J-S19034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
              v.                            :
                                            :
RICHARD SCHENCK,                            :
                                            :
                    Appellant               :           No. 3523 EDA 2014

           Appeal from the Judgment of Sentence November 6, 2014
             in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0011513-2012

BEFORE: BENDER, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                              FILED MAY 25, 2016

        Richard Schenck (“Schenck”) appeals from the judgment of sentence

imposed following his conviction of simple assault, recklessly endangering

another person (“REAP”) and possessing an instrument of crime (“PIC”).1

We affirm.

        The trial court summarized the history underlying the instant appeal as

follows:

               On the afternoon of September 6, 2012, [James]
        Iyekekpolor [“Iyekekpolor”] was at the Frederick Douglas
        School, where his five[-]year[-]old daughter is a student. The
        child’s mother is Shakera Pritchett [“Pritchett”]. [] Pritchett is
        the girlfriend of Complainant, Theodore Long [“Long”].          []
        Iyekekpolor had full custody of the child.

              Pritchett and Long arrived at the school to pick up the
        child. Pritchett noticed [] Iyekekpolor’s vehicle outside. She
        entered the school[,] where she encountered [] Iyekekpolor.
        When [Iyekekpolor] saw Pritchett, he said[,] “Bitch, you’re next”

1
    18 Pa.C.S.A. §§ 2702, 2705, 907(a).
J-S19034-16


     and started walking toward her. Pritchett left the school and
     walked toward Long, as [] Iyekekpolor followed. Long stepped
     between them and a “tussle” ensu[ed]. [] Iyekekpolor pulled
     out a knife and cut Long in the face, near his left eye.

            [] Schenck[, Iyekekpolor’s uncle,] then approached with
     an object that appeared to be a stick, but which proved to be a
     crowbar, which he swung, striking Long on the arm and Pritchett
     on the leg. Pritchett tried to pull Iyekekpolor off of Long, but
     she got hit in the head and recalls nothing after that. At some
     point[,] the knife was grabbed by Long, who used it against
     Iyekekpolor, before it was taken away from him. Long suffered
     cuts to his face, fractures to his skull, a fractured arm requiring
     surgical insertion of a rod, injury to his leg, a broken nose,
     fractured jaw, and multiple other cuts, contusions and abrasions.
     [] Iyekekpolor suffered multiple stab wounds to his left chest,
     left arm, left hand, right hand and left leg.

                               *         *   *

           [] Pritchett identified [Iyekekpolor and Schenck] to the
     [police] officers as having attacked her boyfriend, [] Long….

Trial Court Opinion, 3/17/15, at 2-4 (unnumbered).

     Following a jury trial, Schenck was convicted of the above-described

charges. The trial court subsequently sentenced Schenck to a prison term of

2½-5 years for his conviction of PIC. For his conviction of simple assault,

the trial court imposed a consecutive sentence of 1-2 years in prison. For

his conviction of REAP, the trial court imposed a consecutive sentence of 1-2

years in prison.   Thus, Schenck received an aggregate sentence of 4½-9

years in prison. Schenck filed a timely Notice of Appeal, followed by a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on

appeal.




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      Schenck presents the following claims for our review:

      1. Did the Commonwealth fail to disprove beyond a reasonable
      doubt that [Schenck] was not justified in using force to protect
      himself or another person?

      2. Did the [trial court] err in holding that Track 3 of the 911
      tape was admissible as a present sense impression or an excited
      utterance?

      3. Did the [trial court] err in holding that Track 3 of the 911
      tape was admissible because its prejudicial effect outweighed its
      probative value?

      4. Did the Commonwealth fail to prove beyond a reasonable
      doubt that the admission of Track 3 of the 911 [tape] was not
      harmless error?

Brief for Appellant at 4.

      Schenck claims that through the testimony of the Commonwealth

witnesses, during direct and cross-examination, he established the defenses

of self-defense and defense of another. Id. at 15. Schenck asserts that the

Commonwealth failed to disprove these defenses and, therefore, the

evidence was insufficient to sustain his convictions.     Id.   According to

Schenck, he was not party to the underlying dispute between Iyekekpolor

and Pritchett.    Id. at 17.    Schenck directs our attention to Prichett’s

testimony that Schenck exited a vehicle after his nephew, Iyekekpolor,

began fighting with Long. Id. at 18. According to Schenck, he interceded to

protect Iyekekpolor.    Id.   Therefore, Schenck argues, he established the

defense of justification by use of force pursuant to 18 Pa.C.S.A. § 506. Brief

for Appellant at 18.



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      Schenck further argues that, “[o]nce engaged in the fight to protect

Iyekekpolor,    [Schenck]   acted   in    self-protection   and   in   defense   of

Iyekekpolor.” Id. According to Schenck, he also established the defense of

justification by use of force in self-protection pursuant to 18 Pa.C.S.A.

§ 505. Brief for Appellant at 18.    Schenck acknowledges the testimony of

Regina Anderson (“Anderson”), who gave a different account of the

altercation. Id. However, Schenck asserts that Anderson was not present

at the school when the incident began. Id. Therefore, Schenck argues, the

Commonwealth failed to controvert Schenck’s claim that he was absent

when the altercation began.    Id. at 19.      On this basis, Schenck contends

that the defense of justification was established. Id.

      In reviewing a challenge to the sufficiency of the evidence, we

evaluate the record “in the light most favorable to the verdict winner giving

the prosecution the benefit of all reasonable inferences to be drawn from the

evidence.”     Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa. Super.

2009) (citation omitted).

      Evidence will be deemed sufficient to support the verdict when it
      established each element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty, and may sustain its burden by means of
      wholly circumstantial evidence.     Significantly, [we] may not
      substitute [our] judgment for that of the factfinder; if the record
      contains support for the convictions they may not be disturbed.




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Id. (citation and quotation marks omitted). The jury, as fact finder, is free

to believe all, part or none of the evidence.   Commonwealth v. Toland,

995 A.2d 1242, 1245 (Pa. Super. 2010).

      Regarding self-defense, the Pennsylvania Crimes Code provides, in

relevant part, as follows:

      § 505. Use of force in self-protection

      (a) Use of force justifiable for protection of the person.—
      The use of force upon or toward another person is justifiable
      when the actor believes that such force is immediately necessary
      for the purpose of protecting himself against the use of unlawful
      force by such other person on the present occasion.

18 Pa.C.S.A. § 505(a).

      To prevail on a justification defense,

      the defendant must show (1) he reasonably believed he was in
      imminent danger of death or serious bodily injury and that it was
      necessary to use deadly force against the victim to prevent such
      harm; (2) he was free from fault in provoking the difficulty; and
      (3) he did not violate any duty to retreat.

Commonwealth v. Spotz, 84 A.3d 294, 317 n.16 (Pa. 2014) (citation

omitted).

      If the defendant properly raises self-defense, under section 505 of the

Crimes Code, “the burden is on the Commonwealth to prove beyond a

reasonable doubt that the defendant’s act was not justifiable self-defense.”

Commonwealth v. McClendon, 874 A.2d 1223, 1229-30 (Pa. Super.

2005). The Commonwealth sustains this burden if it establishes at least one

of the following: “1) the accused did not reasonably believe that he was in



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danger of death or serious bodily injury; or 2) the accused provoked or

continued the use of force; or 3) the accused had a duty to retreat and the

retreat was possible with complete safety.” Commonwealth v. Williams,

91 A.3d 240, 251 (Pa. Super. 2014) (citations omitted). The Commonwealth

must establish only one of these three elements beyond a reasonable doubt

to insulate its case from a self-defense challenge to the evidence.

Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa. Super. 2000).

      At trial, Pritchett testified that on September 6, 2012, at 3:45 p.m.,

she and her boyfriend, Long, drove to Frederick Douglas School to pick up

her daughter. N.T., 5/13/14, at 49, 54. Pritchett described the altercation

as follows:

            We pulled up. I noticed [Iyekekpolor’s] truck was there. I
      went into the school. I seen him in the office talking to a
      [teaching assistant]. He had some type of paper in his hand,
      and he turned around and seen me, and he was like, “Bitch,
      you’re next.”

            So he started walking towards me, so I started walking out
      of the school as fast as I could, got out [of] the school and I
      seen [] Long, you know, I started walking faster. [] Long came
      in between me and [Iyekekpolor], and that’s when [] Long and
      [Iyekekpolor] started to tussle back and forth. [Iyekekpolor]
      pulled out a knife, [] Long was stabbed on his face.

            The tussle went on. I tried to, you know, break it up. And
      [Iyekekpolor] started beatin’ me. My shirt got cut. You know,
      two big guys trying to break it up. They go around the vehicle,
      [and] started fighting.

           The next thing you know, [Long] was on the ground. I
      seen [Schenck] come out and he was swinging
      something, and that’s when [] Long was on the ground. I
      was on top of [Long] We were all like bunched up. I felt


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     something hit me in my leg, and I seen something hit [] Long on
     his shoulder ….

Id. at 55-56 (emphasis added).

     Long testified that on September 6, 2012, he and Pritchett parked

outside of Frederick Douglas School in order to pick up Pritchett’s daughter.

N.T., 5/14/14, at 54-55. Long stated that as Pritchett exited the school and

walked toward the car, he saw Iyekekpolor approach Pritchett.      Id. at 58.

Long explained that he stepped between Pritchett and Iyekekpolor, at which

time Iyekekpolor attacked him with his fists and a knife.      Id. at 59-60.

According to Long, Schenck approached the two fighting men and struck

Long with a crowbar. Id. at 63.

     Anderson testified that while waiting to pick up her daughters, she

observed Iyekekpolor and Schenck jump out of their vehicle and begin

beating Long.   N.T., 5/14/14, at 26, 31.    Anderson testified that the two

men continued to beat Long after Long was on the ground. Id. at 33.

     Viewed in a light most favorable to the Commonwealth, the evidence is

sufficient to disprove Schenck’s claims of self-defense and justification

beyond a reasonable doubt.        Specifically, the evidence is sufficient to

establish that, while Long was on the ground, Schenck did not reasonably

believe that Iyekekpolor was in danger of death or serious bodily injury; that

Schenk had a duty to retreat; and, with Long on the ground, retreat was

possible with complete safety. See Williams, 91 A.3d at 251. While some

of the evidence conflicted, the jury was free to believe all, part or none of


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the evidence. See Toland, 995 A.2d at 1245. Accordingly, we cannot grant

Schenck relief on this claim.

      Schenck next claims that the trial court improperly admitted the 911

recording of a female caller relaying information from a third person, under

the present sense impression exception to the rule against hearsay.       Brief

for Appellant at 19.     Schenck points out that in a recording identified as

Track 3, the female caller is unidentified and not subject to cross-

examination. Id. at 21. Schenck argues that the Commonwealth failed to

establish

      (1) how much of her report was based on what she saw and how
      much was the result of what other unidentified people told her;
      (2) how far she was from the action; (3) how clearly she could
      see the action; (4) whether her view was obstructed or
      unobstructed; (5) whether or not she had a prescription for
      glasses; (6) whether she wore her glasses; and (6) what eye
      condition, if any, she had.

Id. at 20-21.

      Schenck further argues that Track 3 is not admissible as an excited

utterance, as the Commonwealth failed to prove that the caller was startled.

Id. at 22. Schenk contends that the caller was not at the crime scene, but

some distance away.       Id. at 24.   In addition, Schenck asserts that the

Commonwealth failed to establish that the caller had firsthand knowledge of

the events. Id. at 25.

      In his third claim, Schenck argues that the trial court erred in

admitting Track 3 of the 911 call because its prejudicial effect outweighed its



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probative value. Id. at 26. In his fourth claim, Schenck argues that any

error in the admission of Track 3 was not harmless. Id. at 27.

     “The admissibility of evidence is at the discretion of the trial court and

only a showing of an abuse of that discretion, and resulting prejudice,

constitutes reversible error.” Commonwealth v. Glass, 50 A.3d 720, 724-

25 (Pa. Super. 2012) (citation and internal quotation marks omitted).

     As this Court has explained,

     [h]earsay is an out-of-court statement offered to prove the truth
     of the matter asserted in the statement. As a general rule,
     hearsay is inadmissible, because such evidence lacks guarantees
     of trustworthiness fundamental to our system of jurisprudence.
     The rule against admitting hearsay evidence stems from its
     presumed unreliability, because the declarant cannot be
     challenged regarding the accuracy of the statement. However,
     certain exceptions have been fashioned to accommodate certain
     classes of hearsay that are substantially more trustworthy than
     hearsay in general, and thus merit exception to the hearsay rule.

Commonwealth v. Kuder, 62 A.3d 1038, 1055 (Pa. Super. 2013).

     The excited utterance exception to the rule against hearsay applies

when there is a “statement relating to a startling event or condition, made

while the declarant was under the stress of the excitement that it caused.”

Pa.R.E. 803(2).   There is no requirement that the statement describes or

explains the startling event or condition, but it does have to relate to it.

Pa.R.E. 803(2), cmt.    Applying Rule 803(2), our Pennsylvania Supreme

Court has stated that a statement, made under the following circumstances,

is considered an excited utterance:




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      [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 her reflective thought processes
      inoperable and, second, that her declarations were a
      spontaneous reaction to that startling event.

Commonwealth v. Sherwood, 982 A.2d 483, 495-96 (Pa. Super. 2009)

(emphasis added, citation omitted).       “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.” Id.

      Rule 803(1) permits the admissibility of a “present sense impression”

as an exception to the rule against hearsay. A present sense impression is

defined as “a statement describing or explaining an event or condition made

while the declarant was perceiving the event or condition, or

immediately thereafter.” Pa.R.E. 803(1) (emphasis added). The “declarant

need not be excited or otherwise emotionally affected by the event or

condition perceived.” Pa.R.E. 803(1), cmt.

      At issue in this appeal is the trial court’s admission of the 911

telephone call identified at trial as “Track 3,” and designated as Trial Exhibit

C-8. The content of Track 3 is as follows:



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     [Dispatcher]: Philadelphia Police.

     [Caller]: Hi, um, I have a parent fight out at 22 nd and Norris
     Streets. There are adults beating each other up outside.

     [Dispatcher]: I’m sorry, what’s going on?

     [Caller]: Uh, there are adults beating each other up on the
     corner of 22nd and Norris. I’m calling from [inaudible] Frederick
     Douglas Charter School.

     [Dispatcher]: Alright, we’ll be out there as soon as possible.

     [Caller]: There, the man is bleeding severely.

     [Dispatcher]: Do you need an ambulance?

     [Caller]: Yes, hopefully, yes.

     [Dispatcher]: Hold on.

     [Caller]: Three men, two men on one, and one female.

     [Call is transferred to Fire Department Dispatcher]

     [Dispatcher]:   Philadelphia Fire Department [inaudible] what’s
     the address?

     [Caller]: Hi, uh, it’s 2118 West Norris Street. There’s a man
     severely beaten in the street, bleeding from the head.

     [Dispatcher]: … West Norris Ma’am, or East Norris?

     [Caller]: Yes. West Norris.

     [Dispatcher]: He’s outside?

     [Caller]: Yes, he’s outside on the street.

     [Dispatcher]: Are they still going after him?

     [Caller]: Uh, they just left.    They just [] threw the weapon in
     the yard and left.



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     [Dispatcher]: Ok was it a shooting or a stabbing?

     [Caller]: I don’t know, it looked like um, I saw them throw a
     metal rod in the field.

     [Dispatcher]: Alright, does the man appear to be moving at all?

     [Caller]:   He is moving, he’s getting up, but his face is badly
     beaten.

     [Dispatcher]: Alright, is anybody over there with him?

     [Caller]: There’s a female screaming.      He’s, he’s disoriented,
     he’s trying to stand up right now.

     [Dispatcher]: Tell, tell her to keep him on the ground. Tell her
     not to try to get up and move him.

     [Caller]: OK[,] I’m actually, I don’t know that it’s safe for me to
     go outside, um I’m looking through a window right now.

     [Dispatcher]: Just tell her, tell her, tell the woman that is with
     him to keep him on the ground, not to move him, tell him not to
     try and get up. Somebody’s on the way over, the more he
     moves the more likely he is to hurt himself.

     [Caller is heard speaking to another person]

     [Caller]: He stabbed her. He stabbed her, so there’s a
     knife involved. Um, we’re going to lock down our building,
     yeah, we’re going to lock down our building, I don’t think we
     need to let our students out. Ok, um ….

     [Dispatcher]: Did you say he’s armed with a knife?

     [Caller]: Uh, there was a knife, I just got a report that
     another observer saw a knife, so we need to lock down
     the building [].

     [Caller]: Um, I’m going to, do I need to stay on the phone with
     you?

     [Dispatcher]: Not unless you want to, ma’am.



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      [Caller]: Ok, ok[,] I’m going to go take care of the kids. Thank
      you.

Trial Exhibit C-8 (admitted at N.T., 5/15/14, at 59) (emphasis added).

      Our review of the record discloses that, contrary to Schenck’s

contention, the caller relayed her present sense impression of what was

taking place outside of the window. Further, the events that were relayed

by the caller were “sufficiently startling and so close in point of time as to

render her reflective thought processes inoperable[,]” and that were “a

spontaneous reaction to that startling event.” Sherwood, 982 A.2d at 96.

      In the above-quoted 911 telephone conversation, the caller made one

statement referring to information relayed by a third person.     Specifically,

the caller referred to having received confirmation that a knife was involved

in the altercation. Trial Exhibit C-8. Upon our review, we conclude that any

error in the admission of this hearsay statement constituted harmless error.

      As our Supreme Court has recognized,

      [h]armless error exists if the record demonstrates either: (1) the
      error did not prejudice the defendant or the prejudice was de
      minimis; or (2) the erroneously admitted evidence was merely
      cumulative of other untainted evidence which was substantially
      similar to the erroneously admitted evidence; or (3) the properly
      admitted and uncontradicted evidence of guilt was so
      overwhelming and the prejudicial effect of the error was so
      insignificant by comparison that the error could not have
      contributed to the verdict.

Commonwealth v. Hairston, 84 A.3d 657, 671-72 (Pa. 2014) (citation

omitted).




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      Here, the caller’s mention of a knife was cumulative to the testimony

of other, properly admitted evidence.    See N.T., 5/14/14, at 28 (wherein

Anderson testified as to the use of a knife during the altercation); see also

N.T., 5/15/14, at 24 (wherein Detective Sean McCaffery testified that he

found a knife in a vehicle at the scene), 29 (wherein Officer John Monahan

(“Officer Monahan”) testified that he observed cuts on Iyekekpolor), 34

(wherein Officer Monahan testified that a person at the scene directed him to

the knife located in Iyekekpolor’s vehicle).    Further, the caller, herself,

stated that a person had been “stabbed.” Trial Exhibit C-8.     Because the

caller’s relay of information regarding a knife was cumulative to other,

properly admitted evidence, we conclude that any error in its admission was

harmless. See Hairston, 84 A.3d at 671-72. Accordingly, we cannot grant

Schenck relief on this claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/25/2016




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