Com. v. Rapach, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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