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filed: March 1, 1988.


Appeals from the Order dated January 16, 1987 in the Court of Common Pleas of Delaware County, Criminal Division, at Nos. 1584 & 2369 - 1983.


Dennis C. McAndrews, Assistant District Attorney, Wayne, for Com., appellant (at 318PHL87) and appellee (at 777PHL87).

John G. McDougall, Philadelphia, for appellant (at 777PHL87) and appellee (at 318PHL87).

McEwen, Olszewski and Hoffman, JJ.

Author: Hoffman

[ 373 Pa. Super. Page 91]

These are cross-appeals from the order below that (1) granted appellee and cross-appellant Terrence McCracken a

[ 373 Pa. Super. Page 92]

    new trial, and (2) directed that McCracken's counsel "shall be available as a witness at the new trial . . . and shall not represent [McCracken] at the new trial." Appellant, the Commonwealth, contends that the court erred in granting McCracken a new trial because the evidence upon which the court's order was based (1) was inadmissible hearsay, and (2) did not fulfill the legal standards governing after-discovered evidence. Cross-appellant McCracken contends that the court erred in ordering trial counsel not to represent him at the new trial. For the reasons that follow, we find that the evidence introduced at the after-discovered evidence hearing (1) was admissible under the declaration against penal interest exception to the hearsay proscription, but (2) did not warrant the granting of a new trial under the standard governing after-discovered evidence. Accordingly, we reverse the court's order granting McCracken a new trial, reinstate the jury verdict, and remand the case for sentencing. Because we reverse the order granting a new trial, we need not address cross-appellant's contention regarding the propriety of the court's order directing present counsel not to represent McCracken at his new trial.

On October 25, 1983, following a jury trial, appellee Terrence McCracken was found guilty of murder in the second degree, two counts of robbery, and one count of criminal conspiracy. Appellee filed post-verdict motions in four stages: Motion for New Trial and/or Arrest of Judgment, Motion for New Trial based on After-Discovered Evidence, Amendment to Motion for New Trial and/or Arrest of Judgment, and Supplemental Post Verdict Motion for New Trial Based on After-Discovered Evidence. The trial court heard extensive testimony on the post-verdict motions on numerous occasions between April 6, 1984 and September 25, 1986. On January 16, 1987, the court granted appellee a new trial based on after-discovered evidence, and denied appellee's other post-verdict motions. This Commonwealth appeal followed.

In an Opinion dated March 13, 1987, the trial court made clear that the sole basis for its granting a new trial was the

[ 373 Pa. Super. Page 93]

    testimony of appellee's counsel, John G. McDougall. Trial Court Opinion at 10-11. McDougall testified that, after appellee's trial, appellee's alleged co-conspirators, William Verdekal and John Robert Turcotte, had made statements to McDougall that both implicated themselves in the robbery and murder and exonerated McCracken. The court concluded that (1) the statements that Verdekal and Turcotte made to McDougall were declarations against penal interest, and were thus admissible as exceptions to the hearsay rule; and (2) McDougall's testimony met all of the requirements governing after-discovered evidence. See id. at 10-12. The Commonwealth challenges each of these conclusions, contending that (1) the statements made to McDougall did not fall within the declaration against penal interest exception to the hearsay rule; and (2) even if the testimony were admissible, it is legally insufficient to meet the established test governing after-discovered evidence. We shall consider these contentions seriatim.


We note, preliminarily, that "[i]t is universally agreed that hearsay may not be received unless the declarant is unavailable as a witness." Commonwealth v. Pompey, 248 Pa. Superior Ct. 410, 414, 375 A.2d 163, 165 (1977). Cf. Commonwealth v. Brinkley, 505 Pa. 442, 453, 480 A.2d 980, 986 (1984); Commonwealth v. Colon, 461 Pa. 577, 583, 337 A.2d 554, 557 (1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976). Here, the Commonwealth concedes that John Robert Turcotte was unavailable, as he stated his intention to refuse to testify pursuant to his fifth amendment privilege against self-incrimination. The parties agree, however, that William Verdekal was available to testify, and, in fact, did testify during post-trial proceedings. Brief for Appellant at 19; Brief for Appellee at 8. Accordingly, McDougall's testimony regarding statements made by Verdekal is inadmissible, and we must limit our review to a consideration of the statements that Turcotte

[ 373 Pa. Super. Page 94]

    made to McDougall.*fn1

In Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983), our Supreme Court restated the law governing the admissibility of statements that are alleged to be declarations against penal interest:

In Commonwealth v. Colon, 461 Pa. 577, 337 A.2d 554 (1975), this Court recognized the "declaration against penal interest" exception to the hearsay rule, but noted that "it is not the statement that must be against interest, but the fact stated." 461 Pa. at 583-84, 337 A.2d 554, quoting Wigmore, 5 Wigmore, Evidence ยง 1462, at 337. Accordingly, we held that "the fact stated in that portion of Hernandez's [Colon's accomplice] confession which exculpated any possible accomplices was not against interest and hence that portion was inadmissible." 461 Pa. at 584, 337 A.2d 554. Furthermore, that portion of Hernandez's statement which did state facts against penal interest (i.e., that Hernandez committed the crime) was deemed inadmissible because it was irrelevant to the case. Id., 461 Pa. at 585, 337 A.2d 554. In Colon, the prosecution had proceeded on an accomplice theory, i.e., that both Hernandez and Colon had acted in concert to commit the burglary/homicide, "[t]hus Hernandez's statement admitting his role in the crime was not inconsistent with the Commonwealth's theory of the ...

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