A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

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The Supreme Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania v. Dwayne BROWN, Appellant, No. 5 EAP 2010, 2012 WL 3570661 (Aug. 21, 2012), an appeal from the Judgment of Superior Court, 970 A2d 464, 721 EDA 2006, affirming a judgment of sentence of Judge Renee Cardwell Hughes of the Court of Common Pleas, Philadelphia County, Criminal Division, 0103–0703 and 0103–704. The case was before Justices CASTILLE, SAYLOR, EAKIN, BAER,TODD, McCAFFERY and ORIE MELVIN, who did not participate in the decision of the case. Justice Todd wrote the Opinion. Justices BAER and McCAFFERY joined the opinion. Justice SAYLOR filed a concurring opinion. Chief Justice CASTILLE filed a concurring and dissenting opinion. Justice EAKIN filed a concurring and dissenting opinion.

The appeal presented two questions: (1) whether a defendant’s convictions for first-degree murder and other crimes which rested solely on subsequently recanted out-of-court statements given to police violated the due process guarantees of 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).

The Court held that the recanting witnesses’ out-of-court statements to the police were sufficient to sustain Appellant’s convictions against a due process challenge. 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.

As to 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). Here, the trial court had erred by not allowing other portions of the co-defendant’s confessions to be entered into evidence as statements against interest.

Accordingly, while the Court approved the lower courts’ rulings regarding the sufficiency of the evidence, the lower courts erred in excluding the self-inculpatory portions of the confessions. Because such error was not harmless, the Appellant was entitled to a new trial.

Paul George, Esquire represented the defendant.

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