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Commonwealth v. Parson6/17/2004
of his Confrontation Clause rights or the consequences of agreeing to take Nichol's testimony, i.e., that the trial court would permit the Commonwealth to introduce the video deposition in lieu of Nichol's live testimony, there could be no constitutionally valid waiver.
Simply stated, the record before the Court is insufficient to support a finding that Appellant himself waived his constitutional right to confront Nichol at trial . Accordingly, the trial court erred when it allowed the Commonwealth to introduce Nichol's video deposition at trial . The majority opinion makes no attempt to argue that the substance of Nichol's testimony was harmless, and it is clear that Nichol's testimony, which tended to support a finding of one of the hallmarks of a serious physical injury, e.g., "prolonged impairment of health," could have been a significant factor in the jury's verdict finding Appellant guilty of Second-Degree Assault . Instead, the majority asserts that the error was harmless because Nichol had been cross-examined by Appellant at the video deposition. After considerable research, I can report that there is a complete dearth of authority for this proposition, which would be akin to "Tide with Bleach®" for improperly-admitted out-of-court testimonial statements as it would render any and all cross-examined deposition testimony admissible at a criminal trial. The opportunity for face-to-face confrontation at some point either at or prior to trial is not the only interest at stake. Earlier this year, the United States Supreme Court made it clear that " here testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required : unavailability and a prior opportunity for cross-examination ." The majority's harmless error analysis ignores the "and" by allowing the opportunity for cross examination to swallow the constitutional requirement of unavailability . I find it an inescapable conclusion that Nichol's testimony was erroneously admitted, and it prejudiced Appellant in connection with his Second-Degree Assault conviction .
Because I see none of the "footprints" of "invited error" that would warrant additional fact-finding by the trial court, I would reverse Appellant's Second-Degree Assault conviction and remand that count of the indictment to the trial court for a new trial . Stumbo, J ., joins this opinion, concurring in part and dissenting in part.
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