Commonwealth v. Stasko

¶1concurring.

¶2I concur in the result reached by the majority of this Court in the instant appeal. Specifically, I agree that appellant was not deprived of his federal and state constitutional rights of confrontation because under the facts of this case, it is unquestioned that the defense was provided a full opportunity to cross examine the witness during the deposition. Nevertheless, I am troubled by the majority’s reliance upon Commonwealth v. Clarkson, 438 Pa. 523, 265 A.2d 802 (1970) to support this conclusion.

¶3*388In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L. Ed.2d 923 (1965), the United States Supreme Court held that prior testimony was admissible at trial only if the accused had been represented at the earlier proceeding and had an adequate opportunity to cross examine the witness. In my view, such an opportunity is not afforded a defendant at a preliminary hearing. The principal function of that proceeding is to protect an individual’s right against unlawful detention. The Commonwealth therefore is required to establish a prima facie case that a crime has been committed by the accused. Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 (1975). In meeting this burden however, the Commonwealth need not present all its witnesses or divulge its entire case at this time. Similarly, the defense is not attempting to try its case or discredit witnesses but rather to learn the key elements and theory upon which the prosecution intends to proceed at trial.* Thus, the scope of the preliminary hearing is of such a limited nature that the full rights of a complete cross examination can not be adequately protected and therefore, the testimony adduced at these hearings should not be permitted when that witness is unavailable at trial.

¶4I also concur in the view that the trial court properly rejected the proffered psychological testimony. A reading of the record makes it clear that the offer restricted the use of this testimony to the issue of the sufficiency of the provocation. As recognized in Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972), this is an objective standard and the peculiarities and idiosyncracies of an accused are irrelevant.