No. 506 January Term, 1979, Appeal from an Order of the Superior Court at Nos. 201 and 202 Special Transfer Docket entered on September 14, 1979, reversing the Judgment of the Court of Common Pleas of Luzerne County at Nos. 1338, 1338-C, 1338-D, 2207, 2208,2209 and 2210 of 1976
Joseph P. Giovannini, Jr., Asst. Dist. Atty., for appellant.
Michael D. Foglia, Norma Chase, Pittsburgh, for appellee.
O'Brien, C. J., and Roberts, Larsen, Flaherty, McDermott and Hutchinson, JJ. Roberts, J., filed a concurring opinion in which O'Brien, C. J., joined. Flaherty, J., filed a dissenting opinion. Nix, J., did not participate in the consideration or decision of this case.
At approximately 2:30 a. m. on February 14, 1976, appellee James Vincent Sandutch, James Vincent Mastrota and Henry Mangum drove to the home of Luzerne County Deputy Sheriff Eugene Boyarski, where appellee and Mastrota threw a firebomb -- a half-gallon milk bottle filled with gasoline -- through a window, setting the house ablaze and killing Deputy and Mrs. Boyarski and their three children.
As a result of this incident, on November 5, 1976 appellee was convicted by a jury of five counts of murder of the second degree, one count of arson and one count of criminal conspiracy. Post-verdict motions were denied and appellee was sentenced to two consecutive and three concurrent terms of life imprisonment for murder, and a consecutive term of imprisonment of seven and one-half to fifteen years for arson; appellee's sentence on the conspiracy conviction was suspended.
A three-judge panel of the Superior Court reversed appellee's judgment of sentence and remanded the case for a new trial.*fn1 Commonwealth v. Sandutch, 269 Pa. Super. 481, 410
A.2d 358 (1979). We granted the Commonwealth's petition for allowance of appeal.
The Commonwealth's contention on this appeal is that the trial court was correct in excluding from evidence both a tape recording allegedly made by James Vincent Mastrota and verified pretrial applications filed by Mastrota in his own case, and that the three-judge panel erred in concluding to the contrary. We agree.
The facts leading up to these disputed evidentiary rulings are as follows. On May 18, 1976, Mastrota testified at appellee's preliminary hearing and implicated both himself and appellee in a premeditated plan to firebomb the home of Deputy Boyarski. When Mastrota refused to testify at appellee's trial on the grounds that any such testimony would incriminate him, the Commonwealth was ...