Penn B. Glazier, Lancaster, for appellant.
D. Richard Eckman, Dist. Atty., Michael H. Ranck, Asst. Dist. Atty., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case.
Appellant, Cornell Galloway, was found guilty by a jury of murder in the second degree in connection with the fatal
shooting of one Robert Lee Jones.*fn1 Following the denial of post-verdict motions, appellant was sentenced to a term of not less than ten nor more than twenty years imprisonment. In this direct appeal,*fn2 Galloway advances seven assignments of error in support of a new trial. Because we agree with appellant that it was error for the trial court to allow the prior recorded testimony of one of the Commonwealth's witnesses to be read into evidence at appellant's trial, we reverse the judgment of sentence and remand the case for a new trial.*fn3
The relevant facts are not in dispute. On May 30, 1971, the dead body of Robert Lee Jones was discovered in the apartment of appellant's estranged wife, Deborah Galloway. Two persons, appellant and one George Quinn, were charged with the killing of Jones. Quinn was arrested on the day of the shooting, but appellant remained at large for some time. Prior to the apprehension of appellant, Quinn was brought to trial and acquitted. During this trial Quinn gave testimony which implicated appellant in the shooting of Jones.
At appellant's trial, Quinn was called by the Commonwealth to testify as he had at his own trial relative to Galloway's involvement. Upon being sworn and questioned, Quinn invoked his Fifth Amendment privilege against self-incrimination. Although informed that he had been granted immunity from prosecution, Quinn persisted in his refusal to testify. The trial court then placed Quinn in custody with a copy of the transcript of the testimony he gave at his own trial. When recalled to the stand the next day and questioned by the Assistant District Attorney concerning the events surrounding Jones' death, Quinn testified that although he had read the notes of his testimony from his own trial at least twelve times, he had no present recollection of the facts which he related at his own trial, and had no present recollection regarding the accuracy of the transcript of his testimony from that trial.
Apparently in order to refresh Quinn's recollection of the events to which he had previously testified, the Commonwealth was allowed, over appellant's objection, to cross-examine Quinn as to his claim that he could not remember what happened by reading to him portions of his prior testimony. When this proved unavailing, the Commonwealth requested and, again over appellant's objection, was permitted to read into the record the entire direct testimony Quinn gave at his own trial.
Galloway contends that because he was not present at Quinn's trial and had no opportunity to cross-examine Quinn, the admission of Quinn's former testimony violated state evidentiary law as well as appellant's Sixth Amendment right of confrontation.*fn4 It is settled law in this Commonwealth that "well-recognized exceptions to the hearsay rule supported by circumstances guaranteeing sufficient 'indicia of reliability' do not raise confrontation ...