Com. v. Oliver, T. (memorandum)
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J-S75019-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. TOSHAAN OLIVER, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 413 EDA 2013 Appeal from the Judgment of Sentence Entered January 18, 2013, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0008556-2011. BEFORE: GANTMAN, SHOGAN and MUSMANNO, JJ. MEMORANDUM BY SHOGAN, J.: FILED JANUARY 31, 2014 Appellant, Toshaan Oliver, appeals from the judgment of sentence entered January 18, 2013, in the Court of Common Pleas of Philadelphia County following his convictions for aggravated assault,1 simple assault,2 3 4 and recklessly endangering Upon review, we affirm. The trial court made the following findings of fact: On July 10, 2011 at approximately 2:30 a.m., Complainant was in his home on Reger Street when he heard a commotion 1 18 Pa.C.S.A. § 2702(a). 2 18 Pa.C.S.A. § 2701(a). 3 18 Pa.C.S.A. § 907(a). 4 18 Pa.C.S.A. § 2705. J-S75019-13 around the corner in the Germantown section of Philadelphia. d his Angie, and another girl. There were approximately fifty people Reggie, were also about to fight at the scene. The father of Reggie and Ms. Martina was attempting to break up the fight while other people in the crowd were trying to hold back [Appellant]. Complainant tried to intervene in the fight involving his girlfriend but was restrained. Complainant was then unrestrained. [Appellant] briefly left the scene, but returned from the direction of Seymour Street and approached Complainant. Complainant turned around and was standing face-to-face and within one foot of [Appellant]. [Appellant] stabbed Complainant in the face. After Complainant was stabbed, [Appellant] grabbed Angie and fled the scene on foot, in the direction of her house. As they walked away, Angie was talking animatedly to [Appellant]. Police arrived and [Appellant] was arrested on Stenton Avenue, approximately four to five blocks from the crime scene. The weapon used to stab Complainant was never recovered. Complainant was transported to Einstein Hospital, where he was treated for the stab wound, which was approximately five to six inches long, running from his left ear to the corner of his mouth. Complainant received twenty stitches and was hospitalized for two days. Trial Court Opinion, 8/13/13, at 1-2 (citations and footnotes omitted). The case proceeded to a bench trial. During trial, App attempted to elicit from Appellant statements made by Angie to Appellant following the incident. The Commonwealth objected to this line of questioning on the basis that these statements constituted hearsay. that such statements were permitted under -2- J-S75019-13 the excited utterance exception to the hearsay rule. The trial court to sixteen years of incarceration for the charge of aggravated assault, and one to two years of consecutive incarceration for the charge of PIC, followed by four years of reporting probation. No further penalty was imposed for the charges of simple assault and REAP. On January 23, 2013, Appellant filed a notice of appeal. timely filed a court-ordered Pa.R.A.P. 1925(b) statement. Appellant The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a). On appeal, Appellant presents the following issue for our review: Did the trial court commit an abuse of discretion by sustaining objections to questions posed to Appellant asking him to relate the incident because it is clear that the testimony counsel sought to eli exception to the hearsay rule? Appellant argues that the trial court erred when it sustained the Angie, had said anything to him about the incident as they walked home n to the hearsay rule. Id. -3- J-S75019-13 answer the questions, it would have been clear that [Angie] had seen who Id. at 14. Our standard of review as to evidentiary rulings is well settled: discretion of the trial court, and a reviewing court will not reverse the trial c Commonwealth v. Bishop when the course pursued represents not merely an error of [judgment], but where the [judgment] is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, Commonwealth v. Keys, 814 A.2d 1256, 1258 (Pa. Super. 2003) (quoting Coker v. S.M. Flickinger Co., 625 A.2d 1181, 1185 (Pa. 1993)). In order to be admissible at trial, evidence must be relevant. Pa.R.E. 401.5 5 We note that during the pendency of this appeal, the Pennsylvania Rules of Evidence have been rescinded and replaced, effective March 18, 2013. However, as set forth in the explanatory comments to the new rules, they and replacement of the Pennsylvania Rules of Evidence was . . . to make its rules more easily understood and to make the format and terminology more -4- J-S75019-13 these rules, by other rules prescribed by the Pennsylvania Supreme Court, 02. One such rule is Pa.R.E. 803, which provides in pertinent part as follows: Rule 803. Hearsay exceptions; availability of declarant immaterial 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 under the stress of excitement caused by the event or condition. Pa.R.E. 803(2). For a statement to qualify as an excited utterance, it must be: [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 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. See Explanatory Comments preceding the Pennsylvania Rules of Evidence, at ¶ 2. -5- J-S75019-13 In determining whether a statement is an excited utterance and, thus, admissible under the excited utterance hearsay exception, there is no bright line rule as to the amount of time which has elapsed between the incident a Rather the crucial question, regardless of time lapse, is whether, at the time the statement is made, the nervous excitement continues to dominate while the reflective processes remain in abeyance. Commonwealth v. Manley, 985 A.2d 256, 265 (Pa. Super. 2009) that a statement, which otherwise qualifies as an excited utterance, is not precluded from falling within the excited utterance exception to the hearsay Commonwealth v. Jones, 912 A.2d 268, 282is on the proponent of the hearsay statement to convince the [trial] court of its admissibility under one of t Commonwealth v. Smith, 681 A.2d 1288, 1290 (Pa. 1996). In determining whether a statement is an excited utterance, this Court has considered the following: 1) whether the declarant, in fact, witnessed the startling event; 2) the time that elapsed between the startling event and the declaration; 3) whether the statement was in narrative form (inadmissible); and, 4) whether the declarant spoke to others before making the statement, or had the opportunity to do so. These considerations provide the guarantees of trustworthiness which permit the admission of a hearsay statement under the of these factors, except the requirement that the declarant have witnessed the startling event, is in itself dispositive. Rather, the factors are to be considered in all the surrounding circumstances -6- J-S75019-13 Keys, 814 A.2d at 1258 (internal citations omitted). We first note that we are unable to glean from the record whether Appellant in this case. Furthermore, in his brief, the only reference Appellant makes to the content of this alleged statement is his single assertion relevance of this alleged evidence, he is entitled to no relief. Assuming arguendo that the statement was relevant, the testimony would not have been allowed under the excited utterance exception to the hearsay rule. As noted, in determining whether the excited utterance exception applies, we must consider whether the declarant actually observed the startling event that serves as the basis for the excited utterance. Keys, 814 A.2d at 1258. Testimony at trial establishes that Angie was involved in a fight with 17-18, 28, 57-59. The scene was described as chaotic and involving approximately fifty people. Id. at 14, 30, 54-55. Amidst this pandemonium, other fights were ongoing. Id. at 24, 5758. There is no evidence in the record that Angie observed the stabbing of victim. The victim himself testified that the stabbing happened so quickly -7- J-S75019-13 that he did not even realize it had happened until blood was running down his face. Id. at 18, 20, 34. The requirement that the declarant observe the startling event is dispositive to the excited utterance exception. Testimony established that scene, not as a result of the stabbing, but rather, as a result of the fight in which she was involved. N.T., 9/28/12, at 64. The startling event that statements were excited utterances based on witnessing the stabbing of victim. Accordingly, the trial court did not abuse its discretion in precluding testimony as to these statements at trial. Judgment of sentence affirmed. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/31/2014 -8-
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