Appeal from the Judgment of Sentence June 2, 1983 in the Court of Common Pleas of Mercer County, Criminal No. 57 Criminal 1982. No. 799 Pittsburgh 1983
David J. Graban, Sharon, for appellant.
Charles S. Hersh, Assistant District Attorney, Hermitage, for Commonwealth, appellee.
Rowley, Olszewski and Popovich, JJ. Rowley, J., files a dissenting statement.
[ 343 Pa. Super. Page 48]
Appellant challenges his conviction for murder of the second degree, robbery and criminal conspiracy. For the reasons below, we reverse his conviction and remand for a new trial.
Appellant was one of six individuals charged with murder, robbery and conspiracy following the armed robbery of the owner and patrons of Porreca's Restaurant & Bar. The other men were Henry ("Henny Penny") Bruce, who pleaded guilty to second degree murder, robbery and conspiracy; Eugene Grannison, convicted by a jury of the same; Albert Phillips, who pleaded guilty to third degree murder, robbery and conspiracy; Albert Boatwright, who pleaded guilty to third degree murder; and Anthony Wells, acquitted by a jury of all charges.
On January 9, 1982, at approximately 9:30 p.m., three young men entered Porreca's Restaurant; Wells held a shotgun, Bruce a revolver, and Boatwright acted as bagman. Phillips and Grannison remained outside in the getaway vehicle. In the course of the robbery, one man was beaten and another killed.
Appellant was not among the five robbers that night. He did, however, supply at least one of their weapons. Commonwealth proceeded on the theory that Wells, Boatwright, Phillips, Grannison, and Bruce, had agreed at the Colony Bar to rob a place to get some money. Wells called appellant and explained he needed a "piece" to get some money. The five men drove to appellant's house. Wells entered and returned with a loaded .32 caliber revolver and, possibly, a shotgun. The men continued to Porreca's Restaurant.
[ 343 Pa. Super. Page 49]
When Wells split the proceeds of the robbery, he set aside a share for appellant.
Informants implicated appellant in the Porreca murder/robbery. Pursuant to that information, the police devised a scheme by which appellant was lured from the house and appellant's mother was induced to search for the gun. When confronted with the gun, appellant confessed that he had supplied the weapon to Wells. He denied further involvement with the crime.
Charged with murder, robbery, and conspiracy, appellant filed a timely pre-trial motion to suppress, inter alia, use of the gun and his own statement. The suppression court denied that motion. The court also rejected a motion in limine to exclude from appellant's trial statements of Tony Wells, who had been acquitted of all charges.
Bruce and Boatwright testified at appellant's trial. Wells did not appear; his statements were, however, introduced against appellant. A jury returned a verdict of guilty on all counts.
Appellant first argues that the Commonwealth violated his Sixth Amendment rights by introducing against him the out-of-court statements of Tony Wells. The statements offered under the co-conspirators exceptions were: (1) Wells' assertion, before he led the others to appellant's house, that he knew where to get some guns and (2) his declaration, while dividing the money from the robbery, that he was holding a share for appellant. Appellant argues that Wells' prior acquittal on all charges bars admission of these statements under the co-conspirator's exception. Then, assuming arguendo, the propriety of their admission under that standard, he contends that use of Wells's statements, where Wells did not appear in court and the Commonwealth had failed to establish Wells's unavailability, violated his (appellant's) rights under the Confrontation Clause of the Sixth Amendment.
It is well-settled that statements of a conspirator made during the course of a conspiracy, in furtherance of
[ 343 Pa. Super. Page 50]
that conspiracy, are admissible against a co-conspirator if independent evidence establishes the existence of a conspiracy and the membership of the defendant and declarant therein. Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111 (1981). The courts employ a fiction that the conspirators, acting in concert, act as one; the statements of one conspirator so become the admissions of another. Wells' acquittal of all charges does not bar admission of his statements under the co-conspirator's exception. See, e.g., United States v. Cravero, 545 F.2d 406 (5th Cir. 1976). Acquittal on a charge of criminal conspiracy means simply that Commonwealth has failed to prove beyond a reasonable doubt all elements of the offense. 18 Pa.C.S. Sec. 903. A lesser showing of proof is required when Commonwealth seeks to introduce evidence under the co-conspirator's exception. Commonwealth need only establish the conspiracy by a fair preponderance of the evidence independent of the challenged testimony. Commonwealth v. Hirsch, 225 Pa. Super. 494, 311 A.2d 679 (1973).
Wells' statements made to his cohorts concerned the procurement of weapons for and the divisions of proceeds from the illicit venture. The statements themselves could fairly give rise to an inference of conspiracy. It would follow that the statements were made in the course of, and in furtherance of the conspiracy. They were not, however, made in appellant's presence. A question remains as to whether the Commonwealth did establish by independent evidence appellant's membership in the conspiracy.
At trial, the five patrons present during the robbery testified. None knew appellant; none could place him at Porreca's that night. A sixth witness, James Pruitt, testified that sometime before the robbery, he had seen Wells, Grannison, Bruce, Phillips and Boatwright sitting talking in the Colony Restaurant, another neighborhood bar. The only conversation Pruitt heard was Wells talking about women. Albert C. Lowe took the stand and corroborated Pruitt's testimony.
[ 343 Pa. Super. Page 51]
Frank T. White, a Sharon policeman, stated that following the burglary, he had confronted appellant with a .32 caliber pistol. Appellant responded with a statement. When faced with that statement and the fact that the gun had been recovered, Boatwright admitted his involvement in the Porreca robbery/slaying. White's partner, Edward Tomko introduced a map purporting to show that Wells, Grannison, Boatwright, Bruce and Phillips all lived in the same general vicinity. On cross-examination, Tomko explained how he had used appellant's statement to confront Boatwright. That testimony reflected what Tomko told Boatwright appellant had said, not what appellant had actually said. Tomko, working from appellant's statement, stated that Tony Wells had come to appellant's house that night to borrow a gun. Wells had told appellant that he wanted some money. When the five arrived at appellant's home, appellant said that he went outside and saw Boatwright in the car. He did not talk to him. Albert C. Lowe took the stand and corroborated Pruitt's testimony.
Although there may be sufficient evidence to permit a reasonable inference of appellant's complicity in the enterprise, admission of the hearsay statements constitutes serious and therefore reversible error because it deprived appellant of his Sixth Amendment right to confrontation. The Commonwealth failed either to produce Tony Wells at trial or to adduce reasons for his unavailability. Because the independent evidence upon which the Commonwealth relied for introduction of the out-of-court statements was so tenuous, it was highly important that any out-of-court statements be unequivocal and that the declarant be subject to searching cross-examination. See Commonwealth v. Graves, 316 Pa. Super. 484, 463 A.2d 467 (1983) (distinguishing accomplice and co-conspirator).
In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), the Supreme Court recognized that the confrontation clause and the hearsay rule "stem from the same roots," but stated that "the Court has never equated the two, and we decline to do so . . . ." Id. at 86, 91 S.Ct. at
[ 343 Pa. Super. Page 52218]
. The confrontation clause issue and the evidentiary question therefore must be separately analyzed, and the sixth amendment may require exclusion of the evidence even though admissible under the co-conspirator's exception. See United States v. Gibbs, 739 F.2d 838, 852 (3rd Cir. 1984) (Rosenn, J., dissenting).
In Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-2539, 65 L.Ed.2d 597 (1980), the Supreme Court identified two restrictions that the confrontation clause places on the use of hearsay evidence in criminal trials. First, the prosecution generally must establish that the hearsay evidence is necessary because the declarant is unavailable. Second, the hearsay statement must be reliable. "Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that 'there is no material departure from the reason of the general rule.'" Id. at 64, 100 S.Ct. at 2538 (quoting Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934)). In the instant case, the necessity aspect of this test has not been met. Wells did not testify; Commonwealth failed to establish his "unavailability." Therefore, there is no need to reach the question whether the reliability prong has been satisfied.
Although the literal language of the sixth amendment guarantees to any accused "the right . . . to be confronted with the witnesses against him," the Supreme Court has recognized that the need to use extra-judicial statements may arise because of the declarant's unavailability. Appellant maintains that Wells was not legally unavailable to testify and that therefore there was not need to for introduction of his out-of-court statements. The Commonwealth contends that a showing of unavailability is not required. Further, it argues that appellant had a chance to subpoena Wells but chose not to do so.
The Supreme Court discussed the unavailability component of the confrontation clause in ...