Justice TODD
In this appeal, our Court is presented with two questions: (1) whether a defendant's convictions for first-degree murder and other crimes which rest solely on subsequently recanted out-of-court statements given to police violate the due process guarantees of either the United States or Pennsylvania Constitutions; and (2) whether the confessions of a former co-defendant should have been admitted as evidence as statements against interest under Pa.R.E. 804(b)(3). After careful consideration, we hold the recanting witnesses' out-of-court statements to the police were sufficient to sustain Appellant's convictions against a due process challenge. However, because we also find that the trial court erred by not allowing other portions of the co-defendant's confessions to be entered into evidence as statements against interest, we are constrained to vacate Appellant's convictions and remand for a new trial.
The following pertinent factual and procedural history is necessary to understand the issues presented by this appeal. In the evening hours of December 4, 2000, at or around 8:43 p.m., a group of men were assembled outside the Cleveland Minimarket ("Minimarket"), located at the intersection of Cleveland and York Streets in the North Philadelphia neighborhood. Abutting the southern border of the Minimarket was a vacant lot. Immediately behind the Minimarket, adjoining its western side, was a six-foot-wide alleyway which exited onto York Street. The men congregated outside of the Minimarket were involved in a dice game, played on the sidewalk which lay between the eastern side of the Minimarket and Cleveland Street ("Cleveland Street sidewalk").
As the dice game concluded, three of the players, Anthony "Manny" Williams, Keita "Ta Ta" Lacey, and Donald McCoy a/k/a "Don King," walked up the Cleveland Street sidewalk and turned left onto the sidewalk which lay between the northern side of the minimarket and York Street ("York Street sidewalk"). The three men stopped near the corner of the two sidewalks
After the shooters fled, bystanders used their cars to transport the victims to nearby Temple Hospital. Two of the injured men, Lacey and Williams, were pronounced dead on arrival at the hospital. The Philadelphia Medical Examiner later determined, after examining a bullet taken from Lacey's body, that Lacey died of a gunshot wound to his left hip inflicted by a.44 caliber bullet. The Medical Examiner concluded that Williams died from heavy internal bleeding caused by a .38/.357
Officer Kevin Conaway, who responded to the report of the shooting, found six spent shell casings at the scene. Ballistics testing revealed that all six empty cartridges were ejected by the firing of a single "9 mm" firearm, which Officer Lay opined was either a "Glock" or "Smith and Wesson" model. A 9 mm. semiautomatic pistol was also found by Officer Conaway, lodged underneath Williams' body as it lay on the sidewalk. Testing of this weapon indicated it was not the source of the spent 9 millimeter shell casings. Additionally, a bullet fragment of undetermined origin was discovered intermixed with the spent shell casings. Further, a bullet strike mark was observed by one of the investigating officers on the wall behind the payphone where McCoy was standing. Based on his examination of the totality of the recovered physical evidence, Officer Lay opined at trial that three separate guns had been discharged during the shooting episode. Officer Lay testified that the .44 caliber round recovered from McCoy's jacket and Lacey's body was most likely fired by the same .44 caliber revolver; the.38/.357 magnum round recovered from Williams' body was probably fired by a.38/.357 caliber revolver; and the spent 9mm cartridges were ejected during the firing of a semiautomatic weapon.
Although a crowd gathered near the scene in the shooting's immediate aftermath, no one came forward to offer police any information. Consequently, the investigation was at a standstill for over a month and a half, until, on January 23, 2001, an individual called the police station and requested to speak with the homicide detective who was overseeing the investigation into the shootings — Detective Gerald Lynch. After the individual on the
Detective Lynch testified at trial that he took Garvin upstairs to an interview room and asked him a series of questions, which the detective memorialized in his own handwriting, along with Garvin's answers. Detective Lynch had Garvin sign the bottom of each page of the statement, in addition to an "adoption attestation form" at the end of the statement, which is an affirmance by the signatory that he has read the statement and agrees it is true and correct. In each place Garvin signed, he used the name "John Garvin." N.T. Trial, 2/1/06, at 275-279.
In the statement, Garvin related that the following series of events occurred on the night of the shooting: Around 8:43 p.m., he was walking up York Street in the direction of the Minimarket, and he stopped outside a convenience store located across from the Minimarket. While standing there, Garvin looked down Cleveland Street and saw Appellant and Jasaan Walker, both of whom he had known for two years, walking up Cleveland Street towards York Street. He noticed them enter the vacant lot on the southern side of the Minimarket and then, very shortly thereafter, saw two people come out from the alley behind the Minimarket and onto York Street. Although both of these individuals wore masks around their mouth and nose, Garvin was confident that they were Appellant and Walker because of the short duration between his observation of them going into the lot and the appearance of the two masked men on York Street. According to Garvin, once Appellant and Walker emerged from the alley onto York Street, both began shooting at Williams, Lacey, and McCoy. Garvin heard approximately five or six shots; Appellant carried a nine millimeter handgun, and Walker had a "Glock 40;" and the entire episode lasted 10 or 15 seconds.
Detective Lynch testified that, after Garvin provided him with this information, he showed Garvin two computer generated photo arrays. Garvin selected Appellant's picture from the first array, chose Walker's photo from the second array, and identified both as the individuals he saw shoot the victims. Garvin printed the name "John Garvin" and the date on a copy of both photo arrays underneath each of the photos he had chosen. N.T. Trial, 2/1/06, at 276-279.
One week after Detective Lynch's interview of Garvin, on January 30, 2001, Lynch and another detective transported Lionel Lawrence from his home to the police station for questioning, as one of the bystanders at the shooting had supplied Lawrence's name to the police. Detective Lynch, who recorded the interview by hand, recalled that Lawrence, who had moved from the neighborhood shortly before the interview, was upset the detective wanted to talk to him about the murders and said he was "concerned for his well-being." N.T., Trial, 2/6/06, at 124, 127. According to Lawrence's statement, on the night of the shootings, he was traveling along York Street and turned left onto Cleveland Street when he observed Lacey, whom he knew, standing near the payphone at the corner of York and Cleveland Streets with Williams, McCoy and others, and he decided to stop to talk. When traffic began to back up due to his stopped vehicle, he decided to circle the block. When he prepared to turn again onto
Detective Lynch next showed Lawrence two photo arrays, and Lawrence selected Appellant's photo from the first array as one of the individuals he saw shooting the victims, and selected Walker from the second array as the other shooter. Id. at 136-137. Detective Lynch noted that Lawrence printed his name under the two pictures he selected and noted the date beside them.
Arrest warrants were issued for both Appellant and Walker. Appellant was taken into custody in February 2001. He did not make a confession, nor did he provide any inculpatory statements related to the shootings. His preliminary hearing was held on March 8, 2001. At that hearing, David Garvin testified, under his real name, and recounted substantially the same details included in the statement he had previously given to Detective Lynch. Garvin further testified that he was standing "two or three" feet away from Appellant and the victims when the shootings occurred. N.T. Trial, 2/1/06, at 294-295 (quoting N.T. Preliminary Hearing, 3/8/01).
At the preliminary hearing, Garvin was cross-examined by Appellant's counsel, who pressed him regarding his ability to identify Appellant, asking him whether the person he claimed was Appellant had a moustache or beard. Although Garvin could not say whether Appellant had any facial hair, he insisted that his identification was correct, emphasizing that, "I know [Appellant] when I see him." N.T. Trial, 2/2/06, at 22 (quoting N.T. Preliminary Hearing, 3/8/01). At the conclusion of the hearing, Appellant was held for trial on two counts of first-degree murder and related offenses.
Walker remained at large until May 5, 2001. Once taken into custody and given his Miranda rights, Walker gave both a written and a videotaped statement
According to the trial testimony of Police Detective Joseph Centeno, in 2004, as Appellant and Walker were in jail awaiting trial, Allen Lanier, who was then incarcerated in Pittsburgh, contacted Detective
On May 18, 2004, Lanier was interviewed again by two members of the Philadelphia District Attorney's Office — Assistant District Attorney Mark Gilson, who prosecuted Appellant at trial, and Assistant District Attorney Edward McCann. During this interview, according to the trial testimony of ADA McCann, Lanier's statement to Detective Senteno and Fuss' role in the shooting were discussed. Lanier also mentioned that he was receiving threats in prison, and, as a result, ADA McCann arranged to have Lanier moved to a different facility.
Detective Rodden testified that, on May 24, 2004, he took yet another statement from Lanier, in which Lanier told him that Walker learned of his statement to Detective Centeno implicating Walker in the shootings. Lanier claimed that in April 2004 Walker approached him in a Philadelphia correctional facility where they were both being held, and told him to "bend but don't break," which Lanier interpreted as an instruction to tell detectives a little bit of the truth about how the incident transpired, but not to tell them everything. N.T. Trial, 2/6/06, at 20. Lanier also related to Detective Rodden that Walker's mother, during a visit to that same prison facility, asked him not to testify against her son, or, if he did testify, to "flip." Id. at 19. Lanier described "flipping" to Detective Rodden as the practice of telling police one thing and then, when on the witness stand at trial, telling the opposite story and taking the defense side. Id. at 20. Lanier also recounted that his girlfriend, who was present at the prison with Walker's mother, urged him not to testify against Appellant and Walker, noting that "we live around there," and threatening that she would cease to have contact with him. Id. at 19.
In early 2006, Appellant and Walker were scheduled to be tried jointly. Because Walker filed a motion to suppress his written and videotaped confessions to police, a suppression hearing was held on January 24, 2006, before the Honorable Renee Cardwell Hughes. Midway through the hearing, after the detectives who took his confessions testified, and his videotaped confession was played for Judge Hughes, Walker, through his attorney, approached ADA Gilson about the possibility of reaching a plea deal.
A negotiated plea agreement between Walker and the Commonwealth was arranged, under the terms of which Walker agreed to plead guilty to two counts of third-degree murder in exchange for a sentence of 30-60 years incarceration. As an additional condition of this plea agreement, Walker promised he would not testify
N.T. Suppression/Plea Hearing, 1/24/06, at 62, 63.
In this colloquy, Walker also claimed, consistent with his prior confessions, that he was carrying a .44 handgun, which he fired, but, contrary to those prior declarations, indicated that Appellant was in fact present at the scene and that it was Appellant who fired a .38 caliber handgun. Walker asserted he was not telling the truth when he gave his two confessions to the police because he was not in his "right state of mind," having just been released from the hospital; however, he assured Judge Hughes that he was telling the truth in recanting those confessions before her. Id. at 68. Judge Hughes accepted the plea and formally imposed the negotiated sentence of 30-60 years imprisonment. At the request of the Commonwealth, Judge Hughes ordered the transcript of the plea hearing sealed for the life of the sentence, or for "so long as Mr. Walker honors the terms of the negotiated plea." Id. at 87-88.
Because of Walker's plea, only Appellant was left to stand trial. Prior to the commencement of trial, because of Walker's potential unavailability as a witness, Appellant filed a motion in limine to have Walker's written and videotaped confessions to the police — admitting his own involving in the shootings, implicating his half-brothers and exculpating Appellant — admitted as substantive evidence as statements against penal interest under Pa. R.E. 804(b)(3), and also, citing, inter alia, Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038,
Once the jury trial commenced, the Commonwealth called Garvin, Lawrence, and Lanier as witnesses. During their testimony, all three disavowed portions of their written statements regarding their identification of the participants in the shootings.
Garvin, who at the time of his trial testimony was serving a 3-7 year sentence in state prison, denied on the witness stand that he was even present at the scene of the shootings, and, thus, insisted that he did not see who committed them. He claimed, instead, that he was in his house at that time, which was three or four blocks away from the scene. Garvin admitted he called Detective Lynch on January 23, 2001, and conceded he went down to the homicide division voluntarily and spoke with the detective; however, he asserted he did not tell Detective Lynch everything that Lynch wrote in the statement, and testified that Detective Lynch had "put all that together." N.T. Trial, 2/1/06, at 248-51, 299. Garvin recounted that he merely talked to Detective Lynch to express his feelings about what had happened that evening and how it had affected Garvin personally, since Williams was his best friend, and Garvin was angry that he had been shot.
Garvin stated that he only heard Appellant and Walker's name from conversations he had with people in the neighborhood in the aftermath of the shooting, as well as from Detective Lynch. He also disavowed his selection of Appellant's and Walker's photos from the photo array. Additionally, Garvin claimed he did not sign each page of the statement or under the photos, which, according to Detective Lynch, he had identified from the photo array. He declared that the signature was not his. When asked by the Commonwealth to explain how his brother's signature came to appear on the pages of the statement, Garvin at first asserted that he had never given Detective Lynch his brother's name, but later, under cross examination, admitted he had told Detective Lynch he was John Garvin and that he had signed the statement.
As noted above, the Commonwealth then read Garvin's preliminary hearing testimony to the jury. Garvin then acknowledged that he had given the testimony, but stated that he had made it up because Williams
When Lawrence took the stand at trial, he admitted he told Detective Lynch he saw the victims get shot by people who ran out of an alley. However, contrary to the statement memorialized by Detective Lynch, Lawrence testified he told Detective Lynch he could not see the shooters' faces as they were covered by hoods and ski masks at the time of the shooting. Lawrence insisted he had not seen Appellant or Walker at any time on the evening of the shooting, and that he never identified them to Detective Lynch as the gunmen.
Lawrence acknowledged he had signed each of the pages of the statement which Detective Lynch transcribed and, also, signed the adoption attestation form at the end, but he asserted he did so because he was told he would be permitted to leave after he signed and that he did not read what was written on any of the pages of the statement. Although Lawrence recalled looking at groups of pictures shown to him, he denied that he had selected the pictures of Appellant and Walker, and he claimed he did not print his name underneath their pictures.
Lawrence additionally claimed that he experienced duress during his two hour conversation with the police — alleging that, after he was transported to the station by Detective Lynch and another police officer, two other detectives talked "smack" and "dirty" to him, treating him as if he had done the shooting or as if he knew who the shooter was. Id. at 107. Lawrence maintained that the detectives became angry when he could not provide them with any information, and asserted they ratcheted up the pressure on him to tell them something by showing him an old mug shot of himself, and a recent one of his father, and, also, that they refused to let him use the bathroom while he was being questioned.
When Lanier was called to testify, he, like Garvin and Lawrence, admitted to giving a statement to detectives about the shootings, but likewise disputed the accuracy of its details. Lanier contended he did not ask to speak to the detectives about this case, but, rather, that the detectives transported him from prison and questioned him about it. Lanier testified that he told the detectives he was standing on the corner in the vicinity of the victims when they were shot, instead of across the street, and that the shooters were wearing masks which obscured their faces such that he could not identify them. Lanier specifically denied having identified Appellant and Walker as the perpetrators, as set forth in his statement. When confronted with his signature on all four pages of the statement, he, like Garvin and Lawrence, claimed not to have read the statement before signing it.
Lanier also testified that he did not remember the contents of the statement he had given to Detective Rodden. When read the statement by the Commonwealth, he disavowed telling Detective Rodden that Walker's mother had asked him not to testify or, alternatively, to "flip" if he did, and that Walker had talked to him about his statement to Detective Centeno implicating Walker in the shootings. Id. at 79, 84, 91-100. However, Lanier agreed that the signature which appeared on that statement was his, but, again, averred that he had not read the statement before signing it.
Lanier, who was serving a 6-12 year sentence for armed robbery in 2004, also alleged on the witness stand that, during his meeting with the members of the Philadelphia District Attorney's Office in May
In the defense portion of the case, Appellant again sought to call Walker to testify as a witness. Walker was transported from prison to the courtroom, and, under oath, informed the court that, if called, he would invoke his Fifth Amendment privilege against self incrimination. In response, Appellant renewed his request to admit Walker's potentially exculpatory confessions as evidence, and, again, the trial court denied the request.
Appellant called one witness who did not see the shooting, but recorded on videotape some of the chaos which ensued in the neighborhood afterward. Thereafter Appellant rested his case. Prior to submission of the matter to the jury, Appellant filed a motion for a judgment of acquittal, asserting that the out-of-court statements of Garvin, Lawrence, and Lanier, while admissible as substantive evidence, could not, as a matter of due process, furnish the sole basis for his conviction. Alternatively, Appellant requested an instruction to the jury that they could not, as a matter of law, return a guilty verdict if they determined that the prior statements constituted the only evidence of Appellant's participation in the shootings. The trial court denied both requests.
After deliberation, the jury returned a verdict of guilty on both counts of first-degree murder and one count each of aggravated assault, conspiracy, and possession of an instrument of crime. The jury next considered the question of whether Appellant should receive the death penalty; however, the panel deadlocked on this question, and, as a result, Appellant received two mandatory terms of life imprisonment, plus an additional sentence of 32½ to 65 years on the other offenses.
Appellant filed a post-sentence motion in which he renewed his request for a judgment of acquittal, again asserting that the evidence was insufficient to sustain his convictions, as the only evidence which supported his convictions consisted of the prior statements of Garvin, Lawrence, and Lanier, which they repudiated on the stand. Appellant alternatively sought a new trial, alleging that the trial court erred in failing to permit introduction of Walker's confessions under Pa.R.E. 804(b)(3).
In its opinion prepared in accordance with Pa.R.A.P. 1925(a), the Trial Court declared that the evidence, as supplied by the prior out-of-court statements of Garvin, Lawrence, and Lanier, was sufficient to demonstrate that Appellant had the specific intent to kill when he fired the gun at the three victims. The trial court noted that, while the three witnesses' trial testimony was inconsistent with their prior statements to the police, each had acknowledged
The trial court also determined that Walker's prior confessions were inadmissible under Pa.R.E.804 (b)(3). The court first opined that Walker's confessions were neither trustworthy nor reliable since they were contradicted by Walker during his oral testimony at the time he pled guilty. The court observed that Walker, under oath, repudiated his claim in the confessions that Appellant was not present at the scene and, also, testified that Appellant possessed a .38 caliber weapon which he fired at the victims. The trial court characterized the difference between Walker's confessions and his in-court testimony as an "irreconcilable conflict." Trial Court Opinion, 5/11/07, at 6. The trial court also found: "Walker's recantation under oath eviscerated any reliability to be afforded the earlier statements." Id. Ultimately, the court concluded that Walker's sworn testimony during the guilty plea colloquy was "clearly more credible than the statements given to the police which were not corroborated by the other evidence." Id. at 7.
Further, the trial court relied on our Court's plurality decision in Commonwealth v. (Eldimiro) Colon, 461 Pa. 577, 337 A.2d 554 (1975), in which Justice Roberts, joined by two other justices,
The Superior Court affirmed Appellant's judgment of sentence in a divided unpublished memorandum decision.
The panel majority additionally referenced the decisions of appellate courts
The panel majority next considered whether the trial court correctly determined that Walker's confessions did not meet the statement against penal interest hearsay exception set forth in Pa.R.E. 804(b)(3). The panel majority found the trial judge's decision supported by what it deemed "persuasive" authority from the Superior Court. See Commonwealth v. (Franklin) Colon, 846 A.2d 747 (Pa.Super.2004) (relying on (Eldimiro) Colon, supra in deeming a portion of witness's guilty plea colloquy in which he exonerated the defendant not to be a declaration against penal interest, since statement did not subject witness to additional criminal liability); Commonwealth v. Barker, 325 Pa.Super. 357, 472 A.2d 1158 (1984) (relying on (Eldimiro) Colon in determining that co-defendants' statements to police that defendant was not with them at the time they committed a robbery were not admissible as a declaration against penal interest). Thus, the panel majority found the confessions were not admissible, holding: "Walker's confessions, insofar as they exculpate Brown, do not subject Walker to any additional punishment and do not have the safeguards of trustworthiness attributed to a statement truly against interest." Brown, 721 EDA 2006, at 13.
Judge Klein filed a dissenting memorandum, finding both of Appellant's claims meritorious. With respect to whether the out-of-court statements of the three witnesses were sufficient to convict, Judge Klein believed that relying solely on such statements for conviction raised due process concerns. Judge Klein, like the majority, recognized that no Pennsylvania case was dispositive of this question. However, he cited appellate decisions from two other states, Vermont and Alaska,
With respect to the prior out-of-court statements of the three witnesses introduced by the Commonwealth in the present matter, Judge Klein concluded those statements bore no indicia of reliability since the facts contained therein were unconfirmed. He viewed this unreliability as heightened by the fact that each witness recanted his statement, and, also, gave reasons for having fabricated it. He further noted that the recanted statements were also arguably contradicted by the fact that there were bullets recovered from three guns used in the shooting, but each witness identified only two gunmen in their statements. For these reasons, Judge Klein concluded the evidence was insufficient as a matter of law to sustain Appellant's conviction.
In regard to the admissibility of co-defendant Jasaan Walker's videotaped confession, Judge Klein reasoned that the entire confession was against Walker's penal interest because it constituted an admission both to his participation in the murders and to the role he played with his half-brothers in conducting a large drug selling enterprise. Judge Klein observed this statement "went directly to the conspiracy charge." Brown, 721 EDA 2006 (Klein J., dissenting) at 8. In Judge Klein's view, this explained Walker's motivation in perpetrating the crimes, and he reasoned that, had the case gone to trial, the Commonwealth would have used the information contained therein — the fact that his half-brothers, as leaders of the drug operation, instructed him to commit the crime — as evidence against him.
Judge Klein also found Walker's confession credible, since "[i]t is hard to imagine a trier of fact concluding that a defendant would falsely accuse his own brothers and exonerate a person he only knows casually." Id. Lastly, Judge Klein expressed his concern that federal due process had been violated, noting "[w]hat happened here was far from even-handed" since "[t]he trial judge allowed statements that had no corroboration and questionable reliability ... and refused to admit a prior statement where there was a videotape so jurors could assess credibility." Id. at 9 (emphasis original).
We granted Appellant's petition for allowance of appeal to consider the following two questions:
Commonwealth v. Brown, 605 Pa. 320, 989 A.2d 881 (2009)(order). We consider these issues seriatim and, thus, begin with a consideration of the arguments of the parties with respect to the first issue.
Appellant begins by noting that the question of whether out-of-court statements
Appellant underscores the unique facts of his case, namely, that the trial court allowed the jury to consider the question of his guilt or innocence based solely on the out-of-court accusations of three witnesses, which they repudiated, juxtaposed with the trial court's exclusion of a videotaped confession of his co-defendant which exonerated him, identified two other people as participants in the shooting, and was consistent with the ballistic evidence; and, additionally, where the Commonwealth made the co-defendant unavailable as a witness at Appellant's trial due to a plea agreement under which the co-defendant had explicitly promised not to testify. Appellant stresses that he is not asking us to rule that the out-of-court inconsistent statements of the three witnesses should not have been admitted, recognizing that, under Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992),
Appellant divides his argument in support of this position into three discrete points. First, he asserts that "numerous" federal and state decisions support the principle that a prior inconsistent statement by itself is not sufficient to sustain a conviction. Appellant's Brief at 22. Appellant proffers that the "seminal case" establishing this proposition is United States v. Orrico, 599 F.2d 113 (6th Circuit 1979). Appellant's Brief at 23. In Orrico, a panel of the Sixth Circuit Court of Appeals reversed the defendant's conviction for participation in a fraudulent insurance company capitalization scheme involving check deposits. When the government's two witnesses testified that they could not remember whether the defendant instructed them to deposit certain checks, the prosecution introduced, as its sole evidence inculpating the defendant, each witness's prior inconsistent statement, which identified the defendant as the individual who ordered them to deposit the checks. Appellant notes the Sixth Circuit recognized
Appellant further observes that the Orrico court reviewed the history of the Federal Rule of Evidence which permitted the use of prior inconsistent statements as substantive evidence, F.R.E. 801(d)(1)(A), and found that, during the process of adopting the rule, Congress acknowledged the concern of opponents who feared that the rule would permit convictions based solely on evidence which was admitted under this rule. In response, the United States Senate Committee considering the Rule stated that it was "not addressed to the sufficiency of evidence to send a case to the jury, but merely to its admissibility.... Factual circumstances could well arise where, if this was the sole evidence, dismissal would be appropriate." Appellant's Brief at 24 (quoting Orrico, 599 F.2d at 118, in turn quoting Senate Report No. 93-1277, 93rd Congress, 2d. Session). Appellant contends that his case is precisely that type of case envisioned by the Senate Committee.
Appellant next cites a federal district court opinion,
In his second point, Appellant asserts there are inherent dangers presented whenever a case is permitted to rest exclusively on an out-of-court statement by a witness, since the jury cannot evaluate the witness's credibility at the time he or she made the statement. Hence, in Appellant's view, this creates the possibility that jurors may make negative inferences regarding the witnesses' credibility based only upon what they see of the witness in-court, without the benefit of seeing the witness's demeanor at the time he or she made the out-of-court statement. Further, the witness's prior statement is frequently read in-court by, in the Appellant's words, a "far more presentable detective," Appellant's Brief at 26; thus, this technique effectively "put[s] a suit and tie on the statement," Appellant's Brief at 27.
Appellant maintains courts have recognized that, whenever out-of-court statements
Appellant further propounds that due process is violated whenever an individual is convicted and punished without evidence of his guilt, and Appellant contends that our Court has held in this regard that this evidence "`must be of such volume and quality as to overcome the presumption of innocence and satisfy the jury beyond a reasonable doubt.'" Appellant's Brief at 35 (quoting Commonwealth v. Clinton, 391 Pa. 212, 137 A.2d 463 (1958)). Appellant notes that it was in "accordance with these principles" that our Court recognized in Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976), that a jury's verdict of guilty cannot stand whenever the evidence introduced by the Commonwealth is so lacking that the jury's verdict is the product of "surmise and conjecture." Appellant's Brief at 35 (quoting Farquharson, 467 Pa. at 60, 354 A.2d at 550). Appellant reminds that we elaborated on this principle in Commonwealth v. Karkaria, 533 Pa. 412, 419, 625 A.2d 1167, 1170 (1993), when we held that, whenever "evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, a jury cannot be permitted to return such a finding." Appellant claims these principles are applicable to his case, as the out-of-court statements, by themselves, were "too unreliable to support a finding of guilt beyond a reasonable doubt." Appellant's Brief at 35.
The Commonwealth responds by first pointing out that Pennsylvania law does not allow all prior inconsistent statements to be admitted at trial as substantive evidence, but, rather, pursuant to Lively, supra, and Pa.R.E. 803.1(1), only those previous statements made by witnesses who are available for cross-examination at trial, and then only if the statements were "given under circumstances indicating reliability," i.e., under oath and penalty of perjury, or in a writing signed and adopted by the maker, or recorded verbatim, contemporaneously with their making. Commonwealth's Brief at 19. The Commonwealth contends that the statements of Garvin, Lawrence, and Lanier met these criteria and, as a result, were properly admitted at Appellant's trial.
The Commonwealth asserts that the reliability of these statements was further bolstered because: (1) each statement corroborated the others and was consistent in key details; (2) each witness identified, without prompting, Appellant and Walker as the shooters; (3) none of the witnesses had any motive to falsely implicate either Appellant or Walker; (4) the statements were given close to the time of the shooting; (5) there was evidence that the witnesses were subjected to threats and pressure to repudiate their statements; (6) the witnesses all knew Appellant and Walker and had a motive to disavow their statements, and (7) all of the witnesses selectively forgot only those portions of their statements which implicated Appellant. The Commonwealth argues that, since the reliability of the out-of-court statements was established, they could properly be considered by the jury, along with the witnesses' trial testimony, without due process being offended.
The Commonwealth further avers that Appellant's complaints regarding the jury's inability to view the witness at the time they gave the out-of-court statement is really an effort to resurrect the archaic "orthodox rule," an evidentiary rule allowing prior inconsistent statements to be used, with proper cautionary instructions, to impeach the testifying witness, but prohibiting their use as substantive evidence. The Commonwealth notes that our Court in Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), discarded this rule in Pennsylvania law because it had been discredited, and an increasing number of jurisdictions were abandoning it.
The Commonwealth suggests that what Appellant is actually seeking is for our Court to overrule our Brady and Lively decisions. The Commonwealth claims that the prior inconsistent statements of its three witnesses met the criteria for admissibility as substantive evidence under these decisions and that, as we have ruled in past cases, such statements were adequate evidence sufficient to establish Appellant's guilt. See Commonwealth's Brief at 24 (citing Commonwealth v. Hanible, 575 Pa. 255, 260, 836 A.2d 36, 39 (2003), and Commonwealth v. Hall, 523 Pa. 75, 565 A.2d 144 (1989)). The Commonwealth proffers that, were we to accept any of Appellant's arguments in favor of reversal of his conviction, we would be required to overturn both Brady and Lively.
The Commonwealth next urges that we reject what it describes as Appellant's proposed per se rule that prior inconsistent statements standing alone are, as a matter of law, insufficient to sustain a conviction. The Commonwealth contends there is no justification for adopting such a rule because it "contravenes the well-established standard and scope of review for sufficiency of the evidence." Commonwealth's Brief at 26. According to the Commonwealth, sufficiency review proceeds in a case-by-case fashion and, thus, by necessity, it will depend on the unique nature of the evidence introduced at trial in the particular case under examination, as well as the jury's consideration of it. Consequently, in the Commonwealth's view, a uniform rule which requires reversal of a conviction in every instance that prior inconsistent statements are used to support a conviction would disregard the integrity of a jury verdict since it would mandate an automatic conclusion, on appellate review, that the jury was wrong to rely on such statements in reaching a verdict without allowing any further inquiry into the probative value of the evidence.
The Commonwealth maintains that prior inconsistent statements are like every other type of trial evidence in that it is up to the jury to determine whether or not to credit them and to resolve any discrepancies between them and the other evidence. In the Commonwealth's view, resolving discrepancies or contradictions between various pieces of evidence has no part in a traditional sufficiency review, as the function of an appellate court is not to reweigh or reassess the reliability of evidence, or to reevaluate the credibility determinations of the finder-of-fact. Further, the Commonwealth posits that, in conducting a sufficiency review, all of the evidence of record is considered under the same uniform standard — namely, it is viewed in the light most favorable to the prosecution as verdict winner — and no particular part of the evidence is excluded in this process; thus, there is no reason to treat prior inconsistent statements according to a different evidentiary standard.
The Commonwealth suggests that there are also sound policy reasons for not adopting such a per se rule, as, from its perspective, it would serve only to reward defendants who are successful in causing eyewitnesses to "flip." Commonwealth's Brief at 29. The Commonwealth notes that, in such circumstances, even if the Commonwealth successfully used the prior inconsistent statements from witnesses who appeared in-court to establish each element of the offenses charged, the per se rule would require that the defendant be acquitted. Such a rule, the Commonwealth
The Commonwealth disputes that a majority of jurisdictions have adopted the view that a witness's prior inconsistent statement, which is disavowed at trial by the witness, is not sufficient to support a conviction. The Commonwealth asserts that most jurisdictions have, in fact, refused to adopt such an unqualified rule and have, in actuality, held that a prior inconsistent statement is sufficient evidence to sustain a conviction.
The Commonwealth further assails the declaration by the United States District Court in Bahe that the majority of state courts have adopted a per se rule that prior inconsistent statements, by themselves, recanted at trial do not constitute sufficient evidence to support a conviction. The Commonwealth points out that the Bahe court cited decisions from only seven states, and that some of the decisions cited, like Brower and Pierce, did not establish a per se rule because later cases from those jurisdictions upheld convictions based on prior inconsistent statements. The Commonwealth also notes that the Bahe court itself did not adopt a per se rule. With respect to decisions such as Mancine and Robar, the Commonwealth disputes that those decisions establish special reliability tests for prior inconsistent statements, and it asserts that the evidentiary rules of those states, which are similar to Pa.R.E. 804(b)(3), govern admissibility of such statements; the fact that those rules require that evidence meet certain conditions for admission provides the necessary corroboration of such statements and assures their reliability. The Commonwealth contends that, in reality, it is only five states which impose a special standard of review, and it avers that the clear majority of states treat prior inconsistent statements in the same manner as any other type of substantive evidence when conducting a sufficiency of the evidence analysis.
Having considered the respective arguments of the parties and amicus, we turn now to the question of whether Appellant's criminal conviction violated the due
As our Court has observed: "[T]he due process clauses of the United States and Pennsylvania constitutions ..., generally, embody the principle of fundamental fairness, entitling every individual to be free from arbitrary or oppressive government conduct." Kratsas, 564 Pa. at 49, 764 A.2d at 28. In ascertaining whether a particular governmental proceeding or course of conduct undertaken by the government is violative of these constitutional guarantees of due process, it must be determined "whether the challenged proceeding or conduct `offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Id. (quoting Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)).
The United States Supreme Court has never squarely addressed the question of whether a criminal conviction, grounded entirely on out-of-court statements recanted by their makers at trial, constitutes a violation of the defendant's due process rights secured by the Fourteenth Amendment to the United States Constitution which guarantees that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law," United States Constitution Amendment XIV.
The high Court in Green observed "that considerations of due process ... might prevent convictions where a reliable evidentiary basis is totally lacking," 399 U.S. at 163 n. 15, 90 S.Ct. 1930.
Subsequent to Green, while not having occasion to definitively resolve the instant due process question, the high Court has, nevertheless, set forth a minimum due process standard which evidence presented by the government must meet under the Fourteenth Amendment. In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Court specified that the due process standard it articulated previously in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), which firmly established the principle that "the Due Process Clause ... protects [the accused] against conviction `except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged,'" was also the governing standard which a federal court was to apply in reviewing a state prisoner's habeas corpus claim that the evidence was insufficient to support his or her conviction. Jackson, 443 U.S. at 316, 99 S.Ct. 2781. The Court explained:
Jackson, 443 U.S. at 317-318, 99 S.Ct. 2781 (footnotes and citations omitted).
The Court further developed that "the critical inquiry" for a court which is making such a sufficiency determination is:
Jackson, 443 U.S. at 318-319, 99 S.Ct. 2781 (citations and footnotes omitted) (emphasis original). The Court emphasized that, in applying this standard, a reviewing court "faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. at 326, 99 S.Ct. 2781.
The high Court described this standard as "the constitutional minimum required to enforce the due process right established in Winship." Jackson, 443 U.S. at 319 n. 12, 99 S.Ct. 2781. Thus, Jackson establishes the sufficiency review required by the Fourteenth Amendment to determine whether a criminal conviction has violated due process. See Tibbs v. Florida, 457 U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) ("We held in Jackson that the Due Process Clause forbids any conviction based on evidence insufficient to persuade a rational factfinder of guilt beyond a reasonable doubt. The Due Process Clause, in other words, sets a lower limit on an appellate court's definition of evidentiary sufficiency."). Although Jackson sets a minimum standard, states may, of course, under their own laws or constitution, elect to utilize a different, more stringent standard of sufficiency review. See, e.g., Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000) (declining to adopt the Jackson test and preserving the traditional test under Arkansas law which requires "substantial" evidence to support a jury verdict in a criminal case).
This Court follows the Jackson approach in determining whether evidence is sufficient to support a conviction beyond a reasonable doubt. First, our standard of review, like the Jackson standard, recognizes the proper regard an appellate court must give to the fact-finder's evaluation of all of the evidence received at trial and, therefore, requires scrutiny of the totality of that evidence "in the light most favorable to the Commonwealth, as verdict winner," Commonwealth v. Sanchez, 589 Pa. 43, 58, 907 A.2d 477, 486 (2006), and to "draw all reasonable inferences in favor of the Commonwealth." Commonwealth v. Fisher, 491 Pa. 231, 234, 420 A.2d 427, 428 (1980). Further, our Court's determination of the ultimate question of evidentiary sufficiency parallels the central inquiry under the Jackson standard, namely, whether any "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S.Ct. 2781; see also Commonwealth v. Reed, 605 Pa. 431, 436, 990 A.2d 1158, 1161 (2010) (sufficiency determination depends on whether a reasonable trier of fact could have found every element of the crime was established beyond a reasonable doubt).
The United States Supreme Court, in applying the Jackson standard, has never
Similarly, our Court has repeatedly refused to endorse the proposition that a particular type or class of evidence which is admitted at trial is, because of its intrinsic nature, insufficient as a matter of law to uphold a conviction — even if it is the only evidence adduced on the question of guilt. See, e.g., Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977) (holding that testimony of a single eyewitness, alone, was sufficient to convict even though it conflicted with other trial testimony); Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978) (rejecting argument that the uncorroborated dying declaration of the victim identifying defendant was insufficient as a matter of law, on the grounds that, to adopt such a rule, would be to determine that such declarations automatically should be given less weight than other kinds of admissible evidence); Commonwealth v. Cooper, 596 Pa. 119, 130, 941 A.2d 655, 662 (2007) ("[C]ircumstantial evidence alone can be sufficient to prove every element of an offense."). Even when there are well recognized concerns regarding the reliability of evidence, such as in instances where evidence of guilt is provided by a criminal accomplice who is deemed a corrupt and polluted source, our Court has not categorically regarded all such evidence to be so inherently unreliable that it cannot, by itself, support a verdict of guilt. See Commonwealth v. Mikell, 556 Pa. 509, 516, 729 A.2d 566, 570 (1999) ("[A] verdict may be predicated upon the uncorroborated testimony of an accomplice."). Instead, our Court considers questions regarding the reliability of the evidence received at trial to be within the province of the finder-of-fact to resolve, and our Court will not, on sufficiency review, disturb the finder-of-fact's resolution except in those exceptional instances, as discussed previously, where the evidence is so patently unreliable that the jury was forced to engage in surmise and conjecture in arriving at a verdict based upon that evidence. Karkaria, 533 Pa. at 419, 625 A.2d at 1170; see also Commonwealth v. Fahy, 512 Pa. 298, 308, 516 A.2d 689,
Of the various states which allow out-of-court inconsistent statements of a witness to be used as substantive evidence at trial, the highest courts in only three of those states — Florida,
By contrast, the highest courts in 6 states — Maryland,
Intermediate appellate courts in three other states — Illinois,
A small number of other jurisdictions — while regarding a properly admitted prior inconsistent statement as legally sufficient evidence to support a conviction, even when such a statement is the only evidence offered against a defendant — also carefully scrutinize whether the trial evidence supports the reliability of the inconsistent statement by examining both the content of the statement and the circumstances surrounding its making. These jurisdictions are: New Jersey,
Considering the above summary, we find the majority view of our sister states is to treat the prior inconsistent statements of witnesses — who have testified at trial and were subject to cross-examination so that the finder-of-fact could hear the witnesses' explanations for making the out-of-court statements, and for their trial recantation — as sufficient evidence upon which a criminal conviction may properly rest if the finder-of-fact could, under the evidentiary circumstances of the case, reasonably credit those statements over the witness's in-court recantations. Accordingly, we are not persuaded that the prevailing weight of authority supports the adoption of the type of per se rule advocated by Appellant.
Appellant and Amicus also argue that prior inconsistent statements are inherently unreliable because the fact-finder cannot see the witnesses' demeanor at the time they gave their prior statements and, thus, cannot accurately compare the credibility of the witnesses at that time with their credibility while testifying at trial. We note these arguments are premised on one of the rationales used to justify the now largely disfavored "orthodox rule,"
Brady, 510 Pa. at 129-130, 507 A.2d at 69.
Our Court has, thus, fully embraced the view that it is the finder-of-fact's ability to make in-person observations of the witness at the time of trial, as he or she explains the reasons for the prior statement, which is most crucial to its assessment of the witness's credibility. We have determined that it is the "great engine of cross examination"
C. McCormick, The Turncoat Witness: Previous Statements as Substantive Evidence, 25 Tex. L.Rev. 573, 577 (1947). This view has gained widespread adherence over the six decades since Professor McCormick first articulated it. See 2 McCormick On Evidence § 251 (6th ed.2009) (noting disavowal by other leading evidentiary commentators, such as Professor Wigmore, of the "orthodox rule" and a "substantial movement to abandon the orthodox view completely").
Professor McCormick has articulated another compelling justification for not permitting the "orthodox rule" to bar the finder-of-fact's consideration of a witness's prior inconsistent statement — namely, that it would prevent the finder-of-fact from hearing of any potential duress brought to bear on the witness to change his or her account of the events from the time of the statement to the time of trial. As Professor McCormick has noted, when a witness testifies in a manner inconsistent with his or her prior statements, the witness's "story has yielded to something between the giving of the statement and the time of
Our Court's decision in Brady, which reflects Professor McCormick's reasoned view of the evidentiary value of prior inconsistent statements, acknowledges the practical reality that, for the trial process to function in the manner it was intended, i.e., as a vehicle for the discovery of truth, prior inconsistent statements of a testifying witness bearing on the matter in controversy are valid probative evidence that the finder-of-fact should not only be permitted to hear, but, also, vitally necessary for it to consider if it is to render a sound ultimate decision. See Brady, 510 Pa. at 131, 507 A.2d at 70 ("[T]he orthodox position `serves only to keep relevant and reliable evidence from the jury.... [T]rial is, fundamentally, a search for an objective account of the events upon which the criminal charges are based. An evidentiary rule which forces the searcher to ignore relevant clues whose reliability can be tested by cross-examination serves no purpose.'" (citations omitted)). Nothing in our Court's own experience since approving the use of prior inconsistent statements as substantive evidence in Brady has undermined our estimation of the validity of this assessment and, thus, we reject Appellant's assertion that, simply because the jury did not have the opportunity to observe a witness at the time he or she gave an out-of-court statement, this factor, by itself, renders the out-of-court statement so inherently unreliable that it cannot be sufficient substantive evidence to reasonably support a jury's finding of guilt.
We also reject Appellant's argument that, whenever the Commonwealth is forced to rely on out-of-court statements later recanted by its witnesses as its only evidence of guilt, the burden of proof at trial has impermissibly shifted to the defendant. Such recantations in no way aid the Commonwealth in carrying its burden of proving a defendant's guilt beyond a reasonable doubt, because, undeniably, the recantations furnish proof of the contrary proposition. Further, once its witnesses have recanted while on the stand, the Commonwealth, in order to carry its burden of proof, is forced into the position of having to convince the finder-of-fact that its own witnesses were, at once, unreliable and unbelievable when testifying in court, but wholly reliable and believable when they gave their prior statements. The defendant is, of course, free to further attempt to cast doubt on the Commonwealth's case by cross examining the witnesses to suggest to the finder-of-fact that the substance of the in-court recantation is most credible, but the defendant is not required to prove anything at all in response to the recantations. The burden of proving a defendant's guilt beyond a reasonable doubt remains with the Commonwealth in such situations.
In sum, then, our review of authority from the United States Supreme Court and our Court, as well as our consideration of jurisprudence from other states
Consequently, since the out-of-court statements of Garvin, Lawrence and Lanier to the police were reduced to writing, and each of these individuals, by their own admission, signed every page of their statements and, also, the attestation statements at the end which declared that the information in the statements was accurate, all three statements were properly admitted as substantive evidence under Pa.R.E. 803.1(1). Garvin, Lawrence and Lanier were thoroughly tested through cross examination at Appellant's trial, so that the jury had the opportunity to observe these witnesses as they repudiated their out-of-court statements, and to assess the credibility of their explanations for the repudiations. Further, the three out-of-court statements were fundamentally consistent with one another in recounting the same narrative of the manner in which the shooting transpired and in describing similar essential details; thus, they were not so patently unreliable so as to render a jury verdict based upon them one of pure conjecture. Under these circumstances, the out-of-court statements of Garvin, Lawrence and Lanier furnished legally sufficient evidence to sustain Appellant's convictions, and, hence, his convictions did not violate due process.
We next consider the second question on which we granted allowance of appeal: whether Jasaan Walker's written and videotaped confessions constituted "statements against interest" which were admissible under Pa.R.E. 804(b)(3).
According to Walker, when he arrived at the house, Fuss told him Williams was on the corner and that he wanted to kill him. Walker, Fuss, and Cub departed together to carry out this objective. Walker carried a .44 magnum revolver, Cub had a .38 caliber revolver, and Fuss had a "Glock" 9 millimeter. Walker detailed how the three men circled around and walked up Cleveland Avenue to the corner on which Williams was standing. As they approached the corner, the three put their hoods up on their jackets, donned masks, and entered the alley behind the Minimarket.
Walker recalled that Fuss and Cub came out of the alley onto York Street, while he ran back out onto Cleveland and then turned onto York Street. All three began shooting at that point. Fuss emptied his entire clip of ammunition, firing 6 to 8 shots.
Walker stated that he aimed his gun at Williams, from a distance of 3-4 feet, and shot three times, hitting him once in the upper arm and twice in the torso. Walker noted that the bullets hit Williams in the upper torso which caused his body to jump from the force of the impact and, also, caused Williams to drop a gun he was holding. Videotaped Confession of Jasaan Walker, 5/5/01, beginning at 5 minutes, 57 seconds. Walker, Fuss, and Cub then hastily fled the scene, running to 18th Avenue and stopping between Cumberland and York Streets, where they were picked up by a vehicle driven by another member of the drug operation, Ezra Howard. Howard dropped off the three men at Walker's mother's house, where they took the guns apart. Later that evening, they went to a pier on Philadelphia's waterfront and threw the guns in the river.
At the time he gave his written confession, Walker was asked by the detective who took the statement: "Was [Appellant] Duane [sic] Brown present for the murders?" Jasaan Walker Investigation Interview Record, 5/5/01, at 6. Walker answered, "No. It was me, Andre ["Cub"] and Fuss." Id. During the follow-up videotaped interview, one of the detectives told Walker, "There's other witnesses in this case that are identifying a guy by the name of Brown — Dwayne Brown;" Walker stated that Brown had "nothing to do with that shooting" and was "not there." Videotaped Confession of Jasaan Walker, 5/5/01, beginning at 15 minutes, 37 seconds. In response to further questioning during the same interview, Walker denied any friendship or close relationship with Appellant. Walker acknowledged that Appellant was also a part of the drug operation with which he was affiliated, but that Appellant worked directly for Fuss and Cub arranging drug sales and ensuring payments were made.
In both his written and videotaped confession, Walker additionally identified homes of various relatives and associates in which guns and drugs, as well as substantial amounts of cash, the proceeds of past drug sales, were stored. Walker further
Appellant's argument with respect to the admissibility of Walker's confessions is straightforward.
Appellant describes the content of Walker's confessions as "unabashedly self-incriminatory." Appellant's Brief at 57. He argues that the character of the confessions indicates they were not designed to deflect blame from himself, but rather they seemed more of an effort on Walker's part to achieve some sort of emotional catharsis by "getting it off his chest." Id. Appellant points out that with each of his words, Walker was confessing to the police "criminal activity of the gravest sort," which included: participating in an ongoing drug conspiracy with his two half-brothers to sell drugs, a conspiracy to commit murder, his actual commission of murder, and the killing of an innocent bystander. Id. Appellant asserts that these confessions were not in the nature of idle boasts made to a friend for the purposes of impressing; rather, these were "informed, remorseful confessions made
Appellant avers that, as Judge Klein concluded in his dissent, Walker's entire confession constituted a declaration against penal interest since, even those parts of the confession in which he implicated his half-brothers as co-conspirators, also subjected him to criminal liability, because they revealed a common agreement to kill Williams, and described their actions taken in concert, thereby establishing Walker's liability for their joint conduct, which, by virtue of the conspiracy, also included liability for the murder of Lacey by his co-conspirators. Appellant asserts that, had Walker proceeded to trial, these confessions would undoubtedly have been admissible to prove Walker's guilt of the offense of conspiracy. Thus, he contends, "Walker's confessions, in their entirety, were plainly statements against [Walker's] interest." Id. at 59.
Appellant additionally argues that there are three corroborating circumstances which "overwhelmingly indicate the trustworthiness of Walker's confessions." Id. The first is the way in which the confessions were taken — namely, that they were given after Miranda warnings were administered and after Walker gave his written consent acknowledging receipt of the warnings. Appellant observes that, even after receiving these warnings and giving this consent, Walker further amplified, in his videotaped confession, the admissions he had made in his written confession. Appellant claims that, because Walker was aware of his rights, and because he made his confessions to law enforcement officers, they acquired an increased level of reliability.
Appellant also points out that this is not a situation where "an `alleged statement' made to a potentially unreliable `friend' by an equally unreliable alternative suspect, who then denies saying anything of the sort." Id. at 60. By contrast, Walker's confession was videotaped, and thus recorded, verbatim, everything Walker said. This enabled the factfinder to actually observe Walker's "real time demeanor" as he was actually confessing. Id. This, according to Appellant, makes the confession uniquely trustworthy.
Lastly, Appellant claims the confessions themselves contain "internal indicia of reliability." Specifically, Appellant notes that the confessions described two key facts: (1) the motive for the shooting — to protect Walker's half-brothers' drug profits from running the crack cocaine distribution ring — details of this criminal enterprise he also provided in the confessions; and (2) a precise description of the caliber of the weapons he and his co-conspirators used, which matched the ballistics evidence the police recovered from the scene. Appellant contends these facts establish that Walker's confessions met the requirements for admissibility under Pa.R.E. 804(b)(3).
In response, the Commonwealth argues that the hearsay rule exception in Pa.R.E. 804(b)(3) is premised on the concept that, while hearsay is generally deemed untrustworthy, some hearsay statements have "sufficient indicia of reliability" which render them sufficiently trustworthy to be admitted, and a statement against interest is just such a statement. The Commonwealth asserts that what makes a statement admissible under this exception, is only the declarant's "self-inculpation" since it is what subjects the declarant to criminal liability. Commonwealth's Brief at 42. The Commonwealth contends that non-self-inculpatory parts of a confession are not admissible under this exception because they do not subject the maker to criminal liability. The Commonwealth characterizes the portions of Walker's confessions in which he implicated his half-brothers in the shooting as "collateral," as they were not self-inculpatory.
According to the Commonwealth, it "cost Walker nothing to implicate" his half-brothers and Walker's real motive in implicating them was to help himself to get out of the drug trade, as was his desire. Commonwealth's Brief at 42. The Commonwealth also suggests Walker may have named his half-brothers out of a desire for revenge since he was arrested for capital murder, while they remained free; hence, this may be why Walker was so explicit in detailing their drug dealing activities. The Commonwealth also proposes that Walker was trying to minimize his culpability with his confessions by trying to portray himself as merely a pawn who was dominated by his half-brothers in the conduct of the drug trade.
Furthermore, the Commonwealth asserts there is nothing which corroborates Walker's statement that his half-brothers were the shooters, or even that they were present at the shooting, since the eyewitnesses in their written statements stated that Appellant and Walker were present at the scene and were the shooters. The Commonwealth argues that, because of this lack of corroborating evidence, the confessions are not admissible under Pa. R.E. 804(b)(3) for this additional reason. The Commonwealth assigns little value to Walker's correct description of the weapons used by the shooters, characterizing it as not "particularly remarkable" that a killer would know this type of information. Id. at 44. The Commonwealth also discounts Walker's admission of his own involvement in the drug dealing network with his half-brothers, as well as his admission to the crime of conspiracy because, from the Commonwealth's perspective, Walker's naming of his half-brothers did not personally inculpate Walker, and, thus, was merely "gratuitous." Commonwealth's
The Commonwealth further maintains that the portion of Walker's confession in which he exculpated Appellant was not admissible as a statement against Walker's penal interest due to the fact that confessions exculpating an accomplice have always been deemed inherently unreliable, and our Court has not allowed such confessions to be admitted as statements against interest, citing inter alia, our Court's decisions in Commonwealth v. Brinkley, 505 Pa. 442, 453-454, 480 A.2d 980, 986 (1984) (holding that "those portions of a statement made by an out-of-court declarant which are not inculpatory, such as statements that another person was not guilty of the crime, are not `declarations against penal interest' and are not admissible under that hearsay rule exception"), and our Court's plurality decision in (Eldimiro) Colon, supra. The Commonwealth reasons that once the declarant confesses his or her own role, there is no additional risk in implicating others. The Commonwealth concludes that the trial court ruling barring the admission of this evidence was, therefore, not erroneous.
Resolution of Appellant's claim involves the proper interpretation of rules adopted by our Court governing the admission of evidence at trial, and, thus, the question is a legal one, which means our standard of review is de novo, and our scope of review is plenary. Touloumes v. E.S.C., 587 Pa. 287, 292 n. 4, 899 A.2d 343, 346 n. 4 (2006). Additionally, our Court, in interpreting the meaning of the Pennsylvania Rules of Evidence, ascribes to the words of those rules their plain and ordinary meaning. Commonwealth v. Baumhammers, 599 Pa. 1, 50, 960 A.2d 59, 89 (2008).
We begin by examining the text of Rule 804(b)(3), which provides:
Pa.R.E. 804(b)(3).
In the relevant language of Pa.R.E. 804(b)(3) implicated in this appeal, we discern four criteria which must be met: (1) the declarant made a statement; (2) the declarant was, at the time of trial, unavailable as a witness; (3) the statement "at the time of its making ... so far tended to subject the declarant to ... criminal liability... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true;" and, as this is a criminal matter (4) "corroborating circumstances clearly indicate the trustworthiness of the statement." Pa.R.E. 804(b)(3). The first, second, and fourth criteria are not in dispute in this case, and thus do not require an extended analysis.
With respect to the first criteria, there is no question that both Walker's written and videotaped confessions constitute
With regard to the fourth criteria, we find that there existed sufficient corroborating circumstances to "clearly indicate the trustworthiness" of Walker's confessions. Pa.R.E. 804(b)(3). We note specifically that Walker gave his confessions after Miranda warnings were administered by the police, apprising him of the consequences that would flow from his confessions, namely, that they would be used in a court of law against him. Nevertheless, Walker freely and openly admitted to his commission of the aforementioned criminal acts, describing in intricate detail: the creation of a pact with two other individuals to kill Williams; their planning of the killing; the implementation of those plans by the execution of a coordinated ambush on Williams and his companions; and the steps they took, together, to conceal their involvement after the shootings. Notably, Walker gave a graphic description of his own slaying of Williams, describing how Williams' body jumped from the force of impact from the bullets he fired. Walker expressly acknowledged that he was not promised anything for his confessions by the police, and further offered that he had been threatened with death by one of the individuals if he cooperated with the police. Thus, Walker had a strong incentive not to implicate those two individuals to the police, and the fact that he did so imparted greater reliability to his confessions.
Also, Walker gave a nearly identical account of his criminal actions, both in his written confession and, significantly, in the confession which was videotaped by the investigating detectives. As Appellant notes, this was not a situation where a self inculpatory statement was given in a remote setting where there were no witnesses, and the recipient of the statement was a person of questionable character. Instead, these confessions were given in a police station to detectives who scrupulously recorded every word in writing and with a video camera exactly as Walker said them. Hence, Walker's confessions were given under conditions which gave maximum assurance that their contents were an accurate reflection of what he said.
Moreover, in making these confessions, Walker did not try to shift the responsibility for his actions from himself to anyone else. While he also implicated his half-brothers, he did so only in the context of explaining his own involvement with them in the commission of the crimes. Although he indicated that he felt some reluctance at one point in participating with his half-brothers in the commission of the crimes, he, nevertheless, admitted to willingly doing
Additionally, and importantly, Walker's confessions included critical details which comported with the physical evidence recovered from the crime scene and from the victims' bodies and clothing. In his confessions, Walker described the gun he was carrying as a .44 magnum revolver, and also stated that Cub had a .38 caliber revolver, while Fuss had a "Glock" 9 millimeter. These were the precise caliber and type of the
The primary crux of the parties' dispute, as reflected by their arguments, seems to center on the third criteria of the hearsay exception: Which portions of Walker's confessions, at the time he made them to police,
Since the text of Pa.R.E. 804(b)(3) itself does not indicate how expansive the term statement is to be, we must examine other factors. The first and paramount factor to be considered is the foundation on which this rule rests, namely, the belief that it is a fundamental aspect of human nature that people will not make statements that are harmful to their own interests unless they have "substantial reason to believe that the statements are true." 2 McCormick On Evidence § 319; see also Bernard S. Jefferson, Declarations Against Interest: An Exception to the Hearsay Rule, 58 Harv. L.Rev. 1, 39 (1944) ("One is not likely to concede the existence of facts which will subject him to criminal liability unless such facts are true."). It is for this reason declarations against penal interest have been deemed sufficiently reliable to be admissible at trial, despite the fact that they are hearsay and the declarant is unavailable for cross examination. Thus, a construction of Pa.R.E. 804(b)(3) which admits only those individual statements in a declaration which subject the maker to criminal liability would seem best suited to effectuate that purpose.
Secondly, as the Commonwealth has indicated, our Court has, in our jurisprudence which predated the adoption of this rule, traditionally regarded only the portion of a confession made by an out-of-court declarant which is inculpatory to be admissible as a declaration against penal interest. Brinkley, supra; see also Commonwealth v. Anderson, 501 Pa. 275, 289, 461 A.2d 208, 215 (1983) (endorsing the view of Justice Roberts expressed in his lead opinion in Colon, supra, that "it is not the statement that must be against interest, but the fact stated." (emphasis original)). As Pa.R.E. 804(b)(3) "is consistent with prior Pennsylvania decisional law," Pa.R.E. 804(b)(3), Comment, these decisions provide additional support for the conclusion that it is only each individual statement subjecting a declarant to criminal liability, contained within his or her entire communication, which are admissible under this rule. However, these decisions, which concerned the common law declaration against penal interest exception to the hearsay rule, do not, in and of themselves, control the resolution of this question since it is the text of the current rule which is now the governing authority.
F.R.E. 804(b)(3) (2000).
In Williamson, the driver of an automobile was arrested and found to be in possession of a substantial quantity of cocaine. When questioned by DEA agents, the driver gave two statements. In the first statement, he recounted that he was given the cocaine by a third person and was driving the car to meet Williamson. However, when the DEA agent indicated he was going to arrange a controlled delivery of the cocaine, the driver recanted his first statement, indicating that he lied, and he gave the agent a second statement in which he averred that he was transporting the cocaine on behalf of Williamson. Williamson was subsequently arrested on various cocaine trafficking offenses; however, at his trial, the driver refused to testify against him. As a result, the government sought introduction of his statements under F.R.E. 804(b)(3), and the District Court ruled them admissible — a ruling the Court of Appeals for the Eleventh Circuit affirmed.
The high Court reversed. Addressing the proper construction of "the scope of the hearsay exception for statements against penal interest," the Court acknowledged that "statement" under F.R.E. 801(a)(1)
Id. at 599-600, 114 S.Ct. 2431.
The high Court concluded that F.R.E. 804(b)(3) "does not allow admission of non-self inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory." Id. at 600-601, 114 S.Ct. 2431. The high Court stressed that it cannot be assumed that a statement is automatically self-inculpatory because it is contained within a full confession. Consequently, the high Court directed that an examination of the individual statements contained within the confession was required to determine if each were self-inculpatory and, hence, admissible under F.R.E. 804(b)(3).
However, the Court specified that examination of each of the statements was not to be done in isolation. Instead, the Court emphasized:
Id. at 603-604, 114 S.Ct. 2431 (footnote omitted).
We find the Williamson analytical approach to be sound, and in accord with both the fundamental purpose underlying our adoption of Pa.R.E. 804(b)(3) and our prior caselaw interpreting the scope of the declaration against penal interest under our common law discussed above, Brinkley, Anderson supra, since it permits only the introduction of the portion or portions of an out-of-court statement which are self-inculpatory to the declarant.
As described above, substantial portions of Walker's written and videotaped confessions involved descriptions of his commission of the crimes of murder and conspiracy to commit murder with two other individuals, hence, we find these statements so far tended to subject him to criminal liability that they meet the standard for admissibility under Pa.R.E. 804(b)(3). However, both the trial court and the Superior Court disregarded this
In deciding whether this error necessitates the grant of a new trial, we must consider whether the error was harmless under the circumstances. An error is harmless only if the reviewing court concludes beyond a reasonable doubt that it could not have contributed to the verdict. Commonwealth v. Chmiel, 585 Pa. 547, 593, 889 A.2d 501, 528 (2005). It is the burden of the Commonwealth to prove, beyond a reasonable doubt, that the error did not contribute to the verdict. Commonwealth v. Williams, 607 Pa. 597, 609 n. 7, 9 A.3d 613, 619 n. 7 (2010). If there exists a reasonable possibility the error contributed to the conviction it cannot be deemed harmless. Commonwealth v. Wright, 599 Pa. 270, 312, 961 A.2d 119, 143 (2008).
There are three circumstances under which our Court has recognized that an error is harmless: (1) the error was not prejudicial to the defendant, or any prejudice suffered by the defendant was de minimis; (2) erroneously admitted evidence was cumulative with respect to other properly admitted evidence; or (3) the prejudicial effect of the error is so insignificant in comparison to the other trial evidence that it is clear beyond a reasonable doubt that the error could not have contributed to the fact-finder's decision. Commonwealth v. Smith, 580 Pa. 392, 401-402, 861 A.2d 892, 897 (2004).
The Commonwealth makes no argument in regard to harmless error, nor do we discern how the Commonwealth could carry its burden of demonstrating that the trial court's exclusion of Walker's statements in which he admitted to conspiring with two other individuals to having murdered Williams, and to having personally shot Williams, was harmless beyond a reasonable doubt. This evidence would have been significant to the jury's consideration of the question of Appellant's guilt, as it showed that two other
In conclusion, we hold that a conviction which rests solely on the prior inconsistent statements of witnesses who testify at trial, where such statements were properly admitted, but recanted at trial, does not offend due process provided the makers of such statements have been made available for cross examination, and, based on the content of the statements as a whole, a finder-of-fact could reasonably find that every element of the offense or offenses charged has been proven beyond a reasonable doubt. Secondly we hold that, in determining whether an out-of-court declaration is admissible under Pa.R.E. 804(b)(3) for subjecting its maker to potential criminal liability, a trial court must examine each of the individual statements in the declaration, in the context in which it was made and in context with the other statements and factual circumstances surrounding the criminal activity described in the declaration, and admit only those individual statements which "so far tended to subject the declarant to ... criminal liability... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." Pa.R.E. 804(b)(3). Accordingly, while we approve the lower courts' rulings regarding the sufficiency of the evidence, we conclude that the lower courts erred in excluding those self-inculpatory portions of Walker's confessions discussed above, and that such error was not harmless. Thus, Appellant is entitled to a new trial consistent with the evidentiary guidelines set forth in this opinion.
Judgment of sentence vacated. Case is remanded to the Superior Court to be remanded to the Court of Common Pleas of Philadelphia for a new trial. Jurisdiction relinquished.
Justice ORIE MELVIN did not participate in the decision of this case.
Justice BAER and McCAFFERY join the opinion.
Justice SAYLOR files a concurring opinion.
Chief Justice CASTILLE files a concurring and dissenting opinion.
Justice EAKIN files a concurring and dissenting opinion.
I join Parts I and IV of the majority opinion.
I also join Part II, although in my view, Appellant's brief makes a colorable case for establishing a floor to the critical concept of beyond-a-reasonable doubt where the crucial statements of Commonwealth witnesses are inherently self-contradictory. Moreover, while cross-examination certainly serves as a cornerstone of the American trial process, it is by no means a perfect means of adducing truth. Thus, I regard our rejection of Appellant's position as representing more of a policy choice in light of competing considerations than a foregone conclusion resulting from the absence of any creditable counter-argument.
As for Part III, I support the majority's decision to adopt a narrow construction of Rule 804(b)(3) based substantially on the reasoning expressed by the Supreme Court in Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), in its similar interpretation of the rule's federal counterpart, as highlighted by the majority. See Majority Opinion, at 1180-81 (quoting Williamson, 512 U.S. at 599-600, 114 S.Ct. at 2435). I also agree with the majority that the portion of Jasaan Walker's confession recounting that the killings were accomplished as part of a three-man conspiracy were self-inculpatory as to the offense of conspiracy. Accord U.S. v. Cruz, 797 F.2d 90, 97 (2d Cir.1986). With regard to Rule 804(b)(3)'s specification that declarations against penal interest may only be admitted where corroborating circumstances clearly indicate the statement's trustworthiness, I am in alignment with the majority to the degree it finds this prerequisite satisfied based upon external circumstances, primarily: the fact that the ballistics evidence recovered by the police aligned with Walker's description of the number and types of weapons used in the crime, accord U.S. ex rel. Gooch v. McVicar, 953 F.Supp. 1001, 1009 (N.D.Ill.1997); and that the responding officers' finding of an unfired handgun under Williams's body comported with Walker's recitation that Williams dropped such a weapon when he was shot. See Majority Opinion, at 1178.
I have a different view, however, of some of the internal facets of the confession. Most notably, I would not assign any weight to Walker's assertion that he was threatened with death if he cooperated with the police, or his denial that the police offered him leniency in return for his confession. These do not seem like the type of items that can supply corroboration for Rule 804(b)(3) purposes, as the majority seems to indicate. The statements — which the majority appears to accept as fact, see Majority Opinion, at 1176-77 — constitute untested allegations in the declaration itself. I am circumspect about relying on such allegations as "circumstances" tending, on their own, to bolster the reliability of the statement in which they appear. See generally Fed.R.Evid. 804(b)(3), Advisory Committee Note ("The requirement of corroboration should be construed in such a manner as to effectuate its purpose of circumventing fabrication.").
Additionally, although I agree with the majority that the exclusion of Walker's entire declaration amounted to error, like Mr. Chief Justice Castille I am not certain that the names of the co-conspirators, in themselves, tended to inculpate Walker. See Concurring and Dissenting Opinion, at 1193-94 (Castille, C.J.). Nevertheless, I do not understand this Court's present holding to encompass a specific requirement that Walker's identification of his half-brothers as his co-conspirators be placed before the jury. In my reading, the majority leaves room for the trial court to redact such names if it finds that they do not tend to inculpate Walker. Even assuming
I recognize that the number of participants in the conspiracy itself might also not be regarded as being against Walker's penal interests (so long as one other co-conspirator is recognized). Nevertheless, in the unique circumstances of this case — that is, where the Commonwealth's main proofs consist of prior inconsistent witness statements offered for substantive effect — I believe Appellant should have been permitted to go so far as to introduce Walker's conflicting statement that there were three participants. I acknowledge Mr. Chief Justice Castille's point that the trial court was not asked to introduce such a limited portion of Walker's statement, see Concurring and Dissenting Opinion, at 1190-91 (Castille, C.J.); however, Appellant did ask the trial court to admit the statement as a whole, of which the conspiracy information is a subset. In this regard, I am not sure that a criminal defendant should be required to present a potentially endless series of fallback positions to preserve a challenge to a trial court's ruling excluding evidence, where such ruling is partially incorrect. See generally Majority Opinion, at 1183 n. 69.
I also have substantial concerns regarding Appellant's due process claim centered on the Commonwealth's asserted procurement of Walker's unavailability to testify. In this regard, although the Commonwealth vigorously denies the factual allegation, there is record support for it. See Commonwealth v. Walker, Nos. 0106-0562, 0106-0563, Guilty Plea Colloquy, at 52, 63 (C.P.Phila., Jan. 24, 2006) (reciting Walker's testimony that he had made a "deal" with the Commonwealth, and that the agreement included Walker's "promise" not to testify at Appellant's trial).
N.T., Jan. 24, 2006, at 62-63 (emphasis added).
Chief Justice CASTILLE, concurring and dissenting.
I concur in the result to the extent that the Majority Opinion rejects the claim that the trial court violated appellant's due process rights by admitting into evidence the out-of-court statements of trial witnesses David Garvin, Lionel Lawrence, and Allen Lanier, subject to the observations I develop in Part I. For the reasons I explain in Part II, however, I respectfully dissent from the Majority's award of a new trial, which is premised on a finding that Jasaan Walker's out-of-court declarations to the police exculpating appellant were erroneously excluded from evidence at trial. To the extent Walker's hearsay statement tended to exculpate appellant, the statement did not inculpate Walker and was inadmissible under the exception to the hearsay rule for declarations against penal interest. The penal interests of Walker and appellant simply are not coterminous. Moreover, while the Court's erroneous ruling today is a boon for this one defendant, the holding will be a bane for future defendants because the Court's reasoning invites the Commonwealth to employ hearsay declarations of co-conspirators to inculpate defendants on trial. Because I would affirm the Superior Court's decision in its entirety, I respectfully dissent from the Majority's mandate to grant appellant a new trial.
With respect to the first issue on which this Court granted review, appellant nominally challenges the sufficiency of the evidence for conviction, but in actuality he offers a hybrid, bootstrapped argument blending an evidentiary claim with a derivative sufficiency claim. Appellant assails the credibility of inconsistent out-of-court statements generally, and those of eyewitnesses Garvin, Lawrence, and Lanier specifically, asking the Court to reconsider the weight the jury should have given to these testifying witnesses' prior inconsistent statements in determining appellant's guilt. Bootstrapping from the theory that the Garvin, Lawrence, and Lanier out-of-court statements should have no evidentiary value, appellant concludes that the Commonwealth did not adduce sufficient evidence to prove his identity as the perpetrator of the crimes beyond a reasonable doubt.
To a great extent, the Majority takes appellant's blended argument at face value, without recognizing that appellant seeks to change existing law and establish an evidentiary rule that an out-of-court statement signed and adopted by an available witness who testified, recanted, and was cross-examined at trial is per se unreliable and, therefore, has no probative value as a matter of law to establish an element of the crime (here, identity). According to appellant, because such out-of-court statements have no weight, the prosecution
Appellant's argument, when properly understood, does not raise a cognizable sufficiency claim at all. It proceeds upon the assumption that appellant's evidentiary/weight theory, if accepted, can serve as a basis to diminish the evidentiary record for purposes of sufficiency review. The theory plainly is mistaken:
D'Alessandro v. Pa. State Police, 594 Pa. 500, 937 A.2d 404, 409-10 (2007) (Opinion Announcing Judgment of the Court).
The Commonwealth here was permitted to introduce the prior out-of-court statements of Garvin, Lawrence, and Lanier as substantive proof that appellant was the person who killed the victims. Under settled law, the three statements were not hearsay because they were signed and adopted by the declarants, who testified at trial and were cross-examined by appellant. Pa.R.E. 803.1(1)(b). The statements were properly admitted into evidence to prove the truth of the matter asserted therein (i.e., that appellant killed the victims), and the jury was instructed accordingly. Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66, 70 (1986); Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7, 10 (1992). The admission of the Garvin, Lawrence, and Lanier statements for substantive purposes comports with the requirements of the Sixth Amendment Confrontation Clause, as applied to the states through the Fourteenth Amendment Due Process Clause. California v. Green, 399 U.S. 149, 164, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Neither the U.S. Supreme Court nor this Court have qualified their holdings to date in Brady, Lively, or Green by limiting, as a matter of law, the probative value of out-of-court statements on grounds of supposed unreliability, as appellant suggests.
The jury here was free to accept the out-of-court accounts of these witnesses as fact; and those accounts amply proved appellant's identity as the murderer. Even if we were inclined to reconsider our jurisprudence on use of prior inconsistent statements as substantive evidence, that revolution in the law would not provide a basis for sufficiency relief. Instead, a new trial would have to be ordered, at which the Commonwealth could determine how best to forward its case. Lovette, 450 A.2d at 981.
Trials are a search for the truth. There are many reasons why a witness says one thing outside of court, and another thing when on the stand. One common reason why witnesses in criminal cases change their accounts at trial is fear of reprisal; indeed, this reality has led this Court to approve reinstitution of grand juries in cases where there is a prospect of witness intimidation. See Pa.R.Crim.P. 556 et seq. (effective Dec. 18, 2012). Of course, this is not the only reason witnesses change their accounts. The point is that the trial of a matter allows all of the factors particular to the case to be played out in front of the factfinder, whose role it is to assess where the truth lies. So long as the witnesses are subject to cross-examination, as they were here, there is no reason to skew the search for truth with an evidentiary restriction on prior statements inconsistent with trial recantations or denials by a witness. Accordingly, appellant's suggestion that the Garvin, Lawrence, and Lanier statements should have no weight in the jury's determination regarding the identity of the killer is plainly meritless.
In an entwined claim, appellant requests that we reject the jury's credibility determinations as to Garvin, Lawrence, and Lanier, that we reweigh the evidence in his favor, and find that the verdict was the result of surmise and conjecture; or, in actuality, was against the weight of the evidence. See Appellant's Brief at 35 (citing Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976) and Commonwealth v. Karkaria, 533 Pa. 412, 625 A.2d 1167 (1993)). The trial court did not abuse its discretion in denying relief on this theory. The evidence here did not require the jury to speculate as to guilt. Farquharson, 354 A.2d at 550 ("where evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, a jury may not be permitted to return such a finding"). See Commonwealth v. DeJesus, 580 Pa. 303, 860 A.2d 102, 105-07 (2004) (challenge to verdict pursuant to Farquharson is to weight, not sufficiency, of evidence); Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa.2011) (same).
Although I ultimately agree with the Majority's conclusion that appellant's theories are meritless, and I join much of its reasoning, I concur in the result only. In my respectful view, we would provide better guidance if we more plainly delineated the separate issues before the Court.
As concerns the second issue on which this Court granted review, however, I respectfully dissent from the Majority's analysis and mandate.
Co-conspirator Jasaan Walker gave two distinct statements to the police on May 5, 2001, one written and one videotaped. Walker and appellant were initially listed for a joint trial but, after a hearing regarding the admission of Walker's written statement, the Commonwealth agreed to sever the two trials and the trial court agreed. Walker pleaded guilty shortly before his trial was to commence, and the records of his agreement and plea colloquy were sealed because Walker expressed fear for his safety in prison. Following Walker's guilty plea, appellant moved to offer into evidence at his own trial Walker's two out-of-court statements. The trial court noted Walker's refusal to testify at appellant's trial — a point appellant did not dispute — and found Walker's statements inadmissible because they were either irrelevant or the relevant exculpatory parts (exculpatory as to appellant) were not against Walker's penal interest and therefore lacked indicia of reliability; i.e., the statements were hearsay that did not fall within an exception. See Notes of Testimony ("N.T."), 1/24/2006, at 3-5, 87-88 (Walker Guilty Plea); N.T., 1/31/2006, at 6-8, 10-12; see also N.T., 1/23/2006, 46-51. The Superior Court affirmed this straightforward analysis.
The Majority reverses and holds that the trial court erred in excluding Walker's statements in their entirety, because
Here, as in the trial court, appellant's only claim is that the Walker out-of-court statements in their entirety should have been admitted into evidence as substantive proof of appellant's innocence, the Commonwealth's right to cross-examination notwithstanding. Indeed, according to appellant, Walker's entire statements, "line for line and word for word," were against Walker's penal interest and contained important indicia of reliability. Appellant's Brief at 57. Notably, appellant simply offers that "when Walker acknowledged assisting his own brothers in this conspiracy, that statement constituted a statement against Walker's penal interest which exculpated [a]ppellant." Id. at 46. Appellant makes the additional related claim that the trial court's refusal to admit the Walker statements in toto deprived him of "a meaningful opportunity to present a
The Majority rejects appellant's only actual theory and claim for relief: that the Walker confessions in their entirety, or "line for line and word for word," were admissible because they were declarations against Walker's penal interest. Id. at 57; see Majority Op., at 1176, 1179-80. Yet, the Majority inexplicably grants a new trial on the ground that the trial court erred in failing to do something it was never asked to do: to parse the statements and admit into evidence
Furthermore, even if appellant had pursued and preserved a point-by-point parsing of the out-of-court statements, the Majority's reasoning in granting sua sponte relief here is erroneous. Evidence Rule 804(b)(3) provides that, if the declarant is unavailable, hearsay statements which are against the declarant's own penal interest may be admissible as substantive proof of the truth of the relevant matter asserted. Pa.R.E. 804(b)(3). A statement against one's own penal interest is one which, at the time of its making, "so far tended to subject the declarant to ... criminal liability... that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." Id. Rule 804(b)(3) further requires that a declaration against penal interest is not admissible in a criminal case "unless corroborating circumstances clearly indicate the trustworthiness of the statement." Id.
Williamson v. United States, 512 U.S. 594, 599-600, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994). The application of Justice O'Connor's insight is clear here.
The only parts of Walker's statements that were against his own penal interest here were the assertions in which he implicated himself: i.e., those parts of the statement in which Walker acknowledged that he participated in a conspiracy. In certain cases — where the crime is committed by a single person, for example — such an inculpation may at the same time necessarily exculpate another (or all others). See, e.g., Commonwealth v. Statum, 769 A.2d 476 (Pa.Super.2001). Here, Walker's out-of-court account of the conspiracy as a "three-man" conspiracy, although supporting appellant's theory of the crime, was not self-inculpatory to Walker. Moreover, those parts of the statement in which Walker implicated his half-brothers, and thereby inferentially exculpated appellant, were also not self-inculpatory. Stated otherwise, the supposed identity of his accomplices was not inculpatory as to Walker, but only as to the accomplices. Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208, 215 (1983) ("it is not the statement that must be against interest, but the fact stated."); accord Williamson, supra. The theory that three men, rather than two, were responsible for the murders, and assertions against Walker's half-brothers were not remotely against Walker's own penal interest, and thus they have no special, assumed reliability. Indeed, placing blame on others, for instance, is a classic
To appreciate the absurdity of pretending otherwise, consider what would happen if Walker's half-brothers were being prosecuted for the murders. Walker's statements inculpating them certainly would be contrary to their penal interest. But, if the Commonwealth attempted to prove its case with this out-of-court hearsay from Walker, Walker's half-brothers would be vociferous in objecting to the introduction of the out-of-court accusations on hearsay grounds. They could properly note that Walker was not inculpating himself when he pointed the finger of guilt at them. If Walker were not available to testify, then his statements implicating his half-brothers would constitute inadmissible hearsay.
Despite this obvious distinction between what is self-inculpatory and what is exculpatory of others for purposes of declarations against penal interest, the Majority, like the dissent below, apparently would conclude otherwise. See Majority Op., at 1176-77 and Super. Ct. Op., at 8 (Klein, J., dissenting) ("[i]t is hard to imagine a trier of fact concluding that a defendant would falsely accuse his own brothers and exonerate a person he only knows casually."). Actually, it is not at all difficult to imagine why this might occur. If the intention of
The common law does not recognize the significant and baseless expansion of the exception postulated by the dissent below in its deficit of imagination, and erroneously accepted by the Majority here. Even if I agreed that the Court should go about expanding the exception on an ad hoc basis, neither the Majority nor the dissent below offer support for their assumption that people are just as unlikely to falsely implicate relatives, friends, or others as themselves. Common sense and experience, on the other hand, suggest quite the opposite — which is why our cases have not recognized a "declaration-not-against-penal-interest" exception to hearsay. And, finally, this case is a particularly inappropriate vehicle for the Majority's radical revolution of the declaration against penal interest exception, since these considerations are not accounted for in its reasoning, and since, as noted, the challenge actually forwarded here is a generic one.
If Walker's out-of-court accusations against his half-brothers had been admitted at trial, the Commonwealth would have had no opportunity to cross-examine Walker and test his credibility or motives for exculpating appellant and, concomitantly, accusing his half-brothers. Like most out-of-court statements of unavailable declarants, exculpatory declarations are traditionally inadmissible to prove the truth of the matter asserted "because they lack the conventional indicia of reliability: they are usually not made under oath or other circumstances that impress the speaker with the solemnity of his statements; the declarant's word is not subject to cross-examination; and he is not available in order that his demeanor and credibility may be assessed by the jury." Chambers, 410 U.S. at 298, 93 S.Ct. 1038; cf. Lilly v. Virginia, 527 U.S. 116, 133, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (plurality) ("non-self-inculpatory" portions of a declaration are presumptively unreliable). Yet, the Majority would admit those unreliable declarations into evidence nonetheless, to benefit appellant and compromise the truth-finding process.
Further, while the Majority decision rings-in an undeserved reward for this appellant, it only promises a nearer Judgment Day for numerous other criminal defendants. In this case, it is the defense that seeks to make use of a non-inculpatory portion of a declarant's out-of-court statement. But, the more common scenario — after this decision — will be one where the Commonwealth seeks to introduce a co-conspirator's out-of-court statements which implicate himself and his cohorts — i.e., the scenario that would arise here if the Commonwealth were to prosecute Walker's half-brothers. Under the Majority's holding, the non-exculpatory implication of one's cohorts in crime can now be admitted by bootstrapping it to the self-inculpatory aspects of the declarant's out-of-court confession. See Lilly, 527 U.S. at 127, 119 S.Ct. 1887 ("In criminal trials, statements against penal interest are offered into evidence in three principal situations: (1) as voluntary admissions against the declarant; (2) as exculpatory evidence offered by a defendant who claims that the declarant committed, or was involved in,
Consistent with this reasoning, Walker's declarations inculpating his half-brothers, and concomitantly exculpating appellant, were hearsay and inadmissible as substantive evidence. The Rule 804(b)(3) exception for statements against penal interest did not apply to Walker's exculpatory declarations, even if appellant had requested admission of only those parts of Walker's statements.
Furthermore, I would reject appellant's constitutional claim that the exclusion of Walker's hearsay declarations denied appellant a meaningful opportunity to present a complete defense and, therefore, violated his due process rights. Appellant's Brief at 39-43. State rulemakers have "broad latitude under the Constitution to establish rules excluding evidence from criminal trials," limited only if the evidence rules are "arbitrary or disproportionate to the purposes they are designed to serve." Holmes, 547 U.S. at 324-25, 126 S.Ct. 1727 (quotation marks omitted). The High Court stated in Chambers that "[t]he hearsay rule, which has long been recognized and respected by virtually every State, is based on experience and grounded in the notion that untrustworthy evidence should not be presented to the triers of fact." 410 U.S. at 298, 93 S.Ct. 1038. Due process does not require admission of evidence in violation of our Rules of Evidence — and especially of a rule of evidence which is universally "recognized and respected," the hearsay rule — even where the patently unreliable evidence offered is allegedly exculpatory. The unavailable Walker's out-of-court statements here, which appellant sought to introduce only in their unparsed entirety, were inadmissible hearsay and the trial court did not deny appellant any opportunity to present a defense by excluding such patently unreliable evidence. Appellant is no more entitled to employ this hearsay offensively here than the Commonwealth would be to use the statements offensively in a prosecution of Walker's half-brothers. Appellant's constitutional argument has no merit.
For these reasons, I respectfully dissent from the award of a new trial.
I join the majority's holding that witnesses' recanted out-of-court statements to police were sufficient to sustain Appellant's convictions. However, I find no error in denying the admission of the co-defendant's "confession;" that hearsay statement was inadmissible because the trial court specifically found it to be unreliable and untrustworthy. See Trial Court Opinion, 5/11/07, at 5-6. To be admissible under our Rules of Evidence, there had to be a finding of the exact opposite — hence, there was no abuse of discretion in denying its admission.
Appellant argues his co-defendant Walker's confession made to police should have been admitted under the statement against interest exception to hearsay exclusion under Pa.R.E. 804(b)(3). The relevant portion of this rule provides:
Pa.R.E. 804(b)(3) (emphasis added).
We must remember admissibility is determined using an abuse of discretion standard. It is well-settled that:
Commonwealth v. Flor, 606 Pa. 384, 998 A.2d 606, 623 (2010) (citations omitted). "[A]n abuse of discretion is not merely an error of judgment. Rather, discretion is abused when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record." Id., at 620 (citation omitted).
Appellant makes no argument the trial court abused its discretion in this finding, and I find no abuse of discretion here. Clearly, the statement at issue tended to expose the declarant to criminal liability — though it tried to minimize the declarant's involvement, it was still a confession to a crime — thus, Pa.R.E. 804(b)(3) would facially allow admission, but in a criminal case, the rule requires more — specifically,
The trial court pointed out that Walker's confession was completely contradictory to the statements he made under oath during his guilty plea colloquy. The majority does not address the trial court's finding or the inconsistency between the confession and the colloquy. The trial court determined this contradiction negated any indicia of reliability or trustworthiness in the prior statement. While my colleagues stress the fact declarant had been given Miranda warnings, this hardly demands a trial judge give credit to that which follows. At best an abstract and neutral factor, Miranda warnings do not make that which follows trustworthy, and I suggest we not suggest such a thing. People lie to police all the time, warnings or no warnings, and I see no abuse of discretion in crediting statements to a court under oath rather than semi-exculpatory statements to police. An appellate court is in no position to second-guess this finding.
I further distance myself from any notion that the trustworthiness of a hearsay statement is properly measured by what is actually against penal interests — trustworthiness depends on what is reasonably believed to be against interest. A statement that minimizes one's participation may be perceived as limiting incrimination, rather than being incriminating — the factors relevant to trustworthiness must be measured in context. The dissent of Judge Klein, cited in some detail by my colleages, seem to ignore this point, speaking largely of actual legal harm rather than whether the declarant believes he is helping or hurting himself. Admissibility turns on the belief of the declarant, not the legal reality established by parsing the rules of hearsay evidence — if they are indecipherable to law students and practitioners, they have no place in evaluating the motivations of others.
I see no abuse of discretion in the trial court's determination that Walker's statements were inadmissible, and I would affirm the Superior Court. Accordingly, I respectfully dissent from granting Appellant a new trial.
Written Plea Colloquy, 1/24/06, (R.R. at 22a).
The Commonwealth characterizes the trial court's use of the term "promise" in the oral colloquy as a "misstatement" and insists that it did not require Walker's agreement not to testify at Appellant's trial as part of the guilty plea; rather, the Commonwealth contends that it was Walker's counsel who handwrote this condition into the written plea colloquy. Commonwealth's Brief at 47 n. 27. The Commonwealth maintains that Walker's motivation for insisting on this condition was to ensure his own protection, as he did not wish to testify against Appellant, and the prosecution merely acquiesced to his request.
Appellant responds that the above-excerpted portions of the oral and written plea colloquies demonstrate that Walker's promise not to testify was an essential part of the negotiated plea agreement, and, that it does not matter which party wrote the condition into the plea colloquy, as it, nevertheless, was part of the final agreement that the trial judge and the Commonwealth endorsed. Thus, Appellant asserts it was a binding condition, with which Walker was required to comply. Appellant's Reply Brief at 4-6.
Based on our review of the transcript of Walker's plea hearing, and the above-quoted portion of the written plea agreement, we have no basis to dispute Appellant's characterization, or, conversely, to credit the Commonwealth's characterization.
Pa.R.E. 804(b)(3).
First, Appellant has been very consistent throughout his brief in describing his due process claim as resting on the contention that prior inconsistent statements, standing alone, are insufficient evidence to prove guilt beyond a reasonable doubt, Appellant's Brief at i, 12, 17-19, 22, 30, and he repeatedly argues how, from his perspective, relevant case authority from the United States Supreme Court and from other jurisdictions supports this assertion, id. at 22, 24, 26, 28. Indeed, in the heading of the argument section of Appellant's brief in which Appellant's citation to Farquharson and Karkaria appears, he summarizes the central contention of his entire argument, thusly:
Appellant's Brief at 19. Moreover, Appellant quotes at length from Karkaria, a case in which, as we explain infra, a criminal conviction was reversed for insufficient evidence.
Further, although the Chief Justice considers an assertion that a jury verdict was the product of surmise and conjecture as challenging only the weight of the evidence, see Concurring and Dissenting Opinion (Castille, C.J.) at 5 (quoting Farquharson and citing Commonwealth v. Sanchez ___ Pa. ___, 36 A.3d 24 (2011) and Commonwealth v. DeJesus, 580 Pa. 303, 310, 860 A.2d 102, 107 (2004)), the holding of Farquharson has been applied by our Court in other cases in a manner which indicates that whenever a jury verdict is based on evidence so unreliable that it renders the verdict a product of surmise and conjecture, the evidence is insufficient, as a matter of law, to sustain the verdict.
In Farquharson, the defendant was convicted of first-degree murder and, on appeal to this Court, she urged that she should receive a new trial because the testimony of the chief Commonwealth witness was so unreliable and contradictory that the jury should have rejected it as not credible. Although, because the defendant was requesting a new trial, her claim could reasonably be viewed as having been a challenge only to the weight of the evidence, the precise nature of her challenge was never clearly established in the opinion. Notably, however, as support for her contention, the defendant, in seeking relief from our Court, relied chiefly on a Superior Court decision, Commonwealth v. Bennett, 224 Pa.Super. 238, 303 A.2d 220 (1973), which reversed a criminal conviction on the grounds of insufficient evidence.
The Farquharson Court reiterated that it was not the job of an appellate court to "weigh the evidence and ... substitute our judgment for that of the finder of fact," since "[t]o do so would require an assessment of the credibility of the testimony and that is clearly not our function." Farquharson, 467 Pa. at 60, 354 A.2d at 550. Nevertheless, the Court also specifically recognized that "[t]his concept ... must be distinguished from an equally fundamental principle that a verdict of guilt may not be based on surmise or conjecture," and, citing Bennett, noted that "[f]ollowing this principle courts of this jurisdiction have recognized that where evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, a jury may not be permitted to return such a finding." Farquharson, 467 Pa. at 60, 354 A.2d at 550. Thus, while the Court ultimately did not find Bennett to be controlling of the matter before it, it nevertheless recognized that "the Bennett principle" applies "where the party having the burden of proof presents testimony to support that burden which is either so unreliable or contradictory as to make any verdict based thereon obviously the result of conjecture and not reason." Farquharson, 467 Pa. at 60-61, 354 A.2d at 550.
Although it may not have been entirely clear whether the Farquharson Court was applying these principles to resolve a sufficiency challenge or a weight of the evidence claim, our Court has subsequently quoted and applied this language in analyzing claims which involved only challenges to the sufficiency of the evidence. See, e.g., Commonwealth v. Duncan, 473 Pa. 62, 68, 373 A.2d 1051, 1054 (1977); Commonwealth v. Harris, 479 Pa. 131, 136, 387 A.2d 869, 872 (1978); Commonwealth v. Whack, 482 Pa. 137, 140-141, 393 A.2d 417, 419 (1978); Commonwealth v. Hudson, 489 Pa. 620, 628, 414 A.2d 1381, 1385 (1980); Commonwealth v. Galloway, 495 Pa. 535, 434 A.2d 1220 (1981).
Finally, in Commonwealth v. Smith, 502 Pa. 600, 604, 467 A.2d 1120, 1122 (1983), our Court, in discussing the defendant's sufficiency of the evidence claim based on contradictions in the testimony of the Commonwealth's witnesses, cited Farquharson and the above-referenced post-Farquharson cases, among others, to note that "[w]e have ... made exception to the general rule that the jury is the sole arbiter of the facts where the testimony is so inherently unreliable that a verdict based upon it could amount to no more than surmise or conjecture." The Smith Court went on to quote the Farquharson Court's observation that Bennett and other Pennsylvania courts "have recognized that where evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, a jury may not be permitted to return such a finding." Smith, 502 Pa. at 605, 467 A.2d at 1122. Our Court did not ultimately find that the contradictory witness testimony in that case rendered the jury verdict a product of conjecture, and, hence, rejected the defendant's sufficiency claim.
Subsequently, however, in Karkaria, our Court explicitly relied on Smith and Farquharson when setting forth the relevant law governing our review of Appellant's assertion that "the testimony presented to the jury was so unreliable and contradictory that their verdict could only have been arrived at through speculation and conjecture," id, 533 Pa. at 418, 625 A.2d at 1170, which our Court unambiguously deemed to be a challenge to the sufficiency, and not the weight, of the evidence. After considering the evidence adduced at trial, which consisted of testimony of a single Commonwealth witness about repeated sexual assaults she claimed the defendant had subjected her to, the Court concluded, "in keeping with our standard of review as set forth in Smith and Farquharson, we are compelled to conclude that the evidence presented at trial when carefully reviewed in its entirety, is so unreliable and contradictory that it is incapable of supporting a verdict of guilty, and thus, is insufficient as a matter of law." Karkaria, 533 Pa. at 422, 625 A.2d at 1172. Our Court therefore recognized that, in those extreme situations where witness testimony is so inherently unreliable and contradictory that it makes the jury's choice to believe that evidence an exercise of pure conjecture, any conviction based on that evidence may be reversed on the grounds of evidentiary insufficiency, since no reasonable jury could rely on such evidence to find all of the essential elements of the crime proven beyond a reasonable doubt. Consequently, Appellant's present assertion that the prior inconsistent statements of the Commonwealth's trial witnesses, repudiated at trial, were too unreliable to establish, as a matter of law, his guilt beyond a reasonable doubt is a claim which implicates the sufficiency of the evidence.
Also, Amicus notes that other jurisdictions simply evaluate whether such statements can furnish sufficient evidence to convict in accordance with their standard sufficiency of the evidence analysis. However, Amicus characterizes this approach as "decidedly the minority view." Amicus Brief at 18. Amicus urges that we adopt what it characterizes as "the majority view and require independent corroboration of an element of the crime where this element is not established by trial testimony but only by a prior inconsistent statement disavowed by the declarant of that statement at trial." Amicus Brief at 19.
Green, 399 U.S. at 186, n. 20, 90 S.Ct. 1930. While Justice Harlan did not explicitly express a view as to whether due process is offended by a conviction resting on out-of-court statements, when the witness who made the statements
A minority of jurisdictions have either declined to follow Williamson or adopted different interpretations of their parallel evidentiary rules. See People v. Newton, 966 P.2d 563, 578-79 (Colo. 1998); State v. Hills, 264 Kan. 437, 957 P.2d 496, 503 (1998); State v. Sonthikoummane, 145 N.H. 316, 769 A.2d 330, 334 (2000); State v. White, 158 N.J. 230, 729 A.2d 31, 39 (1999); State v. Julian, 129 Ohio App.3d 828, 719 N.E.2d 96, 100 (1998); Chandler v. Commonwealth, 249 Va. 270, 455 S.E.2d 219, 225 (1995).
Walker's signed, written plea agreement stated, in relevant part: "There is no plea bargain or agreement of any kind, except that
There is an unfortunate irony in the Majority's gossamer approach. When the trial judge receives the Court's Opinion informing her of the error she made, which requires the time and expense of a new murder trial, she will no doubt be surprised to learn that she has been faulted for a ruling and decision appellant never asked her to make. To make matters worse, she will be faced with a situation where neither appellant, nor the Majority, have yet bothered to parse the statement and identify its allegedly admissible sub-components. Apparently, this will be left to the trial judge. Evidence is not vague or ephemeral; it (like an evidentiary proffer) is supposed to be specific. The judge will be warranted in wondering, if she really was so wrong in her non-ruling, why is it so difficult to specify exactly what "parts" of the hearsay statements she was obliged to sua sponte mine and deem admissible.
The primary inquiry under Rule 804(b)(3) is into the self-inculpatory nature of the statement, and does not depend on which party offers the statement into evidence. See Pa. R.E. 804(b)(3). Moreover, the inquiry into whether a statement offered by a party is hearsay is independent from whether admission of the same statement under a settled hearsay exception offends the Confrontation Clause, albeit the admission of evidence has right of confrontation implications. Contrary to the Majority's assessment, I do not view the Majority Opinion as altering Confrontation Clause jurisprudence; rather, I am highlighting the right of confrontation implications of applying Rule 804(b)(3) as interpreted by the Majority in the context of a prosecution against Walker's half-brothers. See Majority Op., at 1182 n. 67. In the unlikely event that a Court someday were to determine that the time-worn declaration against penal interest exception to the hearsay rule violates the Confrontation Clause — to my knowledge, no court has so held, and certainly no court whose decisions bind this Court — the reasoning and effect, no doubt, would undermine the exception for all parties.
