Pennsylvania’s Seemingly Unwarranted Restriction on the Dying Declarations Exception

Pennsylvania Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay for 

A statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

As the language of this exception makes clear, a “dying declaration” is only admissible if it relates to the cause or circumstances of what the declarant believes to be his imminent death. But is the exception even more limited than that? This seems to be the suggestion of the Superior Court of Pennsylvania in its recent opinion in Commonwealth v. Washington, 2016 WL 1276012 (Pa.Super. 2016).

In Washington, Aaron Washington appealed his convictions for first-degree murder and related crimes. Washington was in large part convicted due to testimony by his brother. As part of his appeal, Washington tried to present evidence that

his aunt, Veronica Nelson, informed him that her brother, a Commonwealth witness at Washington’s trial, had recanted his testimony to her on his death bed. The witness allegedly told Nelson that he had not actually been present at the time the victim was killed and also told her the identity of the actual killer. 

Washington claimed, inter alia, that this statement constituted a dying declaration, but the court disagreed because “the declarant’s statements did not concern the circumstances of his own death.” This is a correct statement of the law. The court also noted, however, that

Dying declarations are statements made by the deceased concerning the circumstances of his injuries and are admissible in the trial of a person accused of killing him. Commonwealth v. Knable, 85 A.2d 114, 116 (Pa. 1952).”

This language does indeed come from Knable, but, if true, if would constitute a seemingly unwarranted restriction of the dying declarations exception. 

It should be noted that many states and the federal rules have versions of the dying declarations exception that limit its applicability to “a prosecution for homicide or…a civil case.” But the Knable language seems to preclude application of the dying declarations exception in a category of cases where we would definitely want it to apply.

Assume that Ed, an EMT, comes across Vince, who has been shot three times. When Ed asks Vince who shot him, he answers, “Dan.” This statement, of course, would be admissible at Dan’s trial for murdering Vince. The same, of course, would hold true if Vince said, “Carl,” with the difference being that Dan would be introducing the statement to exonerate himself.

But let’s add to the fact pattern. Assume that Vince’s brother Bob is accused of murdering Dan. The prosecution’s theory of the case is that Bob killed Dan because Dan killed Vince. Under the plain language of Pennsylvania Rule of Evidence 804(b)(2) and other dying declaration exceptions, Vince’s statement about who shot him should be admissible. But under the Knable language, Vince’s statement would seemingly admissible because Bob’s trial is not the trial of a person accused of killing Vince, who made the dying declaration.

-CM