Appeal from a Judgment of Sentence Imposed May 14, 1976, by the Court of Common Pleas of Lancaster County, Criminal, at No. 3052 of 1975
Edward F. Browne, Jr., Assistant Public Defender, Lancaster, for appellant.
Ronald L. Buckwalter, First Assistant District Attorney, and D. Richard Eckman, District Attorney, Lancaster, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Spaeth, J., concurs in the result only.
[ 248 Pa. Super. Page 411]
Appellant was found guilty of simple assault on an indictment charging aggravated assault on Eddie Jackson and Booker T. Jackson. The assault occurred in the B & B Cafe in Lancaster in the course of which appellant and another allegedly caused serious bodily injury to Eddie Jackson and Booker T. Jackson by beating them about the face, head and shoulders with their fists and pool cue sticks. The jury returned a verdict of guilty. Post-trial motions were made in arrest of judgment and for a new trial. They were denied and sentence was imposed. This appeal followed.
The sole issue presented on appeal is whether the trial court erred in declining an offer of evidence claimed to be admissible as a declaration against penal interest and therefore an exception to the hearsay rule.
The offer and the court's ruling were as follows:
[ 248 Pa. Super. Page 412]
"Your Honor, I offer to present the testimony of Lon Ashford to the effect that the day after this incident the tendered witness had a conversation with one, Leroy Long, and that in that conversation Leroy stated that he had been at the B & B on the night of this incident and had, in fact, had a knife, and had taken it out because, 'I was going to cut the [obscenity],' meaning the defendant, Phillip Pompey.
"THE COURT: All right, the offer is disallowed for two reasons. There is nothing to show why the declarant, himself, can't be summoned as a witness, and also that the offer does not come within Commonwealth versus Hackett, 225 Superior 22 [307 A.2d 334] in which it is said among other things that declarations must be inherently trustworthy in that they are written or orally made to reliable persons of authority, and it is disallowed for those reasons."
A declaration against penal interest as an exception to the hearsay rule on the same basis that a declaration against pecuniary or proprietary interest is allowed was first recognized by this court in Commonwealth v. Hackett, 225 Pa. Super. 22, 29-30, 307 A.2d 334 (1973). The justification for and the parameters of such an admission of hearsay testimony were stated by this court to be as follows (pp. 29-30, 307 A.2d pp. 338):
"Public policy, the fundamental principles of fairness and due process of law require the admission of declarations against penal interest 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. Under these circumstances, an exception to the hearsay rule, in our view, is ...