Commonwealth v. Young

HOFFMAN, Judge,

concurring:

I am troubled by the majority’s holding that appellant has waived his claim that the lower court’s editing of his and Boykin’s statements deprived him of effective cross-examination of Detectives Sippel and Brown. It is true that appellant’s failure to make a timely pretrial motion to sever ordinarily precludes us from reviewing that issue. Common *340 wealth v. Smith, 457 Pa. 638 , 326 A.2d 60 (1974). However, in Commonwealth v. Johnson, 474 Pa. 410, 414 , 378 A.2d 859, 861 (1977), our Supreme Court indicated that the Commonwealth is responsible, in the first instance, for moving pretrial for redaction: “It is incumbent upon district attorneys who plan to redact a confession to raise the issue at pretrial, rather than during the trial, so that if redaction is unwarranted, separate trials can be ordered.” Cf. State v. Barnett, 53 N.J. 559 , 252 A.2d 33 (1969), where the New Jersey Rules of Court require the prosecuting attorney to move pretrial for redaction. In the instant case, the Commonwealth did not present the lower court with an opportunity to rule on the redacted versions of appellant’s and Boykins’ statements until trial, at which time appellant’s counsel made a prompt and specific objection. Accordingly, I would reach the merits of appellant’s claim. However, after examining appellant’s contention I find no abuse of discretion and no prejudice to appellant because appellant’s counsel was permitted extensive cross-examination concerning the similarities and dissimilarities between the statements and.argued his fabrication theory at length during closing argument. See Commonwealth v. Greene, 469 Pa. 399, 404 , 366 A.2d 234, 236 (1976); Commonwealth v. Schmidt, 437 Pa. 563, 568-69 , 263 A.2d 382, 385 (1970).