Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, No. 8709989A.
Chris R. Eyster, Assistant Public Defender, Pittsburgh, for appellant.
Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Com., appellee.
Wieand, McEwen and Cercone, JJ. McEwen, J., files a concurring opinion.
[ 383 Pa. Super. Page 95]
Gerald Harris was tried by jury and was found guilty of robbery and criminal conspiracy as a result of an incident occurring September 3, 1987, on Smithfield Street, Pittsburgh, in which Harris and two other males allegedly accosted a pedestrian and removed eighteen ($18.00) dollars from his pocket. On direct appeal from the judgment of sentence, Harris argues that the trial court erroneously prevented jury argument regarding a prior inconsistent statement by a Commonwealth witness.
Mark Getz, an eyewitness to the incident, implicated Harris in the removal of money from the victim's pockets. In rebuttal of this testimony, defense counsel called as a witness the attorney who had represented appellant at the preliminary hearing. She said that at the preliminary hearing Getz had testified that Harris "never touched the victim" and "was just standing there." During closing argument to the jury, defense counsel argued, without objection, that Getz's prior inconsistent testimony at the preliminary
[ 383 Pa. Super. Page 96]
hearing was a factor to be considered in determining the credibility and weight of his testimony at trial. Later, defense counsel argued that if appellant had been merely standing there, as Getz testified at the preliminary hearing, then appellant was entitled to be acquitted. To this argument the trial court sustained an objection by the prosecution. The record reveals the following argument by defense counsel and objection by the attorney for the Commonwealth:
The inconsistencies of Mr. Getz show that there is doubt as to the position of the individuals and their involvement in this episode. And if Mr. Harris was just standing there, as Mr. Getz said at the Preliminary Hearing, then we would submit he is not a conspirator under the law, and that he is not guilty of robbery and conspiracy.
MRS. VINCLER: Your Honor, I'm sorry, I'm going to have to object at this point because I don't think it was ever established that Mr. Getz said the defendant was just standing there, even at the Preliminary Hearing.
THE COURT: I'll sustain the objection.
During the earlier argument, defense counsel relied upon Getz's prior statement to impeach the testimony which he had given at trial. During the later argument, defense counsel sought to use Getz's testimony at the preliminary hearing as substantive evidence. This was proper. In Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), the Supreme Court held that prior inconsistent statements of a non-party witness may be used as substantive evidence where the witness testifies at trial and is available for cross-examination. In the instant case, the prior testimony of Mark Getz had not only been given at a point closer in time to the event described, but it had been given under oath at a time when the witness had been subjected to cross-examination. Moreover, at trial he was cross-examined extensively about the testimony which he had given at the preliminary hearing. Under these circumstances, the testimony given by Getz at the preliminary hearing was
[ 383 Pa. Super. Page 97]
admissible as substantive evidence and tended to show, if believed, that appellant had not participated in the robbery.
The prosecuting attorney objected on the grounds that there was no evidence that Getz had earlier testified that appellant "was just standing there." This objection, however, was factually incorrect. Leslie Perlow, Esquire, who had ...