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decided: May 4, 1979.


No. 601 April Term, 1977, Appeal from the Judgment of the Court of Common Pleas of Fayette County, Civil Action -- Law, at No. 672 June Term, 1972.


Joseph M. George, Uniontown, for appellant.

Thomas A. Waggoner, Uniontown, for appellee Taylor.

Ira B. Coldren, Jr., Uniontown, for appellee Domaracki.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files an opinion in support of affirmance. Spaeth, J., concurs in the result of this opinion. Van der Voort, J., files an opinion in support of reversal in which Cercone, President Judge, joins. Jacobs and Watkins, former President Judges and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 266 Pa. Super. Page 78]

The six judges who heard this appeal being equally divided, the order of the court below is affirmed.

[ 266 Pa. Super. Page 79]

PRICE, Judge, in support of affirmance.

This appeal arises from denial in the court below of appellant's motion for a new trial. For the reasons stated herein, the judgment of the court below should be affirmed.

Testimony was presented at trial which indicated that on November 16, 1971, at approximately 7:30 p. m., Douglas Brown was operating his vehicle in a southerly direction in the outside lane of U.S. Route 119, and was being passed by a vehicle being driven by appellee William Taylor. Brown observed two bicycles angling into the left-hand lane of the south-bound traffic. Brown testified at trial that the Taylor vehicle was proceeding at a speed in excess of 65 miles per hour, and that the auto did not try to stop until within several feet of the bicycles. The Taylor auto went into a side spin and the right side of the vehicle struck both bicycles. The deceased was thrown 85 feet south to the outside southbound lane. Brown stopped his car and ran toward Ms. Parnell's body. He testified that he heard her moan. Two automobiles were successfully stopped by Brown, but a third vehicle, operated by appellee Domaracki, pulled around the obstruction, and while straddling both lanes, ran over the upper chest and head of the decedent; the fifteen year old bicyclist died very soon thereafter. The jury returned a verdict against appellant in this trespass action, and the court en banc refused the motion for a new trial.

Appellant's first assignment of error relates to the court's refusal to permit her to offer into evidence two prior consonant statements of Brown to rehabilitate his credibility. He testified at trial that he was travelling at a speed of 60-65 miles per hour in a 55 mile per hour zone, when he was overtaken by Taylor's automobile. On cross-examination,

[ 266 Pa. Super. Page 80]

    he admitted that he had told a state policeman who investigated the accident that his speed was 50 miles per hour. Brown explained the inconsistency, saying that he did not wish to get a speeding ticket. Appellant's counsel was not permitted to introduce two allegedly prior consonant statements. Although it was not specified at trial, appellant's brief indicates that these statements were made at a coroner's inquest and at a deposition.

It is axiomatic that statements made prior to trial are not normally admissible at the instance of the party calling the witness, and would ordinarily be excluded as hearsay. Lyke v. Lehigh Valley Railroad Co., 236 Pa. 38, 84 A. 595 (1912); Commonwealth v. Bartell, 184 Pa. Super. 528, 136 A.2d 166 (1957). However,

"[a] prior statement consistent with the testimony of a witness at a trial may be introduced, in the exercise of the sound discretion of the trial judge, in order to support the credibility of a witness whose testimony has been attacked as a recent fabrication. Craig v. Craig, 5 Rawle 91, 97; Lyke v. Lehigh Valley Railroad Co., supra, 236 Pa. 38, 48, 84 A. 595; Commonwealth v. Robinson, 148 Pa. Super. 61, 69, 24 A.2d 694; Commonwealth v. Goetz, 129 Pa. Super. 22, 29, 195 A. 144." Commonwealth v. Bartell, supra, 184 Pa. Super. at 542, 136 A.2d at 174. See also Commonwealth v. Ravenell, 448 Pa. 162, 292 A.2d 365 (1972); Commonwealth v. Carr, 436 Pa. 124, 259 A.2d 165 (1969).

The Bartell court also recognized that when a witness admits having made the prior impeaching statement, the prior consonant statement is not admissible. Such a situation, exactly paralleling the one in the instant case, was presented in Commonwealth v. White, 340 Pa. 139, 16 A.2d 407 (1940). In that case, the defendant and two companions signed confessions stating that they had participated in a murder and robbery, the subject of the appeal. All three testified at White's trial that they had signed the confessions to cover up for what they considered a more serious murder and robbery, for which two of the three had been convicted prior to White's trial. Appellant White's counsel

[ 266 Pa. Super. Page 81]

    proposed to call a member of the bar to testify that all three had told him that, contrary to the written confessions, none of them had participated in the murder and robbery being tried. The testimony was rejected. The court quoted with approval from the opinion of the court below:

"'The exception of the hearsay rule which permits evidence of such consonant statements to be received under some circumstances rests altogether upon the theory that they support the credit of a witness who has denied that he ever made the inconsistent statement of which proof has been offered. Before such consonant statements can be admissible at all there must be an issue as to whether the witness has in fact made an inconsistent statement or not. Where as in the case of this defendant and his witnesses, the self-contradiction is conceded it remains as a damaging fact, and is in no sense explained away by the consistent statement. The witness must have been false at one time or the other and it is no restoration of his credit to show that at still other times he has made statements in accordance with his present testimony. No matter how many times the consistent story may have been told, the inconsistent one is not erased. An inquiry to ascertain which of the two different statements has been made most frequently by the witness would furnish no means by which the credit due his testimony could be satisfactorily determined.' See Stewart v. People, 23 Mich. 63, 9 Am.Rep. 78; Wigmore on Evidence (3rd Ed.), section 1126." Commonwealth v. White, supra, 340 Pa. at 144, 16 A.2d at 409.

Based upon this articulation of the Pennsylvania standard for admission of prior statements, which we are not inclined to modify, we find that the court below did not err in this case in refusing to permit the prior statements into evidence when the witness had admitted and, according to common experience, reasonably explained his inconsistent statement made to state police.

Appellant's next assertion with which we will deal is that the court below erred in refusing to withdraw a juror when

[ 266 Pa. Super. Page 82]

    appellee Taylor's counsel argued that the decedent could be found contributorily negligent as a matter of law. The ...

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