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A Pennsylvania common pleas court judge was correct to preclude testimony from an unavailable witness because the defendant was not given a full and fair opportunity to cross-examine the witness at the preliminary hearing, the state Superior Court has ruled. “Given the significance of Ms. [Brenda] Thompson’s testimony to corroborate that of [a minor], her credibility has become a key issue for trial,” Judge Zoran Popovich wrote for the unanimous three-judge panel in Commonwealth v. Johnson. “Unfortunately, the unavailability of Ms. Thompson at trial foreclosed appellee’s opportunity to impeach her at trial,” Popovich wrote. “The commonwealth’s failure to provide Ms. Thompson’s previous statements foreclosed appellee’s opportunity to address the inconsistencies at trial and the other statements that imply a person other than appellee may have committed the crime.” The witness, who was “crucial” to the commonwealth’s case-in-chief, died while another element in the murder case was on appeal. Calvin Johnson was arrested in September 1993 for the murder of Elvira Hayes, who was strangled to death in February 1981. Hayes’ two-year-old son, L.P., was found sleeping on the dead woman’s body. The medical examiner determined Hayes died by manual and ligature strangulation. After Hayes’ death, her sister, Thompson, adopted L.P. No one was arrested after Hayes’ murder until 13 years later, when police reopened the investigation. L.P. told police in July 1993 that he had seen Johnson lying on top of his mother where her body was found. Thompson also provided a statement to police in 1993, and Johnson was arrested. Thompson testified at Johnson’s preliminary hearing in October 1993, and he was held over for trial. Thompson, however, died on Oct. 27, 1997, while the case was pending on appeal. In September 1998, Johnson filed a motion in limine to preclude Thompson’s preliminary hearing testimony. The Philadelphia Court of Common Pleas granted Johnson’s motion in limine, ruling that Johnson would be prejudiced if Thompson’s testimony were admitted at trial. The lower court held that Johnson was denied a full and fair opportunity to cross-examine Thompson because the commonwealth failed to provide him with statements Thompson made to police in Feb. 1981 and in 1993. The commonwealth appealed. IMPEACHMENT The court said that the commonwealth should not be deprived of an opportunity to present inculpatory evidence from an unavailable witness if a defendant chooses not to cross-examine a witness at a preliminary hearing. However, if the defense is deprived of vital impeachment evidence, the court may rule that the defendant was denied a full and fair opportunity to cross examine should that witness become unavailable. In her preliminary hearing testimony, Thompson said Hayes and Johnson were involved in a relationship at the time of the murder. She also said that at one point, Johnson was charged with criminal trespassing after entering Hayes’ mother’s house. Thompson also said she saw scratches on Johnson’s hands and arms the day Hayes was killed. “The commonwealth asserts that Ms. Thompson’s preliminary hearing testimony should be admitted into evidence at trial because she is now unavailable to testify at trial and appellee had both counsel and a full and fair opportunity to cross-examine Ms. Thompson at the preliminary hearing,” Popovich wrote. The commonwealth argued that the lower court abused its discretion when it compared statements Thompson initially made to her testimony at the preliminary hearing. The commonwealth pointed to two such inconsistencies. First, Thompson initially made no mention of the scratches but then testified about them at Johnson’s preliminary hearing. The appeals court said such omissions were not subject to cross-examination. The commonwealth court also said that the lower court was wrong to base its conclusion on inconsistency in Thompson’s testimony about Hayes’ prior drug use. When she made her initial statement to police in 1981, Thompson was asked if Hayes did any drugs. Thompson replied, “She would smoke marijuana sometimes. About two years ago, she said that her husband Douglas Hayes had started her into trying ‘speed’.” However, when asked at the preliminary hearing if Hayes was using drugs at the time, Thompson replied “No.” The commonwealth argued that the statements were not vital to establishing a prima facie case. The court agreed, but said that the statements were “vital impeachment evidence for trial purposes.” “In the 1981 statement Ms. Thompson stated that to her knowledge, Ms. Hayes received drugs only from Douglas Hayes,” Popovich wrote. “We find that the lower court did not abuse its discretion in finding that such information was vital impeachment evidence for trial, he said.” “Ms. Thompsons’s inconsistent statements presented a completely different view of her knowledge of Ms. Hayes’ drug use,” the court wrote. “When the commonwealth failed to disclose the previous statements to appellee, it denied the defense a full and fair opportunity to cross-examine.” The court said that Johnson tried to imply that Douglas Hayes could be responsible for the murder at the preliminary hearing, but was met with sustained objections. Popovich said the trial court’s sustaining of the objections also denied Johnson a full and fair opportunity to cross-examine. Popovich therefore affirmed the trial court’s decision to preclude Thompson’s preliminary hearing testimony.

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