Commonwealth v. McCandless

880 A.2d 1262
CourtSuperior Court of Pennsylvania
DecidedAugust 8, 2005
StatusPublished
Cited by64 cases

This text of 880 A.2d 1262 (Commonwealth v. McCandless) is published on Counsel Stack Legal Research, covering Superior 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. McCandless, 880 A.2d 1262 (Pa. Ct. App. 2005).

Opinion

GANTMAN, J.:

¶ 1 The Commonwealth of Pennsylvania appeals the pretrial order entered in the Philadelphia County Court of Common Pleas, which granted Appellee Thomas McCandless’ motion in limine to exclude the preliminary hearing testimony of an unavailable Commonwealth witness at Ap-pellee’s retrial. Specifically, the trial court determined Appellee had been denied a full and fair opportunity to cross-examine the witness at Appellee’s preliminary hearing. The case is now before us on remand from our Supreme Court “for a determination by the [C]ourt as to whether the Commonwealth waived application of the law of the case doctrine by having failed to raise and preserve the issue in the trial court.” See Commonwealth v. McCandless, 569 Pa. 507, 805 A.2d 1211 (2002) (Per Curiam Order). We hold that, by virtue of the Commonwealth’s motion for reconsideration and its Rule 1925(b) statement, the trial court was on sufficient notice of this Court’s prior decision; thus, the application of the law of the case doctrine was adequately preserved for review. Accordingly, we reverse and remand for further proceedings.

¶ 2 The relevant facts and procedural history of this case are summarized as follows:

[Appellee] was found guilty of first-degree murder in 1982. The evidence against him included the preliminary hearing testimony of John Barth, whom the trial court deemed unavailable at time of trial. On direct appeal from his judgment of sentence, [Appellee] claimed that the trial court erred in admitting Barth’s preliminary hearing testimony. The basis for the claim was twofold. First, [Appellee] claimed that the Commonwealth did not establish, as was required, that Barth was unavailable (claim # 1). Second, [Appellee] claimed that even if unavailability was established, he was not given an adequate opportunity to cross-examine Barth at the preliminary hearing, thus precluding admission of the testimony (claim #2). Both errors, alleged [Ap-pellee], constituted a violation of his rights under the Sixth Amendment to the United States Constitution, specifically, the Confrontation Clause.
[Appellee] relied on the well-established rule that in order for an absent witness’ preliminary hearing testimony to be admissible at trial, 1) the witness must be unavailable despite the Commonwealth’s good faith effort to procure him for trial and 2) the defendant must have had a full and fair opportunity to cross-examine the witness at the preliminary hearing.
This [C]ourt rejected [Appellee’s] claim[s] and adopted the trial court’s assessment of the issue. In its opinion, the trial court found that the Commonwealth made a good faith effort to make Barth available for trial and, further, that [Appellee] had a full and fair opportunity to cross-examine Barth at the preliminary hearing. In making the latter finding, the court explicitly considered [Appellee’s] claim that he was “prevented from asking [Barth] questions about any agreements or deals he had made with the Commonwealth, any prior statements he had given to the authorities, and any prior convictions for crimes involving dishonesty.” The trial court found, upon review of the record, that Barth’s statement, deal and criminal his[1265]*1265tory were adequately explored on cross-examination [at the preliminary hearing].
Finding no success in this [C]ourt, [Ap-pellee] thereafter sought allocatur, but our [S]upreme [C]ourt denied his request. In September of 1992, Barth committed suicide while in a Philadelphia jail cell. In 1996, [Appellee] filed a habeas corpus petition in federal district court.1 Again he challenged the admission of Barth’s preliminary hearing testimony, once more asserting claims # 1 and # 2. The district court denied relief, but on appeal, the Third Circuit Court of Appeals ruled that [Appellee] was entitled to a new trial because it found merit in claim # 1, that Barth was not legally unavailable. The federal appeals court held that the Commonwealth did not make a good faith effort to procure Barth’s presence at trial, thus the state court finding that Barth was unavailable was flawed. Despite the fact that claim # 2, the issue of “full and fair opportunity,” was also before the federal appeals panel, it declined to address it. Its rationale for doing so was based on procedural rules and reflected the limited nature of federal habeas relief.
The Third Circuit Court of Appeals held that [Appellee] clearly exhausted his state remedies with respect to claim # 1. Thus, he was entitled to federal habeas review of that claim and the federal appellate court, in fact, granted him relief on that basis. However, the federal court found that the exhaustion requirement was not established with respect to claim # 2.
[T]he federal appellate court declined to address claim # 2 based on some combination of procedural default and irrelevance, but its ruling was nonetheless clear: it “address[ed] only the issue of whether Barth was constitutionally unavailable.”
[T]he federal habeas relief granted to [Appellee] was a new trial and, ultimately, he appeared before the Philadelphia Court of Common Pleas for that purpose. The Commonwealth again sought to use Barth’s preliminary hearing testimony and [Appellee] once more sought to preclude it.
Naturally, Barth’s unavailability was not at issue as his death made him undeniably unavailable. Rather, [Appellee’s] motion [in ] limine focused on claim # 2, the full and fair opportunity issue. He asked the trial court to deny admission of Barth’s testimony on that basis. The trial court held a hearing on the motion and ultimately ruled that [Appellee] had not been given a full and fair opportunity to cross-examine Barth. The trial court found that preclusion was warranted because at the time of Barth’s cross-examination, [Appellee] did not have access to Barth’s statement to police nor did he have copies of Barth’s criminal history or the agreement Barth struck with the Commonwealth in exchange for his testimony.

Commonwealth v. McCandless, 778 A.2d 713, 714-16 (Pa.Super.2001) (internal citations and quotations omitted). Consequently, the Commonwealth filed a motion for reconsideration, in which it made the following claim:

[1266]*1266In addition to those arguments already made, it is submitted that [Appellee] waived his right to claim any Bazemore-type violation long before this court was called upon to review the matter. Such a claim was among those raised on direct appeal to the State Superior Court. When the Superior Court ruled in the Commonwealth’s favor, [Appellee] sought [allocatur]. In his [allocatur] petition he abandoned his Bazemore-type claim. Because of that decision, [Appellee] waives any right that he may have had to later relitigate the issue in the event a new trial were to be granted.

(Commonwealth’s Motion for Reconsideration at ¶ 5).2 The trial court denied the Commonwealth’s petition for reconsideration, and the Commonwealth immediately filed an appeal.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Com. v. Clevenger, C.
Superior Court of Pennsylvania, 2025
Com. v. Luksik, J.
Superior Court of Pennsylvania, 2024
Com. v. Rister, T.
Superior Court of Pennsylvania, 2024
MANCO v. St. Joseph's University
E.D. Pennsylvania, 2024
Est. of: R.L.M., Appeal of: H.B.C.
Superior Court of Pennsylvania, 2023
Com. v. Slowe, T.
Superior Court of Pennsylvania, 2023
Com. v. Coleman, S.
Superior Court of Pennsylvania, 2023
Com. v. Haughwout, G., Sr.
Superior Court of Pennsylvania, 2023
Com. v. Rosario, K.
Superior Court of Pennsylvania, 2023
Com. v. Brown, J.
Superior Court of Pennsylvania, 2023
Com. v. Morgan, R.
Superior Court of Pennsylvania, 2022
Com. v. Patterson, J.
Superior Court of Pennsylvania, 2021
Meadows Landing v. Scuvotti, M.
Superior Court of Pennsylvania, 2021
Penn Cleaning Services v. Gap Properties, LLC
Superior Court of Pennsylvania, 2021
In Re: Smith, A. Appeal of: Smith, A.
Superior Court of Pennsylvania, 2020
Com. v. Price, N.
2020 Pa. Super. 273 (Superior Court of Pennsylvania, 2020)
Com. v. Johnson, R., II
Superior Court of Pennsylvania, 2020
Com. v. Rutter, M.
Superior Court of Pennsylvania, 2020
Kelly, R. v. The Carman Corp.
2020 Pa. Super. 35 (Superior Court of Pennsylvania, 2020)
R. Stat & R.F. Bishop v. Kennett Twp. ZHB
Commonwealth Court of Pennsylvania, 2019

Cite This Page — Counsel Stack

Bluebook (online)
880 A.2d 1262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-mccandless-pasuperct-2005.