from Allan Gamsby, appellant, on February 7, at a shopping mall near her home. On February 23, the police arrested appellant in his home. A search of his jacket produced a marijuana cigarette butt and several pieces of tin foil which tested positive for marijuana residue. Appellant was indicted for violation of The Controlled Substance, Drug, Device and Cosmetic Act.*fn2

On May 21, 1974, the trial court found appellant guilty of five counts charged in the first indictment and not guilty of the sixth count and of the two counts of the

[ 239 Pa. Super. Page 568]

    second indictment.*fn3 The only testimony linking appellant to the February 7 sale of pills was that of Miss Jones. Miss Jones testified that she did not know her own home address; she did not recall when she first met appellant; she did not know for sure if she had ever seen appellant before or after the alleged transaction; she did not know how she learned appellant's name; and she did not know the names of persons who had supplied her with drugs on previous occasions. The only thing that Miss Jones was sure of was that appellant was the person who sold her the drugs found in her possession on February 8. Miss Jones further testified that she never discussed this event with any other person except the police.

Appellant testified that he had never sold drugs to any person, including Miss Jones. He admitted having been convicted of possession of marijuana and sentenced to two years' probation, but denied knowing that the marijuana "roach" found in his jacket was there. Further, he denied knowingly possessing or using any drugs or marijuana since his prior conviction.

Lynne Bonner, a classmate of Miss Jones, also testified on his behalf. Miss Bonner made it clear that she was not a friend of the appellant and that she was testifying only under the compulsion of a subpoena. She testified to three conversations with Miss Jones regarding the drug sale. The first conversation implicated

[ 239 Pa. Super. Page 569]

    appellant as her supplier. In the second conversation, Miss Jones explained that she had lied to the police about appellant because she was protecting her boyfriend, Brian Burke. The third conversation occurred after Miss Bonner had received the witness subpoena. Miss Jones recanted her second conversation and told Miss Bonner that it was appellant and not Brian Burke who had sold her the drugs. On rebuttal, Miss Jones admitted that her prior testimony denying any discussions about the case was false but denied that she had ever implicated Brian Burke.

On January 3, 1975, appellant's Motion for a New Trial was denied. On January 17, appellant filed an Amended Motion for New Trial with an attached affidavit of John Connery. The amended motion and affidavit contended that on January 9, 1975, Brian Burke, appellant, Connery and several other persons attended a party together. When appellant arrived, an argument ensued between Burke and appellant over the fact that appellant had been wrongfully convicted of selling the drugs to Jill Jones. Connery alleged that Burke told appellant that he should not be angry at him because it was Jones and not he who had implicated appellant. Appellant then left the party. Later in the evening, during a discussion among Burke, Connery and Connery's brother-in-law, Walter Williams, Burke admitted that he and not appellant had supplied Jones with the drugs. Burke said that he would not admit to this in court but that he would be willing to testify that Jill Jones was a real "down freak", an apparent reference to drug dependency. Burke also threatened to kill appellant if he attempted to implicate Burke any further in this matter. On January 24, 1975, appellant's amended motion was denied. On January 28, appellant was sentenced to thirty days to twenty-three months in jail and to pay a fine of $100.00 and costs of prosecution. This appeal followed.

The instant appeal presents two difficult questions,

[ 239 Pa. Super. Page 570]

    which are closely intertwined: (1) under what circumstances a hearsay declaration may be admitted if it states facts which are against the penal interest of the declarant; and (2) would the out-of-court declarations in the instant case warrant granting a new trial. The opinion of the court below suggests that "but for" the inadmissibility of the out-of-court declarations of Brian Burke, the motion for the new trial would have been granted. The trial judge believed that our Court's opinion in Commonwealth v. Hackett, 225 Pa. Superior Ct. 22, 307 A.2d 334 (1973), precluded the admission of these hearsay declarations. He felt that Hackett required "the admission of declarations against penal interest [only] where it can be determined that those statements: (1) exculpate the defendant from the crime for which he is charged; (2) are inherently trustworthy in that they are written or orally made to reliable persons of authority or those having adverse interests to the declarant; and, that they are made pre-trial or during the trial itself." Commonwealth v. Hackett, supra at 29-30, 307 A.2d at 338. The lower court noted that the Hackett requirements of persuasive assurances of trustworthiness were criticized in the concurring opinion of Justice Roberts in Commonwealth v. Nash, 457 Pa. 296, 303, 324 A.2d 344, 347 (1974); but stated that the more liberal standards embraced by the concurring opinion in Nash for admission of declarations against penal interest are not the law.

Unfortunately, the law on the subject of admissibility of declarations against penal interest is far from clear. The lead opinion in Nash, authored by Justice O'Brien and joined by Justice Eagen, suggests that admission of hearsay declarations under the penal interest exception ought to be permitted when ". . . made and subsequently offered at trial under circumstances that provide considerable assurance of their reliability." Commonwealth v. Nash, supra at 302, 325 A.2d at 346, quoting Chambers v. Mississippi, 410 U.S. 284, 300

[ 239 Pa. Super. Page 571]

(1973). However, the concurring opinion in Nash, in which Chief Justice Jones and Justice Pomeroy joined, embraces the emerging view that would permit the admission of all declarations against penal interest provided "that the declaration states facts that are against the penal interest of the declarant, and that the declarant is unavailable at the time of trial. McCormick's Handbook of the Law of Evidence, ยง 276 (2d ed. E. Cleary 1972)." Commonwealth v. Nash, supra at 309, 324 A.2d at 350 (Concurring opinion by Roberts, J.).*fn4 The

[ 239 Pa. Super. Page 572]

    concurring opinion in Nash makes it clear that it would adopt these standards not because they are constitutionally compelled by Chambers v. Mississippi, supra, but because they are sound rules of evidence.

A second opportunity to clarify the rules for the admission of declarations against penal interest was presented to the Supreme Court in Commonwealth v. Colon, 462 Pa. 577, 337 A.2d 554 (1975).*fn5 The opinion of the court, authored by Justice Roberts, reiterated the standards for admission of declarations against penal interest contained ...

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