                  COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia


JAMAL R. BRENT, s/k/a
 JAMAL RAHIM BRENT

v.        Record No. 2049-94-2         MEMORANDUM OPINION * BY
                                    JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA                  FEBRUARY 6, 1996


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
               Joseph F. Spinella, Judge Designate
          Cullen D. Seltzer, Assistant Public Defender
          (David J. Johnson, Public Defender; Office of
          the Public Defender, on brief), for
          appellant.

          Margaret Ann B. Walker, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Jamal Rahim Brent was convicted in a bench trial of

malicious wounding and felonious use of a firearm.   On appeal,

Brent contends that the trial court erred by refusing hearsay

evidence that a third party admitted shooting the victim.   We

find no error and affirm the judgment of the trial court.

     On February 23, 1994, at approximately 9:00 p.m., Douglas

Cheatham was shot five times outside his home.   On the night of

the shooting, in a photographic lineup, and in court, he

identified Brent as the shooter.   Cheatham testified that on the

night he was shot, he saw Brent standing in the alley beside his

neighbor's front yard.   Cheatham had walked out onto his porch to
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
watch for his wife.    As he walked through his gate towards the

street, he heard two shots, both of which struck him in the back.

As he fell, he was shot three more times, twice in the arm and

once in the chest.    Cheatham testified that he tried to see who

shot him and that he saw Brent standing about four to five feet

away smiling at him.

     Brent denied shooting Cheatham.    He contends that Demartric

Gray fired the shots.   He testified that Gray confessed to him

and to his cousins, Tarsha Brent and China Walker, that Gray shot

Cheatham.   The trial court refused to admit this testimony,

ruling that it was inadmissible hearsay.   Brent contends that the

statement is admissible as a declaration against penal interest

because Gray was unavailable.
     After the defense rested, the trial court allowed it to

reopen its case and to call Gray as a witness.   The court wanted

to compare the appearances of Gray and Brent.    Gray testified

that he had heard about the shooting, that he had seen Cheatham

on Robinson Street before, but that he had no involvement in the

shooting.   Defense counsel did not question Gray about his

alleged statement that he had shot Cheatham.    After Gray

testified, the Commonwealth called Cheatham to testify.      Once

again, Cheatham identified Brent as the shooter.

     "The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be disturbed

on appeal in the absence of an abuse of discretion."    Jackson v.




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Commonwealth, 13 Va. App. 599, 603, 413 S.E.2d 662, 665 (1992)

(citations omitted).   "As a general rule, hearsay evidence is

incompetent and inadmissible."    Neal v. Commonwealth, 15 Va. App.

416, 420, 425 S.E.2d 521, 524 (1992) (citing Coureas v. Allstate

Ins. Co., 198 Va. 77, 83, 92 S.E.2d 378, 383 (1956)).    "The party

seeking to rely upon an exception to the hearsay rule has the

burden of establishing admissibility."    Id. at 421, 425 S.E.2d at

524.
       A statement that is against the penal interest of the
       declarant at the time it is made is admissible as a
       "declaration against interest" exception to the hearsay
       prohibition. However, before such a statement is
       admitted, the party offering it must prove that the
       declarant is unavailable to testify at trial.

Ferguson v. Commonwealth, 16 Va. App. 9, 11, 427 S.E.2d 442, 444

(1993) (citations omitted).

       Demartric Gray was not unavailable as a witness at Brent's

trial.   When Brent moved for the admission of the expected

hearsay testimony, he failed to prove that Gray was unavailable.

Gray had not taken the witness stand and had not refused to

testify.   A witness is unavailable if he is not physically

present or he takes the stand and refuses to testify.    See Morris

v. Commonwealth, 229 Va. 145, 326 S.E.2d 693 (1985).    A refusal

to testify cannot be assumed.    See Scaggs v. Commonwealth, 5 Va.

App. 1, 5, 359 S.E.2d 830, 832 (1987).   Furthermore, Gray was

called as a witness and testified without invoking his Fifth

Amendment privilege against self-incrimination.   Thus, he was not

unavailable and his statement did not fall within the declaration



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against interest exception to the hearsay rule.




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We affirm the judgment of the trial court.

                                   Affirmed.




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