Appeal from the February 13, 1985 Order of the Superior Court of Pennsylvania, Docketed at No. 1691, Philadelphia 1982, Affirming the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section Imposed on Informations Nos. 3638 - 3643, June Sessions, 1981, Nos. 1813 through 1817, July Sessions, 1981, and No. 230, August Session, 1981. 341 Pa. Superior Ct. 612, 491 A.2d 916 (1985).
Daniel-Paul Alva, for appellant.
Gaele McLaughlin Barthold Deputy Dist. Atty., Ronald Eisenberg, Chief/Appeals Div., for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., concurs in the result.
Appellant, Stafford Chestnut, appeals by allowance Superior Court's per curiam affirmance of several judgments of sentence by the Philadelphia Court of Common Pleas, 341 Pa. Super. 612, 491 A.2d 916. Appellant was tried before a jury, jointly with Harold Floyd, and convicted of charges of criminal conspiracy, possessing an instrument of crime (generally) and robbery arising out of an incident which occurred on April 27, 1981, at a Burger King restaurant in Philadelphia and of charges of criminal conspiracy, aggravated assault, possessing an instrument of crime (generally) and robbery arising out of an incident which occurred on May 1, 1981, at a McDonald's restaurant in Philadelphia. Post-trial motions were denied and appellant was sentenced to various consecutive and concurrent terms of imprisonment for these crimes totaling thirty-five to seventy years.
Under the circumstances of this case, the use of an unavailable witness's prior testimony against appellant's co-defendant Floyd, which testimony a jury could reasonably infer implicated appellant despite redaction, was harmless error. We have considered all of the other issues which appellant raises and have found no error. The order of Superior Court is affirmed.
At trial, the Commonwealth produced evidence that appellant, Floyd and Rita Hatten entered the Burger King restaurant on the evening of April 27, 1981. Hatten asked for an employment application. Appellant acted as lookout at the door while Floyd remained near the food service counter. When the manager came to the counter a second time to talk with Hatten, she put a gun against his ribs and threatened to shoot him. Hatten and the manager went into the office, where the manager gave Hatten several hundred dollars. The three then left the restaurant and drove away. Several eyewitnesses, employees at the restaurant, consistently identified appellant from photographs, at a line-up and in court.
The robbery at the McDonald's restaurant, on the afternoon of May 1, 1981, happened similarly. Hatten asked the manager for an employment application, which she began to complete. Appellant and Floyd were also present. Hatten approached the manager and threatened him with a gun. In the ensuing struggle, Hatten was shot in the leg. Floyd then shot and seriously wounded the manager. The manager positively identified appellant's co-defendant Floyd at a line-up and at trial and stated at trial that appellant "appear[ed] to be a gentleman that was in my store on that day." N.T. November 13, 1981, at 1499. There were no other eyewitness identifications of the participants in the McDonald's robbery.
Hatten was taken into custody at McDonald's and hospitalized. She later made a statement to the police about the two robberies and agreed to testify against Floyd and appellant. At appellant's preliminary hearings for both robberies, Hatten did testify and implicated appellant as one of the participants. She also testified at Floyd's preliminary hearing on the McDonald's robbery, implicating him. She was killed before she was able to testify at Floyd's preliminary hearing on the Burger King robbery. Hatten's testimony at the three preliminary hearings named both appellant and Floyd. She was cross-examined each time by the attorney for the defendant who was the object of the hearing, but not by counsel for the other defendant.
Appellant raises several questions for our consideration. We will first examine his argument that the trial court erred in admitting Hatten's statements from his preliminary hearings. Appellant recognizes that, as this Court has stated, "[O]ur common law permits the admission of an unavailable witness' [sic] prior recorded testimony from a preliminary hearing, provided the defendant had counsel and a full opportunity to cross-examine the witness during ...