No. 609 April Term, 1976, Appeal from Judgments of Sentence by the Court of Common Pleas of Blair County, Criminal Division, Entered to CA.Nos.937 & 938, 1975.
Ralph T. Forr, Jr., Altoona, for appellant.
Thomas G. Peoples, Jr., District Attorney, Altoona, submitted a brief for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a dissenting opinion in which Price, J., joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 134]
Appellant contends that the trial court abridged his constitutional right to confront and cross-examine his accusers when it permitted the jury to consider his non-testifying co-defendant's confession in determining appellant's guilt. We agree and therefore, grant appellant a new trial.
On July 2, 1975, two men robbed a Sheetz Kwik store at Lexington Avenue and Fourth Street in Altoona, Blair County. On July 15, 1975, a single man robbed a Sheetz Kwik store at Union Avenue and Fifth Street in Altoona. The next day, an Altoona police officer arrested one Byron Musselman and charged him with robbing*fn1 the two Sheetz Kwik stores. On July 18, 1975, an Altoona police officer filed a complaint against appellant accusing him of participating in the July 2, 1975 robbery. Three days later, the police charged appellant with conspiring*fn2 to commit the July 15 robbery. On August 20, 1975, appellant surrendered himself to Altoona authorities.
On November 3, 5, and 6, 1975, appellant and Musselman (hereinafter co-defendant) were tried before a jury. At trial, a clerk who worked at the Sheetz Kwik store at Lexington Avenue and Fourth Street testified that at 2:50 a. m., on July 2, 1975, two men wearing black nylon stockings
[ 253 Pa. Super. Page 135]
over their heads robbed the store. One man, about 6'3", was wearing a red shirt and blue jeans and had a gun. His accomplice, about 5'11", was wearing a yellow shirt and blue jeans and wielded a butcher's knife. The clerk could not identify either appellant or his co-defendant as participants in the crime.
A clerk who worked at the Sheetz Kwik store at Union Avenue and Fifth Street testified that a man wearing a blue shirt, blue jeans and a white painter's hat entered the store in the early morning hours of July 15, 1975. The man left; shortly thereafter he returned and robbed the store. The clerk testified that he had identified the co-defendant as the robber at a photographic array arranged by the Altoona police on July 16, 1975. At trial, he also unhesitatingly identified the co-defendant as the robber. A friend of the clerk testified that he saw the co-defendant enter the Sheetz Kwik store on July 15, 1975, and subsequently leave. The friend then departed. This witness identified the co-defendant at a July 17 photographic array and at trial. A police officer confirmed that the clerk and his friend had made pre-trial identifications of the co-defendant.
The prosecutor then read into evidence, over objection, a confession of the co-defendant obtained by the police on July 18, 1975. Whenever the confession referred to appellant by name, the prosecutor deleted appellant's name and substituted a blank. (hereinafter ). In his confession, the co-defendant asserted that had made the decision to commit the July 2 robbery. and he walked into the Sheetz Kwik store whereupon pulled a gun out of his pocket and handed the co-defendant a butcher knife. The two men put black nylon stockings over their heads and walked up to the counter. reassured the co-defendant that he knew what he was doing because he had previous criminal experience in different towns. then demanded that the clerk transfer the money in the cash register into a brown paper bag. At this juncture, the co-defendant declared that he was not going to do it and threw the butcher knife down on the counter.
[ 253 Pa. Super. Page 136]
grabbed the money and and the co-defendant ran out of the store, jumped into 's car and drove to the co-defendant's apartment. The co-defendant stated that was wearing a red shirt and carried a small gun.
The prosecutor then read into evidence that part of the co-defendant's confession which concerned the July 15 robbery. According to the co-defendant, drove him to the Sheetz Kwik store at Union Avenue and Fifth Street. handed the co-defendant a gun, the same gun that used to commit the earlier robbery, and instructed him to rob the store while waited in the car. The co-defendant walked into the store and robbed it; he then ran out of the store and started to run up Fifth Avenue. drove up and told him to get into 's car; the co-defendant complied and the two men escaped. The co-defendant stated that he was wearing a blue shirt, blue jeans and a white painter's cap. After the prosecutor finished reading the co-defendant's statement, the trial court instructed the jury that the Constitution entitles a person to confront the witnesses appearing against him and, accordingly, the identity of the other participant in the crimes had been deleted. The court stated: "The statement, therefore, can only be considered against the maker of the statement, [the co-defendant], and the facts therein can be considered by you and you will determine what the true and correct facts of the situation may be."
The prosecutor next read into evidence a statement that appellant made to the police on August 20, 1975. The prosecutor substituted whenever appellant mentioned his co-defendant's name. Appellant stated that on July 15, 1975, he drove over to the Sheetz Kwik store at Fifth Street and Union Avenue, but he did not know that intended to rob it. took appellant's pistol without appellant's knowledge or consent. went into the store. After ran out of the stroe with money in his hand and ran up Fifth Street, appellant picked him up and drove away. Appellant stated that wore a white painter's hat during the above events. When offered
[ 253 Pa. Super. Page 137]
appellant some of the proceeds of the robbery, appellant at first accepted the money. Later, appellant returned this money to . On the day that was arrested, appellant left for West Virginia. He returned to Pennsylvania and surrendered himself to the authorities when he became aware that the police had issued a warrant for his arrest. After the prosecutor finished reading appellant's statement, the court instructed the jury that the statement did not relate to the July 2, 1975 robbery and could not be considered in connection with that offense in any way. Insofar as the ...