In Re: K.L., a Minor ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: K.L., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: K.L., A MINOR :
: No. 923 EDA 2015
Appeal from the Dispositional Order, March 9, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-JV-0000161-2015
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED April 21, 2016
K.L. appeals from the juvenile dispositional order entered in the Court
of Common Pleas of Philadelphia County on March 9, 2015, adjudicating him
as a delinquent for simple assault.1 We affirm.
The trial court set forth the following procedural and factual history:
This appeal arises from this Court’s Order of
March 9, 2015 adjudicating [a]ppellant, K.L.,
delinquent based upon a finding that he had
committed the delinquent act of Simple Assault.
[Appellant] filed a timely notice of appeal on
March 18, 2015 which was amended on March 20,
2015. The relevant facts are stated below.
On January 23, 2015, Officer Brandon McMillan
arrived at 4607 Horrocks Street in Philadelphia
where he encountered the young female complainant
who was yelling and appeared to be very distraught
and angry. (N.T. 3/9/2015, p.7) While in this
emotional state, the complainant told the officer that
her brother, [appellant], had just punched her in the
face multiple times. (N.T. 3/9/2015, p.8). This
1
18 Pa.C.S.A. § 2701(a).
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incident apparently arose after the complainant
confronted [appellant] about taking a cellphone from
her the previous week. (N.T. 3/9/2015, p. 10). The
officer observed that the complainant’s glasses and
cellphone were broken. (N.T. 3/9/2015, p. 12).
During the course of his encounter with the
complainant, the officer noticed that the left side of
her face began to swell. (N.T. 3/9/2015, p. 7).
[Appellant] was subsequently arrested.
Trial court opinion, 9/3/15 at 1-2.
At the adjudicatory hearing, the trial court admitted into evidence the
hearsay statements of appellant’s sister (“declarant”), who did not testify, as
excited utterances. Consequently, appellant raises the following issue:
Did not the lower court err by admitting into
evidence hearsay statements of appellant’s sister,
who did not testify, regarding an alleged simple
assault that occurred an hour earlier, as such
statements were not “excited utterances,” but rather
inadmissible hearsay?
Appellant’s brief at 3.
Our standard of review as to the admission of
evidence, including the admission of hearsay, is
whether the trial court abused its discretion. In
reviewing a trial court’s ruling on the admissibility of
evidence, our standard of review is one of deference.
It is firmly established, “questions concerning the
admissibility of evidence lie within the sound
discretion of the trial court, and [a reviewing court]
will not reverse the court’s decision on such a
question absent a clear abuse of discretion.”
Commonwealth v. Chmiel, 558 Pa. 478, 493, 738
A.2d 406, 414 (1999), cert. denied, 528 U.S. 1131,
120 S. Ct. 970, 145 L. Ed. 2d 841 (2000). An abuse
of discretion requires:
not merely an error of judgment, but
where the judgment is manifestly
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unreasonable or where the law is not
applied or where the record shows that
the action is a result of partiality,
prejudice, bias or ill will.
Commonwealth v. Widmer, 560 Pa. 308, 322, 744
A.2d 745, 753 (2000) (citation omitted).
Commonwealth v. Hunzer, 868 A.2d 498, 510 (Pa.Super. 2005).
Generally, “[h]earsay is not admissible except as provided by these
rules, by other rules prescribed by the Pennsylvania Supreme Court, or by
statute.” Pa.R.E. 802. One such rule is Pa.R.E. 803, which provides:
Rule 803. Exceptions to the Rule Against Hearsay
– Regardless of Whether Declarant is Available as
a Witness
The following statements are not excluded by the
hearsay rule, regardless of whether 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.
[An excited utterance is 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 had 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
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occurrence both in time and place as to
exclude the likelihood of its being
emanated in whole or in part from his
reflective faculties.
Commonwealth v. Upshur, 2000 Pa. Super. 376,
764 A.2d 69, 75 (Pa.Super. 2000) (citations
omitted).
In assessing a statement offered as an excited
utterance, the court must consider, among other
things, whether the statement was in narrative form,
the elapsed time between the startling event and the
declaration, whether the declarant had an
opportunity to speak with others and whether, in
fact, she did so. Commonwealth v. Sanford, 397
Pa.Super. 581, 580 A.2d 784, 788 (1990), appeal
denied, 527 Pa. 586, 588 A.2d 508 (1991). [T]here
is no bright line rule regarding the amount of time
that may elapse between the declarant’s experience
and her statement. “[T]he crucial question,
regardless of the 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. Gore,
262 Pa.Super. 540, 396 A.2d 1302, 1305 (1975). It
is “the spontaneity of . . . an excited utterance [that]
is the source of reliability and the touchstone of
admissibility.” Commonwealth v. Chamberlain,
557 Pa. 34, 40, 731 A.2d 593, 596 (1999) (citations
omitted).
Commonwealth v. Bibbs, 970 A.2d 440, 454 (Pa.Super. 2009) (citation
omitted).
Here, the record reflects that Officer Brandon McMillan arrived at the
scene about five minutes after receiving a radio call. (Notes of testimony,
3/9/15 at 14.) After arriving, he saw the declarant and several other
people. (Id. at 7.) Officer McMillan testified that the declarant was very
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distraught and that she was angry, crying, and yelling. (Id. at 7-8, 13.)
While the declarant told Officer McMillan that appellant had punched her in
the face multiple times, the left side of her face began to swell. (Id.) The
officer also observed that the declarant’s glasses and cellphone were broken.
(Id. at 12.) The declarant told the officer that her glasses were broken
because appellant had punched her in the face multiple times. (Id. at 13-
14.) She further stated that her cellphone was broken because appellant
threw it down a flight of stairs. (Id. at 14.)
Although appellant contends that the declarant made her statements
an hour after the incident had occurred and that, consequently, they were
unreliable, the record belies appellant’s contention. Officer McMillan’s
testimony that the victim’s face began to swell as she told him that appellant
punched her in the face multiple times supports the conclusion that a close
temporal proximity existed between the occurrence of the unexpected,
shocking event and the declarant’s statements. As such, because the record
supports the conclusion that the declarant made her statements to
Officer McMillan while she was under the influence of an unexpected,
shocking event and that her statements were not the result of reflection, we
find that the trial court did not abuse its discretion in admitting those
statements under the excited utterance exception to the hearsay rule.
Juvenile dispositional order affirmed.
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Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 4/21/2016
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