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decided: March 26, 1986.


Appeal from the Order of Superior Court of Pennsylvania, Docket No. 03088 Philadelphia 1982 which reversed and remanded for a new trial the Judgment of Sentence of October 26, 1982, in the Court of Common Pleas of Northumberland County, Criminal No. CR-80-327; Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., filed a concurring opinion. Flaherty, J., filed a dissenting opinion joined by Zappala, J.

Author: Larsen

[ 510 Pa. Page 125]


We granted the Commonwealth's petition for allowance of appeal to reconsider this Court's long-standing rule that prior inconsistent statements of a non-party witness at trial cannot be used as substantive evidence to prove the truth of the matters asserted therein but may only be used for the limited purpose of impeaching the credibility of the witness. We now discard this antiquated rule and hold that such statements may be used as substantive evidence where the declarant is a witness at trial and available for cross-examination.

On September 14, 1980, the body of George Hoffman was discovered at about 7:30 a.m. at the Wilson Manufacturing plant in Sunbury where he was employed as a security guard. Appellee, Anthony Edward Brady, was arrested later that day and charged with the stabbing death of George Hoffman. Appellee was sixteen years of age at the time of trial, but was tried as an adult before a jury in the Court of Common Pleas of Northumberland County.

Evidence introduced at trial disclosed the following events. In the early morning hours of September 14, 1980, appellee awakened his girlfriend, Tina Traxler, at her residence in Sunbury and persuaded her to take a ride with him. The two drove around for a while until, near an area outside of Sunbury known as the Shale Pit, appellee ran the car into a ditch alongside a dirt road.

Unable to extricate the car from the ditch, appellee and Ms. Traxler began to walk back to Sunbury and, along the way, walked by the Wilson Manufacturing plant. They climbed the fence surrounding the plant and entered it through a side door. Once inside, appellee was attempting to pry open a dollar-bill change machine when George Hoffman, the plant security guard, encountered him and Ms. Traxler. A scuffle ensued during which appellee stabbed the victim who fell to the floor. Appellee and Ms.

[ 510 Pa. Page 126]

Traxler then left the plant and returned to Sunbury to their friends' home.

The most damaging evidence against appellee was a tape-recorded statement given by Tina Traxler to the police on the evening of September 14, 1980. That statement set forth the events recounted above.*fn1 At trial, however, Tina Traxler, called as a witness for the Commonwealth, recanted the tape-recorded statement and testified that neither she nor appellee had entered the Wilson Manufacturing plant on September 14, 1980 after the car had broken down. Over objection, the Commonwealth was permitted to introduce the tape-recorded statement as substantive evidence, not merely to impeach Ms. Traxler's credibility.*fn2

The jury returned a verdict of guilty of second-degree murder, burglary and criminal mischief on June 4, 1981. Post-verdict motions were denied by the court, per the Honorable Samuel C. Ranck, and appellee was sentenced to a term of life imprisonment on the murder conviction and a concurrent term of imprisonment of six months to one year on the criminal mischief.*fn3 Appellee submitted forty-two issues for review on appeal to the Superior Court, which found it necessary to address only two. A panel of the Superior Court reversed appellee's judgments of sentence and remanded the case for a new trial. 338 Pa. Super. 137, 487 A.2d 891 (1985) (Opinion per McEwen, J., joined by Beck and Cercone, JJ.).

Constrained by decisions of this Court, the Superior Court applied the "law in Pennsylvania that prior inconsistent statements of a non-party witness are not admissible as

[ 510 Pa. Page 127]

    substantive evidence of the truth of the matter asserted therein," 338 Pa. Superior Ct. at 140, 487 A.2d at 892 (citations omitted), and held that the lower court erred in admitting Tina Traxler's tape-recorded statement as substantive evidence. That court further rejected the Commonwealth's argument that any error was harmless. The Superior Court also addressed appellee's argument that the trial court erred in allowing the Commonwealth to impeach its own witness and agreed with appellee that a prerequisite to allowing a party to cross-examine his own witness is a plea of "surprise" due to unexpected testimony of the witness. Since Tina Traxler had recanted her tape-recorded statement prior to trial (see note 2 supra), the Superior Court held that the trial court had erred because "her more recent version of the incident was not 'unexpected.' Thus, it was improper to plead surprise." Id., 338 Pa. Superior Ct. at 143-144, 487 A.2d at 894.

Until now, this Court has adhered to the "orthodox" rule limiting the use of such prior inconsistent statements of a non-party witness to impeachment.*fn4 Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976); Commonwealth v. Waller, 498 Pa. 33, 39 n. 2, 444 A.2d 653, 656 n. 2 (1982); Commonwealth v. Tucker, 452 Pa. 584, 307 A.2d 245 (1973). This rule has been widely discredited by most legal scholars and commentators that have considered its efficacy. See, e.g., McCormick, Evidence (2d Ed.) § 251; 3A Wigmore, Evidence § 1018 (Chadbourn rev. 1970); Graham, Employing Inconsistent Statements for Impeachment and as Substantive Evidence, 75 Mich.L.Rev. 1565 (1976-77); California v. Green, 399 U.S. 149, 154 n. 6, 90 S.Ct. 1930, 1933 n. 6, 26 L.Ed.2d 489 (1970) (and authorities cited therein). That rule has also been the recipient of recent heavy criticism by several members of this Court. See Commonwealth v. Gee, supra at 467 Pa. 136, n. 5, 354 A.2d 875

[ 510 Pa. Page 128]

(plurality opinion of Eagen, J., joined by O'Brien, J.) and at 467 Pa. 143-146, 354 A.2d 875 (dissenting opinion of Roberts, J., joined by Manderino, J.); Commonwealth v. Thirkield, 502 Pa. 542, 467 A.2d 323 (1983) (McDermott, J., dissenting opinion). Indeed, the criticism expressed by four Justices in Gee led the Superior Court to conclude that "we believe we should re-examine, and discard, the existing Pennsylvania rule" in favor of the "modern" rule allowing the use of prior inconsistent statements of a non-party witness as substantive evidence. Commonwealth v. Loar, 264 Pa. Super. 398, 399 A.2d 1110, 1117 (1979). However, Loar was subsequently disapproved by this Court in a footnote in Commonwealth v. Waller, supra wherein we declined to adopt the modern rule, stating: "Such has never been and is not now the law in this Commonwealth." 498 Pa. at 39 n. 2, 444 A.2d at 656 n. 2.

Upon further reflection and consideration of the shortcomings of the orthodox rule, as clearly illustrated by the circumstances of this case, we reject that rule and embrace the modern rule as the law of this Commonwealth. The traditional view is that a prior statement of a witness is hearsay if offered to prove the truth of the matters asserted therein. The orthodox rule deems hearsay generally, and prior inconsistent statements specifically, too unreliable to be admitted as substantive evidence because the declarant was (1) not under oath, (2) not subject to cross-examination at the time the statement was made, and (3) not in the presence of the trier of fact when the statement was made. McCormick, supra at § 251; Wigmore, supra at § 1018; Graham, supra at 1568. Each prong of this threefold rationale has been logically and thoroughly debunked by the scholars and by the growing number of jurisdictions adopting the modern rule governing prior inconsistent statements of non-party witnesses by statute, rule or case law.

The simple fact is that "the usual dangers of hearsay are largely nonexistent where the witness testifies at trial." California v. Green, supra at 399 U.S. 155, 90 S.Ct. at 1933. By hypothesis in these situations, the out-of-court

[ 510 Pa. Page 129]

    declarant is now a witness in-court where he or she is placed under oath, subject to cross-examination and under observation by the finder of fact. See Commonwealth v. Thirkield, supra at 502 Pa. 542, 467 A.2d 323 (McDermott, J. dissenting: "the fact that [the oath and cross-examination requirements] are supplied in the current trial defuses hearsay concerns and provides the fact-finder with ample opportunity to determine truth."). Indeed, the cross-examination to which a recanting witness is subjected will likely be meaningful and vigorous since the witness is already "on the spot" in having to explain the discrepancies between earlier statements and direct testimony, or deny that the earlier statements were made at all.

Earlier decisions expressed some concern that the cross-examination was not contemporaneous with the out-of-court declaration. See, e.g., State v. Saporen, 205 Minn. 358, 285 N.W. 898 (1939); McCormick, supra at § 251 n. 64. This concern is unfounded for, as the United States Supreme Court has observed, the "most successful cross-examination at the time the statement was made could hardly hope to accomplish more than has already been accomplished by the fact that the ...

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