J-A26025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 CURTIS NEWKIRK                           :
                                          :
                    Appellant             :    No. 833 WDA 2018

           Appeal from the Judgment of Sentence April 16, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0014209-2017


BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY OLSON, J.:                             FILED MARCH 20, 2020

      Appellant, Curtis Newkirk, appeals from the judgment of sentence

entered on April 16, 2018, as made final by the denial of Appellant’s

post-sentence motion on May 7, 2018. We affirm.

      The Commonwealth charged Appellant with simple assault.              During

Appellant’s bench trial, the Commonwealth first presented the testimony of

the victim, P.M. (hereinafter “the Victim”).     The Victim testified that, on

November 1, 2017, she and Appellant were at the home of Appellant’s sister.

N.T. Trial, 4/16/18, at 4. The Victim testified that she drank a large amount

of alcohol, became extremely intoxicated, and, at some point, began arguing

with Appellant.    Id. at 7 and 10.    According to the Victim, she mentally

“blacked out” due to her excessive alcohol consumption and “woke up” to

Appellant hitting her in the left arm with a metal pole. Id. at 5. The Victim

testified that she called the police and reported the assault. Id. at 6.
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         During Appellant’s trial, a question arose as to when the Victim sprayed

Appellant in the face with pepper spray. The Victim testified that, at the time

of the assault, she believed that Appellant initially assaulted her and that she

pepper sprayed Appellant only after he began hitting her.         See id. at 7.

However, during trial, the Victim testified that, “about two weeks after [the

attack,] when the swelling in [her] brain went down,” she remembered that

she “pepper sprayed [Appellant] first” and that Appellant only beat her with

his fists and the metal pole after she had first pepper sprayed him. See id.

at 11.

         The Commonwealth next presented the testimony of City of Pittsburgh

Police Officer Sean Stumpf. Officer Stumpf testified that he responded to the

Victim’s call on November 1, 2017 and, when he arrived at the scene, he

noticed “two large lumps on [the Victim’s] face – her forehead . . . and obvious

swelling to her left . . . arm and hand.” Id. at 13. Over Appellant’s hearsay

objection, which the trial court overruled, Officer Stumpf testified that the

Victim told him:

           There was an argument over beer, she was getting punched
           in the face and then while – shortly after being punched in
           the face multiple times[, Appellant] . . . grabbed a pole and
           began beating her in the arm with it and she pepper sprayed
           him.

Id. at 13-14.

         Officer Stumpf testified that he located the metal pole at the scene. He

testified that the pole was a hollow, “round metal pole[,] . . . approximately a

half an inch in diameter[,] . . . approximately three feet long, . . . and it was

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bent in half.” Id. at 14. Further, Officer Stumpf testified that, after he located

Appellant, Appellant told the officer “that [Appellant] had punched the [Victim]

in the face and had beaten her with a pole.” Id. at 16.

        After presenting the testimony of Officer Stumpf, the Commonwealth

rested its case and Appellant testified on his own behalf. Appellant testified

that, after he and the Victim got into an argument, the Victim pepper sprayed

him in the eyes and he began “struggling” with the Victim in self-defense. Id.

at 25-26. Appellant testified that he “wasn’t deliberately trying to punch [the

Victim] in the face,” that he never told Officer Stumpf that he punched the

Victim, and that Officer Stumpf was “lying” when he testified that Appellant

told the officer “that [Appellant] had punched the [Victim] in the face and had

beaten her with a pole.” Id. at 26.

        At the conclusion of Appellant’s bench trial, the trial court found

Appellant guilty of simple assault.1           In finding Appellant guilty of simple

assault, the trial court specifically declared:

          Okay, you can’t punch someone in the face or hit them with
          a pole even if you have been pepper sprayed. It was kind of
          my impression that you were out of [the Victim’s] direct
          reach. I didn’t believe a word you said is what it comes down
          to. I didn’t believe a word she said either. I only believed
          the police. I believe you told that officer that you punched
          her in the face and that you hit her with the pole and I’m
          going to find you guilty.

Id. at 26-27.


____________________________________________


1   18 Pa.C.S.A. § 2701(a)(1).

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      Further, within the trial court’s Pennsylvania Rule of Appellate Procedure

1925(a) opinion, the trial court declared that it overruled Appellant’s hearsay

objection to Officer Stumpf’s testimony because the Victim’s statements to

the officer qualified as an excited utterance. Trial Court Opinion, 1/22/19, at

3.

      On appeal, Appellant raises two claims:

        [1.] Whether the trial court abused its discretion by admitting
        hearsay evidence offered by the Commonwealth that did not
        fall under any exception to the hearsay rule?

        [2.] Whether the Commonwealth offered sufficient evidence
        to disprove [Appellant’s] claim of self-defense beyond a
        reasonable doubt?

Appellant’s Brief at 5 (some capitalization omitted).

      First, Appellant claims that the trial court erred in admitting Officer

Stumpf’s testimony, as it constituted inadmissible hearsay.

      As this Court has stated:

        our standard of review for evidentiary rulings is a narrow one:
        when we review a trial court's ruling on admission of
        evidence, we must acknowledge that decisions on
        admissibility are within the sound discretion of the trial court
        and will not be overturned absent an abuse of discretion or
        misapplication of law. In addition, for a ruling on evidence to
        constitute reversible error, it must have been harmful or
        prejudicial to the complaining party. A party suffers prejudice
        when the trial court's error could have affected the verdict.

Commonwealth v. Tyack, 128 A.3d 254, 257 (Pa. Super. 2015) (quotations,

citations, and corrections omitted).




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      “An abuse of discretion is not merely an error of judgment, but is rather

the overriding or misapplication of the law, or the exercise of judgment that

is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,

as shown by the evidence of record.” Commonwealth v. Cameron, 780 A.2d

688, 692 (Pa. Super. 2011). Moreover, since this was a bench trial, we note

that the trial court “is presumed to know the law, ignore prejudicial

statements, and disregard inadmissible evidence.” Commonwealth v.

Smith, 97 A.3d 782, 788 (Pa. Super. 2014).

      “Hearsay is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Commonwealth v. McCrae, 832 A.2d 1026, 1034 (Pa.

2003); Pa.R.E. 801(c).       “Hearsay evidence is not admissible except as

provided by the Pennsylvania Rules of Evidence, [the Pennsylvania Supreme]

Court, or by statute.” McCrae, 832 A.3d at 1034; Pa.R.E. 802.

      Appellant objected to the following portion of Officer Stumpf’s

testimony, where the officer testified that the Victim told him:

         There was an argument over beer, she was getting punched
         in the face and then while – shortly after being punched in
         the face multiple times[, Appellant] . . . grabbed a pole and
         began beating her in the arm with it and she pepper sprayed
         him.

N.T. Trial, 4/16/18, at 13-14.

      Officer Stumpf’s testimony relays what the Victim told him about the

fight and was offered into evidence to prove the truth of the matter asserted.

As such, the testimony constitutes hearsay.

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     However, Pennsylvania Rule of Evidence 803 lists a number of

exceptions to the rule against hearsay, one of which is the excited utterance

exception. Rule 803(2) declares:

        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. When the
           declarant is unidentified, the proponent shall show by
           independent corroborating evidence that the declarant
           actually perceived the startling event or condition.

Pa.R.E. 803(2).

     The Pennsylvania Supreme Court has explained:

        Res gestae statements, such as excited utterances, present
        sense impressions, and expressions of present bodily
        conditions are normally excepted out of the hearsay rule,
        because the reliability of such statements are established by
        the statement being made contemporaneous with a
        provoking event. While the excited utterance exception has
        been codified as part of our rules of evidence since 1998, see
        Pa.R.E. 803(2), the common law definition of an excited
        utterance remains applicable, and has been often cited by
        [the Pennsylvania Supreme] Court:

           [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


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J-A26025-19


            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, 495-496 (Pa.
        2006).

        The circumstances surrounding the statements may be
        sufficient to establish the existence of a sufficiently startling
        event.

Commonwealth v. Murray, 83 A.3d 137, 157-158 (Pa. 2013) (some

citations omitted).

      In its Rule 1925(a) opinion, the trial court concluded that it was proper

to admit the Victim’s statement to Officer Stumpf, as it was an excited

utterance and, thus, fell within an exception to the hearsay rule. Trial Court

Opinion, 1/22/19, at 3. We conclude that the trial court did not abuse its

discretion when it found that the Victim’s statement to Officer Stumpf qualified

as an excited utterance.

      The evidence clearly established that the Victim called the police during

the physical altercation with Appellant. N.T. Trial, 4/16/18, at 5. No one else

was present when the police came. Id. at 4-5. Officer Stumpf was the officer

who responded to the Victim’s call. Id. at 13. The Victim identified herself to

the officer as the person who had called the police. Id. She had two large

lumps on her head and her left hand and arm were swollen. Id. It was at

this time that she told Officer Stumpf that she and Appellant argued over beer,

that Appellant punched her in the face several times and hit her with a metal

pole and that she then pepper sprayed him. Id. at 13-14.


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      Based on this testimony, a reasonable conclusion is that Office Stumpf

responded to a police call that occurred during a physical altercation between

Appellant and the Victim. Immediately upon his arrival, the officer saw signs

that the Victim was beaten and, when asked what had occurred, the Victim

told Officer Stumpf the sequence of events. This testimony is clearly sufficient

to establish that the Victim’s statements were made close in time to the

physical altercation, which constitutes a startling event. To be sure, the Victim

had just suffered a significant beating, which would cause anyone to be under

stress and emotionally upset.     The Victim testified that no one else was

present and, therefore, a reasonable inference can be made that she did not

speak to anyone else before talking with Officer Stumpf. Finally, the Victim’s

statement was not made in narrative form and it was not the result of

reflective thought. Instead, when Officer Stumpf arrived to investigate, the

Victim told him what had occurred – there was an argument over beer that

resulted in Appellant punching the Victim and hitting her with a metal pole,

which prompted the Victim to pepper spray him. Thus, it was not an abuse of

discretion for the trial court to find that the Victim’s statement to Officer

Stumpf fell within the excited utterance exception to the hearsay rule.

      Moreover, we conclude that, even if Officer Stumpf’s testimony

constituted inadmissible hearsay, the admission of the testimony was

harmless beyond a reasonable doubt.

      As the Pennsylvania Supreme Court explained:




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          an erroneous ruling by a trial court on an evidentiary issue
          does not require us to grant relief where the error was
          harmless.   The Commonwealth bears the burden of
          demonstrating harmless error.

          Harmless error exists where: (1) the error did not prejudice
          the defendant or the prejudice was de minimis; (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. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (quotations and

citations omitted).

      Appellant was convicted of simple assault under 18 Pa.C.S.A.

§ 2701(a)(1). This section declares: “a person is guilty of assault if he: (1)

attempts to cause or intentionally, knowingly or recklessly causes bodily injury

to another.” 18 Pa.C.S.A. § 2701(a)(1). The term “bodily injury” is defined

as “[i]mpairment of physical condition or substantial pain.”      18 Pa.C.S.A.

§ 2301.

      With respect to the right of self-defense, our law provides that the use

of force against a person is justified “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). Further: “a person employing protective force may estimate the

necessity thereof under the circumstances as he believes them to be when the

force is used, without retreating, surrendering possession, doing any other act



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which he has no legal duty to do or abstaining from any lawful action.” 18

Pa.C.S.A. § 505(b)(3). “When a defendant raises the issue of self-defense,

the Commonwealth bears the burden to disprove such a defense beyond a

reasonable doubt.”    Commonwealth v. Torres, 766 A.2d 342, 345 (Pa.

2001).

      As we have held, the right of self-defense recognizes that a person may

“repel non-deadly force with force which is reasonable under the

circumstances.” Commonwealth v. Presogna, 292 A.3d 476 (Pa. Super.

1972) (emphasis added). Thus, “when the actor is confronted with non-deadly

force . . . the actor’s retaliation must not be excessive.” Commonwealth v.

Jones, 332 A.2d 464, 466 (Pa. Super. 1974); Commonwealth v.

Witherspoon, 730 A.2d 496, (Pa. Super. 1999). In the words of our Supreme

Court: “in . . . case[s] involv[ing] a mere battery, . . . force may be met with

force so long as it is only force enough to repel the attack.” Commonwealth

v. Pollino, 467 A.2d 1298, 1301 (Pa. 1983).

      At the conclusion of the bench trial in this case, the trial court declared

it was finding Appellant guilty of simple assault because “you can’t punch

someone in the face or hit them with a pole even if you have been pepper

sprayed. It was kind of my impression that you were out of [the Victim’s]

direct reach.” N.T. Trial, 4/16/18, at 26-27. Thus, the trial court declared

that it found, as a fact, that even if the Victim pepper sprayed Appellant prior

to the assault, Appellant was guilty of simple assault because he used

excessive force.

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      We conclude that the evidence is sufficient to support the trial court’s

factual finding that, even if the Victim pepper sprayed Appellant first,

Appellant was guilty of simple assault because he used excessive force in

repelling the attack. Certainly, viewing the evidence admitted at trial in the

light most favorable to the Commonwealth as the verdict winner, the evidence

demonstrates that Appellant punched the Victim in the head and face and beat

her with a metal pole to such an extent that she suffered immediate visible

lumps on her head, immediate visible swelling of her left arm and hand,

long-lasting pain in her left arm, and swelling in her brain. This evidence is

sufficient to support the trial court’s factual conclusion that Appellant used

excessive force in response to being pepper sprayed and that the

Commonwealth disproved Appellant’s claim of self-defense beyond a

reasonable doubt.

      Further, since the trial court properly found that Appellant was guilty of

simple assault even if the Victim first pepper sprayed him, any error in

admitting Officer Stumpf’s testimony was harmless beyond a reasonable

doubt. Indeed, with respect to Officer Stumpf’s testimony, Appellant’s only

claim of prejudice is that the testimony “show[ed Appellant] acted as the

primary aggressor.” See Appellant’s Brief at 38. However, since the trial

court found that Appellant was guilty of simple assault even if Appellant’s

attack was done in response to being pepper sprayed – and since the evidence

is sufficient to support this finding – we conclude that any error in admitting

Officer Stumpf’s testimony was harmless beyond a reasonable doubt, as the

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error could not have caused Appellant prejudice. See Chmiel, 889 A.2d at

521 (“[h]armless error exists where . . . the error did not prejudice the

defendant”).

     Appellant’s second-numbered claim on appeal contends that the

evidence was insufficient to disprove his claim of self-defense.      See

Appellant’s Brief at 31.   However, given the above discussion, this claim

necessarily fails. See supra at **8-12.

     Judgment of sentence affirmed. Jurisdiction relinquished.

     Judge Shogan joins.

     Judge Lazarus files a Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2020




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