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decided: July 9, 1987.


Appeal from the Judgment of the Superior Court of Pennsylvania dated March 16, 1984, affirming the judgment of sentence of the Court of Common Pleas of Lebanon County, Criminal Division, No. 147 of 1981. Pa. Super. , Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., files a concurring opinion which Hutchinson and Zappala, JJ., join. Flaherty, J., files a concurring opinion.

Author: Larsen

[ 515 Pa. Page 357]


This is an appeal from an order of the Superior Court*fn1 which affirmed a judgment of sentence for burglary. The appellant, Victor Bracero, was tried before a jury in the Court of Common Pleas of Lebanon County, Pennsylvania, and convicted of the burglary of a dwelling house on South Tenth Street in the City of Lebanon. The appellant contends that the trial court erred in excluding certain exculpatory evidence offered by him during his trial.

On February 14, 1981, the home of Mr. and Mrs. Steinrock at 225 South Tenth Street, Lebanon, Pennsylvania was burglarized. On February 17, 1981, the appellant was arrested and charged with committing that crime. Subsequently, the appellant came to trial on the burglary charge.

At the beginning of the trial, appellant's counsel met in chambers with the trial judge and the prosecuting attorney. Appellant's counsel made an offer of testimony that proposed to place before the jury evidence tending to exculpate the appellant by implicating another individual as the burglar. The relevant exchange between and among defense counsel, the prosecutor and the court is quoted and set out in the opinion of the Superior Court as follows:

MR. MESICS [counsel for appellant]: Harry Tobias, who lives at 89 Lebanon Village, will be called as a witness for Victor Bracero and he will testify as follows: That he knows a fellow by the name of Frankie Rodriquez who is also known in the community with an alias of "Spunk"; that he spoke with this fellow "Spunk" on Friday, the 20th of February, 1981. Harry was over at the Down Town Lounge socializing, and he saw "Spunk" there. "Spunk" was talking about going to Florida.

[ 515 Pa. Page 358]

"Spunk" told Harry that he would give him a hundred dollars for the ride, so he took "Spunk" with him.

During this trip between Lebanon and Miami, Harry observed that "Spunk" had a lot of money with him. He saw a lot of money in his wallet, and he dropped "Spunk" off in Miami. While they were going down there, "Spunk" told Harry Tobias that he did a robbery on Tenth Street.

They left for Florida on Saturday, the 21st of February, at 4:00 in the afternoon. They got there on Sunday, the 22nd of February, at 8:00 at night, and they drove down in Harry Tobias' Alpha Romeo Grand Prix automobile. "Spunk" told Harry that while he was committing this burglary, that the lady screamed and then he left the house. The house was several stories in heighth and it was on Tenth Street in Lebanon, and that "Spunk" -- he will testify that "Spunk" looks exactly like Victor Bracero.

MR. FEEMAN [assistant district attorney]: I object to that. It's not admissible. Number one, it's irrelevant. Number two, it doesn't exclude the Defendant. Number three, it is all hearsay.

MR. MESICS: Okay. I would like to also state this on the record, that I also have another witness, a Maria Ramos*fn* who went to Detective Heverling on the 5th of March of 1981 and reported essentially the same thing to Detective Heverling; that she had also talked to this fellow "Spunk" and that "Spunk" had talked to her about how he wasn't gonna take the rap, and that he had silver that was stolen and he was taking it over to Louie's Action Center. So, there's some basis for my offer other than something that Harry Tobias comes in here and tells me.

[ 515 Pa. Page 359]

THE COURT: I don't know how you can overcome the hearsay.

MR. MESICS: Well, the only basis for my asking that his testimony be admitted was because it was on South Tenth Street in the city of Lebanon and the other facts support what I know about the case from the preliminary hearing and from the details, what happened -- you know, how the Defendant or whoever it is that committed this left the premises; it was when the lady woke up and saw him or parts of his body, screamed and then the person left; and that it was a house with more that one story. So, that's the basis for my offer, your Honor.

THE COURT: I don't think that's enough there. The offer is rejected.

(N.T., 6-23-81, at 3-6). At a later time in the proceedings, counsel for appellant again attempted to have the testimony of Harry Tobias admitted.

MR. MESICS: Now, your Honor, I would again like to make my offer for the testimony of Harry Tobias; and there was something that I neglected to mention today, this morning when I made that offer. There was another item I think which is important in making his offer and hoping that you will admit his testimony, was that he also mentioned -- this fellow "Spunk" also mentioned to Harry Tobias that it was a barber shop that was ...

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