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J. A01025/01

� 1 Pursuant to a retrial, the Commonwealth appeals the trial court’s pre-trial decision to exclude the preliminary hearing testimony of an unavailable Commonwealth witness. The new trial was awarded to appellee/defendant by the Third Circuit Court of Appeals upon appellee/defendant’s petition to the federal court for habeas corpus relief. We conclude that the trial court erred in denying admission of the unavailable witness’s testimony. Thus, we vacate and remand.

� 2 Thomas McCandless was found guilty of first-degree murder in 1982. The evidence against him included the preliminary hearing testimony of John Barth, whom the trial court deemed unavailable at time of trial. On direct appeal from his judgment of sentence, McCandless claimed that the trial court erred in admitting Barth’s preliminary hearing testimony. The basis for the claim was twofold. First, McCandless claimed that the Commonwealth did not establish, as was required, that Barth was unavailable (claim #1). Second, McCandless claimed that even if unavailability was established, he was not given an adequate opportunity to cross-examine Barth at the preliminary hearing, thus precluding admission of the testimony (claim #2). Both errors, alleged McCandless, constituted a violation of his rights under the Sixth Amendment to the United States Constitution, specifically, the Confrontation Clause.

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