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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DANIEL BURRUS

                            Appellant                 No. 631 EDA 2013


            Appeal from the Judgment of Sentence January 23, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008742-2009


BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                       FILED DECEMBER 11, 2014

        Daniel Burrus appeals from the judgment of sentence entered in the

Court of Common Pleas of Philadelphia County after a jury found him guilty

of criminal attempt to commit murder,1 criminal conspiracy to commit

murder,2 aggravated assault,3 criminal conspiracy to commit aggravated

assault,4 firearm not to be carried without a license, 5 and possession of an

instrument of a crime.6 After careful review, we affirm.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 901(a); 18 Pa.C.S. § 2502.
2
    18 Pa.C.S. § 903(a).
3
    18 Pa.C.S. § 2702.
4
    18 Pa.C.S. § 903(a).
(Footnote Continued Next Page)
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        On March 30, 2009, at approximately 10:00 p.m., Philadelphia Police

Officer Christopher Egan and his partner responded to radio reports of

gunshots in the area of Jefferson and Nassau Streets in Philadelphia. After

seeing no signs of a shooting on the main streets, the officers walked down

an alleyway. As they approached 63rd Street from the alleyway, the officers

heard the victim, Richard Jackson, call for help and found him on his back,

bleeding from multiple gunshot wounds.            The officers asked Jackson what

happened to him, and Officer Egan testified that the victim responded that

he and Burrus were back in the alley, he heard gunshots, and he saw Burrus

“run off with his cell phone.” Trial Court Opinion, 2/19/14 at 4.

        After the victim was taken to Hahnemann Hospital, Officer Egan and

his partner secured the area and observed seven spent shell casings and a

cell phone near the area where the victim had been discovered.           Jackson

was shot five times in the left arm and chest area, four times in the

abdomen and groin area, two times in the left leg, and once in the right

buttock. Despite his critical injuries, Jackson survived.

        At Burrus’ preliminary hearing, Jackson testified that he went into the

alley with his childhood friends Burrus, Darryl Byrd, and Robert Sharp,

where they drank Hennessey together. Jackson testified that he was very
                       _______________________
(Footnote Continued)


5
    18 Pa.C.S. § 6106(a)(1).
6
    18 Pa.C.S. § 907.



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drunk. He remembered a verbal exchange with Burrus, who then hit him in

the head with a gun. Burrus and Byrd then shot him. Jackson was unable

to testify at trial but his preliminary hearing testimony was admitted into

evidence.

     Sharp testified that the four men involved in the incident, including the

victim, had been best friends.      Sharp denied being present when Jackson

was shot, but did testify that on the night of March 30, 2009, the four men

were walking on 61st Street between Jefferson and Nassau Streets when

Sharp stopped to respond to a text message. After a short time, he heard

gunfire and ran.

     Philadelphia Police Detective Orlando Ortiz testified that in April 2009,

he investigated the shooting of Jackson. Detective Ortiz interviewed Sharp,

who appeared nervous but wanted to tell him “what happened on that night

of the shooting.”      Id., at 5.   Sharp gave a statement consistent with

Jackson’s preliminary hearing testimony.     Sharp also testified that Burrus

gave one gun, used to shoot the victim, to Byrd when walking to the alley

before the shooting.

     At the conclusion of trial on July 13, 2012, the jury convicted Burrus of

the aforementioned crimes.       On January 23, 2013, the court sentenced

Burrus to 15 to 30 years’ incarceration for attempted murder, 3 to 6 years’

incarceration for firearm not to be carried without a license, and 2 to 4

years’ incarceration for possession of an instrument of a crime, to run

consecutively.

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      On appeal, Burrus raises the following issues for our review:

      1.    Did the court violate the Confrontation Clause when it
      allowed the complainant’s statement into evidence given the
      complainant’s mental health and drunken state?

      2.    Was the evidence sufficient to prove attempted murder?

Appellant’s Brief, at 3.

      Burrus asserts that the trial court committed reversible error by

allowing into evidence Officer Egan’s testimony regarding the victim’s

statements moments after the victim was shot. The admission of evidence

is committed to the sound discretion of a trial court and will not be reversed

absent a clear abuse of discretion. Commonwealth v. Hyland, 875 A.2d

1175, 1186 (Pa. Super. 2005). Additionally, “[t]o constitute reversible error,

an evidentiary ruling must not only be erroneous, but also harmful or

prejudicial to the complaining party.” Commonwealth v. Robertson, 874

A.2d 1200, 1209 (Pa. Super. 2005).

      Pennsylvania Rule of Evidence 803 provides an exception to the

hearsay rule for an excited utterance, which is defined as “[a] statement

relating to a startling event or condition made while the declarant was under

the stress of excitement caused by the event or condition.” Pa.R.E. 803(2).

To qualify as an excited utterance, the statement must be:

      a spontaneous declaration by a person whose mind has been
      suddenly made subject to an overpowering emotion caused by
      some unexpected and shocking occurrence, which that person
      had just participated in or closely witnessed, and made in
      reference to some phase of that occurrence which he perceived,
      and this declaration must be made so near the occurrence both


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      in time and place as to exclude the likelihood of its having
      emanated in whole or in part from his reflective faculties.

Commonwealth v. Stokes, 615 A.2d 704, 712 (Pa. 1992). The Court must

consider, among other things, whether the statement was in narrative form,

the elapsed time between the startling event and the declaration, whether

the declarant had an opportunity to speak with others, and whether, in fact,

he did so.   Commonwealth v. Sanford, 580 A.2d 784, 788 (Pa. Super.

1990).

      Moreover, “there can be no doubt that the declarant’s having been

shot was an event which is sufficiently startling to satisfy the [requirement

that the event be sufficiently startling to render reflective thought processes

inoperative.]” Commonwealth v. Cooley, 348 A.2d 103, 107 (Pa. 1975).

Being shot twelve times was a shocking event that rendered Jackson’s

statement to Officer Egan one made while still subject to an overpowering

emotion.

      Burrus further argues that Jackson’s declaration did not qualify as an

excited utterance exception to the hearsay rule because the statement was

the result of a provocation in the form of a question posed by Officer Egan

and was, therefore, not spontaneous.        This argument is without merit

because as our previous cases dictate, “the mere fact that the statements

were made in response to questions does not preclude their being

spontaneous.”   Commonwealth v. Ross, 498 A.2d 972, 974 (Pa. Super.




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1985); see also Commonwealth v. Bibbs, 970 A.2d 440, 454 (Pa. Super.

2009).

      Burrus also asserts that Jackson’s declaration to the police was a

testimonial statement made in violation of the Confrontation Clause.      This

argument is also without merit.    In Michigan v. Bryant, 131 S.Ct. 1143

(2011), police were called to the scene where they found a gunshot victim in

a parking lot. When they asked him what happened, he responded that he

had been shot at another location and drove himself to the parking lot. He

also identified the shooter. The victim died, and the prosecution introduced

the statement as an excited utterance.     The United States Supreme Court

held that the statement was not testimonial within the meaning of the

Confrontation Clause, but rather was an informal exchange where the police

obtained basic information about the shooting, the location and identity of

the shooter. This information was critical to ensure the safety of the officers

and the public, and thus did not offend the Confrontation Clause.

Accordingly, the Confrontation Clause is not implicated in this matter.

      We next address the claim that the Commonwealth did not present

sufficient evidence to support a conviction for attempted murder because it

did not present sufficient evidence to establish each material element of the

crime charged. We disagree.

      When reviewing a challenge to the sufficiency of the evidence claim,

the Court must determine “whether, viewing all the evidence admitted at


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trial in light most favorable to the verdict winner, there is sufficient evidence

to enable the fact-finder to find every element of the crime beyond a

reasonable doubt.” Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa.

Super. 2000).     A person may be convicted of attempted murder if the

defendant takes a substantial step toward the commission of a killing, with

the specific intent in mind to commit such an act and a jury may infer an

intent to kill from the use of a deadly weapon on a vital part of the victim’s

body.     Commonwealth v. Hobson, 604 A.2d 717 (Pa. Super. 1992).

Specific intent may also be inferred from the firing of multiple gunshots.

Commonwealth v. Hughes, 865 A.2d 761 (Pa. 2004).

        Burrus was found guilty of criminal attempt to commit murder.         “A

person commits an attempt when, with intent to commit a specific crime, he

does any act which constitutes a substantial step toward the commission of

that crime.” 18 Pa.C.S. §901(a). “A criminal homicide constitutes murder of

the first degree when it is committed by an intentional killing.” 18 Pa.C.S.

§2502(a).

        Burrus argues that the Commonwealth failed to prove that Burrus fired

shots to vital parts of the victim’s body or that Burrus personally fired the

shots that hit vital parts of the victim’s body.   The medical records reveal

that the gunshot wounds suffered by Jackson were undoubtedly to vital parts

of his body; including his chest and abdomen.         Additionally, the records




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show that Jackson was shot twelve times, which permits an inference of

specific intent to kill. See Hughes, supra.

      It is well established that an accomplice is criminally liable for the acts

of another if he acts with intent of promoting or facilitating the commission

of an offense and agrees, aids, or attempts to aid such other person in either

planning or committing that offense.     Commonwealth v. Rios, 721 A.2d

1049, 1053 (Pa. 1998).      In order to sustain a conviction for murder via

accomplice liability, the Commonwealth’s evidence must be sufficient to

establish that the appellant possessed a specific intent to kill. Id. Whether

an accomplice possessed the same intent to kill as a co-conspirator may be

inferred from words, conduct, or the attendant circumstances surrounding

the shooting. Id.

      The facts establish that Burrus handed a gun to his co-conspirator,

Byrd, and the two men shot Jackson. Even if Burrus did not shoot a vital

body part or personally fire any shot, the jury could have properly found

Burrus to have the requisite specific intent to kill based on his co-

conspirator’s use of a deadly weapon on a vital part of the victim’s body.

The jury could have properly inferred a specific intent to kill based on the

action of Burrus handing the gun to Byrd.        Additionally, Jackson suffered

twelve gunshot wounds and the sheer number of bullets fired at the victim

allows this Court an inference that Burrus had the specific intent to kill. Id.




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     Because the trial court did not abuse its discretion by admitting the

victim’s testimony as an excited utterance, and the evidence was sufficient

to establish each element of attempted murder, we affirm the judgment of

sentence.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2014




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