# Commonwealth v. Zdrale

> Supreme Court of Pennsylvania · May 21, 1992 · 530 Pa. 313

URL: https://www.frixlaw.com/law-library/cases/9693737

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Nikolai ZDRALE, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** May 21, 1992
- **Citations:** 530 Pa. 313; 608 A.2d 1037; 1992 Pa. LEXIS 314
- **Precedential status:** Published
- **Opinion:** Dissent by McDERMOTT
- **Judges:** Nix, Larsen, Flaherty, McDermott, Zappala, Papadakos, Cappy
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9693737

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9693737. Public record. Not legal advice.