Com. v. Toomey, V. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
VALERIE ELIZABETH TOOMEY : No. 1781 WDA 2019
Appeal from the Order Entered November 20, 2019
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0001617-2018
BEFORE: SHOGAN, J., STABILE, J., and KING, J.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 05, 2021
The Commonwealth appeals from the order entered November 20,
2019, in the Court of Common Pleas of Butler County, denying its motion in
limine seeking to have the victim’s statement admitted as evidence at trial.1
We reverse.
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1 Under Pa.R.A.P. 311(d), in criminal cases the Commonwealth has a right to
appeal an interlocutory order if the Commonwealth certifies in a notice of
appeal that that order “will terminate or substantially handicap the
prosecution.” Pa.R.A.P. 331(d). The Supreme Court of Pennsylvania has held
that we have jurisdiction to hear an appeal from an interlocutory order denying
a motion in limine that has the effect of terminating or substantially
handicapping the prosecution. Commonwealth v. Matis, 710 A.2d 12, 17
(Pa. 1998). Here, the Commonwealth has certified that the trial court’s order
denying part of their motion in limine will terminate or substantially handicap
its case. Notice of Appeal, 12/2/19, at 3. Therefore, under Pa.R.A.P. 311(d),
we have jurisdiction to hear this appeal from the trial court’s interlocutory
order.
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The trial court summarized the factual and procedural history of this
case as follows:
By Information filed on October 4, 2018, [Appellant] is
charged with one count of simple assault (18 Pa.C.S.A.
§ 2701(a)(1)) and one count of harassment (18 Pa.C.S.A.
§ 2709(a)(1)). [Appellant] was employed at the Butler YWCA
personal care home and the alleged victim, Geraldine Heade,
[(“Victim”)] age 83, was a resident of the home. The charges
stem from an alleged encounter [Appellant] had with Mrs. Heade
on the evening of June 22, 2018 at the personal care home.
The case was originally scheduled for trial in January, 2019;
then, every month thereafter, due to defense continuances or the
Commonwealth failing to call the case for trial, jury selection was
finally held on November 14, 2019[,] and the trial was scheduled
to begin on November 19, 2019. On the morning of the first day
of the jury trial, prior to the jury being sworn, the Commonwealth
submitted a “Motion in Limine to Admit Victim’s Statement”,
seeking to admit Mrs. Heade’s statements made to her daughter,
Pamela Stevenson, on June 23, 2018 pursuant to the excited
utterance and present sense impression exceptions to the hearsay
rule. According to the motion, “the victim Geraldine Heade is
suffering from the onset of dementia and is often unable to recall
the events surrounding said assault.” Motion in Limine to Admit
Victim’s Statement, para. 7, pg. 1.
The relevant portions of the motion in relation to the exact
statements that the Commonwealth wished to submit are as
follows: At para. 3. - “Following the incident, victim Heade had a
phone call from her daughter, Pamela Stevenson and relayed to
her the events surrounding the assault.” At para. 4. “The victim’s
daughter arrived at the residential home a few hours later to find
the victim with bruises on her body. Photographs were then
taken.” At para. 8. - “The Commonwealth is seeking admission of
the victim’s statement given to her daughter and to investigating
officer, Sgt. Benjamin Spangler, of the Butler City Police
Department.”
The [c]ourt held a hearing on the motion on November 19,
2019 and the [c]ourt asked Assistant District Attorney Schultz to
proffer the statement she wished to admit. She responded, “She,
her daughter called her and said, she hurt me. That’s what she
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specifically said to her daughter. She then—her daughter then
went to the YWCA and her mother proceeded to say what was
happening.” N.T., Motion in Limine, November 19, 2019, pg. 2.
At [the] hearing, the A.D.A. explained that Mrs. Heade was no
longer able to remember the details of the incident and therefore,
could not testify as to them. The Court asked the A.D.A. for the
exact statement she wished to have the daughter, Ms. Stevenson,
testify to and the A.D.A. replied, “The aide with the scrub hat hurt
me.” Id. at pg. 3. The A.D.A. indicated that she believed that
statement was what prompted Ms. Stevenson to go to the YWCA
that morning. Id. However, it is not clear from the record when
this statement was made; that is, whether it was made during the
phone call between Mrs. Heade and Ms. Stevenson preceding Ms.
Stevenson’s visit to the YWCA that morning or after Ms. Stevenson
arrived and spoke with her mother in person.1
1If the Commonwealth had offered that statement to
show why Ms. Stevenson went to the YWCA that
morning and not for its truth, it would have been
admissible.
The Commonwealth also proffered to use a statement made
by Mrs. Heade on September 10, 2019 at the District Magistrate’s
office, the day scheduled for the preliminary hearing. Apparently,
Mrs. Heade saw [Appellant] walking down the hall and stated,
“That’s her.” Id. at pg. 4.
At the Motion in Limine hearing, Defense Attorney Charles
Nedz argued that the statement proffered to have been given on
June 23, 2018 occurred several hours after the alleged incident
occurred and was in fact part of a very detailed statement by
Mrs. Heade to her daughter, Ms. Stevenson. Id. at pg. 6.
Attorney Nedz read the statement prepared by Ms. Stevenson into
the record. It follows:
I called mom 6/23/18 in the morning. That’s the date,
6/23/18. She was crying saying the aide with the
scrub hat on hurt her. She said that she pulled her
arm and now she can’t lift it. Mom said that—mom
said—mom said she had the remote in her hand and
said she wanted to finish watching the movie and the
girl pulled the remote out of her hand and hurt her
arm. Then mom said the girl pulled her up by both
arms squeezing her that she couldn’t breathe. She
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said she was saying you have to get your PJs on. That
she didn’t—didn’t have time to wait. Mom said that
the girl started shaking her and she was losing her
balance. Mom—and when mom started to push off of
her, the girl grabbed both of her arms together—
hands together and squeezed them. And when mom
got her hands loose, the girl started to swat at the
back of her head and punch her in the left chest. Mom
said she fell back into the chair and the girl left. I
asked mom if anyone came in that night to check on
her. And she said, no, that she sat in the chair all
night crying in pain. I asked mom if she told anyone
in the morning—....
Id. at pg. 10.
At the conclusion of the hearing, the [c]ourt denied the
motion. The Commonwealth stated that it would appeal the
[c]ourt’s decision, whereupon the [c]ourt released the jury.
Trial Court Opinion, 1/31/20, at 1-3.
The Commonwealth filed a timely notice of appeal. The Commonwealth
and the trial court complied with Pa.R.A.P. 1925.
On appeal, the Commonwealth presents the following issue for our
review: “Whether the trial court erred in denying Appellant’s motion in limine
to admit Victim’s statement as an excited utterance exception to hearsay
testimony; where said statement was sufficiently contemporaneous to a
shocking and startling event as to render the statement a dependable
spontaneous reaction to said event?”2 Commonwealth’s Brief at 5.
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2 While the Commonwealth’s Statement of Questions Involved lists a second
issue, it states in the Argument section of its brief: “Having further reviewed
the record and corresponding law, the Commonwealth withdraws its second
issue for consideration on appeal.” Commonwealth’s Brief at 20.
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In its motion in limine, the Commonwealth sought to admit testimonial
evidence pursuant to the excited utterance exception to the hearsay rule.
Commonwealth’s Brief at 11. Specifically, the Commonwealth sought to
introduce the statement, “[T]he aide with the scrub hat hurt me,” allegedly
made by Victim to her daughter shortly after the incident. Id. In light of
Victim’s advancing dementia, the Commonwealth sought to have this
statement introduced through the testimony of Victim’s daughter. Id. at 16.
Although the incident occurred at approximately 9:00 pm on the night of
June 22, 2018, Victim made the statement to her daughter the next morning
on the phone, the first time Victim spoke to her daughter after the incident.
Id. at 16-17. When Victim shared this information with her daughter, Victim
“was very emotional, and obviously in tears.” Id. at 16. Upon seeing Victim
that day, the daughter observed bruises on Victim’s hands, arms, and
shoulders. Id. at 16. Victim’s daughter took Victim to a local hospital and
subsequently contacted the police. Id. at 16. The Commonwealth contends
that Victim in fact witnessed a startling event. Id. at 17. Further, the trial
court was required to review surrounding circumstances and consider whether
those circumstances suggest that Victim was still under the nervous
excitement of the starting event, given the facts the she was elderly, had
cognitive limitations, and lived in an assisted living facility. Id. at 17.
Furthermore, Victim spoke at her first opportunity to someone she trusted,
her daughter. Id. at 17. The Commonwealth maintains that the trial court
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erred in failing to consider these additional circumstances, which made
obvious the reliability of Victim’s statement. Id. at 18.
We apply the following standard in reviewing an order denying a motion
in limine:
When reviewing the denial of a motion in limine, we apply an
evidentiary abuse of discretion standard of review. See
Commonwealth v. Zugay, 2000 Pa. Super. 15, 745 A.2d 639
(Pa.Super.), appeal denied, 568 Pa. 662, 795 A.2d 976 (Pa.2000)
(explaining that because a motion in limine is a procedure for
obtaining a ruling on the admissibility of evidence prior to trial,
which is similar to a ruling on a motion to suppress evidence, our
standard of review of a motion in limine is the same as that of a
motion to suppress). The admission of evidence is committed to
the sound discretion of the trial court and our review is for an
abuse of discretion. See Commonwealth v. Albrecht, 554 Pa.
31, 720 A.2d 693, 704 (Pa.1999) [affirmed in part, vacated in part
on other grounds and remanded, 471 F.3d 435 (3d Cir.Pa.2006)].
Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa. Super. 2013) (some
internal citations omitted).
Pennsylvania Rule of Evidence 801 defines hearsay as follows:
Rule 801. Definitions That Apply to This Article
(a) Statement. “Statement” means a person’s oral assertion,
written assertion, or nonverbal conduct, if the person intended it
as an assertion.
(b) Declarant. “Declarant” means the person who made
statement.
(c) Hearsay. “Hearsay” means a statement that
(1) the declarant does not make while testifying at the
current trial or hearing; and
(2) a party offers in evidence to prove the truth of the
matter asserted in the statement.
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Pa.R.E. 801.
Pennsylvania Rule of Evidence 803 sets forth exceptions to the hearsay
rule, in pertinent part, as follows:
Rule 803. Exceptions to the Rule Against Hearsay—
Regardless of Whether the Declarant Is Available as a
Witness
The following are not excluded by the rule against hearsay,
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 that it caused. ...
Pa.R.E. 803(2).
The Comment to Pa.R.E. 830(2), related to excited utterances, states:
This exception has a more narrow base than the exception for a
present sense impression, because it requires an event or
condition that is startling. However, it is broader in scope because
an excited utterance (1) need not describe or explain the startling
event or condition; it need only relate to it, and (2) need not be
made contemporaneously with, or immediately after, the startling
event. It is sufficient if the stress of excitement created by the
startling event or condition persists as a substantial factor in
provoking the utterance.
There is no set time interval following a startling event or
condition after which an utterance relating to it will be
ineligible for exception to the hearsay rule as an excited
utterance. In Commonwealth v. Gore, 396 A.2d 1302, 1305
(Pa. Super. 1978), the court explained:
The declaration need not be strictly
contemporaneous with the existing cause, nor is
there a definite and fixed time limit ... Rather,
each case must be judged on its own facts, and
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a lapse of time of several hours has not negated
the characterization of a statement as an
“excited utterance.” ... The 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.
Pa.R.E. 803(2), comment (emphases added).
Our Supreme Court has consistently defined “excited utterance” as:
[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.
Commonwealth v. Keys, 814 A.2d 1256, 1258 (Pa. Super. 2003).
In determining whether a statement is an excited utterance, we have
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
excited utterance exception. It is important to note that none
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 to determine whether a
statement is an excited utterance.
The crucial question, regardless of the time lapse, is
whether, at the time the statement is made, the nervous
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excitement continues to dominate while the reflective
processes remain in abeyance.
Keys, 814 A.2d at 1258 (internal citations and quotation marks omitted).
In explaining its reasons for denying the motion in limine, the trial court
stated:
After reviewing the requirements of the exceptions . . ., the
[c]ourt concludes that the issues raised on appeal are without
merit. It is believed that the incident occurred on the evening of
June 22, 2018[,] at approximately 9:00 p.m. and the victim’s
statements were made sometime on the morning of June 23,
2018. . . . . The excited utterance exception fails because the
victim gave a detailed account of the incident the next morning
after she had time to reflect and the “stress of excitement created
by the startling event or condition” was not a “substantial factor
in provoking the utterance.”
Trial Court Opinion, 1/31/20, at 3-4.3
We disagree with the trial court. The evidence of record establishes that
Victim, at the time of the statement to her daughter, was still dominated by
the nervous excitement of the event. At the hearing on the motion in limine,
the evidence established that daughter spoke to Victim on the morning of
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3 We also note that the trial court stated that the Commonwealth’s Pa.R.A.P.
1925(b) statement “does not clearly reveal what specific statements the
Commonwealth seeks to admit; nor do the issues raised on appeal disclose
those statements,” therefore constituting waiver of this issue. Trial Court
Opinion, 1/31/20, at 3. The trial court further opined, in the alternative, that
it would surmise that the statement “The aide with the scrub hat on hurt me,”
is the statement the Commonwealth sought to admit through its offer of proof.
Id. We find that the statement sought to be admitted by the Commonwealth,
“[T]he aide with the scrub hat on hurt me,” was made sufficiently clear at the
hearing on the motion in limine, and we will proceed with our analysis as to
that statement only. Thus, we do not find the issue to be waived.
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June 23, 2018. N.T., 11/19/13, at 10. During that conversation, Victim was
crying and said, “[T]he aide with the scrub hat on hurt me.” Id. at 3, 10. The
incident occurred at 9:00 p.m. on the evening before this conversation. Id.
at 6. Victim stated that she had been up all night crying in pain after the
incident, and that no one had checked on her overnight. Id. at 10. The
evidence also indicated that Victim said she was afraid to say anything to the
staff at the facility because they might get mad and hurt her again. Id. at 10.
Victim’s assertion resulted in her daughter proceeding to the assisted living
facility and an investigation ensued. Id. at 3. When her daughter arrived at
the facility, Victim again reiterated that the aide hurt her. Id.
As case law outlines, “[F]actors are to be considered in all the
surrounding circumstances to determine whether a statement is an excited
utterance.” Keys, 814 A.2d at 1258. In the case herein, it is undisputed that
a startling event occurred.4 While there was a lapse of time between the
incident and Victim’s statement to her daughter, the lapse of time alone is not
dispositive. As has been explained, “The 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.” Keys, 814 A.2d at 1258. The evidence presented at the hearing
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4 At the hearing, the trial court stated: “That—the question is whether or not
it’s—the event is such an event that would cause someone to make an excited
utterance. And I don’t think there is any question that the allegations here
that an elderly person is injured meets that criteria.” N.T., 11/19/19, at 8.
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indicates that at the time the statement was made by Victim to her daughter,
that the nervous excitement from the event continued to dominate Victim,
while her reflective processes remained in abeyance. Victim was elderly, had
declining cognition, and resided in a nursing home, likely having limited ability
to contact a trusted individual. The evidence reflected that Victim stayed
awake crying through the night, and no one checked on her. Thus, the
evidence supports the conclusion that Victim remained under the “nervous
excitement” of the event, and that she did not speak to other individuals
before making the statement. Further, Victim stated that she did not feel safe
speaking of the incident to other staff members for fear of retaliation. Victim’s
conversation with her daughter in the morning after the incident was Victim’s
first opportunity to speak to a trusted individual. This Court has held that in
circumstances where time has elapsed between an incident and the reporting
of the incident by a child to a trusted adult at first given opportunity, such
passage of time does not result in inadmissibility of statement under the
excited utterance exception. Commonwealth v. Sherwood, 982 A.2d 483,
496 (Pa. 2009). Given all of the surrounding circumstances in this case, we
cannot agree the amount of time that elapsed should preclude admission of
Victim’s statement.
Thus, we conclude the trial court abused its discretion in denying the
Commonwealth’s motion in limine to introduce the statement, “[T]he aide with
the scrub hat on hurt me.” Obviously, the finder-of-fact can consider the
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veracity of that statement, as with any other statement entered into evidence,
in determining Appellee’s guilt or innocence.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2021
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