Commonwealth v. McCandless , 2001 Pa. Super. 168 ( 2001 )

MONTEMURO, J.,

Dissenting.

¶ 11 respectfully dissent.

¶ 2 On the afternoon of August 11, 1980, police received a radio call that a shooting had occurred in a garage in Philadelphia. An eyewitness had reported ’ that after hearing shots fired, he saw the victim crash through the door of the garage, collapse on the sidewalk, pick himself up and flee around the corner, coming to a stop when he fell against a blue Buick parked nearby. A second man, later identified as John Barth, ran from the garage, then turned to assist a third man in freeing a blue Chevrolet from the collapsed garage door. The third man drove away in the Chevrolet, and the witness saw Barth run to where the victim lay bleeding, grab him by the neck and shake him until the witness intervened.⁴ Barth then entered the Buick and sped away. The victim later died of two gunshot wounds.

¶ 3 Barth was arrested for the murder,⁵ and after a preliminary hearing held for court, but was later released in exchange for a statement which implicated Appellee herein and another man, Patrick Hartey, both of whom were extradited from New Jersey where they were being held on other unrelated charges. Barth, who offered the only eyewitness testimony to the shooting inside the garage, reported at the preliminary hearing in April of 1982 that Appellee had pistol whipped the victim and then shot him.⁶ However, Barth did not appear at Appellee’s August 1982 trial; after a hearing he was declared unavailable, and his preliminary hearing testimony was read into the trial record. Apparently, sometime in September of 1992 John Barth hanged himself in a prison cell in Philadelphia.⁷

¶ 4 Pursuant to the jury’s verdict, Appel-lee was sentenced to life imprisonment;⁸ on direct appeal this Court, per Wickers-ham, Beck and Hoffman, JJ.,⁹ affirmed the judgment of sentence for murder, and his petition for allowance of appeal to the Pennsylvania Supreme Court was denied.

¶ 5 In January of 1996, Appellee filed a pro se petition for post conviction relief which was denied after Appellee requested that it be withdrawn. At approximately the same time, Appellee filed a habeas corpus petition in the United States District Court; the petition was denied in March of 1997. On review, the Third Circuit Court of Appeals reversed and remanded with instructions that unless Ap-pellee was retried and convicted within a reasonable time,¹⁰ later determined to be 120 days from July 30, 1999, that is, November 29, 1999, he should be released. The Commonwealth’s request for a stay of this order, filed November 26, 1999, was denied.¹¹

¶ 6 The case was remanded to the Court of Common Pleas and trial was scheduled to begin on or about November 17, 1999. On October 20, 1999, Appellee filed the instant motion in limine to prevent the introduction of Barth’s preliminary hearing testimony. After a hearing, the motion was granted on November 10, 1999. This appeal followed, raising the sole issue of whether the trial court abused its discretion in refusing to admit the witness’ testimony despite previous rulings by the trial court and this Court¹² in favor of its admission.

¶ 7 To assess the propriety of the denial of a motion in limine, we apply the eviden-tiary abuse of discretion standard, Commonwealth v. Zugay, 745 A.2d 639, 645 (Pa.Super.2000), that is, we will not reverse the trial court absent a finding that its decision was an abuse of discretion. Commonwealth v. Puksar, 559 Pa. 358, 740 A.2d 219, 225 (1999). As the trial court points out, “prior sworn testimony of a witness is admissible at a later proceeding where the witness is unavailable if the defense has been provided a full and fair opportunity for cross examination.” (Trial Ct.Op. at 5) (citing Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771, 779 (1972)). See Commonwealth v. Bazemore, 531 Pa. 582, 614 A.2d 684, 685 (1992).

118 The test for admissibility of preliminary hearing testimony is based on the right, under both the state and federal constitutions, to confront and cross examine witnesses. Bazemore, supra at 685. Two co-equal components comprise the standard: (1) the actual unavailability of the witness despite good faith efforts of the state to produce him, and (2) the validity of his cross examination, that is, whether it was “full and fair,” so as to assure reliability. Id.; see also Commonwealth v. Smith, 436 Pa.Super. 277, 647 A.2d 907, 911 (1994). Only the second of these is at issue here, since the Third Circuit focused solely on the question of whether, at the time of trial, the witness was actually unavailable for purposes of the admissibility rule.

¶ 9 The habeas court found that because the Commonwealth failed to exercise due diligence in procuring Barth’s appearance at trial, he was not constitutionally unavailable; thus the use of his preliminary hearing testimony violated Appellee’s right to confrontation under the Sixth Amendment to the United States Constitution. Conditional habeas relief, that is, discharge absent retrial and conviction within a reasonable time, was accordingly granted. The Third Circuit deliberately and specifically declined to address whether the witness had been subject to full and fair cross examination at the preliminary hearing because, “in his brief, McCandless conceded that he did not present this claim to the Pennsylvania Supreme Court and that it is procedurally defaulted.” McCandless, 172 F.3d at 264 n. 6.¹³ The Court then observed that although Appellee attributed the default to counsel’s ineffectiveness in failing to include this claim in his petition for allocatur to the Pennsylvania Supreme Court, it had appeared in his appeal to this Court; therefore the omission had been a strategic decision. In any event, the Court noted that there was no need to assess the full and fair cross examination prong of the test, because it had already determined that the Confrontation Clause had been violated, Id. at 265 n. 6.

¶ 10 The Majority finds that because the original trial court judge ruled that the defense had been afforded a full and fair opportunity for cross examination of the witness during the preliminary hearing, and this decision was affirmed on appeal, Commonwealth v. McCandless, No. 01417 PHL 1984, unpublished memorandum (Pa.Super. filed April 1, 1986), the law of the case governs and the trial court herein erred in refusing to acknowledge the previous result. However, this argument fails to acknowledge any effect on the law of the case accomplished by the circumstances leading to the reexamination, viz., the grant of a writ of habeas corpus.

¶ 11 My analysis begins with the declaration of the United States Supreme Court, albeit made in a different context, that “[t]he writ of habeas corpus is a major exception to the doctrine of res judicata, as it allows relitigation of a final state-court judgment disposing of precisely the same claims.” Lehman v. Lycoming County Children’s Services, 458 U.S. 502, 513, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). The Third Circuit here reiterated that under 28 U.S.C. § 2254(a), “[fjederal courts have the power to entertain habeas corpus applications by persons in state custody claiming that they ‘[are] in custody in violation of the Constitution or laws or treaties of the United States.’ ” McCandless, 172 F.3d at 260. On mixed questions of law and fact, of which the reliability requirement of the Confrontation Clause is one, id. at 265, and pure questions of law, the federal courts of appeal exercise plenary review over state court conclusions. Id. at 260.

¶ 12 Once habeas corpus relief has been granted, the rule becomes that [t]he discharge of a petitioner on habeas corpus by a court of competent jurisdiction conclusively settles that he is not liable to be held in custody on the state of facts existing at the time. The order or judgment of discharge is inclusive in his favor that he is illegally held in custody, and is ... res judicata of all issues of law and fact necessarily involved in that result.” 39 Am.Jur.2d Habeas Corpus § 192 (1999) (emphasis added). Thus, by indirection, the full and fair cross examination issue is decided, as the Bazemore test requires that both criteria, unavailability and proper cross examination, be satisfied before preliminary hearing testimony may be submitted at trial.

¶ 13 The Majority’s position tacitly denies that the federal court’s decision to grant habeas relief produces any consequences at all. But as the remand itself makes clear, once a constitutional violation is discovered and relief ordered, the status quo ante no longer obtains — the state courts had already denied relief on the grounds relied upon by the federal court. To treat the federal court’s grant of the conditional corrective as an invitation to repeat a performance already determined to have been faulty would eviscerate the notion that unconstitutionality may be redressed, and/or that retrial pursuant to a grant of habeas corpus relief must have a curative effect.

¶ 14 For the same reason, implicit in the remand order is the suggestion that since the admissibility test is bipartite, and since the initial portion of the test, the unavailability of the witness, has been conclusively decided, retrial leading to conviction is not possible absent some new or different evidence against Appellee, or other remedial measure. Indeed, the Third Circuit says as much, albeit as dictum, noting during its recitation of facts that the circumstances of Barth’s statement make a full and fair cross examination of him “of crucial importance” to Appellee, and a matter in which he has an “acute interest.” McCandless, 172 F.3d at 266. The Commonwealth has failed even to suggest that it is capable of presenting anything other than the questionable evidence elicited through Barth’s preliminary hearing testimony. Further, although Barth did become actually unavailable, the unconstitutionality attaching at the time of Appellee’s trial has not been remedied. To decide otherwise would contradict the notion that relief for violation of individual rights may be reached through habeas corpus proceedings. Accordingly, the law of the case handed down by the state courts does not govern, as a critical component of that law has been disqualified: Barth’s unavailability now does not cure the constitutional violation committed heretofore. The trial court therefore properly reviewed the subject of the motion in limine.

¶ 15 Even if the trial court should not have revisited the admissibility of Barth’s testimony for the reasons already mentioned, there are others. After the meaning of the Third Circuit’s “reasonable” period within which to retry Appellee was defined in an order of the Federal District Court, on September 17, 1999, the Commonwealth did not move for either reconsideration or clarification. McCandless, 1999 U.S.Dist. LEXIS at 3. Not until November 26, 1999, three days before the 120 days expired on November 29, 1999, and more than six months after the Third Circuit’s decision was entered was a challenge mounted. Even then the Commonwealth merely requested a stay pending appellate consideration of the trial court’s grant of the motion in limine. The argument advanced was not substantive, but merely-averred that prosecution of Appellee would be substantially handicapped by the absence of Barth’s testimony. The Commonwealth had never filed either a motion for reconsideration of or an appeal from the grant of conditional habeas relief, id. at 5 n. 4., and the federal district court notes that the Commonwealth’s request for a stay failed to make the required showing that there was any likelihood of success on the merits of an appeal. Id. at 5-6.

¶ 16 Finally, in its motion for reconsideration of the instant trial court decision, the Commonwealth advanced only the theory that Appellee had waived his right to assert a Bazemore claim. Although it now argues that there could have been no waiver of the law of the case theory as it is non-waivable, the Commonwealth continues to ignore the effect of a grant of habeas corpus relief. I would find that because, in this instance, so profoundly is the law of the case affected by the grant of habeas relief, it does not govern.¹⁴

¶ 17 Even assuming that the rules of the law of the case did apply, they would permit the trial court to revisit the admissibility of Barth’s testimony. The law of the case is overridden where exceptional circumstances exist, such as an intervening change in the facts, evidence or controlling law, or where the prior holding was clearly erroneous such as to create a manifest injustice if followed. Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1332 (1995). The original trial court found that because defense counsel was able to elicit from Barth that he had given a statement to police which implicated Appellee, that he was testifying pursuant to an agreement, and that he had not been convicted of any crimes involving dishonesty, cross examination had been full and fair. The trial court here ruled that having been denied both Barth’s statement to police and his agreement with the Commonwealth, Appellee lacked a full and fair opportunity to cross examine Barth, and was therefore “unable to challenge his credibility and potential bias.” (Trial Ct.Op. at 7). Recent case law of both this Court and our Supreme Court represent changes in controlling authority on these points which permit the reexamination of Barth’s testimony, demonstrate the accuracy of the trial court’s determination, and illuminate the injustice which would have occurred had the original decision been allowed to stand.

¶ 18 Commonwealth v. Johnson, 758 A.2d 166 (Pa.Super.2000), involved a motion in limine filed by the defendant/ap-pellee in a murder case to preclude admission of the preliminary hearing testimony of a witness who had died prior to trial. The trial court found that in failing to supply the defendant with certain statements the witness had made to police, the Commonwealth had deprived him of impeachment material, and thus of the opportunity to perform a full and fair cross examination.

¶ 19 The undisclosed material in Johnson consisted of information concerning the victim’s drug use inconsistent with the witness’ preliminary hearing testimony. We found that this information was vital impeachment evidence since it implied that a person other than the appellee might have been the murderer.

¶ 20 Here, the trial court noted that Barth was the only eyewitness to the shooting, and that his statement to police was never given to Appellee so as to permit cross examination on its contents because the original trial court had held that the Commonwealth was under no obligation to provide it.¹⁵ This Court’s ruling in Johnson, that impeachment material is “particularly important where the Commonwealth’s entire case hinges upon the testimony of the unavailable witness,” id. at 169, is particularly applicable here.

¶ 21 As the Third Circuit observed

[i]n this case, [Appellee’s] interest in confrontation with Barth could not have been higher. He was charged with an offense which carried a mandatory life sentence, and the prosecution was seeking the death penalty. Barth was the prosecution’s only eye witness to the alleged shooting, and his testimony was the only substantial evidence implicating [Appellee] in the murder. These factors would have made full and fair cross examination before the jury of crucial importance to [Appellee] even if Barth had been a wholly impartial witness. But he was not. He had been charged with and arrested for the same homicide and had reached an agreement with the prosecution that he would go free if he testified against [Appellee] and Hartey and they were convicted.

McCandless, 172 F.3d at 266.

¶ 22 Appellee was denied access to the principal source of evidence against him, a person who himself may well have been guilty of the crime. Indeed, Barth, having given his name as McCandless at the time of his arrest, was held for trial on homicide charges following his March 1981 preliminary hearing. Only in September of 1981, after he had given authorities the undisclosed statement implicating Appellee and Hartey, was an agreement struck resulting in his release. Thus, apparently, a prima facie case against Barth existed even in the absence of an inculpatory statement, or the statement was, despite Barth’s denial, a confession of some sort. In either event, counsel was not permitted to inquire óf the detective in charge of the investigation whether Barth had given any other statement.¹⁶ To the court’s question as to whether the detective had received any statement which was inconsistent, other than in small details, from the one refused to counsel, the detective responded that he did not recall. Thus, pursuant to the principles enunciated in Johnson, I believe the trial court’s conclusion here was correct.¹⁷

¶ 23 Equally compelling if not more so, is our Supreme Court’s decision in Commonwealth v. Strong, 563 Pa. 455, 761 A.2d 1167 (2000), a death penalty case concerned with the Commonwealth’s failure to disclose the details of an agreement it had made with an eyewitness/accomplice in exchange for his testimony. Although the appellant had specifically requested this material prior to his trial in 1984, the Commonwealth denied the existence of an agreement, as the quid pro quo for the witness’ testimony had not been reduced to writing; the trial court therefore concluded that no actual deal had been struck. The agreement was only made available for the first time prior to a hearing on the appellant’s post conviction relief petition in 1997.

¶ 24 Subsequent to his appearance at the appellant’s trial and the ensuing conviction and death sentence, the witness entered a plea of guilty to murder and kidnapping in exchange for a sentence of 40 months incarceration. On direct appeal, our Supreme Court reversed, holding that where the Commonwealth, despite the appellant’s multiple requests, had denied the existence of any arrangement relevant to a witness’ adverse testimony, a Brady¹⁸ violation, that is, an infringement of due process where evidence favorable to the accused is withheld, occurs.

¶ 25 Our Supreme Court held in Strong that

[e]xculpatory evidence favorable to the accused is not confined to evidence that reflects upon the culpability of the defendant. Exculpatory evidence also includes evidence of an impeachment nature that is material to the case against the accused. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). As the court in Napue sagely observed “[t]he jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying that a defendant’s life or liberty may depend.” Id. at 269, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217. Any implication, promise or understanding that government would extend leniency in exchange for a witness’ testimony is relevant to the witness’ credibility. [Giglio v.] United States V. Giglio, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). As Brady and its progeny dictate, when the failure of the prosecution to produce material evidence raises a reasonable probability that the result of the trial would have been different if the evidence had been produced, due process has been violated and a new trial is warranted. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

Id. at 1171.

¶26 Here, as in Strong, Appellee was never provided with a copy of the agreement, the existence of which was not disputed, between Barth and the Commonwealth. Barth was originally arrested for and charged with the murder. Although, unlike Strong, Barth confirmed that he was testifying against Appellee pursuant to the agreement, no mention was made of his release on a reduced bail. Nor was counsel permitted to explore that he failed to report, as the agreement required, on a number of occasions, and was finally arrested on a bench warrant and jailed. Further, the jury was never made aware that he had been released again on the same (unfulfilled) bail conditions after his appearance at Appellee’s preliminary hearing. McCandless, 172 F.3d at 267. Clearly the terms of an agreement entered into under these circumstances made confrontation with the witness of the utmost importance.

¶ 27 In Strong, the Court opined: “Given that James Alexander is the key witness who puts the gun in the appellant’s hand at the moment of the murder, his credibility was decisive to the jury’s finding as to appellant’s guilt.” Strong, 761 A.2d at 1175. Were Barth’s name to be substituted for Alexander’s and Appellee for Appellant Strong, the identical situation would obtain along with an equivalent denial of the means to test Barth’s credibility. The handicap placed on conducting any valid test of the witness’ credibility by the absence of the agreement was compounded by Appellee’s failure to receive a copy of Barth’s criminal history.¹⁹

¶ 28 For the foregoing reasons, I would affirm the decision of the trial court.

4 .During the preliminary hearing, Barth’s version of the story omitted this incident entirely. Barth described the victim as lying motionless on the ground next to the car in a pool of blood, and holding the wheel, and himself is having stepped over the victim before driving away.

5 . At the time of his arrest, Barth identified himself as Appellee.

6 . Apparently the shooting was intended to prevent the victim from testifying against Ap-pellee in a matter involving car theft charges brought by the victim.

7 . The trial court notes that although both sides agree that Barth is dead, no death certificate or date of death has ever been provided.

8 . Hartey was tried with Appellee, convicted of murder and sentenced to life imprisonment also.

9 . Commonwealth v. McCandless, No. 01417 PHL 1984, unpublished memorandum (Pa.Super. filed April 1, 1986).

10 . McCandless v. Vaughn, 172 F.3d 255 (3d Cir.1999).

11 . McCandless v. Vaughn, 1999 U.S.Dist. LEXIS 19109 (Dec. 14, 1999).

12 .The Majority observes that this Court’s treatment of the trial court’s decision concerning whether the defense had been given a full and fair opportunity to cross examine Barth during the preliminary hearing, includes “frequent citation to the transcript of the proceedings below and the trial court opinion, indicating that the first trial court, as well as this court reviewed and considered Barth’s direct and cross-examination at the preliminary hearing.’’ (Majority Opinion at 719). This Court affirmed on the basis of the trial court Opinion as to this issue, and added only that the Commonwealth also moved for the admission of John Barth’s preliminary hearing testimony under the common law, and not solely under 42 Pa.C.S.A. § 5917.

13 . The Commonwealth makes no waiver argument here, nor does it now contest either substantively or procedurally the conclusion that Barth was not constitutionally unavailable at the time of Appellee’s trial.

14 . The Majority asserts that this finding is "not grounded in case law, statute or rule.” (Majority Opinion at 717). I would point out again the conclusion reached by the Third Circuit after considering only Barth’s availability, that Appellee’s Sixth Amendment rights were violated. The law requires that both prongs of Bazemore must be satisfied for the hearing testimony to be used. There is no dispute now that at least one was not, despite the contrary rulings of the trial court and this Court. Further, no extension of that finding, logical or otherwise, would permit Appellee to relitigate the issues which the federal court declined to address, as none are implicated in the Sixth Amendment violation expressly found to have occurred, and on which basis habeas corpus relief was granted.

15 . The original trial court found sufficient as indicia of full and fair cross examination the extraction of the following facts: 1) that Barth had given a, statement (contents unknown) to the investigating detective; 2) that he was testifying pursuant to an agreement (provisions unknown) reached in 1981 which implicated Appellee and Hartey, exculpating himself; 3) that he had never been convicted of any crimes involving dishonesty. See Trial Ct.Op., 5/17/85, at 28.

16 . The Majority argues that "[njeither the trial court nor [Appellee] offer a basis for finding the 'vital impeachment evidence,’ such as the type proffered in Johnson, was withheld in this case.” (Majority Opinion at 719). However, after reciting the circumstances of Bazemore, supra, and Commonwealth v. Smith, 436 Pa.Super. 277, 647 A.2d 907 (1994), the trial court states "The facts in the instant case could not be any closer to these.” (Trial Ct.Op. at 6). The basis for the trial court’s position resides in the comparison.

17 .Although the Commonwealth asserted at oral argument that Barth’s statement and his testimony were not inconsistent, it failed to include either in the certified record on appeal. And, although the record has been supplemented with the preliminary hearing testimony, absent the statement there is still no basis for comparison. Given the probable nature of the formation in Barth’s statement, any assumptions regarding its particulars speculative at best.

18 . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

19 . The Majority finds that Strong and Johnson "do not represent a change controlling law, only a reaffirmation of existing law.” (Majority Opinion at 720.) However, on the basis of then existing law, both the trial court and this court ruled against defense requests for the pertinent documents, rulings posited as the law of the case. The changes rung by Strong and Johnson could, I believe, have compelled a different result.