No. 56 E.D. Appeal Dkt. 1983, Appeal from the Order of the Decision of the Superior Court Nos. 1420, 1421 and 1422 October Term, 1979, which decision affirmed the Judgment of Sentence of the Court of Common Pleas of Chester County, Criminal Division, Nos. 117-78, 663-78 and 663-78(a), 302 Pa. Super. 620, 448 A.2d 1190 (1982)
Albert M. Sardella, West Chester, for appellant.
James R. Freeman, Dist. Atty., for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.
This is an appeal from the Order of the Superior Court, 302 Pa. Super. 620, 448 A.2d 1190, affirming the judgment of sentence of the Court of Common Pleas of Chester County, Criminal Division. After examination of appellant's claim we reverse.
Appellant, Thomas Smoyer, after trial by jury was convicted of aggravated assault,*fn1 homicide by vehicle,*fn2 and involuntary manslaughter.*fn3 The charges stem from an incident which occurred in the early morning hours of September 18, 1977, when appellant's automobile allegedly collided with the automobile driven by Laura Smoyer, appellant's wife. Laura Smoyer died as a result of the incident. The vehicle driven by Mrs. Smoyer also contained two passengers, Jeremy Smoyer, the son of appellant, and Dennis Lucas, a friend of the deceased. The admissibility of the testimony of Mr. Lucas concerning the collision is at issue in this appeal.
At appellant's trial Mr. Lucas was called to testify on behalf of the Commonwealth. Before the trial Lucas had undergone hypnosis in order to enhance his recall of the details of the accident. Prior to hypnosis he was able to recall being involved in a high speed chase with appellant during which appellant's car struck the victim's car on at least two occasions. Additionally, he remembered the victim, upon seeing appellant, say "he's going to kill me." All this information was given to the police a little more than a week after the incident. As a result of the hypnotic session, which was conducted approximately three months after the accident, Mr. Lucas recalled being struck by appellant's car a third time. This third jolt sent the victim's car into a telephone pole, resulting in her death. The
hypnotic session was conducted by a detective for the Chester County District Attorney's Office. The detective had taken several courses in the processes of hypnosis.
As a result of the hypnotic session defense counsel sought to suppress all the testimony of Mr. Lucas. The trial judge denied the motion, and ruled that the use of hypnotism did not render a witness incompetent, but was a factor to be used by the jury in assessing the credibility of the witness. This decision was affirmed by the court en banc.
On appeal, the Superior Court affirmed in part and reversed in part. Relying on our decision in Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981), which was filed subsequent to appellant's trial, they held that "that portion of the testimony which was hypnotically refreshed . . . was inadmissible." (Memorandum Opinion at 8.) They also held that the portion of the testimony that was elicited without benefit of hypnosis was properly admitted. See Commonwealth v. Taylor, 294 Pa. Super. 171, 439 A.2d 805 (1982). Lastly they held that any error in admitting the ...