John P. Liekar, Public Defender, Washington, for appellant.
Jess D. Costa, Dist. Atty., John F. Bell, 1st Asst. Dist. Atty., Washington, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., filed a concurring opinion. Manderino, J., filed a dissenting opinion.
Appellant, John J. Stasko, Jr., appeals from the judgment of sentence of the Court of Common Pleas of Washington County. He was indicted and charged with the
murder of Bernadette Marie Demeter on January 7, 1974. A jury found him guilty of murder in the second degree and appellant was sentenced to a prison term of ten to twenty years, with credit for time served. We find that the issues raised by appellant on this appeal are without merit and do not justify reversal of the judgment of the lower court.
Only a brief statement of facts is necessary in the disposition of this appeal. The victim was a part-time employee at the Montgomery Ward department store located in the Borough of Charleroi, Washington County, Pennsylvania. The defendant and victim knew each other and had dated for approximately nine months prior to the murder. The relation was broken off by the victim, however, on January 5, 1974.
On January 7, 1974, the victim worked at Montgomery Ward from 5:00 p. m. until 9:30 p. m. She drove to work and parked her car on the lot adjacent to the store. The night was clear and cold. At approximately 9:31 p. m., the victim left the store and proceeded to her car. Almost immediately thereafter, three witnesses who were driving across the parking lot heard the victim scream and observed another individual, later identified by the witnesses as the appellant, striking the victim on the ground beside her car. Upon seeing the witnesses, appellant fled the scene in the direction of the nearby Monongahela River. The witnesses gave chase and, with the assistance of the Charleroi Police, apprehended the appellant in the river. The victim died of multiple stab wounds of the chest en route to the hospital in an ambulance. No weapon was ever found.
The first issue raised by the appellant concerns the action of the trial judge in permitting the prosecution to take and use at trial a videotape deposition of one Patricia Doyle, an eyewitness to the event. Prior to the trial, the Commonwealth petitioned the court for leave to take the deposition of this witness, and produced the report of
her attending physician to the effect that she had had numerous abdominal operations for regional ileitis and ulcerative colitis and that, in his opinion, the emotional strain of appearing at the trial would greatly aggravate her condition. The court granted the petition and the deposition was taken, less than two weeks before the trial, in the presence of the trial judge, the appellant, his attorney, and an assistant district attorney. As reported by the court below, "the witness was fully and completely cross-examined by defense counsel." Commonwealth v. Stasko, Criminal, No. 67 of 1974 (C.P. Washington County, 1975). The videotape deposition was presented in its entirety to the jury at the trial.
Appellant claims that the taking and use of the deposition violated his right to confront the witnesses against him. This right is guaranteed by the Pennsylvania Constitution*fn1 and the Federal Constitution.*fn2 The purposes served by the right were summarized in California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970):
"[The right] (1) insures that the witness will give his statements under oath -- thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the 'greatest legal engine ever invented for the discovery of truth'; (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness
in making his statement, thus aiding the jury in assessing his credibility."
In short, confrontation is essential to the elicitation of reliable testimony. But confrontation at trial has never been held to be an absolute right. Where testimony taken prior to trial reveals sufficient "indicia of reliability" and affords "the trier of fact a satisfactory basis for evaluating the truth of the prior statement," it has generally been held admissible when the witness was unavailable at trial. Mancusi v. Stubbs, 408 U.S. 204, 216, 92 S.Ct. 2308, 2315, 33 L.Ed.2d 293 (1972). This is especially true where the prior testimony was given in the presence of the accused and the witness was subject to cross-examination. "[T]he right of cross-examination then afforded provides substantial compliance with the purposes behind the confrontation requirement . . ." California v. Green, supra, 399 U.S. at 166, 90 S.Ct. at 1939; Mancusi v. Stubbs, supra; Barber v. Page, 390 U.S. 719, 722, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895).
At common law, the state had the right to take and use depositions of unavailable witnesses if certain prerequisites were met:
"the right existed to read a deposition upon the trial of the defendant, if such deposition had been taken when the defendant was present and when the defendant's counsel had had an opportunity to cross-examine, upon proof being made to the satisfaction of the court that the witness was at the time of the trial dead, insane, too ill ever to be expected to attend the trial, or kept away by the connivance of the defendant." West v. Louisiana, 194 U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965 (1904).
Of course, the declarant's inability to give live testimony must, in no way, be the fault of the state. California v. Page 380} Green, supra; United States v. Singleton, 460 F.2d 1148 (2d Cir. 1972), cert. denied, 410 U.S. 984, 93 S.Ct. 1506, 36 L.Ed.2d 180 (1973). Moreover, "a witness is not 'unavailable' for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." Barber v. Page, supra; United States v. Singleton, supra.
The common law right has been codified in the Federal Rules of Criminal Procedure. F.R.Crim.P. 15; see also 18 U.S.C. § 3503. In United States v. Ricketson, 498 F.2d 367 (7th Cir. 1974), cert. denied, 419 U.S. 965, 95 S.Ct. 227, 42 L.Ed.2d 180 (1974), the court held that admission of a deposition taken by the government pursuant to 18 U.S.C. §§ 3503 did not violate the defendant's right to confrontation:
"In California v. Green, . . ., the Supreme Court said that previous testimony taken under circumstances approximating trial is admissible where the witness is unavailable despite good faith efforts of the Government to produce her. That statement controls here. Mrs. Noyes was under oath and Ricketson's counsel was given full opportunity to cross-examine her. This opportunity came after notice that the deposition was being taken for use at trial -- an advantage Green's counsel did not have in California v. Green. The defendant was present at the deposition to assist his counsel." Id. at 374.
Many state courts have also concluded that government depositions may be taken and used at trial if the above safeguards of the defendant's constitutional right of confrontation are honored. See, e. g., Noe v. Commonwealth, 396 S.W.2d 808 (Ky.1965); Coffman v. State, 81 Nev. 521, 407 ...