COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Senior Judge Coleman∗

Argued at Richmond, Virginia 

ROBERT BRUCE CAIRNS 

 OPINION BY 

v. Record No. 2343-99-2 JUDGE ROSEMARIE ANNUNZIATA 

 MARCH 6, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 Craig S. Cooley for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 ∗

 Judge Coleman participated in the hearing and decision of 

this case prior to the effective date of his retirement on 

December 31, 2000 and thereafter by his designation as a senior 

judge pursuant to Code § 17.1-401. 

 The appellant, Robert Bruce Cairns, was convicted following 

a bench trial in the Circuit Court of Chesterfield County of 

four counts of forcible sodomy, one count of rape, and one count 

of producing sexually explicit materials in violation of Code 

§ 18.2-374.1. Cairns was sentenced to a total of 155 years 

imprisonment, with ninety-five years suspended. On appeal, 

Cairns alleges the trial court erred in admitting his 

codefendant's statement against him in their joint trial 

because: (1) the admission of the statement violated the 
marital privilege under Code § 19.2-271.2; (2) the statement 

constituted inadmissible hearsay; and (3) the admission of the 

statement violated his Sixth Amendment rights. Because we find 

the admission of the statement violated Cairns' rights under the 

Sixth Amendment's Confrontation Clause, and that this error was 

not harmless, we reverse the convictions and remand for a new 

trial. 

I. 

BACKGROUND

 On appeal, we view the evidence in the light most favorable 

to the Commonwealth, the party prevailing below. Winckler v. 

Commonwealth, 32 Va. App. 836, 844, 531 S.E.2d 45, 49 (2000). 

In 1998, WW, age fourteen, and NC, age eleven, both female, were 

living with their parents, Cairns and his wife and codefendant, 

Alice Cairns.1 WW testified about a variety of episodes of 

sexual activity to which her parents subjected her. WW reported 

that the first incident occurred on February 16, 1998, when 

"[she] had to give [her] mom and dad both oral sex, and they 

gave [her] oral sex."2 She also testified that her father "got 

on top" of her and "tried to have sex" with her, but she told 

him to stop "because it hurt." 

 1

 WW was Cairns' stepdaughter. 

2

 This evidence supports Count #1, which charged Cairns with 

committing forcible sodomy with WW sometime between February 1, 

1998 and February 28, 1998, in violation of Code § 18.2-67.1. 

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 Near the end of August, WW and NC "had to play a card game" 

with their parents. The children had been "grounded," and 

Cairns agreed they could reduce the amount of time they were 

grounded if they played "truth or dare," or cards "or something 

like that." In response, the girls agreed to make a movie, play 

two card games, and play two games of "truth or dare" in order 

to reduce their punishment. 

 That evening, WW, NC, Cairns, and Cairns' wife, Alice, made 

a movie.3 The two girls were in their parents' bedroom. Cairns 

and the two girls were on the bed, and Mrs. Cairns operated the 

video camera. At some point, the two children were naked. WW 

had "oral sex" with Cairns, who then had "oral sex" with her.4 

NC also had "oral sex" with Cairns.5 NC explained, "we had to 

suck [Cairns'] dick and do stuff to each other and my mom." At 

one point, when she was not operating the camera, Mrs. Cairns 

put her tongue inside NC's vagina. At another time, Cairns got 

on top of WW and asked her to allow him to engage in sexual 

intercourse with her, but she refused. He asked her to do it 

 3

 The production of this sexually explicit video was the 

basis of Count #6, which alleged that Cairns violated Code 

§ 18.2-374.1 on or about September 1, 1998. 

4

 Count #2 charged Cairns with committing forcible sodomy 

with WW on or about September 1, 1998, in violation of Code 

§ 18.2-67.1. 

5

 In Count #5, Cairns was charged with violating Code 

§ 18.2-67.1 by having forcible sodomy with NC on or about 

September 1, 1998. 

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for the sake of the camera, but she continued to refuse. He 

said, "fine," got off her and had NC give him "oral sex" a 

second time. WW gave him "oral sex" again and NC complained 

that she was getting tired. As a result, she traded places with 

her mother and operated the camera. Mrs. Cairns then had "oral 

sex" with Cairns. The videotaping lasted about an hour. At a 

later time, Cairns played the tape in front of his two 

daughters. 

 A second movie was made, which WW did not recall. NC, 

however, described the taping as very similar in nature to the 

first tape. She explained that Cairns "made us suck his penis 

and lick my mom and each other and touch each other's boobs."6 

Mrs. Cairns ultimately assisted Cairns in ejaculating at the end 

of the taping session. 

 In early September, WW played "strip poker" with her mother 

and father. When WW ran out of clothing to remove, she was 

issued some imaginary clothes. When she ran out of those, she 

was left with "doing favors." Cairns told her to "get on [her] 

back," and he "had sex with [her]," putting his penis inside her 

 6

 The timing of the second videotaping is not apparent from 

the record; however, Count #4 charged Cairns with committing 

forcible sodomy with NC on or about May 1, 1998 through August 

31, 1998, in violation of Code § 18.2-67.1. 

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vagina.7 Cairns then "had sex" with his wife on the other side 

of the living room. 

 WW did not immediately report the incidents. She feared 

she and her siblings8 would be removed from the home and placed 

in a foster home. She also explained that Cairns would threaten 

to "ground" her if she refused to participate in the sexual 

conduct. NC did not report the events because she feared 

Cairns' "bad temper" and she feared being grounded. She 

testified that she was forced to participate in the reported 

activities "[m]ost of the time." 

 Both Cairns and his wife were interviewed by police, at the 

police station, prior to their arrests. In his statement, 

Cairns denied participating in any sexual conduct with the 

girls. Although Mrs. Cairns initially denied having any 

knowledge of the alleged activities, after the interviewing 

officer reminded her that she had a criminal record and told 

her, "the best thing you can do is be honest with us to help 

yourself out," she confirmed some of her daughters' allegations. 

Mrs. Cairns confirmed that her husband had sex with WW and that 

NC had performed oral sex on Cairns but did not specify the 

dates on which the conduct occurred. Mrs. Cairns stated that 

 7

 In Count #3, Cairns was charged with raping WW on or about 

September 5, 1998 through September 6, 1998, in violation of 

Code § 18.2-61. 

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8

 Cairns and his wife also have two young sons who were not 

involved in the alleged conduct. 
she had videotaped her husband on the bed "touching" the girls 

but denied that he had engaged in any sexual conduct with the 

girls during the filming, contrary to the testimony of WW and 

NC. She also denied having participated in any of the 

activities during the videotaping. She denied knowing where the 

videotapes were located, stating, "[Cairns] always did somethin' 

with 'em." Mrs. Cairns stated she disapproved of what her 

husband was doing with the daughters. When asked why she did 

not stop him, she replied, "there ain't a lot I can do about it, 

simply because he's quite a bit stronger than I am. He can 

overpower me . . . ." She denied performing oral sex on either 

of the girls but admitted she had kissed the "top part" of WW's 

vagina. 

 Cairns and his wife were tried together during a bench 

trial. The trial court overruled Cairns' pretrial motion to 

suppress his wife's statement. Detective Ruth Baker, who took 

Mrs. Cairns' statement, testified as to its content, and the 

statement was introduced into evidence. The prosecuting 

attorney relied, in part, on Mrs. Cairns' statement in her 

closing argument, and the trial court found Cairns guilty of six 

of the seven charges against him.9

 

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9

 The trial court granted Cairns' motion to strike Count #7, 

which charged Cairns with taking indecent liberties with NC on 

or about May 1, 1998 through August 31, 1998. The court found 

that charge was "merged into some of the other charges." 
II. 

ANALYSIS

A. 

Marital Privilege

 Cairns alleges the admission of his codefendant's statement 

violated the marital privilege protection provided by Code 

§ 19.2-271.2. This allegation is without merit. 

 Code § 19.2-271.2 provides that "[i]n criminal cases . . . 

neither [husband nor wife] shall be compelled to be called as a 

witness against the other, except [in certain specified 

instances]." The statute pertains specifically to testimony in 

criminal cases. The statement of Cairns' codefendant, his wife, 

was given to police prior to trial. Mrs. Cairns was not 

compelled to testify against Cairns, and, in fact, did not 

testify at their joint trial. Therefore, Code § 19.2-271.2 does 

not apply in this case. Livingston v. Commonwealth, 21 Va. App. 

621, 628, 466 S.E.2d 757, 760 (1996) (statute does not pertain 

to information given during pretrial investigations). 

B. 

Virginia's Statement Against Penal Interest Hearsay Exception

 Cairns also alleges that his wife's statement constituted 

inadmissible hearsay under Virginia law. We disagree. 

 A statement made by an unavailable witness that is against 

the witness' penal interest is admissible as an exception to the 

hearsay rule if three requirements are met: (1) the declarant 

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must be unavailable to testify at trial; (2) the statement must 

be against the declarant's interest at the time it is made; and 

(3) the declarant must be aware at the time he or she makes the 

statement that the statement is against his or her interest. 

Rankins v. Commonwealth, 31 Va. App. 352, 361, 523 S.E.2d 524, 

529 (2000). In addition, where the declarant "seeks to limit 

[her] culpability by implicating others," Lilly v. Commonwealth, 

255 Va. 558, 573, 499 S.E.2d 522, 533 (1998), rev'd on other 

grounds, 527 U.S. 116 (1999), the reliability of the statement 

must be established by evidence other than the statement itself 

connecting the declarant to the crime. Id.; Rankins, 31 Va. 

App. at 362, 523 S.E.2d at 529. 

 We hold that the trial court did not abuse its discretion 

in admitting Mrs. Cairns' statement as an exception to the 

hearsay rule. Under the Fifth Amendment, she could not have 

been compelled to testify; therefore, she was an unavailable 

witness. Lilly, 255 Va. at 573, 499 S.E.2d at 533. 

 In her statement to the police, Mrs. Cairns admitted 

kissing the "top part" of WW's vagina, and she admitted 

participating in the videotaping of her daughters while they 

were engaged in sexual conduct with Cairns. Therefore, because 

she implicated herself as a participant in at least one crime, 

her statement was clearly against her penal interest at the time 

it was made. 

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 The record also shows that Mrs. Cairns knew her statement 

was against her interest at the time she made it. Although she 

was not under arrest when she spoke with the police, she knew 

her daughters had made allegations concerning the events that 

had occurred. Furthermore, she initially denied having any 

knowledge of and denied participating in the alleged events. 

Only after the interviewing officer reminded her that she had 

"already been convicted of some stuff in the past," and told her 

"[t]he best thing you can do is cooperate with us and tell us 

the truth and the whole truth," Mrs. Cairns admitted her 

involvement. The evidence clearly establishes that Mrs. Cairns 

understood her statement was against her penal interest. 

 In her statement, she attempted to minimize her 

involvement, shifting some of the blame to Cairns. When 

initially asked about the videotaping, she replied, "I can't 

tell you a whole lot, most of the time that anything that goes 

on in that house at night, I'm at work." When she ultimately 

admitted having filmed her husband with the girls, she denied 

knowing where the tapes were located, stating, "if anything like 

that was made, [Cairns] always did somethin' with 'em." When 

asked if she ever participated in the activities on camera, she 

replied, "Nope. Sat there with the video camera." Mrs. Cairns 

told the police that her husband had sex with WW but said she 

left the room while the two were engaged in the conduct. 

Finally, she told police she disapproved of what her husband was 

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doing with the daughters, but stated, "there ain't a lot I can 

do about it, simply because he's quite a bit stronger than I am. 

He can overpower me . . . ." Although Mrs. Cairns attempted to 

shift the responsibility for the activities to her husband, her 

statement and her involvement in the alleged crimes were 

corroborated on many points by WW and NC, thus "supporting the 

conclusion that the statement as a whole was reliable enough to 

be admitted." Rankins, 31 Va. App. at 364, 523 S.E.2d at 530. 

 Therefore, the court did not abuse its discretion in 

admitting the statement as an exception to the Virginia hearsay 

rule. 

C. 

Sixth Amendment Confrontation Clause

1. Admissibility of the Statement

 Cairns next alleges the admission into evidence of his 

codefendant's statement during their joint trial violated his 

Sixth Amendment rights. We agree. 

 The Sixth and Fourteenth Amendments to the United States 

Constitution give a defendant in a state criminal trial the 

right "to be confronted with the witnesses against him." U.S. 

Const. amend. VI, amend. XIV. When the prosecution introduces 

the statement of a codefendant who invokes his or her Fifth 

Amendment right to not testify, the defendant is denied the 

right to confront or cross-examine the witness, thus implicating 

the Sixth Amendment. Lee v. Illinois, 476 U.S. 530, 541 (1986). 

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 A hearsay statement made by an unavailable witness may only 

be introduced if (1) the evidence falls within a firmly rooted 

hearsay exception; or (2) the evidence contains particularized 

guarantees of trustworthiness. Ohio v. Roberts, 448 U.S. 56, 66 

(1980). Although statements by a codefendant may fall under the 

Virginia "statement against interest" hearsay exception, as 

discussed in the previous section, the United States Supreme 

Court has held that such statements are inherently unreliable, 

Lee, 476 U.S. at 541, 545, and, therefore, do not fall within a 

firmly rooted hearsay exception for Sixth Amendment purposes. 

Lilly v. Virginia, 527 U.S. 116, 134 (1999) (plurality opinion). 

 Therefore, a statement by a codefendant can only be 

introduced if the statement contains "particularized guarantees 

of trustworthiness such that the adversarial testing of the 

statement would be expected to add little, if anything, to the 

statement's reliability." Dearing v. Commonwealth, 259 Va. 117, 

123, 524 S.E.2d 121, 124 (2000). In determining whether a 

codefendant's statement contains such guarantees of 

trustworthiness, we must examine the statement itself and the 

circumstances surrounding the making of the statement. Rankins, 

31 Va. App. at 369, 523 S.E.2d at 532. It is irrelevant that 

other evidence introduced at trial corroborates the 

codefendant's statement. Lilly, 527 U.S. at 137-38 (such 

"bootstrap[ping] on the trustworthiness of other evidence" is 

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not allowed).10 Additionally, the fact that the statement was 

made voluntarily, following the reading of one's Miranda rights, 

is also irrelevant in determining the trustworthiness of the 

statement. Id. at 138. 

 "When evaluating circumstances surrounding the confession, 

a court should consider the extent to which the accomplice was 

'free from any desire, motive, or impulse . . . to mitigate the 

appearance of his own culpability by spreading the blame [to the 

defendant] . . . .'" Rankins, 31 Va. App. at 368, 523 S.E.2d at 

532 (quoting Lee, 476 U.S. at 544). In determining whether the 

codefendant was free from a desire to mitigate her involvement, 

we must consider factors such as whether the codefendant made 

the statement to the police, while in custody, Lilly, 527 U.S. 

at 139, whether the statement was given in response to questions 

from police officers who "knew what they were looking for," Lee, 

476 U.S. at 544; see also Lilly, 527 U.S. at 139; Bass v. 

Commonwealth, 31 Va. App. 373, 384, 523 S.E.2d 534, 539 (2000), 

whether the codefendant knew she had already been implicated in 

the alleged crimes, id. at 384, 523 S.E.2d at 539, whether there 

was any contemporaneous cross-examination conducted, id., and 

 

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10 This is the main distinction between the Virginia 

statement against penal interest hearsay exception and the 

requirements of the Confrontation Clause. Under the former, the 

existence of evidence corroborating the codefendant's statement 

can support a finding that the statement is reliable and, thus, 

admissible. Under the Confrontation Clause, the existence of 

such corroborating evidence may not be considered in determining 

the reliability of the statement. 
whether the codefendant attempted to shift blame to the 

defendant, Lilly, 527 U.S. at 137; Rankins, 31 Va. App. at 370, 

523 S.E.2d at 533. 

 In this case, Mrs. Cairns made the statement to police, 

while at the police station, alone in an interviewing room with 

two officers. Although she was not under arrest at the time she 

made the statement, and was so informed by the interviewing 

officer, she knew at the time of the interview that the children 

had made allegations concerning the conduct that had occurred in 

the house. In addition, the officer asked her specific, leading 

questions, and told her, "we're aware of . . . a lot of stuff, 

so the best thing you can do is be honest with us." Finally, in 

her statement to the police, Mrs. Cairns attempted to mitigate 

her reported participation in the offenses and to shift blame to 

Cairns. She denied having knowledge of and being involved in 

most of the alleged criminal activities, stating, "[m]ost of the 

time that anything that [sic] goes on in that house at night, 

I'm at work." She admitted holding the camera during the 

videotaping, but denied participating, and she stated that "if 

anything like that [a videotape] was made, Robert [Cairns] 

always did somethin' with 'em. I never knew where they went." 

When asked how she felt about Cairns having sex with her 

daughter, and why she did not stop him, she replied, "there 

ain't a lot I can do about it, simply because he's quite a bit 

stronger than I am." 

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 We find that because of the content of the statement and 

the circumstances under which the statement was given, the 

statement does not contain the requisite particularized 

guarantees of trustworthiness. Therefore, the trial court erred 

when it admitted the statement. 

2. Harmless Error

 Although we find the statement was inadmissible under the 

Sixth Amendment, constitutional error does not compel reversal 

if the error was harmless beyond a reasonable doubt. Lilly v. 

Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209 (1999). 

Such error cannot be deemed harmless in cases where "'there is a 

reasonable possibility that the evidence complained of might 

have contributed to the conviction.'" Id. (quoting Chapman v. 

California, 386 U.S. 18, 23 (1967)). Factors which provide 

guidance to the resolution of the issue include: (1) whether 

the statement was cumulative of evidence already introduced; (2) 

whether the statement was corroborated or contradicted by other 

evidence in the case; (3) the importance of the statement to the 

Commonwealth's case; and (4) the overall strength of the 

Commonwealth's case. Id. at 551, 523 S.E.2d at 209; Dearing, 

259 Va. at 123, 524 S.E.2d at 125; see also Harrington v. 

California, 395 U.S. 250, 254 (1969) (where remaining evidence 

of guilt is "overwhelming," error deemed harmless). 

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 While Mrs. Cairns' statement corroborated some of the 

allegations made by her daughters, WW and NC,11 her statement 

contradicted Cairns' admitted statement in which he denied 

participating in any sexual activity with his daughters. Cf.

Bass, 31 Va. App. at 390-91, 523 S.E.2d at 543 (fact that the 

codefendant's and the defendant's statements "interlocked" 

contributed to harmlessness of error). 

 Moreover, the only other evidence pointing to Cairns' guilt 

raised issues of credibility and, for that reason cannot be 

considered "overwhelming." See Lilly, 258 Va. at 552, 523 

S.E.2d at 209. In Lilly, three defendants shot and killed a 

man. The only evidence that Lilly was the triggerman came from 

the testimony of one of his codefendants, Barker, and the 

statement given to police prior to trial by his other 

codefendant, his brother Mark. The United States Supreme Court 

held Mark's statement was inadmissible under the Sixth Amendment 

and remanded the case to the Virginia Supreme Court for a 

harmless error analysis. Lilly, 527 U.S. at 139-40. On remand, 

the Virginia Supreme Court noted that, excluding Mark's 

inadmissible statement, Lilly's conviction rested on the 

credibility of codefendant Barker's testimony. It further 

considered the likely impact of Mark's statement, "coming as 

 

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11 Mrs. Cairns admitted kissing the "top part" of WW's 

vagina, that NC had to perform oral sex on Cairns, that Cairns 

had sex with WW, and that she videotaped Cairns "kissing" and 

"touching" the girls on the bed. 
[it] did, from Lilly's brother[, it] undoubtedly carried weight 

with the jury." Lilly, 258 Va. at 553, 523 S.E.2d at 210. The 

Court found that the remaining evidence, other than Mark's 

statement, was not overwhelming. Given the nature of the other 

evidence in the case, resting as it did on the credibility of 

Barker's testimony, viewed together with the absence of physical 

evidence that Lilly was the triggerman and the absence of a 

confession by the defendant, id. at 552, 523 S.E.2d 209-10, the 

Court concluded the admission of the statement was not harmless. 

Id. at 553, 523 S.E.2d at 210; see also Rankins, 31 Va. App. at 

372-73, 523 S.E.2d at 534 (the erroneously admitted statement 

was the only direct evidence of defendant's guilt); cf. Schneble 

v. Florida, 405 U.S. 427, 431 (1972) (in finding the remaining 

evidence to be overwhelming, the Court relied on the fact that 

the defendant confessed, and, in fact, the Court held that 

without the defendant's confession, the prosecution's case was 

"virtually nonexistent"); Harrington, 395 U.S. at 253-54 (the 

defendant's own statements placed him at the scene of the 

crime); Pitt v. Commonwealth, 260 Va. 692, 695-96, 539 S.E.2d 

77, 79 (2000) (the defendant was apprehended at the scene 

shortly after the crime, and the defendant even admitted that he 

had attacked and struggled with the victim); Dearing, 259 Va. at 

124, 524 S.E.2d at 125 (the police apprehended the defendant, 

who matched the description given by the victim, shortly after 

the crime and found physical evidence on the defendant linking 

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him to the crime); Bass, 31 Va. App. at 391-92, 523 S.E.2d at 

543 (in finding the remaining evidence to be overwhelming, we 

relied heavily on the defendant's own confession). 

 In the present case, Cairns not only did not confess to the 

alleged crimes, he denied the allegations. In addition, no 

physical evidence was introduced linking him to the crimes.12 

Without Mrs. Cairns' statement, the Commonwealth's case rested 

solely on the credibility of the parties' two daughters.13 

Although their testimonies, even uncorroborated, may have been 

sufficient to support the convictions, Fisher v. Commonwealth, 

228 Va. 296, 299, 321 S.E.2d 202, 203-04 (1984), the test in a 

harmless constitutional error analysis is not whether the 

 12 The alleged videotapes were never found. 

13 Although the Commonwealth argues that the testimony of 

two of WW's friends, JW and SS, corroborated the allegations 

made by WW and NC, the events involving JW and SS were not the 

basis of any of the charges against Cairns. See Lilly, 258 Va. 

at 552-53, 523 S.E.2d at 210 (the purported corroborating 

evidence must relate to the critical issues). 

 WW's friend, JW, a female, confirmed WW's and NC's 

testimony that Cairns played "truth or dare" with the three 

girls. Following dares by Cairns, the three girls performed 

various acts, such as, "streaking" outside, doing a "pole 

dance," "French kiss[ing] each other," "licking mayonnaise off a 

hot dog," "masturbat[ing] with a hot dog," and taking a cold 

shower together. 

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 WW's friend, SS, a male, confirmed WW's and NC's testimony 

that SS, WW, NC, Cairns and Cairns' wife participated in a game 

of "truth or dare" together. Based upon dares made by Cairns, 

WW was naked the entire time, WW performed oral sex on SS, WW 

had oral sex with Mrs. Cairns, and Mrs. Cairns had "sex" with 

SS. NC participated by getting naked and running around in a 

circle, but refused to have "oral sex" with SS, so Cairns sent 

her to her room. WW was dared by Cairns, but refused to have 

"sex" with SS. 
remaining evidence is sufficient, but "'whether there is a 

reasonable possibility that the evidence complained of might 

have contributed to the conviction.'" Williams v. Commonwealth, 

32 Va. App. 395, 399-400, 528 S.E.2d 166, 168-69 (2000) (en

banc) (quoting Thompson v. Leeke, 756 F.2d 314, 316 (4th Cir. 

1985)). 

 We find a reasonable possibility that the statement 

influenced the verdict in this case. Although Mrs. Cairns' 

statement did not corroborate all of the details of her 

daughters' testimonies, it cannot be said that the statement, 

coming as it did from her, the accused's wife, played no role in 

bolstering the girls' credibility and that it did not influence 

the court's determination of guilt. Lilly, 258 Va. at 553, 523 

S.E.2d at 210 ("those statements, coming as they did, from 

Lilly's brother undoubtedly carried weight with the jury"). In 

Lilly, the Court held: 

[T]he issue is not the credibility of the 

witness, but rather the potential for harm 

caused by the erroneous admission of 

evidence which tends to support the jury's 

credibility determination. In that context 

we must presume that such evidence had the 

potential to influence the jury into 

accepting the properly admitted evidence as 

more credible, and thus, to taint the jury's 

determination of the facts. 

Lilly, 258 Va. at 553, 523 S.E.2d at 210. 

 Based on these reasons, we cannot say the error of 

introducing the codefendant's statement in this case was 

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harmless beyond a reasonable doubt. We reverse the convictions 

and remand for a new trial if the Commonwealth be so disposed. 

 Reversed and remanded. 

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