                     COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia


PAUL M. DODSON
                                              MEMORANDUM OPINION * BY
v.           Record No. 2261-94-4              JUDGE LARRY G. ELDER
                                                 NOVEMBER 28, 1995
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                        Gerald Bruce Lee, Judge

             Zelma L. Berger for appellant.

             Eugene Murphy, Assistant Attorney General
             (James S. Gilmore, III, Attorney General, on
             brief), for appellee.



     Paul M. Dodson (appellant) appeals his convictions for

robbery in violation of Code § 18.2-58 and use of a firearm in

the commission of a felony in violation of Code § 18.2-53.1.

Appellant contends the trial court erroneously allowed the

Commonwealth to introduce an accomplice's statement after

determining the statement was a declaration against penal

interest, which is an exception to the hearsay rule.

Specifically, appellant asserts (1) the statement was not against

the accomplice's penal interest at the time it was made; (2) the

accomplice was unaware of the nature of his statement; and (3)

the accomplice's statement was unreliable.        Because the trial

court erroneously determined the statement was against the

         *
          Pursuant to Code     §    17-116.010   this   opinion   is    not
designated for publication.
accomplice's penal interest at the time it was made, we reverse

the convictions and remand the case for further action if the

Commonwealth be so advised.

     Viewed in the light most favorable to the Commonwealth, the

facts reveal that between midnight and 1 a.m. on December 26,

1993, Raoul Perez and his wife were operating a video camera

outside their apartment building in Oakton, Virginia.    Two black

men, one described as "smaller" and the other as "taller,"

approached the couple and asked for some matches.   In court, Mr.

Perez and his wife each identified the smaller black man as

appellant.   Appellant demanded Perez's camera and placed a

handgun against Perez's temple when he refused to comply.     The

second man stood some distance away.   After Perez released the

camera, the two men fled the area.   At the same time, a neighbor

spotted two men run to and enter a nearby vehicle with

personalized license tags.
     Based on the December 27, 1993 statement of Rodrick Brown,

later identified as the "taller" man accompanying appellant,

police apprehended appellant.   Testimony revealed Brown and

appellant had previously been roommates in May 1993 but had since

become hostile toward one another.   Brown was called as a witness

at appellant's trial but refused to testify on grounds of

self-incrimination.   Over appellant's hearsay objection, the

trial court allowed the Commonwealth to introduce a hearsay

statement Brown made to police after the incident, on the ground




                                 2
that such statement was a declaration against Brown's penal

interest.   Brown told police:

     We . . . picked Paul Dodson up at Springfield Mall, and
     we came back to Fairfax after we watched a movie, came
     back to Fairfax, and we was [sic] at Oakton Park,
     because he said he wanted to go talk to one of his
     friends, or whatever. And it turns out that he didn't
     have no [sic] friends over there, he just wanted to
     stick someone up. And he--all right. He got out of
     the car, and told me--first of all, he told me to come
     with him, so I was like, cool. I went with him, and
     when we was [sic] walking past the basketball court,
     and I told him--I was like--it was [sic] some people
     over there playing. I wanted to go over there and
     play, shooting until he got back. And he said, "No,
     man. Just come with me. Come with me." So we kept
     walking down the street, and we seen [sic] this man
     with a video camera. And Paul went up to him and asked
     him if he had a light, and the dude said no, he don't
     [sic] smoke. And then he just pulled the--he pulled a
     gun out of nowhere, and just demanded the video camera.
      And I--as I was like, damn, should I run, or should I
     just stay, or what should I do? So my first thing was
     to start running, when he put the gun to his head. I
     just started running. I didn't want to be around it.

     Appellant presented two witnesses who were in the vehicle

the morning of the robbery, each one testifying it was not

appellant who was in the car with them, but rather another person

named "Paul."   The witnesses also testified Brown told them the

video camera found in the vehicle, and later carried into a

witness's house by Brown, was a Christmas gift from Brown's

mother.

     A jury convicted appellant on both counts.

     There exist three prerequisites for applicability of the

declaration against penal interest exception to the rule against

hearsay:    (1) the declarant must be unavailable; (2) the



                                  3
statement must have been against the declarant's interest at the

time the declaration was made; and (3) the declarant must have

been aware at the time the statement was made that it was against

his interest to make it.   Boney v. Commonwealth, 16 Va. App. 638,

643, 432 S.E.2d 7, 10 (1993)(citing Charles E. Friend, The Law of

Evidence in Virginia § 234 (3d ed. 1988)); see Morris v.

Commonwealth, 229 Va. 145, 147, 326 S.E.2d 693, 694 (1985).

Furthermore, the declaration "is admissible only upon a showing

that the declaration is reliable."   Ellison v. Ellison, 219 Va.

404, 408, 247 S.E.2d 685, 688 (1978).   In this case, appellant

contests all of the above prerequisites, except Brown's

unavailability.

     As this Court has said:

     A statement is against the declarant's penal interest
     if it subjects the declarant to criminal liability.
     United States v. Sarmiento-Perez, 633 F.2d 1092, 1101
     (5th Cir. 1981), cert. denied, 459 U.S. 834 (1982). In
     making this determination, we must "look at the
     practical significance of statements made by a witness
     . . . and determine, given all of the circumstances,"
     whether the statement subjected the witness to criminal
     liability. Witham v. Mabry, 596 F.2d 293, 297 (8th
     Cir. 1979).


Boney, 16 Va. App. at 643-44, 432 S.E.2d at 10.

     Using the Boney standard, we hold Brown's statement was not

against his penal interest when made because the portions of the

statement relating events both during and after the offense did

not subject Brown to criminal liability.   As appellant asserts,

the statement actually benefitted Brown because it cast him in




                                 4
the role of an "innocent bystander" who did not plan or take part

in the robbery in any way.   This case differs from Boney, which

the Commonwealth argues factually controls this case.    In Boney,

the out-of-court declarant specifically admitted to police he

helped conceal the murder weapon that was involved in a homicide,

which implicated the declarant at least as an accessory to the

incident.    Nothing in Brown's statement implicated him as an

accessory to the crimes charged against appellant.
     We disagree with the Commonwealth's contention that certain

circumstances, when evaluated in conjunction with Brown's

statement, subjected him to potential criminal liability.    For

example, Brown's flight from the crime scene and his entry into

the same vehicle as appellant do not prove Brown acted as an

accessory.   If taken as true, Brown's statement reveals he was

surprised appellant robbed Perez and fled from the scene upon

observing the robbery occur.   Furthermore, while Brown possessed

a video recorder after the incident, there was no direct evidence

that it was the same video recorder taken from Perez.    We cannot

infer that it was the same video recorder for the purpose of

finding Brown's statement against his penal interests.

     Finally, because we cannot say the trial court's error in

allowing the introduction of Brown's statement did not affect the

verdicts, we are unable to hold the error harmless.     Lavinder v.

Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911

(1991)(en banc).    Brown's statement to police stood as damning




                                  5
evidence against appellant, as it contradicted testimony from

Brown's cohorts that appellant was not at the scene of the crime.

     Because we reverse on this issue, we need not reach the

separate issues of (1) whether Brown was aware his statement was

against his penal interest when he made it, or (2) whether there

existed sufficient indicia of reliability to admit Brown's

statement.

     Accordingly, we reverse the convictions and remand the case

to the trial court for further proceedings if the Commonwealth be

so advised.

                                                        Reversed.




                                6
