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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

DISSENTING MEMORANDUM BY LAZARUS, J.:                  FILED MARCH 20, 2020

      I respectfully dissent. In my opinion, the Victim’s statement does not

qualify as an excited utterance. However, even if her statement does qualify

as an excited utterance, the trial court committed reversible error by admitting

that statement where no independent proof corroborated that Appellant was

the initial aggressor. I would reverse and remand for a new trial.

      On direct examination, the Commonwealth questioned the Victim about

the statement she made to Officer Stumpf regarding her altercation with

Appellant. The Victim testified that she did not recall telling Officer Stumpf

that Appellant struck her first. N.T. Trial, 4/16/18, at 9-10. The Victim further

testified:

      I would like to say that I also told [the District Attorney] that
      [Appellant] did not start this, I did, I attacked him[.] . . . I pepper
      sprayed him first but I didn’t remember at the time. I woke up to
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      him hitting me. I assumed [when speaking to Officer Stumpf that
      Appellant] started first and he did not.

Id. at 6-7.

      The trial court, over Appellant’s objection, permitted the Commonwealth

to introduce, through the testimony of Officer Stumpf, the Victim’s statement

from November 1, 2017, and offered the following analysis:

      [The Victim] had a personal relationship with [Appellant] and was
      unable to recall at trial whether she discharged the pepper spray
      in an offensive or defensive situation. [Appellant] testified that
      [the Victim] had been the aggressor. When interviewed shortly
      after the incident, [the Victim] stated to [Officer Stumpf] that she
      utilized the pepper spray to counteract the aggression of
      [Appellant]. Given [the Victim’s] inability to recall what she had
      done, Officer Stumpf was permitted to testify, over objection, with
      regard to her statements to him close in time to the incident as
      qualifying as an excited utterance exception to hearsay.

Trial Court Opinion, 1/22/19, at 3.

      Apparently, the trial court premised the admissibility of the Victim’s

statement on “her inability to recall what she had done,” and not on the

grounds that her statement qualifies as an exception to the rule against

hearsay.1 See id.

      The majority correctly points out that in order to admit a purported

excited utterance, “it must be shown first, that [the declarant] had witnessed

an event sufficiently startling and so close [in time] as to render her reflective

thought processes inoperable, and, second, that her declarations were a



1 To the contrary, the Victim testified at trial that she forgot what she had said
on November 1, 2017, not what she had done. She testified at trial that she
remembers pepper spraying Appellant first. See N.T. Trial, 4/16/18, at 7-11.


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spontaneous reaction to that startling event.”        Majority Opinion, at *6-7

(quoting Commonwealth v. Sherwood, 982 A.2d 483, 495-96 (Pa. 2006)).

“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 process remains in abeyance.”        Pa.R.E. 803(2), cmt. (quoting

Commonwealth v. Gore, 396 A.2d 1302, 1306 (Pa. Super. 1978)).

      The record does not establish that the Victim’s statement to Officer

Stumpf was an excited utterance. The Commonwealth presented no evidence

of (1) how much time elapsed between the incident and the declaration, (2)

the Victim’s demeanor when speaking with Officer Stumpf, (3) whether the

Victim remained under the stress of the altercation at the time of her

declaration, (4) whether the Victim refrained from speaking to anyone prior

to Officer Stumpf, and (5) whether the Victim’s nervous excitement continued

to dominate such that her reflective thought processes remained inoperable.

See N.T. Trial, 4/16/18, at 3-17. Officer Stumpf did not record the statement

contemporaneously, and the Victim did not sign any statement. Moreover,

the Victim’s alleged statement was self-serving, in narrative form, and in

response to an officer’s questioning. Therefore, the Commonwealth did not

present sufficient indicia of reliability to permit the introduction of her out-of-

court statement as an excited utterance. See Gore, supra.

      For a statement to qualify as an excited utterance, “evidence must show

that the declaration was spoken under conditions which ensured that it is not

the result of premeditation, consideration or design, and it cannot be in the

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form     of   a   narration   or   attempted   explanation   of   past   events.”

Commonwealth v. Little, 364 A.2d 915, 917 (Pa. 1976). We have explained

that:

        where the time interval between the event and the statement is
        long enough to permit reflective thought, [t]he statement will be
        excluded in the absence of some proof that the declarant did not
        in fact engage in a reflective thought process. Testimony that the
        declarant still appeared ‘nervous' or ‘distraught’ and that there
        was a reasonable basis for continuing emotional upset will often
        suffice. . . . Evidence that the statement was self-serving or made
        in response to an inquiry, while not justification for automatic
        exclusion, is an indication that the statement was the result of
        reflective thought, and where the time interval permitted such
        thought these factors might swing the balance in favor of
        exclusion.

Lininger v. Kromer, 358 A.2d 89, 93 (Pa. Super. 1976); See also

Commonwealth v. Levanduski, 907 A.2d 3, 16 (Pa. Super. 2006)

(statement given in narrative form that refers to past events not admissible

as excited utterance).

        I disagree with the majority’s assertion that the Victim’s statement “was

not made in narrative form and it was not the result of reflective thought.”

Majority Opinion, at *8.      In my opinion, the Victim’s statement to Officer

Stumpf, in which she described “an argument over beer” before detailing the

altercation with Appellant, is a narrative statement explaining past events,

and is therefore not admissible as an excited utterance, especially given the

lack of testimony to establish that the statement meets the definition of an

excited utterance. See Levanduski, supra at 16; Little, supra at 917; see



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also Croyle v. Smith, 918 A.2d 142, 150 (Pa. Super. 2007) (responding

officer prohibited from introducing alleged excited utterance, made ten

minutes after automobile accident, because declarant’s “full account of what

occurred prior” disproved he was under stress of excitement caused by crash).

The narrative quality of the Victim’s statement indicates the absence of

spontaneity and suggests the use of her reflective faculties.   Levanduski,

supra at 16.

      Additionally, further evidence suggests that the Victim’s statement was

the result of reflective thought. While we have held that a declaration is not

per se inadmissible as an excited utterance because it was in response to a

question, Commonwealth v. Cooley, 348 A.2d 103, 106-07 (Pa. 1975), we

have recognized that where a statement was made in response to an inquiry,

it suggests “that the statement was the result of reflective thought” and

weighs against admission. Lininger, supra at 94. Here, the fact that the

Victim’s recitation of events was in response to Officer Stumpf’s questioning

weighs against admission. See id. We have further explained that the self-

serving nature of a statement also indicates the use of reflective thought and

weighs against admissibility. Id. It does not strain logic to conclude that,

even in her drunken state, the Victim must have known that if she told Officer

Stumpf that she had attacked Appellant first, she would likely have been

arrested instead of him; her alleged claim that Appellant was the initial

aggressor is, thus, self-serving.


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         In light of the foregoing, I believe the Commonwealth failed to prove

that the Victim’s statement qualifies as an excited utterance and that several

factors weigh against the conclusion that it does; the court, therefore, should

not have admitted her statement through Officer Stumpf’s testimony.

However, even if her statement does qualify as an excited utterance, the trial

court committed reversible error by admitting that statement where no

independent proof corroborated that Appellant was the initial aggressor.

         The crux of this case is whether Appellant was the initial aggressor or

acted in self-defense. Significantly, there is nothing in the record, other than

Officer Stumpf’s recitation of the Victim’s statement, establishing that

Appellant was the initial aggressor. The only additional evidence was Officer

Stumpf’s observations of bruises and swelling on the Victim and pepper spray

on Appellant. N.T. Trial, 4/16/18, at 4-17. Those first-hand observations do

not establish the sequence of events the Victim allegedly described out of

court (i.e., that Appellant was the initial aggressor).      Those observations

support Appellant’s claim of self-defense as much as they support proof of his

guilt.

         This Court has held that “[w]here there is no independent evidence that

a startling event has occurred [as described], an alleged excited utterance

cannot be admitted as an exception to the hearsay rule.” Commonwealth

v.   Barnes,     456   A.2d   1037,   1040   (Pa.   Super.   1983);   see   also

Commonwealth v. Keys, 814 A.2d 1256 (Pa. Super. 2003) (absent


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independent proof of startling event, a purported excited utterance is not

sufficient to establish that event actually occurred as described).2 In Barnes,

the defendant was found guilty of robbery, theft by unlawful taking, and

simple assault.     Id. at 1038.   The victim told the responding officer that

defendant had entered his apartment, struck him, and stole $300.           Id. at

1039.    Prior to trial, the victim died of unrelated causes, and at trial, the

Commonwealth introduced the victim’s statement as an excited utterance

through the testimony of the officer.      Id.   The Commonwealth offered no

additional evidence that the defendant had committed the crime. Id. This

Court stated:

        [T]he only evidence that a startling event had in fact occurred was
        contained in the statement sought to be admitted as a
        spontaneous reaction thereto[.] . . . We are thus presented with
        the troublesome situation in which the excited utterance itself is
        being used to prove that an exciting event did, in fact, occur. This
        circuitous reasoning is unacceptable.

Id. at 1039-40. The lack of independent evidence of the assault and robbery

precluded the Commonwealth from proving the “excitement and stress which

were necessary to make [the victim’s] extra-judicial statement admissible as

a spontaneous reaction thereto.” Id. at 1041. This Court held that in this




2 Legal scholars have noted with approval the requirement that excited
utterances be supported by independent proof. See McCormick on Evidence,
§ 297 (2nd ed. 1972); Binder, The Hearsay Handbook, Exception 2 pg. 43; 29
Am.Jur.2d, Evidence § 711 (“the principal act must first be established before
res gestae statements can be admitted”); 31A C.J.S. Evidence § 404 (“[i]t is
proceeding in a circle to use the declarations as proof of facts necessary to
constitute the declarations part of the res gestae”).

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situation, introduction of the victim’s out-of-court statement through the

officer’s testimony warranted reversing the judgment of sentence and

remanding the case for a new trial.   Id. at 1041.

      This Court held similarly in Keys, supra. There, the victim’s husband

held her overnight in their home against her will, threatening to cut her throat

with a sword. Id. at 1257. She managed to escape the following day and

contacted police thirty minutes later. Id. Although the victim’s “voice and

behavior were distraught and erratic,” this Court held that her statement to a

police officer narrating the overnight events, made in response to the officer’s

inquiry, was not an excited utterance.      Id. at 1259-60.    Significantly, the

Commonwealth offered no additional, independent evidence substantiating

the incident as described. Id. at 1259. Citing Barnes, supra, this Court held

that, absent independent proof of the event, a purported excited utterance is

not sufficient to establish that the event actually occurred as described. Keys,

supra at 1259 (“We do not find that the officer’s observations of her agitated

state independently establishes the startling event.”). The Court also found it

significant that “[n]o testimony was presented that she did not ‘engage in a

reflective thought process’ prior to her contact with the police officer.” Id.

      The matter sub judice is analogous to Barnes and Keys. Here, as in

those cases, the Commonwealth presented no independent evidence

corroborating the startling event that led to the alleged excited utterance—

i.e., that the defendant/appellant was the initial aggressor. Additionally, here,


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as in Barnes and Keys, there was no evidence that the declarant refrained

from engaging in reflective thought prior to the declaration. Thus, as in those

cases, I find the trial court here committed reversible error in admitting the

Victim’s uncorroborated hearsay statement.         See Barnes, supra; Keys,

supra.

      Additionally, I disagree with the majority’s harmless error analysis. I

do not believe that this error was harmless beyond a reasonable doubt. The

Victim’s uncorroborated hearsay statement constituted the entirety of the

Commonwealth’s evidence of Appellant’s guilt. In fact, the trial judge told

Appellant at the conclusion of the trial, “I didn’t believe a word you said is

what it comes down to. I didn’t believe a word [the Victim] said either. I only

believed the police.”    N.T. Trial, 4/16/18, at 2.    Thus, the error was not

harmless in that the improperly admitted testimony was the sole basis for the

court’s verdict. See Commonwealth v. Wright, 961 A.2d 119, 143 (Pa.

2008) (“an error cannot be harmless if there is a reasonable possibility the

error might have contributed to the conviction.”).

      Lastly, I respectfully disagree with the majority’s conclusion that the

trial court’s error in admitting the Victim’s statement was harmless in 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.”         Majority




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Opinion, at *11. I do not believe the evidence was sufficient to support that

factual finding.

       With regard to the defense of self-defense, “[t]he use of force on 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). As the majority points out, “a person employing protective force

may estimate the necessity thereof as he believes them to be when the force

is used.” Majority Opinion at *9, quoting 18 Pa.C.S.A. § 505(b)(3).

      We have previously explained that pepper spray, also known as mace,

“is an instrument which is likely to cause serious bodily injury . . . [i]f one

sprays mace directly into the eyes of another person[,] there is a high

probability that the victim will be seriously hurt . . . [i]t may blur vision to

cause temporary blindness, burn the eyes, [and] cause redness and swelling.”

Commonwealth v. Chambers, 157 A.3d 508, 516-17 (Pa. Super. 2017),

reversed on other grounds, 188 A.3d 400 (Pa. 2018). We have also held

that, depending on the manner in which it is used, pepper spray may qualify

as a deadly weapon under 18 Pa.C.S.A. § 2301.3 Id.




3 See 18 Pa.C.S.A. § 2301 (deadly weapon is “[a]ny firearm, whether loaded
or unloaded, or any device designed as a weapon and capable of producing
death or serious bodily injury, or any other device or instrumentality which,
in the manner in which it is used or intended to be used, is calculated or likely
to produce death or serious bodily injury”).

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      Here, Appellant testified that after the Victim pepper sprayed him “right

in [the] eyes,” he had “no idea” what was going on and began “fighting for his

life.” N.T. Trial, 4/16/18, at 22. He further explained that he was simply

“struggl[ing], “just swinging to get [the Victim] to stop,” and that “[a]s soon

as she had stopped[,] [he] was able to get away.”       Id. at 26.   Given the

foregoing, I believe Appellant did not, as a matter of law, use excessive force

in repelling the Victim’s attack. This contradicts the conclusion that he would

have been found guilty of simple assault “even if the Victim pepper sprayed

Appellant prior.” Majority Opinion, at *10. Accordingly, introduction of the

Victim’s hearsay statement was not harmless error.

      I would reverse the conviction and remand for a new trial.




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