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decided: April 28, 1977.



Richard F. Furia, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Benjamin H. Levintow, Philadelphia, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., files an Opinion in Support of Affirmance, joined by Eagen, C. J., and O'Brien, J. Manderino, J., files an Opinion in Support of Reversal, joined by Roberts and Nix, JJ. Jones, former C. J., did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 472 Pa. Page 475]


The Court being equally divided, the judgment of sentence is affirmed.


POMEROY, Justice.

The opinion in support of reversal, infra, would grant a new trial in this case because the trial judge refused to allow defense counsel to introduce at appellant's second

[ 472 Pa. Page 476]

    trial testimony given by a missing witness, Charles Anderson, at appellant's first trial. In my view, the trial court did not abuse its discretion in ruling as it did, and I would affirm the judgment of sentence.

The statute governing the admission of the testimony of a witness given at a prior trial reads in relevant part as follows: "Whenever any person has been examined as a witness . . . for the defense, in any criminal proceeding . . ., if such witness afterwards . . . cannot be found, . . . notes of his examination shall be competent evidence upon a subsequent trial of the same criminal issue . . . ." Act of May 23, 1887, P.L. 158, § 3, 19 P.S. § 582. "A witness 'cannot be found'" within the meaning of the above-quoted Act, however, "only if a good-faith effort to locate the witness and compel his attendance at trial has failed." Commonwealth v. Blair, 460 Pa. 31, 34, 331 A.2d 213, 214 (1975). The burden of demonstrating such a "good-faith effort" is on the party seeking to introduce the prior testimony, Commonwealth v. Blair, supra, and "[t]he question of the sufficiency of the preliminary proof as to the absence of a witness is largely within the discretion of the trial judge." Commonwealth v. Miller, 203 Pa. Super. 511, 516, 201 A.2d 256, 259 (1964), quoted in Commonwealth v. Jackson, 463 Pa. 301, 305, 344 A.2d 842, 844 (1975). Accord, Commonwealth v. Beach, 445 Pa. 257, 261, 284 A.2d 792, 794 (1971). Thus, the question here is whether the trial court abused its discretion in ruling that appellant had failed to present sufficient evidence to prove that Charles Anderson was unavailable to testify.

The opinion in support of reversal relies upon Commonwealth v. Jackson, supra, to support its conclusion that the efforts to locate the missing witness were sufficient to establish the "good-faith" requirement of the Act. In my view, Jackson does not dictate the result

[ 472 Pa. Page 477]

    which Mr. Justice MANDERINO would reach in the instant case. In Jackson, the trial court admitted the prior testimony into evidence, and this Court merely held that the lower court's ruling, under the facts there presented, did not constitute an abuse of discretion. Jackson, supra, 463 Pa. at 306, 344 A.2d at 844. Simply because in Jackson we held that the trial judge did not abuse his discretion in allowing the prior testimony does not mean that in another case, involving facts which may indicate an equally diligent effort to locate a witness, the trial judge automatically abuses his discretion by refusing to allow the prior testimony to be admitted. Whether or not there is an abuse of discretion is an issue which must be determined on the basis of the facts and circumstances of each case.

Even if, however, our decision in Jackson be deemed to represent a minimum threshold of effort required to establish the present unavailability of a prior witness, I am not convinced that the efforts exerted in the case at bar to locate Anderson were, as the opinion in support of reversal puts it, post at 794, "obviously more extensive" than those in Jackson. In Jackson, the Commonwealth's proof of unavailability consisted of subpoenaing the missing witness without response, a single phone call to him and a statement from the witness' grandmother that the witness was a frequent runaway. In upholding the trial judge's determination that this evidence was sufficient, we noted that "[t]he trial court could reasonably conclude that any search would be futile." Jackson, supra at 306 n. 2, 344 A.2d at 844 n. 2. In the present case, in contrast, the only facts which appear are that defense counsel subpoenaed a witness who failed to appear on the day he was scheduled to testify. Defense counsel requested a continuance which was denied,*fn1 but at the same time the trial judge offered to

[ 472 Pa. Page 478]

    have a bench warrant issued for the witness. This invitation was declined by defense counsel,*fn2 whereupon the court ruled that the witness could be put on the stand "at any time before the speeches to the jury." Since rebuttal witnesses remained to be called, the defense, as it turned out, in effect was given four days within which to secure the attendance of the witness. During this time period defense counsel twice attempted to make contact with Anderson by telephone. Both times he was told that the witness was out of town and his whereabouts unknown. At no time during these four days, however, did counsel inform or attempt to inform the court that he was having difficulty in locating the witness. Under these circumstances I am simply ...

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