J-S32034-13
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRENCE DAVIS
Appellant
No. 2678 EDA 2012
Appeal from the Judgment of Sentence July 24, 2008
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008494-2007
BEFORE: GANTMAN, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, J.:
FILED JULY 15, 2013
Appellant, Terrence Davis, appeals nunc pro tunc from the judgment of
sentence entered in the Philadelphia County Court of Common Pleas,
following his bench trial convictions for criminal attempt, criminal conspiracy,
possessing instruments of crime, aggravated assault, carrying firearms on
public streets or public property in Philadelphia, and altering or obliterating
marks of identification.1 We affirm.
The PCRA court opinion set forth the relevant facts of this case as
follows:
At approximately 11:30 p.m. on March 1, 2007, the victim,
Duane Satchell, was sitting inside his parked car at the
corner of 15th and Wingohocking Streets in Philadelphia.
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1
18 Pa.C.S.A. §§ 901, 903, 907, 2702, 6108, 6117, respectively.
J-S32034-13
Gunshots were fired into the vehicle at close range. The
victim was struck twice in the head, once in the jaw and
once in the shoulder. Immediately after the shooting, the
victim saw two men running away, but could not identify
either of them as they were wearing hoods. The victim’s
friend, Sean Harley, emerged from a nearby bar and went
over to the victim. After a short conversation in which the
victim told Mr. Harley he had been shot, Mr. Harley chased
the two men on Wingohocking Street.
Police Officers Barry Delagol and Chuck Cassidy had been
sitting in their patrol car near the scene of the crime.
Officer Delagol heard gunshots and saw muzzle flashes
coming from 15th and Wingohocking, approximately a
block and a half away. Turning around the police car,
Officer Delagol witnessed [Appellant] and another man
approximately one-half block away with guns in their
hands. At this time, Officer Delagol observed Mr. Harley
behind the two men, pointing at them and repeatedly
saying “these two guys” shot his friend. Officer Delagol
noted that as he was making these statements, Mr. Harley,
“…was excited. He was yelling…. He was loud. He was
boisterous. He seemed upset, screaming.” The police
exited their vehicle and ordered [Appellant] and his coconspirator to drop their guns. Brazenly ignoring the
police directive, both co-conspirators continued walking,
briefly ducking behind a parked car and then resumed
walking away from the officers. Drawing their weapons,
the police stopped the two co-conspirators. Officer Cassidy
investigated the area where the co-conspirators had
disappeared for a moment and the officers recovered two
handguns.
Upon arresting [Appellant], the police
recovered two ski masks as well.
(PCRA Court Opinion, filed December 17, 2012, at 3-4) (internal citations to
the record omitted).
Following a bench trial, the court found Appellant guilty of attempted
homicide, aggravated assault, and related offenses. On July 24, 2008, the
court sentenced Appellant to an aggregate term of thirty (30) to sixty (60)
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years’ incarceration.
On November 17, 2009, this Court affirmed the
convictions, but vacated the judgment of sentence and remanded for a new
sentencing hearing.
The trial court re-sentenced Appellant on March 24,
2010, imposing an aggregate term of twenty-five (25) to fifty (50) years’
incarceration.
On November 8, 2010, Appellant timely filed a pro se petition pursuant
to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The
court appointed counsel, who filed an amended petition on October 24,
2011. In it, Appellant argued direct appeal counsel was ineffective for failing
to raise the issue of whether the trial court improperly admitted certain
statements, which were hearsay. Before the disposition of Appellant’s PCRA
petition, the trial judge retired and a different jurist was assigned to the
PCRA petition.
On August 3, 2012, the PCRA court found direct appeal
counsel was ineffective for failing to challenge the admissibility of the
statements.
Consequently, the PCRA court reinstated Appellant’s direct
appeal rights nunc pro tunc for the limited purpose of challenging the
admissibility of the statements at issue.
Appellant timely filed his notice of appeal nunc pro tunc on Tuesday,
September 4, 2012.2 On September 18, 2012, the court ordered Appellant
to file a concise statement of errors complained of on appeal, pursuant to
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2
Monday, September 3, 2012, was Labor Day.
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Pa.R.A.P. 1925(b).
Appellant timely filed a Rule 1925(b) statement on
October 4, 2012.
Appellant raises one issue for our review:
DID THE TRIAL COURT ERR IN ADMITTING A HEARSAY
IDENTIFICATION OF APPELLANT AT TRIAL?
(Appellant’s Brief at 9).
On appeal, Appellant asserts Officer Delagol testified about what Mr.
Harley said at the crime scene that essentially identified Appellant as one of
the shooters. Appellant insists the statements were inadmissible under the
“excited
utterance”
exception
to
the
hearsay
rule,
because
the
Commonwealth failed to establish that Mr. Harley actually witnessed the
shooting.
Moreover, Appellant contends Mr. Harley did not appear at the
preliminary hearing or trial.
Under these circumstances, Appellant argues
admission of Mr. Harley’s statements at the crime scene was error, absent
Appellant’s opportunity to cross-examine Mr. Harley.
Appellant concludes
the erroneous admission of Mr. Harley’s statements warrants a new trial.
We disagree.
“Admission of evidence is within the sound discretion of the trial court
and will be reversed only upon a showing that the trial court clearly abused
its discretion.”
Commonwealth v. Drumheller, 570 Pa. 117, 135, 808
A.2d 893, 904 (2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156
L.Ed.2d 137 (2003) (quoting Commonwealth v. Stallworth, 566 Pa. 349,
363, 781 A.2d 110, 117 (2001)).
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Admissibility depends on relevance and probative value.
Evidence is relevant if it logically tends to establish a
material fact in the case, tends to make a fact at issue
more or less probable or supports a reasonable inference
or presumption regarding a material fact.
Drumheller, supra at 135, 808 A.2d at 904 (quoting Stallworth, supra at
363, 781 A.2d at 117-18).
Pennsylvania Rule of Evidence 801 defines hearsay as follows:
Rule 801.
Definitions
The following definitions apply under this article:
(a) Statement.
A “statement” is (1) an oral or
written assertion or (2) nonverbal conduct of a person, if it
is intended by the person as an assertion.
(b) Declarant. A “declarant” is a person who makes
a statement.
(c) Hearsay. “Hearsay” is a statement, other than
one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the
matter asserted.
Pa.R.E. 801.
Generally, hearsay is inadmissible.
Pa.R.E. 802.
Rule 803
provides the following exception:
Rule 803.
Hearsay exceptions;
declarant immaterial
availability
of
The following statements, as hereinafter defined, are
not excluded by the hearsay rule, even though the
declarant is available as a witness:
*
*
*
(2) Excited utterance. A statement relating to a
startling event or condition made while the declarant was
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under the stress of excitement caused by the event or
condition.
Pa.R.E. 803(2).3
To qualify as an excited utterance under Rule 803(2), a statement
must satisfy the following criteria:
[A] spontaneous declaration by a person whose mind has
been suddenly made subject to an overpowering emotion
caused by some unexpected and shocking occurrence,
which that person has just participated in or closely
witnessed, and made in reference to some phase of that
occurrence which he perceived, and this declaration must
be made so near the occurrence both in time and place as
to exclude the likelihood of its having emanated in whole
or in part from his reflective faculties…. Thus, it must be
shown first, that [the declarant] had witnessed an event
sufficiently startling and so close in point of time as to
render [his] reflective thought processes inoperable and,
second, that [his] declarations were a spontaneous
reaction to that startling event.
Commonwealth v. Manley, 985 A.2d 256, 265 (Pa.Super. 2009), appeal
denied, 606 Pa. 671, 996 A.2d 491 (2010) (quoting Stallworth, supra at
366-67, 781 A.2d at 119-20) (internal citations omitted).
Nevertheless, “[A]n out-of-court statement offered to explain a course
of conduct is not hearsay.” Commonwealth v. Dent, 837 A.2d 571, 579
(Pa.Super. 2003), appeal denied, 581 Pa. 671, 863 A.2d 1143 (2004)
(quoting Commonwealth v. Cruz, 489 Pa. 559, 565, 414 A.2d 1032, 1035
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3
On January 17, 2013, after Appellant’s trial, the legislature rescinded these
versions of Pa.R.E. 801, 802, and 803. The current versions of the rules
went into effect on March 18, 2013.
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(1980)). “[C]ertain out-of-court statements offered to explain a course of
police conduct are admissible.
Such statements do not constitute hearsay
since they are not offered for the truth of the matters asserted; rather, they
are offered merely to show the information upon which police acted.” Dent,
supra at 579 (quoting Commonwealth v. Palsa, 521 Pa. 113, 118, 555
A.2d 808, 811 (1989)).
“Course of conduct” narratives often include out-of-court
statements that are not offered for the truth of the matter
asserted therein; frequently, the statements are also nonessential to the prosecution’s case, or the declarant
testifies at trial, or the defendant opened the door to the
admission of the evidence, or the admission of the
statements was deemed harmless error.
Dent, supra at 581. See also Commonwealth v. Underwood, 500 A.2d
820 (Pa.Super. 1985) (allowing police officer to testify to exclamations of
others that appellant had just robbed someone, because exclamations were
used solely to explain why officer arrested appellant).
Instantly, Officer Delagol testified as follows:
[COMMONWEALTH]:
Was there anybody else on the
street at [the time of the shooting]?
[WITNESS]:
Yes, there was. At the same
time when [Appellant and his co-conspirator] were walking
up the…sidewalk, in the middle of the street was a…black
male named Sean Harley….
*
[COMMONWEALTH]:
to His Honor.
*
*
Can you explain his demeanor
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[WITNESS]:
that these two―
Your Honor, he was yelling to us
[DEFENSE COUNSEL]:
Objection.
[COMMONWEALTH]:
explain his demeanor.
I just need you to, at this point,
THE COURT:
Go ahead.
[WITNESS]:
He was excited. He was yelling.
[COMMONWEALTH]:
Could you see his hands?
[WITNESS]:
I could. He was pointing at the
direction of these two guys.
[COMMONWEALTH]:
what you mean by that.
When you say excited, describe
[WITNESS]:
He was loud.
boisterous. He seemed upset, screaming….
He
was
(See N.T. Trial, 2/14/08, at 59-61.) Defense counsel again objected on the
ground that the Commonwealth failed to establish a proper foundation; but
the court overruled the objection and admitted Mr. Harley’s statements as
excited utterances.
Subsequently, the PCRA court determined that Mr. Harley’s statements
were inadmissible under the excited utterance exception to the hearsay rule:
There was absolutely no evidence to show Mr. Harley’s
basis of knowing that [Appellant] was one of the shooters.
There was no evidence that Mr. Harley witnessed any part
of the event as he came out of the bar approximately ten
to fifteen seconds after the shooting. Mr. Harley asked the
victim whether he was okay, and then pursued the two
men. There is no evidence to show that Mr. Harley or the
victim knew the identity of the shooters. Moreover, Mr.
Harley did not testify at trial. Thus, there was no further
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way to establish Mr. Harley’s basis of knowledge regarding
the shooter’s identity. The law is clear that the declarant
must have just participated in or closely witnessed the
event and the statement must make reference to some
phase of the incident that the declarant perceived.
(See PCRA Court Opinion at 4) (internal citations omitted).
Under the
applicable standard of review and relevant case law, we agree that Mr.
Harley’s statements were inadmissible under the excited utterance exception
to the hearsay rule. See Manley, supra.
Mr. Harley’s statements, however, were part of Officer Delagol’s
“course of conduct” and explained why he pursued Appellant.
those statements were admissible as “course of conduct.”
As such,
See Dent,
supra. In any event, the record indicates the statements were not admitted
for the truth of the matter asserted, and neither the court nor the
Commonwealth actually relied on Mr. Harley’s statements in determining
Appellant’s guilt:
Not only was evidence of guilt overwhelming, but [Mr.
Harley’s statements] did not prejudice [Appellant]. In its
closing argument, the Commonwealth conceded that [Mr.
Harley’s statements] had no bearing on the case. In
specifying the facts relevant to his finding of guilt and his
subsequent rejection of [Appellant’s] sufficiency claim, [the
trial judge], in his opinion following [Appellant’s] August 6,
2008 appeal, mentioned a multitude of facts but made no
mention whatsoever of [Mr. Harley’s statements].
Accordingly, [Mr. Harley’s statements] did not contribute
to the verdict….
(See PCRA Court Opinion at 5-6) (internal citations to the record omitted).
See also Dent, supra at 582 (explaining any concern for unduly prejudicial
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evidence “does not predominate in non-jury trials, because trial judges
sitting as fact finders in criminal cases are presumed to ignore prejudicial
evidence in reaching a verdict”).
Based upon the foregoing, we conclude
admission of the statements does not entitle Appellant to relief on appeal.
See Commonwealth v. Truong, 36 A.3d 592, 593 n.2 (Pa.Super. 2012)
(en banc), appeal denied, ___ Pa. ___, 57 A.3d 70 (2012) (reiterating
appellate Court can affirm on any valid basis, including reasons trial court
did not consider, as long as result was correct). Accordingly, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Prothonotary
Date: 7/15/2013
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