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filed: January 11, 1989.


Appeal from the Judgments of Sentence of the Common Pleas Court, Criminal Division, of Philadelphia County at Docket Nos. 0056, 0059, 0061, 0065, 0068, 0070, 0071 and 29, 32, 38, 41, 44, and 47 of July Term 1986.


Daniel M. Preminger, Philadelphia, for appellant (at 3284).

Robert M. Waller, Philadelphia, for appellant (at 3347).

Laurie Magid, Assistant District Attorney, Philadelphia, for Com., appellee.

Wieand, McEwen and Melinson, JJ.

Author: Melinson

[ 381 Pa. Super. Page 183]

These are appeals from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County in which Appellants, Dong Tren (hereinafter "Tren") and Hien Van Doa (hereinafter "Doa"), were sentenced to imprisonment as a result of their convictions on five counts of robbery, one count of conspiracy, and one count of possession of a weapon. We affirm.

At approximately 6:30 P.M. on 26 March 1986, several Vietnamese males entered a grocery store at 1354 Wagner Avenue, Philadelphia, Pennsylvania. The store was also a residence for a Vietnamese family. The males ordered Phoung Huynh, Anh Nguyen and Phouc Huynh, at gunpoint, to go upstairs to the kitchen in the residence. Chahn Huynh, who had been in the basement when he heard suspicious noises in the store, walked upstairs to investigate and was forced by the robbers to join the other members of the family in the kitchen. Thu Huynh, who had been asleep on the third floor, went downstairs, observed that her grandmother was lying on the first floor and saw the other members of her family in the kitchen. For fifteen (15) minutes, the males terrorized the family members at gun point, robbed them of their money, jewelry, car keys, food stamps, and checks. The robbers bound the hands and feet

[ 381 Pa. Super. Page 184]

    of the family members with telephone cord and strips of clothing. The family, apparently fearing revenge from the robbers, waited until the following day to report the incident to the police. Further, when the incident was reported, the family notified the police that only their automobile was missing.

On 28 March 1986, Boston police received a tip from their operations division that two shotguns had been found by a maid in Room 120 of a Suisse Chalet motel in Boston, Massachusetts. Boston police observed Tren, Doa, and four other Vietnamese, including one female, entering Room 120 of the motel. A 1980 Buick Skylark with Pennsylvania tags, owned by the Huynhs, was seen in the adjacent parking lot. Boston detectives entered the room and searched the occupants. The detectives seized, among other things, the following items stolen from the Huynh family: a gold bracelet with a gold bell charm, a set of car keys, an automobile registration, a driver's license, food stamps, and bank checks. The last name on the driver's license was "Huynh." From Doa, another detective took a Seiko digital watch. The occupants were arrested on the charges, unrelated to the instant matter, of theft and unlawful possession of a firearm.

On 4 April 1986, Philadelphia Police Detective Eugene Wyatt interviewed the Huynhs and showed them a photographic array which included photographs of Tren and Doa. According to Detective Wyatt's testimony pursuant to a motion, made at trial, to suppress evidence, the family members made the following identifications: Thu Huynh, Anh Nguyen, Phoung Huynh identified Doa and Tren; Chahn Huynh identified Doa; and, Phouc Huynh either identified Doa or no one depending upon whether one believes Wyatt's testimony on direct examination or cross-examination. At the trial two days later, Wyatt testified similarly to his previous testimony except he suggested that Phouc Huynh identified Doa as one of the robbers.

From 8 December 1986 to 12 December 1986, a jury trial was conducted before the Honorable Angelo Guarino. The

[ 381 Pa. Super. Page 185]

    defendants, Doa, Tren, and Su Le, were found guilty of criminal conspiracy, possession of an instrument of crime, and five counts of robbery. Post-trial motions were filed by the Appellants and were denied. Su Le absconded and his motions are still pending. On 4 November 1987, Doa and Tren were sentenced to terms of imprisonment by Judge Guarino. This timely appeal follows.

On appeal, Tren presents one issue and Doa raises five issues for our consideration. Both Tren and Doa allege that the trial court erred in permitting Detective Wyatt to testify to the substance of the victims' pre-trial photographic identifications. In addition, Van Doa presents four other issues for our consideration, set forth in his brief as follows:

B. Did not the lower court err in allowing the Commonwealth to present evidence of Phoung Huynh's identification at the preliminary hearing. [sic]

C. Did not the lower court err by misstating the evidence in its charge to the jury. [sic]

D. Did not the lower court err in failing to declare a mistrial when co-defendant Su Le testified in violation of Rule 305 of the Pennsylvania Rules of Criminal Procedure. [sic]

E. Did not the lower court improperly admit evidence of appellant's address. [sic]

Brief for Appellant at page 2.

I. Admissibility of Prior Photographic Identifications

First, we shall address whether the trial court erred in permitting Detective Wyatt to testify to the victims' pre-trial photographic identifications. As previously noted, Detective Wyatt testified that each of the family members identified Doa and/or Tren from photographic arrays shown to them nine days after the robbery. At the preliminary hearing, only Phoung Huynh and Thu Huynh took the witness stand. Phoung identified Doa as one of the robbers. She did not identify Tren. Thu identified Tren and Doa. At trial, the following identifications were made by

[ 381 Pa. Super. Page 186]

    the family members: Thu and Phoung identified co-defendant Su Le, but were uncertain about Doa and Tren; Chahn was unable to identify any of the defendants, and he stated that he had been uncertain of his prior photographic identification; Anh identified Su Le, but flatly denied that Doa and Tren were involved in the robbery; Phouc could not recall whether any of the defendants were the robbers of his grocery.

Until recently, Pennsylvania adhered to the traditional rule that the prior inconsistent statements of a non-party witness are not admissible as substantive evidence under any circumstance. See Commonwealth v. Waller, 498 Pa. 33, 444 A.2d 653 (1982); Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976); Commonwealth v. Tucker, 452 Pa. 584, 307 A.2d 245 (1973). This principle was upheld by a sharply divided Pennsylvania Supreme Court in Commonwealth v. Floyd, 508 Pa. 393, 498 A.2d 816 (1985).

In Floyd, a Commonwealth witness, who was an eyewitness to a shooting, testified at trial that he gave a statement to the police shortly after the shooting when the events were fresh in his mind. Portions of the statement, including a description of the perpetrator which resembled the defendant, were read into evidence. The witness was unable to make an in-court identification of the defendant, and, in fact, stated that the defendant was not the gunman. No reference to a photographic identification was made by the witness during his testimony. Subsequently, the Commonwealth called a detective to the witness stand. He testified that he had shown the eyewitness a photographic array and that the eyewitness had selected a photograph of the defendant and identified him as the wrongdoer. The defendant was convicted and post-trial motions were denied.

On appeal, this court reversed the trial court and remanded the matter to the trial court for a new trial on the dual grounds that the photographic evidence was erroneously admitted by the trial court as substantive evidence and that the Commonwealth failed to disclose the photographic identification to the defendant before the trial.

[ 381 Pa. Super. Page 187]

A plurality*fn1 of the Pennsylvania Supreme Court affirmed the decision of this court and held that a

"witness may testify as to an identification made by another person if and only if such other person is present in court, is available for cross-examination, has testified, has been questioned about the previous identification, and has denied making it . . . . Applying Waller [Commonwealth v. Waller, 498 Pa. 33, 444 A.2d 653 (1982)], we hold that the evidence is admissible only for impeachment and not as substantive evidence."*fn2

Floyd, 508 Pa. at 399, 498 A.2d at 819.

Since the decision in Floyd, the Pennsylvania Supreme Court has overruled a long line of cases in this Commonwealth by holding that prior inconsistent statements of a non-party witness at trial are admissible as substantive evidence under certain, undefined circumstances. Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). Hence, the traditional rule utilized in Floyd is no longer the law of the Commonwealth.

In Brady, the defendant awakened his girlfriend and persuaded her to take a ride with him. After driving around for some time, the defendant ran the automobile into a ditch alongside the road. They were unable to extricate the automobile from the ditch. Consequently,

[ 381 Pa. Super. Page 188]

    they began to walk back toward their home town, passing by a manufacturing plant along the way. They climbed over the fence surrounding the plant, entered the plant through a side door, and attempted to pry open a dollar-bill change machine. A fight ensued between the defendant and a security guard who encountered the two trespassers. During the fight, the security guard was stabbed. On that same evening, the girlfriend gave a tape-recorded statement to the police recounting the events of the day. At trial, the girlfriend, a Commonwealth witness, recanted her tape-recorded statements and testified that neither she nor the defendant entered the manufacturing plant. Over objection, the trial court permitted the Commonwealth to introduce the tape recorded statement as substantive evidence. Ultimately, a jury convicted the defendant on the charges of second degree murder, burglary, and criminal mischief.

A panel of this court, applying the "'law in Pennsylvania that prior inconsistent statements of a non-party witness are not admissible as substantive evidence of the truth of the matter asserted,'" held that the trial court erred in admitting the girlfriend's tape-recorded statement as substantive evidence. Brady, 510 Pa. at 127, 507 A.2d at 68, quoting Commonwealth v. Brady, 338 Pa. Super. 137, 140, 487 A.2d 891, 892 (1985) (citations omitted).

The Pennsylvania Supreme Court, in reversing this court, held that the "otherwise admissible prior inconsistent statements of a [non-party] declarant who is a witness in a judicial proceeding and is available for cross-examination may be used as substantive evidence to prove the truth of the matters asserted therein." Brady, 510 Pa. at 131, 507 A.2d at 70. The court stated, in pertinent part:

"The availability of cross-examination at trial also assures a meaningful opportunity for the trier of fact to observe the declarant who has been called upon and sworn as a witness and questioned as to the discrepancy between the prior statement and the direct testimony. The trier of fact may bring to bear his or ...

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