J-S43045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 JEFFREY RAPACH                          :   No. 1725 MDA 2018

              Appeal from the Order Entered October 16, 2018
    In the Court of Common Pleas of Luzerne County Criminal Division at
                      No(s): CP-40-CR-0002595-2017


BEFORE:    GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                 FILED NOVEMBER 12, 2019

     The Commonwealth appeals the order of the Court of Common Pleas of

Luzerne County granting Appellee Jeffrey Rapach’s pre-trial motion to prohibit

the Commonwealth from admitting into evidence the preliminary hearing

testimony of Gary Smith, a witness who is now unavailable to testify. After

careful review, we reverse and remand for further proceedings.

     In the early morning hours of August 10, 2016, police were dispatched

to a reported arson of a residence at 984 North Locust Street in Hazleton.

Officers determined that someone had attempted to set fire to the home by

throwing an incendiary device on the front porch. Fortunately, the fire caused

minor damage to the porch and did not injure any individuals inside the home.

     Immediately after the incident, officers were able to apprehend Gary

Smith. While in police custody, Smith asked to make a statement to Hazleton

City Police Detective David Rodick.   At the beginning of this conversation,

____________________________________
* Former Justice specially assigned to the Superior Court.
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which was audio-recorded and transcribed as a 78-page document, Smith

waived his Miranda rights.     Smith confessed that he set fire to a plastic

container and threw it on the porch of Appellee’s former wife (“the victim”).

From the beginning of the interview, Smith emphasized he was “not going to

incriminate nobody else.” Statement, 8/10/16, at 4.

      While Smith took responsibility for the crime, he conceded he had an

accomplice, whom he refused to name. Smith indicated that he felt he had to

“take the blame” as he “owed” the individual. Id. at 10, 39. When Detective

Rodick asked Smith for the truth, Smith reiterated that he could not

incriminate anyone and stated “[i]f you were my friend, you’d want me to

keep my mouth shut too.” Id. at 35.

      As the interview progressed, Smith suggested that Appellee was

involved in the arson. Smith admitted that he met Appellee at the local Owls’

Club that evening and that Appellee ran one way and he ran the other. Id. at

16-17. In addition, Smith hinted at the individual’s identity by revealing this

person cared for Smith’s elderly parents while Smith was previously

incarcerated. Id. at 10, 39. When Detective Rodick made it clear Appellee

was the primary suspect, Smith ignored specific questions about Appellee and

claimed that he was the sole actor in the arson.     Id. at 42.   Later in the

conversation, when Detective Rodick clarified that Appellee could be held

responsible as a co-conspirator, Smith asked that the recording be stopped

and did not want to answer further questions. Id. at 70.




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      Nine months later, on May 12, 2017, Smith gave a second statement

that was recorded and transcribed in the presence of Detective Rodick, a

Luzerne County Assistant District Attorney (ADA), as well as Smith’s defense

counsel.    On this date, Smith indicated Appellee was the other individual

involved in the crime and indicated that Appellee directed him to commit the

arson on his former wife’s home. When Detective Rodick asked Smith why he

has been “so vehement about taking the blame” for the arson during the first

interview, Smith indicated Appellee “actually didn’t do nothing.” Statement,

5/12/17, at 11. After Detective Rodick reminded Smith about the concept of

a conspiracy, Smith responded “I may have torched this stuff, but I’m a

grownup, I shouldn’t have been so intoxicated that I was easily led, and I

was.” Id.

      On June 5, 2017, Appellee was charged with arson and related offenses.

In the affidavit of probable cause, Detective Rodick indicated that Smith made

statements to the police on August 10, 2016 and May 12, 2017, respectively,

but specified that Smith confessed in the latter statement that Appellee had

directed him to commit the arson. Affidavit of Probable Cause, at 1.

      On July 26, 2017, the trial court held a preliminary hearing at which

Appellee was represented by counsel.        When the hearing began, the

prosecutor indicated he had provided Appellee with Smith’s criminal record

and advised him of the plea agreement Smith had made with the prosecution.

However, the prosecutor did not provide Appellee with a transcript of Smith’s

August 10, 2016 or May 12, 2017 statements prior to the hearing.

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      During the hearing, Smith indicated that on the night of instant crimes,

Smith and Appellee were drinking alcohol together and Appellee was

complaining about the victim, who was Appellee’s former spouse.           Smith

indicated that Appellee made a “Molotov cocktail” by placing gas and a wick

inside a plastic bottle. Notes of Testimony (N.T.), 7/26/17, at 13-14. Smith

asserted that Appellee directed him to throw the device at the victim’s house

and then to meet Appellee at the nearby Owl’s Club. Smith then went alone

to the victim’s home, lit the wick, and threw the incendiary device on the

victim’s front porch steps.   Although Smith tried to run from the scene, a

witness in a minivan followed him and led police to his location.

      Thereafter, the prosecutor asked Smith at the preliminary hearing if he

was questioned after his arrest by the police, Smith responded: “Yeah, I didn’t

say anything though … [as] I was trying to be loyal.”        Id. at 16.    The

prosecutor then directly questioned Smith about the differences between his

August 10, 2016 or May 12, 2017 statements, asking “so why then, after

telling the investigators one story [upon your arrest], did you tell the

investigators the full story?”   Id. at 17-18.   Smith suggested that he was

angered by Appellee’s lack of acknowledgement that he was “being quiet,”

when he learned that Appellee told Smith’s mother that he was hoping Smith

would “get the help he needs” as a result of the arrest. Id. at 18.

      On cross-examination, Appellee’s counsel criticized Smith, as she

alleged that Smith “didn’t say anything for eight months” after his arrest;

Smith agreed with this allegation. Id. at 28. Defense counsel did not ask

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Smith any additional questions about his August 10, 2016 statement.

Detective Rodick subsequently testified that he had conducted an audio-

recorded interview with Smith upon his arrest. Specifically, Detective Rodick

recalled that Smith had “open[ed] the door” to implicate Appellee in the arson

on multiple occasions, but subsequently “closed the door” as he appeared to

feel guilty about incriminating Appellee. Id. at 55.

      At the conclusion of the hearing, the trial court found the prosecution

had presented a prima facie case that permitted trial on the charges.

Thereafter, trial was scheduled for September 17, 2018.

      On September 13, 2018, Appellee filed a motion to preclude the use of

Smith’s testimony at trial as Smith had since passed away, and thus, was an

unavailable witness. While Appellee acknowledged that the testimony of an

unavailable witness may be admitted at trial if certain requirements are met,

Appellee argued that he did not have a full and fair opportunity to question

Smith at the preliminary hearing as the prosecution had not provided the

defense with Smith’s August 10, 2016 statement, which he claimed contained

a prior inconsistent statement. As such, Smith contended that the admission

of Smith’s testimony would violate his constitutional right to confront

witnesses against him.

      After a hearing, the trial court granted Appellee’s motion and prohibited

the Commonwealth from admitting Smith’s preliminary hearing testimony at

trial. The trial court found defense counsel was “unaware of Smith’s August

10, 2016 statement prior to her cross-examination of Smith” at Appellee’s

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preliminary hearing. Trial Court Opinion (T.C.O.), 12/12/18, at 3. While the

trial court noted that the prosecution had not provided the recording or

transcript of Smith’s August 10, 2016 statement to the defense prior to the

preliminary hearing, it found that this inaction was due to “mere inadvertence

on the part of the assistant district attorney rather than any intentional

nondisclosure of impeachment evidence.” Id. at 3, n.1.

      In addition, the trial court determined that Smith’s August 10, 2016

statement was inconsistent with his preliminary hearing testimony as Smith’s

version of the facts vacillated from Appellee “having no involvement at all to

[Appellee] plotting, planning and directing the entire incident.” Id. at 4. As

the trial court found that the defense did not have a full and fair opportunity

to cross-examine Smith, it concluded that the prosecution could not admit the

preliminary hearing testimony of Smith simply because he was now an

unavailable witness. The Commonwealth appealed, certifying that the trial

court’s order terminates or substantially handicaps its prosecution.         See

Pa.R.A.P. 311(d).

      It is well-established that “[t]he admission of evidence is solely within

the discretion of the trial court, and a trial court's evidentiary rulings will be

reversed on appeal only upon an abuse of that discretion.” Commonwealth

v. Le, ___Pa.___, 208 A.3d 960, 970 (Pa. 2019) (citing Commonwealth v.

Reid, 627 Pa. 151, 99 A.3d 470, 493 (2014)).




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     The sole issue on appeal is whether the trial court properly granted the

defense’s request to exclude the preliminary hearing testimony of an

unavailable witness. We are guided by the following principles:

     Under both our federal and state constitutions a criminal
     defendant has a right to confront and cross-examine witnesses
     against him. Commonwealth v. McGrogan, 523 Pa. 614, 568 A.2d
     924 (1990) (collecting cases). However, it is well established that
     an unavailable witness' prior recorded testimony from a
     preliminary hearing is admissible at trial and will not offend the
     right of confrontation, provided the defendant had counsel and a
     full opportunity to cross-examine that witness at the prior
     proceeding. Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d
     771 (1977).

Commonwealth v. Bazemore, 531 Pa. 582, 585, 614 A.2d 684, 685 (1992).

     In evaluating whether a defendant had been provided full and fair

opportunity to cross-examine an unavailable witness at a prior proceeding,

this Court emphasized the following:

     The Commonwealth may not be deprived of its ability to present
     inculpatory evidence at trial merely because the defendant,
     despite having the opportunity to do so, did not cross-examine
     the witness at the preliminary hearing stage as extensively as he
     might have done at trial. Commonwealth v. Cruz-Centeno,
     447 Pa.Super. 98, 668 A.2d 536, 542 (1995) (citation omitted).
     However, where the defense, at the time of the preliminary
     hearing, was denied access to vital impeachment evidence,
     a full and fair opportunity to cross-examine the unavailable
     witness may be deemed to have been lacking at the preliminary
     hearing. Id., 668 A.2d at 543 (citing Bazemore, supra). The
     opportunity to impeach a witness is particularly important where
     the Commonwealth’s entire case hinges upon the testimony of the
     unavailable witness. Commonwealth v. Smith, 436 Pa.Super.
     277, 647 A.2d 907, 913 (1994) (citing Bazemore, supra).




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Commonwealth v. Johnson, 758 A.2d 166, 169 (Pa.Super. 2000)

(emphasis added).

      The Commonwealth first argues that the trial court incorrectly found

that the prosecution denied the defense access to Smith’s prior statements

when defense counsel was fully aware of these interviews. We agree.          In

Bazemore, the Supreme Court found that Bazemore was denied a full and

fair opportunity to cross-examine a witness at his preliminary hearing as to

preclude the use of the witness’s testimony at trial, in part, due to the fact

that defense counsel was “not aware that the witness had given a prior

inconsistent statement to the police.” Bazemore, 531 Pa. at 589, 614 A.2d

at 687 (some emphasis added). The Supreme Court further provided that:

      we do not, today, impose upon the Commonwealth a duty to
      disclose that which it is not obligated by law to disclose.
      Furthermore, we are cognizant of the fact that the Commonwealth
      will not necessarily know that a particular witness may, indeed,
      subsequently become unavailable. Nevertheless, where as here,
      the Commonwealth knows, but does not disclose to the defense
      at any time prior to preliminary hearing cross-examination of a
      witness, that the witness has made an inconsistent prior
      statement and that witness then becomes unavailable to testify at
      trial, the Commonwealth must suffer the consequences in electing
      not to disclose that information which is necessary to afford
      defense counsel the opportunity for a full and fair cross-
      examination.

Id. at 590, 614 A.2d at 688 (emphasis added).

      In this case, the record contradicts the trial court’s finding that

Appellee’s counsel was unaware the Smith gave a recorded statement to police

on the night of his arrest that differed from his preliminary hearing testimony.



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In the affidavit of probable cause, Detective Rodick indicated that upon

Smith’s arrest on August 10, 2016, Smith asked to make a statement to the

police about the incident, agreed to have the statement audio-recorded, and

waived his Miranda rights. The affidavit of probable cause also sets forth in

detail the substance of Smith’s May 12, 2017 statement, in which he indicated

that Appellee had directed him to commit the arson.

      Moreover, at the preliminary hearing, on direct-examination, the

prosecutor directly questioned Smith as to why he gave two different

statements to police on August 10, 2016 and May 12, 2017, asking “so why

then, after telling the investigators one story [upon your arrest], did you tell

the investigators the full story?” N.T. at 17-18. Although Smith had initially

refused to incriminate Appellee, Smith responded that he agreed to tell the

full truth when he learned of a subsequent statement that Appellee had made,

which Smith felt was disrespectful given his decision to remain silent.

      This line of questioning by the prosecutor in his direct examination of

Smith disclosed to the defense that Smith’s initial statement differed from his

preliminary hearing testimony. In Bazemore, the Supreme Court specifically

provided that defense counsel will be deemed to have had the opportunity for

full and fair cross-examination of a witness that subsequently becomes

unavailable, if the Commonwealth had disclosed the inconsistent prior

statement to the defense “at any time prior to preliminary hearing cross-

examination of [the] witness.” Bazemore, 531 Pa. at 590, 614 A.2d at 688.

As the prosecutor in this case disclosed the fact that Smith made differing

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statements to police prior to his preliminary hearing cross-examination, the

prosecution did not deny Appellee access to this evidence. As Appellee had

the opportunity to extensively cross-examine Smith about the differences in

these statements, but did not do so, the prosecution should not be deprived

of the ability to present Smith’s preliminary hearing testimony at trial.

       We are not persuaded to reach a different result in considering the trial

court’s emphasis on the fact that the prosecution did not provide the defense

with a copy of the recording or transcript of Smith’s statements before the

preliminary hearing. The decision in Bazemore and subsequent precedent

does not require the prosecution to give a physical copy of the witness’s

statements to the defense before pretrial discovery has commenced pursuant

to our rules of criminal procedure. We point out that Smith’s statements were

not yet discoverable at the time of Appellee’s preliminary hearing.         See

Pa.R.Crim.P. 571(c)(3).1

       Moreover, we also agree with the Commonwealth’s argument that the

trial court erred in finding that Smith’s prior statements to the police

constituted vital impeachment evidence. In Cruz-Centeno, this Court found

that “[m]ere dissimilarities or omissions in prior statements…do not suffice as
____________________________________________


1  Appellee waived his arraignment in a signed statement in which he
acknowledged that he had the right to file a “motion for Pre-Trial Discovery
and Inspection” within fourteen (14) days following the date of [his]
Arraignment,” which was set at October 15, 2017. Waiver of Arraignment,
8/4/17, at 1. See also Pa.R.Crim.P. 571, cmt. (stating “[n]othing in this rule
is intended to preclude judicial districts from providing written notice of the
arraignment to the defendant at the conclusion of the preliminary hearing
when a case is held for court”).

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impeaching evidence; the dissimilarities or omissions must be substantial

enough to cast doubt on a witness’s testimony to be admissible as prior

inconsistent statements.” Cruz-Centeno, 668 A.2d at 544.

      In this case, Smith’s initial refusal to name the other individual involved

in the arson was merely an omission that would not have cast doubt on his

preliminary hearing testimony. Upon his arrest, Smith admitted to committing

the arson, but clearly and repeatedly suggested to Detective Rodick that he

had an accomplice.      However, Smith initially refused to incriminate the

individual, to whom he felt a sense of loyalty. Specifically, Smith indicated

that he “owed” the person for taking care of his elderly parents and was

adamant that he would keep his “mouth shut.”              As a result, Smith’s

subsequent decision to name Appellee as his accomplice in his second

statement to police constituted additional information that Smith did not

disclose during his first interview.

      As the prosecution did not deny the defense access to “vital

impeachment evidence” and the defense had a full and fair opportunity to

cross-examine Smith at the preliminary hearing, the trial court abused its

discretion in granting Appellee’s motion to preclude the Commonwealth from

admitting this testimony at trial.

      For the foregoing reasons, we reverse and remand for further

proceedings.

      Order reversed.       Remand for further proceedings.          Jurisdiction

relinquished.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2019




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