J-S57012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

RODNEY FIELDS

                            Appellant                   No. 2410 EDA 2014


             Appeal from the Judgment of Sentence July 18, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008321-2013


BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                              FILED OCTOBER 6, 2015

        Appellant, Rodney Fields, appeals from the July 18, 2014 aggregate

judgment of sentence of two and one-half to five years’ imprisonment, plus

two years’ probation, imposed after he was found guilty of one count each of

attempted robbery and simple assault.1 After careful review, we affirm.

        The trial court summarized the relevant factual history of this case, as

presented at trial, in the following manner.

              Police Officer Richard Butler testified that on April 10,
              2013, at about 1:30 AM, he was on patrol with his
              partner, Officer Burrell, in the vicinity of 130 South
              12th Street in Philadelphia. At that time and place he
              heard a commotion and a white male, later identified
              as Justin Shelly, screaming that he was being robbed
              and crying for help.         Officer Butler observed
              [Appellant] holding Shelly by the collar of his jacket,
____________________________________________
1
    18 Pa.C.S.A. §§ 901(a) and 2701(a), respectively.
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              with his fist clenched ready to punch. As the officer
              approached, Shell[y] yelled out “I’m being robbed”.

                    Officer Butler and his partner yelled for
              [Appellant] to release Shell[y] and then separated
              the two to investigate. [Appellant] complied with the
              police command to release Shelly. [Appellant] then
              stated that he knew Shelly and that Shelly owed him
              money. The Commonwealth introduced photos of
              Shelly, showing injuries and a photo of [Appellant].
              Officer Butler testified that Shelly had injuries and
              that the photos accurately reflected the appearance
              of Shelly and [Appellant] at the time of the incident.
              The photos of Shelly showed significant injuries to
              his face. The arrest photo of [Appellant] did not
              show any injuries.

                    [Appellant] testified that after he was arrested
              he gave a statement to a detective. The statement
              described a dispute over money Shelly owed to
              [Appellant] connected with a purchase of crack and a
              denial by [Appellant] that he struck Shelly.

Trial Court Opinion, 12/22/14, at 1-2 (internal citations omitted).

        We further summarize the procedural history of this case as follows.

On July 3, 2013, the Commonwealth filed an information charging Appellant

with the above-mentioned offenses as well as one count of reckless

endangering another person (REAP)2 and attempted theft by unlawful taking.

Appellant proceeded to a bench trial on April 25, 2014, at the conclusion of

which, the trial court found Appellant guilty of attempted robbery and simple

assault, and found Appellant not guilty of attempted theft by unlawful taking

and REAP. On July 18, 2014, the trial court imposed a sentence of two and
____________________________________________
2
    18 Pa.C.S.A. § 2705.



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one-half    to     five     years’   imprisonment   for   attempted   robbery   and   a

consecutive two year probation sentence for simple assault.             Appellant did

not file a post-sentence motion.            On August 11, 2014, Appellant filed a

timely notice of appeal.3

       On appeal, Appellant raises three issues for our review.

              1.          [Whether] the [trial c]ourt erred by allowing
                          hearsay of the [c]omplainant to be introduced
                          by the Commonwealth[?]

              2.          [Whether] the [trial c]ourt violated Appellant’s
                          Sixth Amendment [c]onstitutional [r]ight of
                          [c]onfrontation by allowing the [c]omplainant’s
                          hearsay statement to be introduced without
                          the right to cross-examine this witness[?]

              3.          [Whether] the [trial c]ourt erred by failing to
                          give any weight to the statement offered by
                          Appellant explaining why there was a
                          confrontation with the [c]omplainant[?]

Appellant’s Brief at 7.4

       In his first issue, Appellant avers that the trial court erred when it

admitted certain alleged hearsay statements of the victim. Appellant’s Brief

at 13.     The Commonwealth counters that the statements were properly




____________________________________________
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
4
  Appellant presents these issues in a different order in the argument section
of his brief. Nevertheless, for ease of review, we address them in the order
presented in his statement of questions presented.



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admitted as excited utterances. Commonwealth’s Brief at 10. We begin by

noting our well-settled standard of review.

            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. 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. Furthermore, if in
            reaching a conclusion the trial court over-rides or
            misapplies the law, discretion is then abused and it is
            the duty of the appellate court to correct the error.

Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en

banc) (internal quotation marks and citations omitted), appeal denied, 83

A.3d 167 (Pa. 2013).

      “Hearsay means a statement that … the declarant does not make while

testifying at the current trial or hearing; and … a party offers in evidence to

prove the truth of the matter asserted in the statement.”      Pa.R.E. 801(c).

“Hearsay is not admissible except as provided by [the Pennsylvania Rules of

Evidence], by other rules prescribed by the Pennsylvania Supreme Court, or

by statute.” Pa.R.E. 802.

            This Court has long recognized that to insure a party
            the guarantees of trustworthiness resulting from a
            declarant’s presence in court, a proponent of hearsay
            evidence must point to a reliable hearsay exception
            before such testimony will be admitted. Thus, the
            burden of production is on the proponent of the
            hearsay statement to convince the court of its
            admissibility under one of the exceptions.


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Commonwealth v. Smith, 681 A.2d 1288, 1290 (Pa. 1996) (internal

quotation marks and citations omitted).

      Rule 803 contains numerous exceptions to hearsay, including the one

at issue in this case, pertaining to excited utterances. The relevant part of

the Rule provides as follows.

            Rule 803. Exceptions to the Rule Against
            Hearsay--Regardless of Whether the Declarant
            Is Available as a Witness

            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.

Pa.R.E. 803(2). Our Supreme Court has observed that “excited utterances …

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.”    Commonwealth v. Murray, 83 A.3d 137, 157

(Pa. 2013) (citation omitted). In addition to the definition in Rule 803(2),

our Supreme Court has held that the common law definition of an excited

utterance remains viable in Pennsylvania, which the Court has described in

the following terms.

            [A] spontaneous declaration by a person whose
            mind has been suddenly made subject to an
            overpowering emotion caused by some unexpected

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

Id. (citation omitted; some brackets in original).

      In the case sub judice, Appellant objected to Officer Butler’s testimony

that he heard Shelly cry out for help and state “I’m being robbed.”      N.T.,

4/25/14, at 10, 13.     Officer Butler testified that when he first observed

Appellant and Shelly, Appellant had grabbed Shelly “by the collar of his

jacket with his fist clenched ready to punch him.” Id. at 11. Officer Butler

noticed that Shelly “appeared to be trying to pull away from [Appellant, and]

appeared to be extremely frightened.” Id. at 12.

      In our view, Officer Butler’s testimony of Shelly’s statement was

properly admitted as an excited utterance. Shelly made the statement when

Appellant had him by the collar and Appellant’s fist was raised as if he was

about to harm Shelly.    Id. at 11.   The record also contains photographic

evidence, admitted without objection, that showed Shelly sustained injuries

while Appellant had none.    See, e.g., Murray, supra at 158 (concluding

that a victim’s statement “they’re going to kill me” was an excited utterance


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in part because, “[a] threat upon one’s life is certainly a startling event[]’”);

Commonwealth v. Colon, 102 A.3d 1033, 1038-1039 (Pa. Super. 2014)

(concluding that a victim’s statement that Colon “struck her” was an excited

utterance where the record showed the victim was upset and showed signs

of fresh injuries), appeal denied, 109 A.3d 678 (Pa. 2015). Based on these

considerations, we conclude the trial court did not abuse its discretion in

admitting Shelly’s statement under the excited utterance exception to the

rule against hearsay. See Fischere, supra.

       In his next issue, Appellant argues that even if Shelly’s statements

were admissible under Rule 803(2), the Confrontation Clause barred their

admission.      Appellant’s Brief at 12.         The Commonwealth counters that

Appellant’s Sixth Amendment rights were not violated because Shelly’s

statements were not testimonial within the meaning of the Confrontation

Clause. Commonwealth’s Brief at 5.

       The Sixth Amendment provides in relevant part that “[i]n all criminal

prosecutions, the accused shall enjoy the right … to be confronted with the

witnesses against him[.]”           U.S. Const. amend. VI.      In Crawford v.

Washington, 541 U.S. 36 (2004), the Supreme Court declared a dramatic

change in Confrontation Clause doctrine.5 The Court held that “[t]estimonial



____________________________________________
5
  The Confrontation Clause of the Sixth Amendment is applicable to the
States via the Due Process Clause of the Fourteenth Amendment.
(Footnote Continued Next Page)


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statements of witnesses absent from trial [may be] admitted only where the

declarant is unavailable, and only where the defendant has had a prior

opportunity to cross-examine.”               Id. at 59.   Crawford divests the

Confrontation Clause from state hearsay law and evidence rules.6             See

generally Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015). Since Crawford,

the Supreme Court has instructed the lower federal and state courts that

statements “are testimonial when … the primary purpose of the [statement]

is to establish or prove past events potentially relevant to later criminal

prosecution.” Michigan v. Bryant, 562 U.S. 344, 366 (2011). However,

the Supreme Court has held that when the primary purpose of the statement

at issue is to assist with an ongoing emergency, the statement is not

testimonial. Id. at 361; Davis v. Washington, 547 U.S. 813, 822 (2006).

      We observe that the determination of “[w]hether Appellant was denied

[his] right to confront a witness under the confrontation clause of the Sixth

Amendment is a question of law for which our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Dyarman, 33 A.3d


                       _______________________
(Footnote Continued)

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009) (citation
omitted).
6
  Prior to Crawford, the controlling case in this area was Ohio v. Roberts,
448 U.S. 56 (1980). In Roberts, the Court held that the Confrontation
Clause permitted the use of hearsay testimony of an unavailable declarant at
trial if it fell into a “firmly rooted hearsay exception” or if the statement bore
“particularized guarantees of trustworthiness.” Id. at 66.



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104, 106 (Pa. Super. 2011) (citation omitted), affirmed, 73 A.3d 565 (Pa.

2013), cert. denied, Dyarman v. Pennsylvania, 134 S. Ct. 948 (2014).

      As noted above, Officer Butler testified that it was Shelly’s cries for

help that initially alerted him to the incident taking place. N.T., 4/25/14, at

10. Also, Officer Butler’s testimony revealed that Shelly stated that he was

being robbed while Appellant was grabbing him, and already had his fist

clenched as if Shelly was about to be assaulted. Id. at 11-13. Shelly also

appeared to be “extremely frightened” and was trying to break free of

Appellant’s grasp. Id. at 13. This testimony is in addition to the evidence

admitted at trial documenting Shelly’s injuries.

      The Supreme Court has explained that statements made to assist in an

ongoing emergency are not testimonial “because the prospect of fabrication

in statements given for the primary purpose of resolving that emergency is

presumably significantly diminished.” Bryant, supra. In our view, Shelly’s

statements were plainly made to assist Officer Butler in an ongoing

emergency, i.e., the imminent attack by Appellant had the officers not

arrived and intervened.   See, e.g., Davis, supra at 827 (concluding that

the victim’s statements to a 911 operator were not testimonial as they were

made to assist in an ongoing emergency and the victim “was speaking about

events as they were actually happening, rather than describing past

events[]”) (internal brackets and quotation marks omitted; emphasis in

original); Commonwealth v. Williams, 103 A.3d 354, 362 (Pa. Super.


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2014) (concluding that statements to 911 operator were not testimonial

because the declarant’s “demeanor, her repeated pleas for immediate help,

and her severe injuries” showed the existence of an ongoing emergency),

appeal denied, 116 A.3d 605 (Pa. 2015).            As a result, we conclude that

Appellant’s Sixth Amendment rights were not violated.              See Dyarman,

supra.

      In his last issue, Appellant argues that the trial court’s verdict was

against the weight of the evidence.     Appellant’s Brief at 15-16.       However,

before we may address this claim, we must consider the Commonwealth’s

argument that Appellant has waived this issue for lack of preservation in the

trial court. See generally Commonwealth’s Brief at 13-14.

      Pennsylvania   Rule   of   Criminal     Procedure    607   discusses   claims

pertaining to the weight of the evidence and provides, in relevant part, as

follows.

           Rule 607. Challenges to the Weight of the
           Evidence

           (A) A claim that the verdict was against the weight
           of the evidence shall be raised with the trial judge in
           a motion for a new trial:

              (1) orally, on the record, at any time before
           sentencing;

              (2) by written       motion     at   any    time   before
           sentencing; or

              (3) in a post-sentence motion.




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Pa.R.Crim.P. 607(A); see also id. at 302(a) (stating, “[i]ssues not raised in

the lower court are waived and cannot be raised for the first time on

appeal[]”).   Our Supreme Court has explained that preserving a weight of

the evidence claim in the trial court is important because the failure to do so

“deprive[s the trial] court of an opportunity to exercise discretion on the

question of whether to grant a new trial.” Commonwealth v. Sherwood,

982 A.2d 483, 494 (Pa. 2009) (footnote omitted), cert. denied, Sherwood

v. Pennsylvania, 559 U.S. 1111 (2010).

      As noted above, Appellant did not file a post-sentence motion.        In

addition, we have reviewed the record and Appellant did not raise this issue

at any time during sentencing or through any other filing preceding

sentencing. Instead, Appellant raised this issue for the first time in his Rule

1925(b) statement.    This was not sufficient to preserve this claim for our

review.   See Commonwealth v. Thompson, 93 A.3d 478, 490-491 (Pa.

Super. 2014) (concluding weight claim was waived when raised for the first

time in Rule 1925(b) statement even though “the trial court reviewed the

substance of his weight of the evidence claim in its Rule 1925(a) opinion[]”).

As a result, we conclude Appellant’s weight of the evidence claim is waived

for want of preservation.

      Based on the foregoing, we conclude all of Appellant’s issues on appeal

are either waived or devoid of merit. Accordingly, the trial court’s July 18,

2014 judgment of sentence is affirmed.


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2015




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