¶2The majority holds that the judgment of sentence as to Alan Tanser is reversed. I respectfully dissent and am of the opinion that Tanser was properly convicted, and that the judgment of sentence should be affirmed on the very able opinion of Judge William E. Hirt, writing for a unanimous Superior Court.
¶3In the case of Tanser he was charged with false swearing before a grand jury. It appeared that this defendant made two contradictory statements under oath, one before the committing magistrate and one before the grand jury. When such conflicting statements are made there is no doubt that the person making them has committed perjury, but the difficulty is as to which of the two statements is the false one: Commonwealth v. Bradley, 109 Pa. Superior Ct. 294, 167 A. 471. The problem is reduced to the question of determining whether there is some evidence from which the jury might find that the perjury was committed on the occasion charged in the indictment (in this case before the grand jury). The evidence necessary to identify the perjured statement may be either direct or circumstantial.
¶4The Pennsylvania Constitutions of 1776, 1789, 1838 and 1873 all provided, in identical words, that the accused in a criminal prosecution had the right “to meet the witnesses face to face” etc.
¶5The majority seems to hold that this right of confrontation is guaranteed by the constitutions of Pennsylvania except where the common law (unstated as to its time) overrules the subsequently enacted constitutional requirement of confrontation. In truth, whether the right of confrontation exists depends upon whether the subject matter offered in evidence is an exception to the rule of hearsay. If it is, there is no right of confrontation.
¶6*473Surely the constitution of Pennsylvania does not have to yield to the common law as to a matter of confrontation. To say that it does means that there is no method by which the common law can be changed, either by statute or constitutional amendment. In my opinion this cannot be the law of Pennsylvania. The constitution can change or amend any rule of law. It therefore follows that the right of confrontation exists unless the subject matter is an exception to the rule of hearsay. Here the testimony before the magistrate was obviously admissible as an exception to the hearsay rule.
¶7The Superior Court opinion clearly sets forth (Commonwealth v. Russo et al., 177 Pa. Superior Ct. 470, 481, 111 A. 2d 359: “Appellant Tanser insists that . . . the Commonwealth was bound to call Garis as its witness who was accused in the Morals Court of soliciting sodomy. He contends that he had the right of confrontation by Garis . . . and that a denial of that right made the magistrate’s transcript inadmissible because of hearsay. This contention wholly misconceives the purpose of the offer of the transcript which contained the statement of what the alleged sodomist said at the preliminary hearing before the magistrate . . . The Commonwealth was not obliged to produce him. The circumstances under which the two conflicting statements were made, which are involved in the Tanser case, throw light on the question as to which of them was false . . . The court did not err in admitting the magistrate’s transcript in evidence or in allowing it to go out with the jury because of the statement of Garis appearing on the transcript. The Commonwealth had the right to develop all of the circumstances tending to prove that the sworn statement of this officer was true, when he testified that Garis, arrested for soliciting sodomy, was guilty of the charge. *474In general if an utterance can be used as circumstantial evidence, the hearsay rule is not applicable. In this case what Garis said in admitting his guilt was admissible under the rule applicable to Vicarious Admissions, IV Wigmore on Evidence, 3rd Ed., §1069 et seq. (Cf. Becker v. Philadelphia, 217 Pa. 344, 348, 68 A. 564) as competent evidence of the truth of Tanser’s accusations made against him under oath at that time. And although the stenographer had no independent recollection of the statement made by Garis before the magistrate, even when aided by her notes, yet she testified that what was said by him was accurately reported by her. Accordingly the memorandum itself appearing on the magistrate’s transcript, which was made from her notes when what occurred at the hearings in the Garis case was fresh in her mind, was admissible for the above purpose under the rule of past recollection recorded. Christian Moerlein B. Co. v. Rusch, 272 Pa. 181, 116 A. 145. The record as a whole in the Tanser case was sufficient to identify the testimony before the grand jury as the perjured statement, as the jury found.” (italics supplied).
¶8The majority opinion makes no attempt to answer the opinion of the Superior Court. Instead, it stands on the question of the defendant being entitled to confrontation, i.e., that Garis had to be called as a witness. Confrontation is the doctrine lying back of the hearsay rule. There are at least fourteen exceptions to the exclusion on the ground of hearsay, and the present case falls under the rule as to vicarious admissions stated by the Superior Court: IV Wigmore on Evidence, 3rd Ed., §1069 et seq., and as indicated in Becker v. Philadelphia, 217 Pa. 344, 348, 66 A. 564.
¶9I would affirm the Superior Court.