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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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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