Commonwealth v. Boyle

FLAHERTY, Justice,

dissenting.

I dissent. Notwithstanding authority in this jurisdiction in support of the principle that evidence of an accused’s false statements to police or other authorities is, generally, admis *500 sible as circumstantial evidence of the accused’s guilty conscience and, thus, of guilty conduct, it was error to admit such evidence in the instant case.

Several times during presentation of the Commonwealth’s case, the prosecutor read into evidence excerpts from appellant’s testimony in his prior trial, since appellant elected not to testify in the trial now in question. After introducing appellant’s prior testimony, the Commonwealth presented evidence that the prior testimony contained misstatements of fact. Specifically, the challenged evidence consisted of the following:

1. Appellant’s prior testimony that he did not recall giving co-conspirator Pass minutes of the UMWA Executive Board meeting of January 22, 1970 and that he did not remember having the minutes prepared for delivery to Pass, evidence which was followed immediately by testimony of prosecution witnesses indicating that the FBI obtained from Turnblazer a copy of the minutes of that meeting bearing appellant’s fingerprint;

2. Appellant’s testimony at his prior trial that he sat with Ed Carey, UMWA general counsel, on a flight to Pittsburgh to testify before a Grand Jury. Commonwealth witness Suzanne Richards, appellant’s executive assistant during the period 1969-1972, subsequently testified appellant sat instead with accused co-conspirator Turnblazer on the flight. Turnblazer had already testified he was seated with appellant and that, during the flight, appellant stated, in reference to UMWA Research & Information (hereinafter “R & I”) committeemen, “It looks like some of the boys are talking, and when we finish with this grand jury get back to the district and try to keep a lid on it”; and

3. Appellant’s testimony to the Pittsburgh Grand Jury, at co-conspirator Prater’s trial, and at his own prior trial, that the R & I Committee was organized pursuant to an agreement among appellant, Pass, and Turnblazer made at a convention in 1968. In contrast, two Commonwealth witnesses, co-conspirators Pass and Turnblazer, testified that the R & I Committee was invented in 1969 to finance the *501 Yablonski murder. (The Commonwealth’s theory is that money was “kicked back” by the committeemen to Pass for the purpose of financing the murder, and that this financing scheme was authorized by appellant.)

The relevance and, hence, admissibility of appellant’s prior testimony that he did not recall giving Pass the minutes of the UMWA Executive Board meeting is questionable even on the Commonwealth’s theory of admissibility, for there is a substantial difference between the situation where a witness affirmatively states his recollection of an event and one where, as here, the witness states he has no recollection. Further, testimony indicating appellant forwarded minutes of the meeting to Pass does not significantly undercut appellant’s statement he had no recollection of furnishing the minutes to Pass. Hence, this instance of the Commonwealth’s attempt to establish appellant’s consciousness of guilt is to be questioned.

Appellant’s prior testimony, introduced by the Commonwealth for the purpose of being contradicted by its other evidence, provided circumstantial evidence of guilt of the weakest kind — evidence which was also perfectly consistent with innocence. See, Commonwealth v. New, 354 Pa. 188, 205-206 , 47 A.2d 450, 460-461 (1946) and cases cited therein. The cumulative effect of the prosecution’s repeated attempts to stigmatize appellant as a dishonest and, hence, “bad” man may have influenced the jury to return a verdict of guilt. Deceit, however, does not a murderer make; and the danger of conviction based upon a defendant’s deceitful character is particularly acute in a case such as this where the evidence of guilt consists solely of the testimony of co-conspirators, testimony which is looked upon with disfavor because it emanates from a corrupt and polluted source. See, Commonwealth v. Sisak, 436 Pa. 262, 265 , 259 A.2d 428, 430 (1969).

The trial court’s exclusion of additional prior testimony, offered by appellant, to explain his apparent “falsehoods”, enhanced the opportunity for prejudice. It would have been unfair for the Commonwealth to have discredited appellant *502 at his first trial by use of prior inconsistent statements without having provided appellant an opportunity to explain those previous statements. Where, as here, appellant has not been given the opportunity to explain prior statements, fairness forecloses introduction of the discrediting evidence. See, Commonwealth v. House, 6 Pa.Super. 92 (1897).

A careful review of the evidence in this case indicates that the evidence of appellant’s “falsehoods” was prejudicial to the defense. I would, therefore, grant a new trial.

ROBERTS and LARSEN, JJ., join this dissenting opinion.