No. 38 E.D. Misc. Docket 1978, Petition for Review from the Order of the Court of Common Pleas of Lycoming County, at Criminal Action No. 77-11,086.
George E. Lepley, Jr., Asst. Public Defender, pro se.
William S. Kieser, Dist. Atty., Kenneth D. Brown, Asst. Dist. Atty., Williamsport, Robert F. Banks, Asst. Dist. Atty., Mercer, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., filed a dissenting opinion.
This case presents the question whether the trial court's order directing petitioner, George E. Lepley, Jr., Esquire, to make available to the Commonwealth the tape he made of his client's preliminary hearing deprives his client of his Sixth Amendment right to counsel and Fifth Amendment privilege against self-incrimination. We hold that it does not and deny petitioner's request for Writ of Prohibition.
Petitioner, an assistant public defender of Lycoming County, was appointed counsel for Robert C. Walker who is charged with conspiring with John Alonzo Basey to commit arson. On November 2, 1977, Basey, who earlier had pled guilty to similar charges, testified at Walker's preliminary hearing as the Commonwealth's chief witness. Petitioner, to prepare Robert Walker's case, used his own tape recorder to make a recording of the preliminary hearing, including the testimony of Basey.*fn1 On December 22, 1977, Basey received a sentence of imprisonment inconsistent with his plea agreement with the Commonwealth.*fn2 This inconsistency prompted Basey, when interviewed by an assistant district attorney before Walker's trial set for January, 1978, to declare that, although subpoenaed, he would assert his Fifth Amendment privilege against self-incrimination at Walker's trial. Basey's attorney reaffirmed several times subsequently that he felt Basey would incriminate himself if he testified and thus would claim his Fifth Amendment privilege.
On January 27, 1978, the Commonwealth, asserting that Basey was legally unavailable to testify at Walker's trial, petitioned the Court of Common Pleas of Lycoming County to order petitioner to "turn over the tape recording of the preliminary hearing to the Commonwealth or the Court, or, in the alternative, to turn such tape over to the Court for an in camera review of such so the Court may fairly decide the issue as to production of such tape recording pursuant to Commonwealth's subpoena." On January 30, 1978, the court ordered petitioner to turn the tape over to the court for in
camera review, but set no date for compliance. Thereafter, the court issued the following order:
"AND NOW, February 24, 1978, on motion of the Commonwealth's petition for order directing that the defense attorney deliver to the attorney for the Commonwealth a tape recording of the preliminary hearing testimony of John Basey and it appearing to the Court that John Basey will be 'unavailable' as a witness at trial in this case and that the tape recording in question is the only record (other than the recollection of spectators) of the preliminary hearing testimony, the Court concludes that the tape recording is in the nature of real evidence relevant to the issue of innocence or guilt and that the Commonwealth has a right of access to the same for possible use at trial. Accordingly, it is ORDERED and DIRECTED that the tape recording or a complete and accurate copy thereof be forthwith delivered by the defendant to the attorney for the Commonwealth."
That same day, petitioner countered with a petition for review in this Court, to which the Commonwealth, as an interested party, filed an answer. On February 28, 1978, petitioner filed in the Court of Common Pleas an Application for Dismissal of Order or in the Alternative Stay of Enforcement of Order. On March 13, 1978, the court issued an order staying all proceedings below pending this Court's resolution of petitioner's petition for review. On April 5, 1978, this Court granted the petition for review, set a date for oral argument on the request for writ of prohibition and stayed proceedings in the matter.*fn3
It is well established that prior testimony from a preliminary hearing of an unavailable witness is admissible at trial, provided the person against whom the testimony is offered had counsel and a full opportunity to cross-examine the witness during the earlier proceeding. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); accord, Commonwealth v. Clarkson, 438 Pa. 523, 265 A.2d 802 (1970).*fn4 Walker had a complete and adequate opportunity at the preliminary hearing to cross-examine Basey, whose testimony was on issues not substantially different from those which will arise at trial. Therefore, assuming the tape of the former testimony is properly authenticated and proven accurate and reliable, see Commonwealth v. Johnson, 450 Pa. 575, 301 A.2d 632 (1973); Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464 (1955), and that the trial court properly concludes Basey is indeed "unavailable," no violation of Walker's constitutional right of confrontation will be involved. See Commonwealth v. DiPietro, Mass., 367 N.E.2d 811 (1977); Shifflett v. Commonwealth, 218 Va. 25, 235 S.E.2d 316 (1977). The remaining issue is thus whether Walker, through petitioner, his attorney, can be compelled to produce the tape of the preliminary hearing for the Commonwealth to use in its case in chief at Walker's trial.
Any procedural system must conform to requirements of fundamental fairness and due process. The prevalence of changes in federal and state rules of criminal procedure, however, ...