J-S19033-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
             v.                            :
                                           :
JAMES IYEKEKPOLOR,                         :
                                           :
                   Appellant               :          No. 3150 EDA 2014

          Appeal from the Judgment of Sentence September 18, 2014
             in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0011512-2012

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

MEMORANDUM BY MUSMANNO, J.:                            FILED MAY 23, 2016

        James Iyekekpolor (“Iyekekpolor”) appeals from the judgment of

sentence entered following his conviction of simple assault and recklessly

endangering another person (“REAP”).1 We affirm.

        In its Opinion, the trial court summarized the factual history

underlying the instant appeal, which we incorporate herein by reference.

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

        A jury convicted Iyekekpolor of the above-described charges. The trial

court sentenced Iyekekpolor to a prison term of one to two years for his

conviction of simple assault.     For his conviction of REAP, the trial court

sentenced Iyekekpolor to a consecutive prison term of one to two years.

Iyekekpolor filed a post-sentence Motion, which the trial court denied.

Thereafter, Iyekekpolor filed the instant timely appeal, followed by a court-



1
    18 Pa.C.S.A. §§ 2702, 2705.
J-S19033-16


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

appeal.

      Iyekekpolor presents the following claims for our review:

      1. Did the trial court err by permitting the Commonwealth to
      play a 911 recording wherein the caller was relaying information
      that was relayed to her, and which she did not personally
      observe, as such admission allowed the introduction of
      inadmissible double hearsay?

      2. Did the trial court err by ruling that an allegation from a
      Commonwealth witness that [Iyekekpolor] encountered her after
      her testimony would be admissible[,] even though the allegation
      was uncorroborated, uncharged, and unproven?

Brief for Appellant at 4.

      Iyekekpolor first claims that the trial court improperly admitted the

911 recording of a caller relaying information from a third person, under the

excited utterance exception to the rule against hearsay.            Id. at 9.

Iyekekpolor states that the caller “was apparently inside the school and

relaying information to the police that she did not personally observe.” Id.

According to Iyekekpolor, the recording “does not evince that the caller was

suffering from or dominated by ‘nervous excitement.’” Id. at 10. Further,

Iyekekpolor argues, the caller did not actually experience the startling event.

Id. Because the caller did not witness the event, Iyekekpolor contends that

the evidence was inadmissible under this exception. Id. at 10-11.

      Iyekekpolor further argues that the above evidence was not admissible

under the “present sense impression” exception to the rule against hearsay.

Id. at 11. Once again, Iyekekpolor bases his claim upon the fact that the


                                  -2-
J-S19033-16


caller did not actually witness the event. Id. Iyekekpolor states that “this

does not satisfy the requirements of the exception that the declarant

‘perceive’ the event.” Id.

     “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:


                                 -3-
J-S19033-16


      [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:



                                  -4-
J-S19033-16


     [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 Charger 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.



                                 -5-
J-S19033-16


     [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.



                                 -6-
J-S19033-16


      [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 Iyekekpolor’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 911 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 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).




                                 -7-
J-S19033-16


      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

witness Regina 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 Iyekekpolor relief on this

claim.

      Iyekekpolor next claims that the trial court improperly admitted

testimony regarding an encounter between Commonwealth witness Regina

Anderson (“Anderson”) and Iyekekpolor following Anderson’s testimony.

Brief for Appellant at 12.    According to Iyekekpolor, the Commonwealth

sought leave of court to present “this supposed evidence of ‘witness

intimidation,’ but in arguing its position, conceded that it could not do so in

its case-in-chief because the alleged ‘bad act’ was as of then unproven.” Id.

Iyekekpolor challenges the trial court’s ruling that Anderson’s allegation



                                   -8-
J-S19033-16


would be admissible as evidence of Iyekekpolor’s consciousness of guilt. Id.

Iyekekpolor contends that, because Anderson’s testimony had concluded,

Iyekekpolor could not have affected her testimony. Id. at 12-13.

      In its Opinion, the trial court addressed Iyekekpolor’s claim, and

concluded that it lacks merit.   See Trial Court Opinion, 3/17/15, at 11-12

(unnumbered). We agree with the sound reasoning of the trial court, as set

forth above, and affirm on this basis with regard to Iyekekpolor’s second

claim. See id.; see also Commonwealth v. Rickabaugh, 706 A.2d 826,

839 (Pa. Super. 1997) (recognizing that an appellant’s threat against a

witness would have been admissible as substantive evidence of the

appellant’s consciousness of guilt).

      Judgment of sentence affirmed.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/23/2016




                                  -9-
                                                                                       Circulated 04/20/2016 03:25 PM




                        IN THE COURT OF COMMON PLEAS
               FOR THE FIRST JUDICIAL DISTRIC.T OF PENNSYL
                               TRIAL DIVISION - CRIMINAL
                                                                                v ANI~
                                                                                              .
                                                                                                     'L. E·. 0.
                                                                                                    J . ··
COMMONWEALTH                                     . -~-"_,CP-51-CR-0011512-201.
                                                          ·                    ~:                 MAR
                                                                                                  . . 1 7 2015
                                                                                 F t;r,mm:a! Appeals Unit
      v.                                                                          irst Jud1c1al District of PA
JAMES IYEKEKPOLOR          /


COMMONWEALTH                                        CP-51-CR-OO11513-2012
                                                 ··~::·

                                                                CP-51.CR-0011512-2012   Comm. v. lyekekpolor.   James
      v.                                                                        Memorandum Opinion




RICHARD SCHENCK
                                                                      1111111111111111 II I I I I
                                                                                7270644471
                                                                                                            Ill
                                MEMORANDUM OPINION

CAMPBELL, J                                                                               March          11 , 2015
Proc~dural History

       Defendants James Iyekekpolor and Richard Schenck were charged with aggravated

assault and related offenses occurring on September 6, 2012.

       On May 12, 2014, the case proceeded to triaroefore this Court, sitting with a jury. On

May 19, 2014, the jury returned its verdicts. Defendant Iyekekpolor was convicted of simple

assault (18 Pa.C.S. § 2702) and recklessly endangering another person (18 Pa.C.S. § 2705)

(REAP). Defendant Schenck was convicted of possession of an instrument of a crime ( 18

Pa.C.S. § 907(A)) (PIC), simple assault (18 Pa.C.s:·'§'~2702), and REAP.

       On September 18, 2014, Iyekekpolor was sentenced to 1-2 years incarceration on the

simple assault and 1-2 years on the REAP. The sentences were to run consecutively, for an

aggregate sentence of 2-4 years incarceration.

       lyekekpolor's post-sentence motion for recoifsideration of sentence was filed on
September 23, 2014. The motion for reconsideration was denied on September 24, 2014.

       A timely Notice of Appeal was filed on behalf oflyekekpolor on October 21, 2014.

       On November 4, 2014, the Court entered an order directing the filing of a Statement of

Matters Complained of on Appeal, pursuant to Pa.R.~_.P. 1925(b). The time for filing the Rule

l 925(b) statement was extended by order dated December 1 7, 2014

        On November 6, 2014, Schenck was sentenced to 2 Y2 - 5 years incarceration on the PIC

charge, 1-2 years on the simple assault and 1-2 years on the REAP. The sentences were each to

run consecutively, for an aggregate sentence of 4 h.::.-'c.2 years incarceration.

        A timely Notice of Appeal was filed on behalf of Schenck on November 19, 2014.

        On December 17, 2014, the Court entered an order directing the filing of a Statement of

Matters Complained of on Appeal, pursuant to Pa.R.A.P. l 925(b ).

        On January 29, 2015, a Statement.pursuant _to~Ra.R.A.P. l 925(b) was filed on behalf of

Schenck.

        On February 2, 2015, a Statement pursuant to Pa.R.A.P. l 925(b) was filed on behalf of

Iyekekpolor.

 FactualHistory

        The evidence adduced at trial, viewed in the light most favorable to the Commonwealth

 as the verdict winner, established the following:

         On the afternoon of September 6, 2012, Defendant Iyekekpolor was at the Frederick

 Douglas School, where his five year old gaughter is,,~ student. The child's mother is Shakera
                                                         ·····-·
 Pritchett. N.T 5/13/14, pp. 51. Ms. Pritchett is the girlfriend of Complainant, Theodore Long.

 N.T. 5/13/14, pp. 53. Defendant Iyekekpolor had full custody of the child. N.T. 5/13/14, pp. 51-

 54.
       Pritchett and Long arrived at the school to pick up the child. Pritchett noticed Defendant
                                          '!-~·      .,,··-~~r.'1-
                                                              ...




Iyekekpolor's vehicle outside. She entered the school where she encountered Defendant

Iyekekpolor. When he saw Pritchett, he said "Bitch, you're next" and started walking toward

her. Pritchett left the school and walked toward Long, as Defendant Iyekekpolor followed.

Long stepped between them and a "tussle" ensured. N.T. 5/13/14, pp. 54-55, 92-93; N.T.
                                                     ,,-•~0\j.s,<··

5/14/14, pp. 59-61, 77-78, 94. Defendant Iyekekpolor pulled out a knife and cut Long in the face,

near his left eye. N.T. 5/13/14, pp. 55; N.T. 5/14/14, pp. 61-62, 78-79, 97.

       Defendant Schenck then approached with an object that appeared to be a stick, but which

proved to be a crowbar, which he swung,~ striking ~ong on the arm and Pritchett on the leg. N.T.
                                                          ~-::,,4;.,·,


5/13/14, pp. 55, 57-59; N.T. ~/14/14, pp. 37, 45, 63, 79. Pritchett tried to pull Iyekekpolor off

of Long, but she got hit in the head and recalls nothing after that. N.T. 5/13/14, pp. 59, 63. At

some point the knife was grabbed by Long, who used it against Iyekekpolor, before it was taken

away from him. N.T. 5/13/14, pp. 82-84; N.T. 5/14/14, pp. 64-65, 85-86, 99-100. Long
                                            "'~'       .. --,.~,iz:'1,'t

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. N.T. 5/14/14, pp. 57, 67-72. Defendant Iyekekpolor suffered multiple stab wounds

to his left chest, left arm, left hand, right hand and left leg. N.T. 5/15/14, pp. 90-91.

        Police Officer Daniel Rivera, along with his partner Officer Monahan, responded to a

radio call of a fight on the highway. As the officers approached the school at 22nd and Norris

Streets in Philadelphia they were flagged down by a woman in obvious distress, who had blood

spatter on her clothing and appeared disarrayed. N.T. 5/13/14, pp. 9-10. This woman proved to

be Shakera Pritchett. N. T. 5/13/14, pp. 51.

        The officers observed three men who appeared to be fighting; two were bloody and
appeared wounded in some way. N.T. 5/13/14, pp. 10-11, 24, 28-29, 32. The officers separated

the three and placed Long in the back of the radio patrol car (RPC). Long was bleeding heavily

from the face and head and there was blood all over his clothing. Defendant Iyekekpolor was

also bleeding from stab wounds to his chest, and Defendant Schenck had blood spattered on him.

N.T. 5/13/14, pp. 10-11. There were heavy areas of blood at the scene, and a crowbar with blood

on it. N.T. 5/13/14, pp. 12-15.

       The officers were informed that a knife that had been used in the fight had been dropped

in the back of a vehicle later determined to belong to Defendant Iyekekpolor.    Officer Monahan

looked through the window of the vehicle and observed the knife. N.T. 5/13/14, pp. 15, 33-35;

N.T. 5/15/14, pp. 24-28. Defendant Schenck threw the crowbar over a gate into the schoolyard.

N.T. 5/14/14, pp. 33-34.
                                                    .-'~~~~~-

        Ms. Pritchett identified Defendants to the officers as having attacked her boyfriend,

Theodore Long. N.T. 5/13/14, p. 20.

        Because of his injuries, Long was transported to Temple University Hospital Emergency

Room by other officers who had responded to the scene. N.T. 5/13/14, pp. 19-20.

Discussion

        Defendant Schenck raises four issues: 1) Evidence was insufficient to disprove defense of

justification; 2) Error to permit introduction of complete 911 tapes (also raised by Iyekekpolor);

 3) Error to permit statement of Commonwealth witness regarding prior uncharged assaultive

 conduct; 4) Failure to give a missing witness instruction (also raised by Iyekekpolor).

        Defendant Iyekekpolor raises three additional issues: 1) Error to permit evidence of

 Defendant's alleged statement to a Commonwealth witness; 2) Denial of mistrial based upon

 allegedly improper statement of prosecutor; 3) Sentence constituted an abuse of discretion where
it exceeded aggravated range of Sentencing Guidelines and where Defendant was improperly

declared ineligible for boot camp.

        1. The evidence was sufficient.to disprove.j:efense of justification(Schenck).

        A claim challenging the sufficiency of the evidence presents a question oflaw.

Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000). We must determine "whether

the evidence is sufficient to prove every element of the crime beyond a reasonable doubt."

Commonwealth v. Hughes, 521 Pa. 423, .555 A.2d 1264, 1267 (1989). We "must view evidence
                                                      ·-,;-,;.,,~;~·




in the light most favorable to the Commonwealth as the verdict winner, and accept as true all

evidence and all reasonable inferences therefrom upon which, if believed, the fact finder

. properly could.have based its verdict." Id.

        Our Supreme Court has instructed:

        [T]he facts and circumstances established by the Commonwealth need not
        preclude every possibility of innocence. Any doubts regarding a defendant's guilt
        may be resolved by the fact-finder unless the evidence is so weak and
        inconclusive that as a matter of law no probability of fact may be drawn from the
        combined circumstances. Moreover, in applying the above test, the entire record
        must be evaluated and all evidence actually received must be considered. Finally,
        the trier of fact while passing upon the credibility of witnesses and the weight of
        the evidence produced, is free to believe all,._paii or none of the evidence.
        Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233, 1236 n. 2 (2007).

 Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa. Super. 2013).

         18 Pa.C.S. § 506, relating to use of force for the protection of other persons, provides:

            (a) General rule. -- The use of force upon or toward the person of another is justifiable
         to protect a third person when: ,_            '"'"~,,.,
               (1) the actor would be justified under section 505 (relating to use of force in self-
         protection) in using such force to protect himself against the injury he believes to be
         threatened to the person whom he seeks to protect;
               (2) under the circumstances as the actor believes them to be, the person whom he
         seeks to protect would be justified in using such protective force; and
               (3) the actor believes that his intervention is necessary for the protection of such
         other person.
        (b) Exception. -- Notwithstanding subsection (a), the actor is not obliged to retreat to
      any greater extent than the person whom he seeks to protect.

      The Supreme Court has recently explained:

      To prevail on a justification defense, the defendant must show (1) he reasonably believed
      he [or the person he sought to protect] was in imminent danger of death or serious bodily
      injury and that it was necessary to use ... force against the victim to prevent such harm;
      (2) he [ or the person he sought to protect] was free from fault in provoking the difficulty;
      and (3) he [ or the person he sought to protect] did not violate any duty to retreat.
       Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108, 1124 (2012). Moreover, the
       Commonwealth sustains its burden of disproving self-defense if it proves any of the
       following: "that the [defendant or'the personhe sought to protect] was not free from fault
       in provoking or continuing the difficulty which resulted in the [injury]; that the
       [defendant] did not reasonably believe that [he or the person he sought to protect] was in
       imminent danger of death or great bodily harm, and that it was necessary to [ use force] in
       order to save [himself or another] therefrom; or that the [ defendant] violated a duty to
       retreat or avoid the danger." Id. at 1124 (quotation, quotation marks, footnote omitted).

Commonwealth v. Spatz, 84 A.3d 294, 316 n. 16 (Pa. 2014). See also Commonwealth v. Cooke,

405 A.2d 1290 (Pa. Super. 1979).

       Here there was ample evidence demonstrating that Defendant Schenk, and Iyekekpolor,

the person Schenck allegedly sought to protect, were not free from fault in continuing the

incident. To the contrary, the evidence established that Defendant Iyekekpolor started the

confrontation, pulled a knife and was inflicting life-threatening injuries upon the yet unarmed

Long, before Schenck joined the attack on Long. Under these circumstances the jury could have

reasonably found both that there was insufficient evidence of justification. If the jury found that

there was a viable justification defense, it could have reasonably concluded that the

Commonwealth's evidence disproved the defense beyond a reasonable doubt as to both

Iyekekpolor (as the person initiating and continuing the assault) and Schenk (as the seeking to

protect him). The jury could have also reasonably concluded that the Commonwealth's evidence

disproved beyond a reasonable doubt that Long posed an imminent threat of serious bodily injury

necessitating the use of force by Iyekekpolor and Schenk.

        2. It was not error to permit introduction of complete 911 tapes. (Schenck and
            Iyekekpolor).

        It is axiomatic that the admissibility of evidence is solely within the discretion of the trial

                                                             abused its discretion. Commonwealth v.
court and will be reversed only if the trial-~,· court has •:'"s.~_cce.·

Seilhamer, 862 A.2d 1263, 1270 (Pa. Super. 2004).

        Here, the Commonwealth was permitted to play the 911 tapes reflecting persons calling

in to report the incident. The tapes were admissible both as excited utterances and present sense

impressions under Pa.R.E. 803(1) and (2),:

        An excited utterance, as an exception to the hearsay rule, is "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.RE,, Rule 803(2). The Comment to this exception states that "this

exception has a more narrow base than the exception for a present sense impression, because it
                                                 "-">.,          _,-,;'."'',Y.;;:ef



requires an event or condition that is startling." Id., Comment-1998 (emphasis in original).

Further, "an excited utterance (1) need not describe the startling event; it need only relate to it,

and (2) need not be made contemporaneously                   with, or immediately after, the startling event. Id.

(emphasis in original); see also Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super. 2002).
                                                 ·:.;..-..



         With respect to excited utterances by unidentified bystanders, the law in Pennsylvania
         has evolved to add an additional proofrequirement for admissibility. In order to assure
         that an unidentified bystander actually witnessed an event which is relevant at the time of
         trial, the Pennsylvania Supreme Court has held that that it is incumbent upon the party
         seeking the admission of the out-of-court statement to demonstrate by the use of "other
         corroborating evidence" that the declarant actually viewed the event "of which he
         speaks." Carney v. Pennsylvania Railroad Co., 428 Pa. 489, 496, 240 A.2d 71, 75 (1968).
         In Upshur, the Superior Court, relying uporf'Garney, ruled that it was reversible error to
         admit this type of statement pursuant to the res gestae exception when "the out-of-court
         assertion by the unidentified bystander did not demonstrate that the declarant actually
         viewed the event of which he spoke". Upshur, 764 A.2d at 75 (citing Carney); see also
          Williamson v. Philadelphia Transportation Co., 244 Pa. Super. 492, 368 A.2d 1292 (Pa.
          Super. 1976).

 Commonwealth v. Hood, 872 A.2d 175, 181-182 (Pa. Super. 2005).1



 I "Pa.R.E.Rule 803(1 ), the present sense impression exception to the rule against hearsay, does not explicitly adopt
        The present sense impression exception to the-rule against hearsay, under Pa.R.E.,              Rule

803(1 ), allows the admission of "a statement describing or explaining an event or condition

made while the declarant was perceiving the event or condition, or immediately thereafter .... "

regardless of the availability of the declarant to testify at trial. The observation must be made at

the time of the event or shortly thereafter, making it unlikely that the declarant had the

opportunity to form an intent to misstate his observation. Consequently, the trustworthiness              of

the statement depends upon the timing of the declaration. Commonwealtn v. Gray, 867 A.2d 560

(Pa. Super. 2005).

          Another Court of Common Pleasfaced a similar questions regarding a 911 tape. Judge

Manning wrote:

                  The 911 tape was admissible as a present sense impression. Pa. R. Evid. 803 ( 1 ).
          Commonwealth v. Cunningham, 2002 PA Super 249, 805 A.2d 566 (Pa.Super. 2002). In
          Cunningham, the Court held that the tape of a 911 call made by witnesses to a robbery
          was admissible as a present sense impression. The present sense impression exception to
          the hearsay rule permits testimony of declarations concerning conditions or non-exciting
          events observed by the declarant. Commonwealth v. Harper, 419 Pa. Super. 1, 614 A.2d
           1180, 1183 (1992). The observation must be made at the time of the event or so shortly
          thereafter that it is unlikely that the declarant had the opportunity to form the purpose of
          misstating his observation. Commonwealth v. Blackwell, 343 Pa. Super. 201, 494 A.2d
          426, 431 (1985). In addition, the present sense impression does not require that the
          comments be made to another person also present at the scene, but may be made over the
          telephone. Commonwealth v. Harris, 442 Pa. Super. 6, 658 A.2d 392, 395 (1995). Here,
          the witness was describing the events as they.were occurring. Clearly, she did not have
          the opportunity to reflect on what she saw and form a purpose for misstating her
           observation. The fact that she was available as a witness was immaterial.

 Commonwealth v. Poplawski, 2012 Pa. Dist. & Cnty. Dec. LEXIS 434, 34-35 (Pa. County Ct.

 2012).

          Here, we concluded that the multiple calls, .the.coordination of the information with the

 testimony of known witnesses, as well as the majority of the 911 calls which qualified as present

 sense impressions, provided the necessary corroboration to admit the calls as both excited

 the Carney rule, and no case subsequent to codification has done so either." Commonwealth v. Hood, 872 A.2d at
 183.
                                                        ·-~-·




utterances     and present sense impressions.

         3. It was not error to permit statement of Commonwealth witness regarding prior
            uncharged assaultive conduct. (Schenck) .
                                                          .-. . -:~,-
         Defendant Schenk objects to a reference in Complainant Long's statement, which was

published to the jury, which refers to a prior instance of assaultive conduct by Defendant

Iyekekpolor against Ms. Pritchett.

         First, we cannot see how admission of that portion of the statement prejudiced Schenck.
                                                -~·       ,.;;11,"'."1'ii:•'"'f
Moreover, the statement regarding Long's knowledge was admissible to explain Long's state of

mind when he stepped between the fleeing Ms. Pritchett and the angry Mr. Iyekekpolor who was

pursuing her.

         In discussing similar evidence of physical conduct in a domestic relationship, the

Supreme Court stated:

         While it is true that evidence of prior crimes and bad acts is generally inadmissible if
         offered for the sole purpose of demonstrating the defendant's bad character or criminal
         propensity, the same evidence may be admissible where relevant for another purpose.
         Pa.R.E. 404(b)(2); Kemp, 753 A.2d at 1284. Examples of other such relevant purposes
         include showing the defendant's motive in committing the crime on trial, the absence of
         ~istake or acciden~, a common scheme or ~~~n, or to establish identity. Releva~t to the
         mstant case, the evidence may also be admitted where the acts were part of a chain or
         sequence of events that formed the history of the case and were part of its natural
         development. Kemp, 753 A.2d at 1284. Of course, in addition to the relevance
         requirement, any ruling on the admissibility of evidence is subject to the probative
         value/prejudicial effect balancing that attends all evidentiary rulings. See Pa.R.E. 403;
         Commonwealth v. Dallman, 518 Pa. 86, 541 A.2d 319, 321-22 (Pa. 1988).

 Commonwealth v. Powell, 956 A.2d 406," 419 (Pa. 2-.Q.08).  , .......'.!'·~~




             Here, the evidence was admissible as part of showing the nature of the relationship,

 including events even earlier that day, that caused Complainant Long to be concerned for the

 safety of Ms. Pritchett and the intentions of Defendant Iyekekpo!or, and which played a role in

 prompting him to get between his girlfriend and Iyekekpolor.
                                                  ---        ,~-

             4. It was not error to deny the request for a missing witness instruction. (Schenck
                and Iyekekpolor).
       Defendants assert that the Court should have given a missing witness instruction to the

jury in regard to the persons heard in the 911 tapes, and as to an unknown person who spoke to

Police Officer Monahan at the scene. N.T. 5/13/14, pp. 25-27.

       The missing witness advers~ infe.:,~nce rule provides that, when a potential witness is
                                                      ~~··;...;.-..:·


available to only one of the parties to a trial, and it appears that the witness has special

information material to the issues at trial, and the witness's testimony would not merely be

cumulative, if such party does not produce the testimony of this witness, the jury may draw an

inference that the witness's testimony would have been unfavorable to the party having control of
                                           ··;~,.




the witness. Commonwealth v. Boyle, 733 A.2d 633, 638 (Pa. Super. 1999).

        The missing witness instruction is not proper where: (1) the witness is so hostile     or
prejudiced against the party expected to call him that there is a small possibility of obtaining

unbiased truth; (2) the testimony of such a witness is comparatively unimportant, cumulative, or

inferior to that already presented; (3) the uncalled witness is equally available to both parties; (4)

there is a satisfactory explanation as to why the party failed to call such a witness; (5) the witness

 is not available or not within the control of the party against whom the negative inference is

 desired; and (6) the testimony of the uncalled witness is not within the scope of the natural

 interest of the party failing to produce him. Commonwealth v. Evans, 664 A.2d 570, 573-574

 (Pa. Super. 1995).

        Here, there was nothing to show that the 911 callers or the person Officer Monahan spoke

 to at the scene were available or within the control of the Commonwealth. Likewise, as to the

 latter, even if the identify was known and the person was in control of the Commonwealth, the

 testimony is not within the scope of the Commonwealth's interest.

         The point is that the where a witness is in available to and in control of a party, to the

 exclusion of the opposing party, and that witness would reasonably be expected to support the
non-calling party's case, then, and only then, would a missing witness instruction be appropriate.

Because those factors were not present in this case, a missing witness instruction was

inappropriate and it was not en-or to refuse to deliver such an instruction to the jury.

        5. It was not error to permit evidence of Defendant lyekekpolor's alleged statement
            to a Commonwealth witness. (Iyekekpolor).

        During a lunch break in the trial proceedings, Defendant Iyekekpolor confronted

Commonwealth witness Regina Anderson, who had-testified that morning. According to Ms.

Anderson, as proffered by the Commonwealth: "Regina Anderson was approached by Mr.

Iyekekpolor at which point he stated to her, 'I know you be around that area. I know where you

be at. Stop. Stop."' N.T. 5/14/14, p. 115. Based upon the information, the Court revoked

Defendant's bail and the Commonwealthindicated that it intended to recall Ms. Anderson in

rebuttal.

        The following morning Defendant Iyekekpolor moved in limine to preclude Ms.

Anderson from testifying. N.T. 5/15/14, pp. 4-9. The Commonwealth indicated that it intended

to recall Anderson and present her testimony about the-alleged conversation as evidence of

 Defendant Iyekekpolor' s consciousness of guilt. N. T. 5/15/14, p. 9. The Court denied the

 motion and ruled that if the Commonwealth called the witness, the Court would charge the jury

 that it may consider the evidence as consciousness of guilt. N.T. 5/15/14, p. 10. Apparently, this

 ruling, and the decision of the Commonwealth to rest.without calling Ms. Anderson, prompted

 Defendant, in consultation with his counsel, to decide not to testify and to not call character

 witnesses on his behalf. See N.T. 5/14/14, pp. 115-124; N.T. 5/15/14, pp. 76, 79-86.

         Threats against a Commonwealth witness by a defendant are admissible to demonstrate

 consciousness of guilt. Commonwealth v-Johnson, 8~8 A.2d 663, 680 (Pa. 2003). For whatever

 reason, the Commonwealth elected not to present such testimony in its case in chief, although it

 could have done so then or in rebuttal. Defendant Iyekekpolor was free to take the stand and to
present character testimony. However, under these circumstances, he made a strategic decision

to deprive the Commonwealth of the opportunity to present the testimony of threats to its

witness, by electing not to testify or present character evidence.
                                           ·~·
       The decision to permit the Commonwealth to present the admissible threats evidence was

correct. That this correct evidentiary ruling created a quandary for Defendant which he resolved

by withholding his evidence does not establish en-or.

        6. It was not error to deny the motion for a mistrialbased upon the allegedly
           improperstatementof prosecutor.(Iyekekpolor),

        Following closing arguments Defendants moved for a mistrial based upon the prosecutor

saying that the defendants had the "audacity" to claim they were acting in self-defense.    N.T.

5/15/14, pp. 98-99.

        Ideally, it might have been preferable for the Commonwealth not to suggest that the

defense asserted by Defendants was audacious. However, we think that the line of argument was

a fair comment on the defense of justification and self-defense outlined and advocated by

Defendants.

        A prosecutor is permitted to comment and respond to the defense in closing, and even

 " [a] remark by a prosecutor, otherwise improper, may be appropriate if it is in fair response to

 the argument and comment of defense counsel.'' Commonwealth v. Trivigno, 750 A.2d 243, 249

 (Pa. 2000) (plurality opinion).

         Accordingly, the motion for a mistrial based upon the prosecutor's closing was

 appropriately denied.

         7. The court did not abuse its discretionin sentencing Defendantlyekekpolor.

         On September 18, 2014, Defendant Iyekekpolor was sentenced to 1-2 years incarceration

 on the simple assault and 1-2 years on the REAP. The.sentences were each to run consecutively,

 for an aggregate sentence of 2-4 years incarceration.   Defendant asserts that this sentence, which
was well in excess of the Sentencing Guidelines range.' constituted a "make-up" sentence, based

on impermissible factors, including the weapons involved in the incident, the conduct of the co-

defendant, the nature of the injuries incurred by Complainant, and Defendant's mid-trial threats

to a Commonwealth witness. Defendant's Post-Sentence Motion,~~ 7-10.

        In fashioning a sentence, "[tjhe court e court.shall follow the general principle that the

sentence imposed should call for confinement that is consistent with the protection of the public,

the gravity of the offense as it relates to the impact on the life of the victim and on the

community, and the rehabilitative needs of the defendant." 42 Pa.C.S. § 9721(b).

        This Court did just that. As noted-at the time.of sentencing, the conduct for which

Defendant was convicted was "far beyond the heartland of the guidelines.". N.T. 12/18/14, p. 22.

In determining the appropriate sentence here, we considered:. the fact that Defendant and his

uncle assaulted Mr. Long with a knife and a crowbar; caused him to suffer multiple stab wounds,

multiple fractures and other injuries; that-the criminal.conduct occurred in front of a school, at

dismissal time, in the presence of children and their families; that numerous people were so

distressed by the conduct they observed that they called 911; and that the conduct by Defendant

was lawless and defiant. We also considered the long-term effects of the injuries to Mr. Long,

 including the change to his speech from his injuries.cly.T. 12/18/14, pp. 22-23. We also

 considered the conduct of Defendant in approaching and threatening Commonwealth witness

 Anderson right after she gave evidence against him at trial. N.T. 12118/14,p. 24.

         The Court also concluded that society needed to be protected from Defendant and

 expressed its hope that the period incarceration would.have a rehabilitative effect that would

 enable him to come back and not be dangerous. N. T. 12/18/14, p. 24.

         The conduct here constituted a most egregious example of simple assault and REAP.

 2 Defendant's Offense Gravity Score was 3, and his Prior Record Score was 0, yielding a Guideline range of RS- I
 plus or minus 3.
                                                             ·,·~·~·
Commonwealth v. James Iyekekpolor                            CP-51-CR-11512-2012
Commonwealth v. Richard Schenck                 Case Number: CP-51-CR-11513-:-2012


                                     rRooF oF··'sE::Rv1cE
I hereby certify that I am this day serving the foregoing upon the person(s), and in the
manner indicated above, which service satisfies the requirements of Pa.R.Crim.P.114:

Defense Counsel/Party:

                         Todd Mosser, Esquire
                         2 Penn Center.Suite 1723'""--t
                         Philadelphia, PA 19102
                         Counsel for Defendant, James Jyekekpolar


                         Aaron Charles Finestone, Esquire
                         P.O. Box 22392
                         Philadelphia, PA 19110
                         Counsel for Defendant, Richard Schenck


Type of Service:         ( ) Personal (X) First Class Mail

District Attorney:
                         Hugh Burns, Esquire
                         Office of the District Attorney
                         Three South Penn Square ,-,.-
                                                     0 .... ,



                         Philadelphia, PA 19107


Type of Service          ( ) Personal (X) First Class Mail




 Dated: March 17, 2015



 Vanessa A. Montone
 Judicial Secretary to
 Honorable Giovanni 0. Campbell
