Opinion

Commonwealth v. Zdrale

  • 530 Pa. 313
  • 608 A.2d 1037
  • 1992 Pa. LEXIS 314
Court
Supreme Court of Pennsylvania
Filed
May 21, 1992
Status
Published
Author
McDERMOTT
On the bench
Nix, Larsen, Flaherty, McDermott, Zappala, Papadakos, Cappy
Cited by
13 cases
Authority
More cited than 8.6%

"The co-conspirator exception allows the introduction of statements made by a co-conspirator, if they were made during the conspiracy, in furtherance thereof, and where there is other evidence of the existence of the conspiracy."

How later courts described this case

  • "The co-conspirator exception allows the introduction of statements made by a co-conspirator, if they were made during the conspiracy, in furtherance thereof, and where there is other evidence of the existence of the conspiracy."

Written by the judges who cited it.

The opinion

McDERMOTT, Justice,

dissenting.

It is well settled that the testimony of a co-conspirator is admissible as an exception to the hearsay rule. Commonwealth v. Garcia, 478 Pa. 406 , 387 A.2d 46 (1978). The majority now holds that because a co-conspirator is a convicted perjurer, his statements made during the conspiracy are not admissible against his fellow conspirators.

A convicted perjurer is denied the witness stand because he previously foreswore his oath. See 42 Pa.C.S. Section 5912. However, it does not necessarily follow that what he does or says to another outside a court, in the cocoon of a conspiracy, cannot be received as evidence of that occasion. Moreover, we have previously permitted otherwise “incompetent” testimony from being received if same was qualified under a hearsay exception. See Commonwealth v. Garrison, 398 Pa. 47 , 157 A.2d 75 (1959) (hearsay declarations of wife/co-conspirator not barred by spousal immunity). Commonwealth v. Pronkoskie, 477 Pa. 132, 138, n. 5 , 383 A.2d 858 , 861 n. 5 (1978) (“there is respectable authority for the proposition that an otherwise properly qualifying excited utterance is not rendered inadmissible by a ruling that the declarant is incompetent to testify).

The result of the majority’s decision will encourage criminals to enlist convicted perjurers as co-conspirators so as to insulate themselves against otherwise admissible hearsay testimony.

For the foregoing reasons, I dissent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.