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Commonwealth v. Ogrod12/30/2003
was Mr. Banachowski who testified that Appellant made several admissions to him. Mr. Banachowski testified, among other things, that Appellant told him that Mr. Green suspected Appellant and had "hit [Appellant] about it." N.T. 10/7/96 at 55-56. In her closing arguments, the prosecutor referred to the testimony of Mr. Banachowski. She stated:
But, according to what [Appellant] told Mr. Banachowski, he wanted [Barbara Jean] to be found. He didn't want her not to be found, because if she were found, then he could get John Fahy blamed for it, and if he got John blamed for it, John would be out of the picture and in jail. Unfortunately, or fortunately for Mr. Ogrod, I don't know which, John Fahy wasn't blamed for it, and by this point, Walter Ogrod was probably getting pretty nervous. So, what did he do? He moved out of the house. He moved from Rutland in 1989, the house that belonged to his father, he moved into an apartment when he owned a house. Why was that? Or was it because he was afraid the police were going to be getting closer to him, and because Chuck knew he had done this and now his mother was starting to blame him? What did he tell Mr. Banachowski, his mother said to him, "You and your brother are both nuts, and I think you had something to do with killing that young girl." And what did [Appellant] say to his mother? He said, "that's right, I killed her. And if you know what's best, you'll be quiet." He thought that his mother told the police this, so he said he confessed to save himself, because he thought the police had him.
N.T. 10/7/96 at 59-60. What Appellant objects to as being hearsay and in violation of his confrontation clause rights is nothing more than fully admissible admissions by Appellant to Mr. Banachowski, which counsel for Appellant used and read into the record. N.T. 10/4/96 at 49, 56-57. Indeed, there is no hearsay problem here with regard to what Appellant told Mr. Banachowski about his mother or Mr. Green. There is no expert testimony problem because no one is giving an expert opinion; the witness merely repeated what Appellant told him.
oluntary extra-judicial statements made by a defendant may be used against a defendant even though they contain no admission of guilt . . . . These extra-judicial statements, which differ from confessions in that they do not acknowledge all essential elements of a crime, are generally considered to qualify for introduction into evidence under the admission exception to the hearsay rule.
Commonwealth v. Tervalon, 345 A.2d 671, 676 (Pa. 1975) (citations omitted). There is also no confrontation clause problem because Appellant had the opportunity to cross-examine Mr. Banachowski, the witness testifying against him, with regard to Appellant's statements about his mother and Mr. Green.
The manner in which courts protect against the potential for fabrication of an admission by a witness is through cross-examination. In this case, Mr. Banachowski was the witness the Commonwealth presented against Appellant and Appellant fully exercised his right to cross-examine Mr. Banachowski. N.T. 10/4/96 at 23-78. Thus, the trial court properly allowed the witness to testify as to the admissions of Appellant with regard to Mr. Green and Appellant's mother. As these claims lack arguable merit, any claim of trial counsel ineffectiveness for failing to object to the admissions must fail.
Fellow Inmate Testified Using an Alias
Appellant next asserts that it was error to permit Jay Wolchanski to testify using an alias, here Jason Banachowski. Appellant argues that the Commonwealth did not want the witness to use his real name because, if he were to do so, the jury might recognize him
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