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COMMONWEALTH PENNSYLVANIA v. JOANNE CAROL BILLIG (03/09/79)

decided: March 9, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
JOANNE CAROL BILLIG, APPELLANT



No. 282 October Term, 1978, Criminal Action - Appeal from Judgment of Sentence of the Court of Common Pleas, Montgomery County, entered October 6, 1977 at No. 4560-76 through 4560.2-76

COUNSEL

Richard M. Meltzer, Philadelphia, for appellant.

Lois Sherman Hagarty, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Cercone, Spaeth and Lipez JJ. Cercone, President Judge, concurs in the result.

Author: Lipez

[ 264 Pa. Super. Page 201]

Defendant was convicted in a trial by jury of Theft of Movable Property, Theft by Deception, Criminal Conspiracy and Receiving Stolen Property. Post verdict motions were denied and she was sentenced to a term of imprisonment of not less than four months nor more than five years, a fine and costs and directed to make restitution. In her appeal to this court she alleges numerous errors. However, in view of the disposition we make, we consider only one.

The evidence may be summarized as follows:

On Sunday morning, October 17, 1976, defendant reported to the Haverford Township Police that her credit cards, including one issued by Bonwit Teller Department Store, had been stolen from the glove compartment of her car the previous night. On October 18, defendant and another woman made purchases at Bonwit Teller. A credit card issued to the defendant was used for each purchase. On Tuesday, October 19, the defendant called Bonwit Teller and reported that her credit card had been stolen on October 16.

[ 264 Pa. Super. Page 202]

That same day, the store management discovered the sales charged to that card on the 18th and notified the police. After investigation by the police the defendant was arrested on the foregoing charges. At the trial 5 Bonwit Teller saleswomen identified the defendant as having been in the store on the 18th, four of whom testified they had transacted credit sales with her on that date.

Defense counsel cross-examined two of the Commonwealth witnesses, Sandra Cohen and Jennie Levin, as to a photo array one week after the events. They testified that they were unable to identify the defendant's photo, which was included in the array. No such questions were asked of the other three witnesses. The Commonwealth then called Detective Metz who had conducted the array a week after the occurrence, and over defense objection was permitted to testify that Sandra Cohen and Jennie Levin did not identify the defendant, but that the other three witnesses did.*fn1 We think this was reversible error.

[ 264 Pa. Super. Page 203]

Ordinarily a witness' prior statement is not admissible to corroborate or substantiate present testimony. However, as an exception to the hearsay rule it is admissible as a prior consonant statement if it is alleged the present testimony is recently fabricated or that the witness is testifying from corrupt motives. Com. v. Ravenell, 448 Pa. 162, 169, 292 A.2d 365 (1972). It is admissible not as to the truth of the stated facts, but solely to bolster credibility. Com v. Martin, 124 Pa. Super. 293, 188 A. 407 (1936). The prior consonant rule is not only applicable to statements, but to identification testimony as well. Com. v. Westwood, 324 Pa. 289, 306, 188 A. 304, 311 (1936). The testimony of the detective as to the acts of identification by the witnesses at the photo array is, we think, "on a parity . . . with any purely verbal ...


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