Commonwealth v. Brady

507 A.2d 66, 510 Pa. 123, 1986 Pa. LEXIS 738
CourtSupreme Court of Pennsylvania
DecidedMarch 26, 1986
Docket72 E.D. Appeal Docket 1985
StatusPublished
Cited by180 cases

This text of 507 A.2d 66 (Commonwealth v. Brady) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Brady, 507 A.2d 66, 510 Pa. 123, 1986 Pa. LEXIS 738 (Pa. 1986).

Opinions

[125]*125OPINION OF THE COURT

LARSEN, Justice.

We granted the Commonwealth’s petition for allowance of appeal to reconsider this Court’s long-standing rule that prior inconsistent statements of a non-party witness at trial cannot be used as substantive evidence to prove the truth of the matters asserted therein but may only be used for the limited purpose of impeaching the credibility of the witness. We now discard this antiquated rule and hold that such statements may be used as substantive evidence where the declarant is a witness at trial and available for cross-examination.

On September 14, 1980, the body of George Hoffman was discovered at about 7:30 a.m. at the Wilson Manufacturing plant in Sunbury where he was employed as a security guard. Appellee, Anthony Edward Brady, was arrested later that day and charged with the stabbing death of George Hoffman. Appellee was sixteen years of age at the time of trial, but was tried as an adult before a jury in the Court of Common Pleas of Northumberland County.

Evidence introduced at trial disclosed the following events. In the early morning hours of September 14, 1980, appellee awakened his girlfriend, Tina Traxler, at her residence in Sunbury and persuaded her to take a ride with him. The two drove around for a while until, near an area outside of Sunbury known as the Shale Pit, appellee ran the car into a ditch alongside a dirt road.

Unable to extricate the car from the ditch, appellee and Ms. Traxler began to walk back to Sunbury and, along the way, walked by the Wilson Manufacturing plant. They climbed the fence surrounding the plant and entered it through a side door. Once inside, appellee was attempting to pry open a dollar-bill change machine when George Hoffman, the plant security guard, encountered him and Ms. Traxler. A scuffle ensued during which appellee stabbed the victim who fell to the floor. Appellee and Ms. [126]*126Traxler then left the plant and returned to Sunbury to their friends’ home.

The most damaging evidence against appellee was a tape-recorded statement given by Tina Traxler to the police on the evening of September 14, 1980. That statement set forth the events recounted above.1 At trial, however, Tina Traxler, called as a witness for the Commonwealth, recanted the tape-recorded statement and testified that neither she nor appellee had entered the Wilson Manufacturing plant on September 14, 1980 after the car had broken down. Over objection, the Commonwealth was permitted to introduce the tape-recorded statement as substantive evidence, not merely to impeach Ms. Traxler’s credibility.2

The jury returned a verdict of guilty of second-degree murder, burglary and criminal mischief on June 4, 1981. Post-verdict motions were denied by the court, per the Honorable Samuel C. Ranck, and appellee was sentenced to a term of life imprisonment on the murder conviction and a concurrent term of imprisonment of six months to one year on the criminal mischief.3 Appellee submitted forty-two issues for review on appeal to the Superior Court, which found it necessary to address only two. A panel of the Superior Court reversed appellee’s judgments of sentence and remanded the case for a new trial. 338 Pa.Super. 137, 487 A.2d 891 (1985) (Opinion per McEwen, J., joined by Beck and Cercone, JJ.).

Constrained by decisions of this Court, the Superior Court applied the “law in Pennsylvania that prior inconsistent statements of a non-party witness are not admissible as [127]*127substantive evidence of the truth of the matter asserted therein,” 338 Pa.Superior Ct. at 140, 487 A.2d at 892 (citations omitted), and held that the lower court erred in admitting Tina Traxler’s tape-recorded statement as substantive evidence. That court further rejected the Commonwealth’s argument that any error was harmless. The Superior Court also addressed appellee’s argument that the trial court erred in allowing the Commonwealth to impeach its own witness and agreed with appellee that a prerequisite to allowing a party to cross-examine his own witness is a plea of “surprise” due to unexpected testimony of the witness. Since Tina Traxler had recanted her tape-recorded statement prior to trial (see note 2 supra), the Superior Court held that the trial court had erred because “her more recent version of the incident was not ‘unexpected.’ Thus, it was improper to plead surprise.” Id., 338 Pa.Superior Ct. at 143-144, 487 A.2d at 894.

Until now, this Court has adhered to the “orthodox” rule limiting the use of such prior inconsistent statements of a non-party witness to impeachment.4 Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976); Commonwealth v. Waller, 498 Pa. 33, 39 n. 2, 444 A.2d 653, 656 n. 2 (1982); Commonwealth v. Tucker, 452 Pa. 584, 307 A.2d 245 (1973). This rule has been widely discredited by most legal scholars and commentators that have considered its efficacy. See, e.g., McCormick, Evidence (2d Ed.) § 251; 3A Wigmore, Evidence § 1018 (Chadbourn rev. 1970); Graham, Employing Inconsistent Statements for Impeachment and as Substantive Evidence, 75 Mich.L.Rev. 1565 (1976-77); California v. Green, 399 U.S. 149, 154 n. 6, 90 S.Ct. 1930, 1933 n. 6, 26 L.Ed.2d 489 (1970) (and authorities cited therein). That rule has also been the recipient of recent heavy criticism by several members of this Court. See Commonwealth v. Gee, supra at 467 Pa. 136, n. 5, 354 A.2d 875 [128]*128(plurality opinion of Eagen, J., joined by O’Brien, J.) and at 467 Pa. 143-146, 354 A.2d 875 (dissenting opinion of Roberts, J., joined by Manderino, J.); Commonwealth v. Thirkield, 502 Pa. 542, 467 A.2d 323 (1983) (McDermott, J., dissenting opinion). Indeed, the criticism expressed by four Justices in Gee led the Superior Court to conclude that “we believe we should reexamine, and discard, the existing Pennsylvania rule” in favor of the “modern” rule allowing the use of prior inconsistent statements of a non-party witness as substantive evidence. Commonwealth v. Loar, 264 Pa.Super. 398, 399 A.2d 1110, 1117 (1979). However, Loar was subsequently disapproved by this Court in a footnote in Commonwealth v. Waller, supra wherein we declined to adopt the modern rule, stating: “Such has never been and is not now the law in this Commonwealth.” 498 Pa. at 39 n. 2, 444 A.2d at 656 n. 2.

Upon further reflection and consideration of the shortcomings of the orthodox rule, as clearly illustrated by the circumstances of this case, we reject that rule and embrace the modern rule as the law of this Commonwealth. The traditional view is that a prior statement of a witness is hearsay if offered to prove the truth of the matters asserted therein.

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Bluebook (online)
507 A.2d 66, 510 Pa. 123, 1986 Pa. LEXIS 738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-brady-pa-1986.