¶1dissenting:
¶2I respectfully dissent.
¶3I agree with the majority that there is sufficient independent evidence to permit a reasonable inference of the appellant’s participation in the conspiracy so that the testimony of Bruce and Boatwright concerning the statements of Wells was properly admitted as an exception to the Hearsay Rule. See Commonwealth v. Sullivan, 472 Pa. 129, 159-160, 371 A.2d 468, 482-483 (1977).
¶4However, I do not agree that appellant’s Sixth Amendment right of confrontation was violated by the admission of the testimony. The trial court relied on the decision in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), in holding that the testimony concerning the statements by Wells was admissible. Before us, reliance is placed on the decision in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), to reach a contrary result. In my opinion, however, Ohio v. Roberts is distinguishable and not controlling.
¶5In Ohio v. Roberts, the issue was whether or not a transcript of the testimony of a preliminary hearing witness could be used by the Government in rebuttal. The Court there emphasized that before the transcript could be utilized it was necessary to establish the unavailability of the witness. In this case, as in Dutton v. Evans, we are dealing, not with the admissibility of a transcript, but with the testimony of two live witnesses who appellant confronted and cross-examined. Moreover, the need to establish the reliability of the evidence is met in this case by, among other things, the appellant’s own statement which corroborates the statements attributed to Mr. Wells. As in Dut-ton, then, the issue in this case “does not involve evidence in any sense crucial or devastating.” Id.,400 U.S. at 87, 91 S.Ct. at 219. Therefore, I would affirm the judgment of sentence on the trial court’s well-reasoned opinion.