Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 82-06-1197, 1198.
Daniel P. Alva, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wickersham, Beck and Cercone, JJ.
[ 344 Pa. Super. Page 421]
A single, narrow issue is presented in this appeal which follows Damon Jones' conviction of murder in the first degree.*fn1 The case was heard in a bench trial before the Honorable Joseph T. Murphy commencing January 27, 1983.
Appellant Jones, in his brief, sets forth the facts as follows:
[ 344 Pa. Super. Page 422]
Appellant, Damon Jones, was arrested on January 3, 1982, and charged with murder in the first degree and possession of the instrument of a crime. At a preliminary hearing on June 3, 1982, appellant was held for court on all charges . . . .
On January 27, 1983, the appellant was brought to trial before the Honorable Joseph T. Murphy sitting without a jury. The court delivered its verdict on January 31, 1983, and found the appellant guilty of . . . murder in the first degree and possession of an instrument of crime.
The appellant filed timely post-trial motions on February 1, 1983, challenging, inter alia, the trial court's ruling that John Williams was unavailable to the Commonwealth as a witness and that that portion of the notes from appellant's preliminary hearing containing his testimony were, therefore, admissible as substantive evidence against appellant at his trial. On April 19, 1984, the court denied appellant's post-trial motions. The appellant was sentenced as follows: Bill No. 1197, charging murder in the first degree, life imprisonment; Bill No. 1198, possession of an instrument of a crime, eleven and one-half to twenty-three months consecutive to Bill No. 1197.
The appellant filed a timely notice of appeal on April 19, 1984 . . . .
The evidence relevant to the appellant's current contentions consists of the following: Helen Vaughan testified that on December 23, 1981, she was asleep in the apartment of her boyfriend, the deceased, Darrell "Chubby" Williams. She was awakened by gunshots at which time she ran downstairs and saw a male dressed in a blue hat, beige jacket, and jeans, run from the kitchen and out of the apartment. Ms. Vaughan further testified that later on that same day she observed the appellant on the steps to the apartment.
She observed that appellant was wearing a blue hat and beige jacket, but different pants. Nonetheless, Helen Vaughan testified that based upon her observations of appellant's clothing, he was the male who earlier that day
[ 344 Pa. Super. Page 423]
she had seen run from the kitchen and out of the apartment.
Prior to the luncheon recess, Roger King, the assigned assistant district attorney, informed the court that the Commonwealth's chief witness, John Williams, . . . might refuse to testify and that counsel for the witness might, therefore, be needed . . . .
Upon reconvening, the Commonwealth called John Williams to the witness stand. Mr. King immediately began to attempt to impeach Mr. Williams through the use of a statement allegedly given by him to Detectives Dougherty and Gibson and the notes of testimony from the preliminary hearing of June 3, 1982.
Subsequent to the Commonwealth's examination of its witness, but prior to Mr. Williams' actual recantation at trial, it sought and was granted the admission of the notes of testimony of the June 3rd hearing as substantive evidence against the appellant. The relevant portions of the notes were read into the record by Ms. Anita Brooks, a clerk in the office of the Clerk of Quarter Sesssions [sic].
Brief for Appellant at 1-4 (footnotes omitted).
Appellant frames the issue as follows:
Did not the trial court err by ruling that at the time of appellant's trial, the main Commonwealth witness, John Williams, was unavailable and, therefore, that testimony given by him at appellant's preliminary hearing was admissible as substantive evidence?
Brief for Appellant at 1.
At trial, the Commonwealth was permitted to introduce, through the testimony of Anita Brooks, the preliminary hearing notes wherein John Williams testified. The preliminary hearing was held June 3, 1982 before the Honorable
[ 344 Pa. Super. Page 424]
Mitchell S. Lipschutz and appellant was represented by counsel. William's testimony, under oath, included the following:
Q. How long have you known Damon Jones?
A. For about a year, a year and a half.
Q. And, on that date that Chubby was shot, did you have occasion to see Damon Jones?
Q. And did you have any conversation with Damon Jones?
Q. Can you tell His Honor what the conversation you had with Damon Jones was?
A. I was walking through the building --
Q. All right. You were walking through the building, and what happened?
A. Somebody came down and tapped me on my shoulder and told me Damon wanted me.
Q. And did you go see Damon wherever he was?
A. On the 11th floor of the building.
Q. Was he in an apartment?
Q. And did you go to that apartment?
Q. What happened when you got there?
A. He told me [he] had shot Chubby.
Q. And did he tell you why he had ...