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decided: April 23, 1982.


No. 452 January Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Nos. 635, 636, October Term, 1977.


James J. DeMarco, Philadelphia (Court-appointed), for appellant.

Robert B. Lawler, Chief, Appeals Div., Sarah Vandenbraak, Philadelphia, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Nix, J., concurred in the result. Kauffman and Wilkinson, JJ., did not participate in the decision of this case.

Author: O'brien

[ 498 Pa. Page 7]


This is a direct appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia. Appellant, Kevin Cargo, was convicted in a non-jury trial of murder of the first degree*fn1 and possession of an instrument of crime,*fn2 and sentenced to life imprisonment and a consecutive sentence of two and one-half to five years. We affirm.

[ 498 Pa. Page 8]

The evidence presented by the Commonwealth established the following.*fn3 At approximately four a. m. on May 8, 1977, appellant was sitting in a taxicab he had stolen the previous evening, waiting for the victim, Gerald Kramer, appellant's former employer, outside Kramer's store at 17th Street and Belfield Avenue in Philadelphia. When Kramer left his store, appellant shot him twice from inside the cab with a twelve-gauge sawed-off shotgun, causing Kramer's death. Appellant left Philadelphia the next day, spending the next several months in North Carolina, Georgia and Virginia. He returned to Philadelphia on September 9, 1977, and was arrested in his mother's home on outstanding warrants for Kramer's murder and the earlier robbery of Kramer's store, as well as for a second, unrelated murder,*fn4 on September 10, 1977. Appellant gave statements to the police confessing to both murders at that time.

Trial counsel filed a timely post-verdict motion, seeking arrest of judgment and a new trial, in which he asserted that the verdict was against the weight of the evidence, that appellant's confession was fabricated by the police and his signature thereon obtained by coercion, and that a prior statement made to the police by a Commonwealth witness was impermissibly read into the record by the detective who recorded the statement. The motion was denied. New counsel entered his appearance at the post-verdict stage and was granted leave to file post-verdict motions nunc pro tunc. No written post-verdict motion was subsequently filed. New counsel did, however, submit a brief, styled as a "Brief

[ 498 Pa. Page 9]

    in Support of Defendant's Post Trial Motions," to the trial judge. This brief was not included in the record certified to this Court.*fn5 The record shows that new counsel requested that the post-verdict court incorporate his brief into the record in lieu of oral argument.*fn6 The post-verdict court did not address this request; it did indicate that it had read the brief, and denied the relief requested therein. N.T. June 13, 1978 at 2-3. Appellant was sentenced on September 15, 1978. This direct appeal followed.*fn7

[ 498 Pa. Page 10]

Appellant argues first that it was prejudicial error for the trial court to admit as substantive evidence the prior written statement of a Commonwealth witness who, at trial, denied any present recollection of the events about which he was asked to testify. The statement established that the witness had seen appellant in a yellow cab on the evening preceding Kramer's murder. Appellant contends that the Commonwealth failed to lay a proper foundation for the admission of that statement. We are convinced that the trial court properly admitted the statement under the past recollection recorded exception to the hearsay rule in light of the foundation laid by the Commonwealth.

The witness, Santos Thornton, a sixteen year old boy, testified initially that he did not remember hearing of Kramer's murder or being interviewed by a police detective on the morning following the murder.*fn8 The Commonwealth pleaded surprise, but later withdrew that plea, attempting instead to lay a foundation for the admission of Thornton's prior statement as past recollection recorded. This Court set forth the requisite elements of such a foundation in Commonwealth v. Cooley, 484 Pa. 14, 21-22, 398 A.2d 637, 641 (1979):

"Before the content of a writing becomes admissible under that exception, the proponent must lay a foundation to show that four requirements are met: '1) the witness must have had firsthand knowledge of the event; 2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it; 3) the witness must lack a present recollection of the event, and 4) the witness must vouch for the accuracy of the written memorandum.' McCormick, Evidence § 299 at p. 712 (2d Ed. 1972). See Miller v. Exeter Borough, 366 Pa. 336, 342, 77 A.2d 395, 399 (1951); Christian Moerlein Brewing Co. v. Rusch, 272 Pa. 181, 187, 116 A. 145, 147 (1922)."

[ 498 Pa. Page 11]

Commonwealth v. Shaw, 494 Pa. 364, 431 A.2d 897 (1981). See Commonwealth v. Canales, 454 Pa. 422, 426, 311 A.2d 572, 574 (1973); Commonwealth v. Butts, 204 Pa. Super. 302, 309-310, 204 A.2d 481, 485-486 (1964) (allocatur denied); 1 Henry, Pa. Evidence § 460.5 (Supp. 1978); McCormick, Evidence §§ 300-303 (2d ed. Cleary 1972); 2 Wharton, Crim. Evidence § 417 (13th ed. Torcia 1972 & Supp. 1981); 3 Wigmore, Evidence §§ 736, 744-748 (Chadbourn rev. 1970 & Supp. 1981); Fed.R.Evid. 803(5), 28 U.S.C.A.; Model Code of Evidence, rule 504 (1942); Uniform Rule of Evidence 803(5).

The trial court explained its basis for admitting Thornton's statement in its opinion:

"Defendant next asserts as error the admission of a signed statement of Santos Thornton which Mr. Thornton gave to Detective Robert Kane on May 9, 1977. Detective Kane read one question and answer from the statement after Mr. Thornton indicated that he had no independent recollection of the incident in question, and the District Attorney's attempt to refresh his recollection had failed. Since Mr. Thornton indicated he was on the steps at the time of his observation (N.T. 3.9), recalled giving a statement to a police officer (N.T. 3.14), told the police officer the truth (N.T. 3.15), and identified his signature on each page of the statement (N.T. 3.12), this Court admitted Mr. Thornton's statement under the past recollection recorded exception to the hearsay rule. Although trial counsel asserted that defendant [ sic ; should read 'Mr. Thornton'] on cross-examination and occasionally on direct denied any personal knowledge of the facts in the statement, the above cited portions of his testimony indicate that he testified both ways on at least some of the questions by which the Commonwealth laid its foundation, and it is, of course, up to the fact finder to believe some, all, or none of a witness's testimony. Commonwealth v. Lopez, 455 Pa. 353 [318 A.2d 334] (1974)."

Commonwealth v. Cargo, supra, 498 Pa. 5, 9 n. 7 at 4.

It is clear from the record that the first and second requirements of Cooley, supra, that the witness have "firsthand

[ 498 Pa. Page 12]

    knowledge of the event," and that the "written statement [be] made at or near the time of the event and while the witness had a clear and accurate memory of it," have been satisfied. The fourth requirement, that "the witness must vouch for the accuracy of the written memorandum," has been met in spite of Thornton's conflicting testimony. Thornton identified his signature on the statement, stated that he told the police the truth, and recalled making and signing the statement. We are satisfied that the trial court properly resolved any inconsistencies and believed only that portion of the witness' testimony which tended to show that he adopted the statement. Commonwealth v. Duncan, 473 Pa. 62, 68, 373 A.2d 1051, 1053-1054 (1977).

Cooley's third requirement, that "the witness must lack a present recollection of the event," becomes problematic in the instant circumstances. In Commonwealth v. Shaw, supra, this Court stated:

". . . By lack of present recollection, we mean that the witness must lack 'sufficient present recollection to enable [him] to testify fully and accurately.' McCormick, Law of Evidence § 302 (2d ed. 1972) (emphasis added). With respect to this requirement, we do not regard Miller's contrary affirmations as dispositive. In fact, Miller's acknowledgments that his memory had been refreshed were belied by his behavior on the witness stand -- by his repeated inability to remember relevant facts and by his constant references to the existence of his confession as a substitute for substantive responses. Furthermore, the fact that Miller's lack of recall may have been the product of a 'selective memory' -- a conscious desire to withhold certain information -- is not a bar to the establishment of this requirement. See United States v. Williams, 571 F.2d 344 (6th Cir.), cert. denied, 439 U.S. 841, 99 S.Ct. 131, 58 L.Ed.2d 139 (1978). We therefore conclude that the record also establishes that Miller lacked sufficient present recollection to enable him to testify fully and accurately and thus, that his written confession was admissible as past recollection recorded."

[ 498 Pa. Page 13]

The Commonwealth followed the procedure outlined above in the instant matter. The witness testified initially that he had no present recollection of the event, a contention he repeated at least three times during his testimony.*fn10 Whether or not this lack of present memory was genuine, it was obvious that the witness would not testify from present memory. Further inquiry into the ability of the witness to

[ 498 Pa. Page 15]

    recall the event in question would have been time-consuming and probably unproductive. Moreover, appellant's counsel cross-examined Thornton concerning his lack of present recollection.

A trial court's rulings on evidentiary questions, moreover, "are controlled by the discretion of the trial court and this Court will reverse only for clear abuse of that discretion." Commonwealth v. Scott, 469 Pa. 258, 270, 365 A.2d 140, 146 (1976). It is clearly within the discretion of the trial court to determine whether the requirements of Cooley have been satisfied. Further, such a determination can only be made on a case by case basis. See Advisory Committee Note to Federal Rule of Evidence 803(5), cited supra at n.8.*fn11 The federal Court of Appeals for the Sixth Circuit discussed the use of discretion in the application of the federal rule*fn12 governing the past recollection recorded exception in a case in which the trial court found that a witness was exercising a "selective memory":

"The touchstone for admission of evidence as an exception to the hearsay rule has been the existence of circumstances which attest to its trustworthiness . . . . Courts and commentators have long recognized the 'recorded past recollection' exception which is the subject of rule 803(5). The Advisory Committee's Note to Exception (5) makes it clear that the method of establishing the initial knowledge of the declarant and the accuracy of the material sought to be introduced must be determined from the circumstances

[ 498 Pa. Page 16]

    of each case. 28 U.S.C. (1970) App.Supp. V at pp. 2351-52. We find no abuse of discretion in the determination of the District Judge that the statement signed by Gary Ball should be read to the jury. It contained the indicia of trustworthiness required by Rule 803(5) and was never categorically disowned or contradicted by the witness."

United States v. Williams, 571 F.2d 344, 350 (6th Cir.), cert. denied, 439 U.S. 841, 99 S.Ct. 131, 58 L.Ed.2d 139 (1978). We are similarly convinced that the trial court in the instant appeal did not commit an abuse of discretion in admitting Thornton's statement as substantive evidence.

Appellant's remaining claims have not been preserved for appellate review, and must thus be considered waived. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). As we indicated above, appellant's post-verdict counsel did not file written post-verdict motions as required by Pa.R.Crim.P. 1123(a). Instead he submitted a brief in which he raised claims of error, including claims not previously addressed by trial counsel. This brief was not included in the record but was read by the trial court.*fn13 Such a brief is not a permissible substitute for specific written post-verdict motions. Commonwealth v. Blair, supra, 460 Pa. at 33 n. 1, 331 A.2d at 214 n.1.

Counsel's brief, however, was submitted before this Court's decision in Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979). In Gravely, the plurality opinion of former Chief Justice Eagen stated:

"The Commonwealth argues the issues now advanced by Gravely are not properly preserved for appellate review since they were not included in written post-verdict motions. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). A brief raising the issues was presented to the post-verdict motion court, and the court considered the issues. Since a majority of this Court has heretofore considered such a brief, along with consideration of the issues raised therein by the trial court, sufficient to preserve

[ 498 Pa. Page 17]

    issues for review under Commonwealth v. Blair, supra, on the basis of substantial compliance with Pa.R.Crim.P. 1123(a), we must reject the Commonwealth's argument. Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978); Commonwealth v. Hitson, 482 Pa. 404, 393 A.2d 1169 (1978); Commonwealth v. Jones, 478 Pa. 172, 386 A.2d 495 (1978); Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978); Commonwealth v. Perillo, 474 Pa. 63, 376 A.2d 635 (1977); Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977).

"But, this Court's experience with Commonwealth v. Grace, supra, and its progeny has not been very satisfying. Counsel have more often than not failed to include the briefs in the record and, indeed, have often failed to even mention a brief was presented or filed in the trial court in the oral arguments and briefs before this Court. This unsatisfactory situation is perhaps best typified by Commonwealth v. Slaughter, supra wherein we had to grant reargument because counsel had failed to adequately advise us of the existence of a brief. Accordingly, in order to conclude this unsatisfactory situation, we now rule that sixty days after the filing of this opinion, only those issues included in post-verdict motions will be considered preserved for appellate review."

Commonwealth v. Gravely, Id. 486 Pa. at 198-199, 404 A.2d at 1297-1298. Thus, under the view of the Gravely plurality, the issues raised in counsel's brief would be preserved for review.

These issues, however, bear little or no resemblance to those raised on this appeal. His second and fourth claims raised instantly appear to concern the same instances of alleged prosecutorial misconduct. These claims are stated in the brief submitted by appellant to this Court as follows:

"2. Is it permissible for the court to hear information of prior crimes against the decedent by the defendant which would be incompetent evidence for trial purposes? (negatived by the court below)

". . .

[ 498 Pa. Page 18]

"4. Is it prosecutorial misconduct to consciously inform the court of unsubstantiated prejudicial information which would be otherwise inadmissible [ sic ]? (negatived by the court below)"

Appellant's Brief at 2. Both claims are raised for the first time in this brief, never having been raised at the post-verdict stage. They are therefore waived. Commonwealth v. Blair, supra; Commonwealth v. Bronaugh, 459 Pa. 634, 331 A.2d 171 (1975). See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) ("basic and fundamental error doctrine" abrogated). The assignment of error actually made was correctly described and disposed of in the trial court opinion:

"The evidence of prior crimes alleged to have been erroneously admitted by this Court consists of testimony that defendant made threats to witness Tony Thompson (N.T. 2.82); may have discharged a shotgun in front of the deceased's home at 9719 Glenhope Street (N.T. 2.74); participated in the burglary of the deceased's store (N.T. 2.84) in which a shotgun may have been taken; may have been a gang member (N.T. 2.114); and that defendant stole during the course of his employment by the deceased, and sold drugs at that time as well (N.T. 2.113). While the law in Pennsylvania is clear that evidence of other crimes is admissible only in limited circumstances, Commonwealth v. Peterson, 453 Pa. 187 [307 A.2d 264] (1973), a review of the above mentioned testimony reveals that to call much of it evidence imbues it with a dignity it clearly does not have. Furthermore, much of the allegedly offensive testimony was not objected to, and at least one segment of it, when timely objected to, was stricken. Finally, and most importantly, the case was tried by this Court sitting without a jury. It is well established that in a case so tried, the Court, in the exercise of its sound discretion, may admit evidence conditioned upon a subsequent showing of relevance. In this case the testimony was not deemed relevant and was not considered by this Court in rendering its verdict. So viewed, the admission of the offending testimony, if error at all, was clearly

[ 498 Pa. Page 19]

    harmless. Commonwealth v. Pearson, 427 Pa. 45 [233 A.2d 552] (1967)."*fn14

Commonwealth v. Cargo, supra, 498 Pa. 5, 9 n. 7, at 2-3. Rather than reasserting the evidentiary claim on appeal, appellant appears to employ the trial court's reasoning above as a point of departure in raising the prosecutorial misconduct claims. Appellant's Brief at 9. The evidentiary claim, therefore, has been deliberately abandoned.

Appellant's third claim raises, also for the first time, the ineffective assistance of trial counsel:

"3. Is defendant deprived of effective assistance of counsel who consciously elicited damaging testimony from Commonwealth witnesses and fails to take basic measures to prevent the court from considering the most damaging evidence which would otherwise be inadmissible. (negatived by the court below)"

Appellant's Brief at 2. As we explained above, appellant was represented by new counsel at the post-verdict stage. In Commonwealth v. Seachrist, 478 Pa. 621, 624, 387 A.2d 661, 663 (1978), this Court set forth the procedure such new counsel must follow to preserve an ineffective assistance claim in such circumstances:

"Issues not raised in post-verdict motions will not be considered on appeal. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). An exception to this exists, however, when ineffective assistance of prior counsel is raised. The rule then is that ineffectiveness of prior counsel must be raised at the earliest stage in the proceedings at which counsel whose ineffectiveness is being challenged no longer represents the appellant. Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978); Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). Accordingly, where, as

[ 498 Pa. Page 20]

    here, new post-verdict counsel fails to raise prior trial counsel's ineffectiveness as a ground for post-verdict relief, the issue of trial counsel's ineffectiveness is not properly preserved for appellate review. Commonwealth v. Smallwood, 465 Pa. 392, 350 A.2d 822 (1976); Commonwealth v. Dancer, supra." (footnote omitted)

Thus appellant's new counsel was required to raise the ineffective assistance issue by post-verdict motion. It does not appear that counsel raised this issue in either the brief he submitted to the trial court or his Statement of Matters Complained Of. We refer again to the trial court opinion:

"Appellate counsel next asserts that the court erred in admitting certain opinion evidence which was elicited by defendant's trial counsel during cross-examination. Since the evidence offered was not objected to at trial, it seems unlikely that this Court erred in admitting it."

Commonwealth v. Cargo, supra, 498 Pa. 5, 9 at n. 7, at 3 (emphasis supplied). Both the Statement of Matters Complained Of and Brief in Support of Defendant's Post Trial Motions argue the inadmissibility of allegedly prejudicial character evidence rather than ineffective assistance of trial counsel.*fn15

[ 498 Pa. Page 21]

Appellant's ineffective assistance claim has thus not been preserved for our review and is therefore waived.

Judgment of sentence is affirmed.

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