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decided: January 24, 1979.


No. 55 January Term, 1977, Appeal from the judgment of sentence imposed by the Court of Common Pleas of Montour County on July 29, 1975 to No. 30 January Term, 1974.


John A. Mihalik, Hummel, James & Mihalik, Bloomsburg, for appellant.

Richard C. Brittain, Dist. Atty., William S. Kreisher, Asst. Dist. Atty., Danville, for appellee.

Eagen, C. J., and Roberts, Nix, Manderino and Larsen, JJ. O'Brien, J., did not participate in the decision of this case. Pomeroy, former J., did not participate in the consideration or decision of this case.

Author: Nix

[ 483 Pa. Page 347]


Appellant, Mark Henderson and two companions, Richard Bowen and Charles Lanning, were travelling on Interstate 80 and registered at a Holiday Inn for lodging for the night. In the cocktail lounge of the motor inn, appellant and his friends first encountered the victim, Thad Vincent, Jr. Later Vincent joined the three men in their room. Vincent is alleged to have made certain homosexual advances to Bowen which precipitated an altercation during which the victim sustained fatal injuries. Appellant was tried for his participation in the incident and was found guilty of murder of the second degree.*fn1 After the imposition of sentence this direct appeal followed.

During the course of the police investigation of this case, Charles Lanning was questioned on several occasions concerning the events of the night in question and his statements were tape recorded. He was called by the Commonwealth at the trial of the appellant as the principal prosecution witness. Most of appellant's objections relate to the trial court's rulings pertaining to these taped statements of Lanning. We are of the view that one of these objections has merit and requires the reversal of the judgment of sentence and the grant of a new trial.

At the conclusion of the direct testimony of Lanning and before the commencement of cross examination, defense counsel requested all prior statements made to police officials by this witness. In response the defense was given the tapes of Lanning's conversation and the court declared an early adjournment for the day to afford the defense an opportunity to study the material before beginning cross examination of the witness. When the trial resumed the

[ 483 Pa. Page 348]

    defense requested that a transcript be made of one of the tapes.*fn2 The court then made the following ruling:

Defense motion is denied and it should further be noted that the tapes themselves were made available to the defendant and his counsel to listen to the tapes and to make any extracts therefrom. It should further be noted that the Court also listened to the tapes and found the same to be inaudible in many areas. It is, therefore, the conclusion of the Court, under these circumstances that to attempt at this time to transcribe the tapes would be impractical, if not impossible. Therefore, the Court further concluded that the tapes themselves are the best evidence available to the defendant for these purposes. (emphasis added).

Cross examination proceeded and was concluded during which defense counsel used information secured from these tapes as the basis for questions. Subsequently defense counsel sought permission to play for the jury a segment of the tape which it asserted contained a critical inconsistency with the witness' testimony given during the trial. It is the trial court's failure to grant this request that we deem to be error of such magnitude that the award of a new trial is necessitated.

The testimony of Lanning was essential to support the Commonwealth's theory that the appellant's assault inflicted the wounds that caused the death of the victim. At trial, one of the vigorously contested facts was whether appellant struck the victim with a beer bottle. The tape recording indicated that the witness did not see appellant strike the victim with the bottle; at trial, Lanning testified that he did see the appellant use the bottle to strike Vincent. This conflict had a significant bearing upon Lanning's description as to the nature of Henderson's assault upon the victim. If the testimony of Lanning in this regard had been discounted and the defense version of appellant's participation in the

[ 483 Pa. Page 349]

    encounter accepted, then the jury could have found that appellant's acts did not cause the death. Although defense counsel attempted to establish the prior inconsistency on cross examination, the witness did not acknowledge the prior inconsistency.

"Q. Didn't you tell the police you didn't see a beer bottle hit Mr. Vincent?

A. Not that I remember, no."

The court had previously ruled that the tapes themselves were the best evidence; thus the request of counsel to have this segment played for the jury was in accordance with that ruling. It is also clear that counsel's questioning with reference to the inconsistency was dependent upon the establishment that there was, in fact, an inconsistency. Under the trial court's guidelines this could only be demonstrated to the jury by the playing of the tape to establish the contradiction. While it may be true that the tapes were of poor quality, nevertheless the court in its opinion indicated that the tape in question clearly established the inconsistency. We therefore do not believe that the fact portions may have been inaudible should have prevented appellant the opportunity of presenting to the jury that segment which unequivocally established the earlier conflicting statement.*fn4

We recognize the general principle that the admissibility of evidence is a matter within the discretion of the trial court. Commonwealth v. Bartlett, 446 Pa. 392, 288 A.2d 796 (1972). It is equally well accepted that where a witness has made a prior statement inconsistent with his trial testimony, the aggrieved party has a right to establish

[ 483 Pa. Page 350]

    the inconsistency for purposes of impeachment. Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967). A question to be resolved in this trial was whether the victim's death was the result of appellant's assault. At trial the Commonwealth relied principally upon the testimony of Lanning to place before the jury their version of the nature and the intensity of appellant's attack. The purported inconsistency would have contradicted a vital aspect of Lanning's testimony in this regard. The denial of the opportunity to effectively establish this inconsistency was a serious error which might well have affected the ultimate outcome of the trial.*fn5

Judgment of sentence reversed and a new trial awarded.

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