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.
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
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 ...