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COMMONWEALTH PENNSYLVANIA v. ANTHONY EDWARD BRADY (01/18/85)

filed: January 18, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY EDWARD BRADY, APPELLANT



NO. 3088 Philadelphia, 1982, Appeal from the Judgment of Sentence of October 26, 1982, in the Court of Common Pleas of Northumberland County, Criminal, No. CR-80-327.

COUNSEL

Christopher J. Foust, Milton, for appellant.

Anthony J. Rosini, Assistant District Attorney, Sunbury, for Commonwealth, appellee.

McEwen, Beck and Cercone, JJ.

Author: Mcewen

[ 338 Pa. Super. Page 139]

This appeal is from the judgment of sentence imposed upon appellant after he was found guilty by a jury of second degree murder, burglary and criminal mischief, and sentenced to: (1) life imprisonment on the charge of second degree murder; (2) a consecutive term of imprisonment of from five years to ten years on the charge of burglary; and (3) a concurrent term of imprisonment of from six months to one year on the charge of criminal mischief.*fn1 Although appellant submits forty-two issues for our review, we discuss but one claim as it proves to be dispositive: whether the Commonwealth may introduce, as substantive evidence, a prior inconsistent statement uttered by a non-party witness. We are constrained to reverse and remand for a new trial.

After the car in which they were driving was stranded along a desolate road, appellant and a female companion, Tina Traxler, decided to travel the remainder of the distance to their homes on foot. Enroute, they encountered the Wilson Manufacturing Plant and scaled the fence which surrounded it. Once inside the building, the pair separated: Traxler stood in a hallway while appellant entered the company's lunchroom to pry open a dollar change machine. When a night watchman confronted Traxler and grabbed her by the arm, appellant returned from the lunchroom, began to grapple with the guard and, eventually, stabbed him to death.

The next day, Traxler appeared on her own initiative at the police station and volunteered a statement to the police which implicated appellant in the crimes. However, prior to

[ 338 Pa. Super. Page 140]

    trial, she substantially recanted this initial account of the incident. Appellant was, nonetheless, found guilty by a jury of second degree murder, burglary and criminal mischief. After his motions for a new trial and in arrest of judgment were denied, he undertook this appeal.

Appellant contends that the trial court erred when it permitted the Commonwealth to introduce as substantive evidence Traxler's prior inconsistent statement implicating appellant in the homicide. We agree. "It has long been the law in Pennsylvania that prior inconsistent statements of a non-party witness are not admissible as substantive evidence of the truth of the matters asserted therein." Commonwealth v. McGuire, 302 Pa. Super. 226, 234, 448 A.2d 609, 613 (1982). See also Commonwealth v. Waller, 498 Pa. 33, 39 n. 2, 444 A.2d 653, 656 n. 2 (1982); Commonwealth v. Brown, 302 Pa. Super. 391, 448 A.2d 1097 (1983).*fn2 During the instant trial, after the Commonwealth had impeached Traxler with her prior inconsistent statement, the court permitted the prosecutor to play a tape to the jury which consisted of the entire initial police interview in which Traxler implicated appellant in the crime. It cannot be doubted that the jury erroneously utilized the prior inconsistent statement as substantive evidence of appellant's guilt since (1) the statement was educed from the only person who specifically identified appellant as the killer, see Commonwealth v. Floyd, 327 Pa. Super. 569, 476 A.2d 414 (1984), and (2) the trial court did not instruct the jury that this evidence could only be utilized to impeach her testimony. See Commonwealth v. French, 501 Pa. 134, 460 A.2d 725 (1983); Commonwealth v. Floyd, supra.

Our inquiry, therefore, must focus on whether the introduction of this statement as ...


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