Appeal from the Judgment of Sentence May 14, 1985 in the Court of Common Pleas of Philadelphia County, Criminal No. 8207-1781-1782.
Daniel M. Preminger, Philadelphia, for appellant.
Frances G. Gerson, Assistant District Attorney, Philadelphia, for Com., appellee.
McEwen, Del Sole and Kelly, JJ.
[ 364 Pa. Super. Page 449]
This is an appeal from the judgment of sentence imposing a two and one half year term of imprisonment for convictions for voluntary manslaughter and possession of an instrument of crime.
Mr. Hook was first convicted of these crimes at a jury trial in November, 1982. He was granted a new trial, however, based on ineffectiveness of trial counsel. This appeal comes to us from his second conviction after a jury trial in November, 1984. Just before the second trial was to begin the prosecution's chief witness, Lydia Trapp, informed the court that she could no longer remember having witnessed the events she testified about at the Appellant's first trial. The trial judge found her to be "unavailable" due to memory loss and permitted her testimony from the first trial to be read to the jury. Appellant claims this was error.
The Pennsylvania statute which governs the admissibility of former testimony is 42 Pa.C.S.A. § 5917, which provides that the former testimony of a person who has died, or who cannot be produced for trial or who is legally incompetent, may be admitted at a subsequent trial. The basis for the admission for prior testimony in this case was not this statute, since this statute is intended to govern only those situations where the witness is physically absent or incompetent to testify. Rather the trial court relied on the common law exception to the hearsay rule as set forth in Commonwealth v. Graves, 484 Pa. 29, 398 A.2d 644 (1979), which allows the admission of prior testimony when a witness becomes unavailable due to memory loss.
[ 364 Pa. Super. Page 450]
In Graves, a Commonwealth witness who had testified against Graves at his first trial, stated at the second trial that he could no longer remember the incidents surrounding the crime. The witness was permitted to read the transcript of the first trial to refresh his recollection; he then testified before the jury but he only remembered part of what he had testified to at the first trial. The trial court in Graves then permitted the witness's testimony from the first trial to be read to the jury. On appeal, the Supreme Court ruled that this type of memory loss rendered a witness unavailable for purposes of the common law exception. The Court in Graves noted it was extending the holding of Rothrock v. Gallaher, 91 Pa. 108 (1879), which held that a witness who had lost his memory completely due to old age or sickness was unavailable. The witness in Graves suffered from partial memory loss: he had forgotten much what happened on the night of the crime.
In a case following Graves, Commonwealth v. Von Smith, 303 Pa. Super. 534, 450 A.2d 55 (1982), the Commonwealth witnesses stated at the second trial that they could remember none of the events they testified to at the first trial. The trial judge ruled that they were unavailable and therefore their testimony at Von Smith's first trial was admissable. Our Court affirmed the trial court, noting that total lack of recall presents a more compelling instance to find unavailability than partial lack of recall, as was the factual situation in Graves. Von Smith, 303 Pa. Super. at 540, 450 A.2d at 58.
In Commonwealth v. Sherman, 339 Pa. Super. 138, 488 A.2d 348 (1985) the former testimony was given at a preliminary hearing, where the victim made a positive identification of the Appellant as the man who shot him. Apparently, between the time of the preliminary hearing and the time of trial, the victim received several threats against his life. At trial, he recalled that the Appellant was present when he was shot, but he testified that he had ...