J-S80040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    KEITH WILLIAMS,                            :
                                               :
                      Appellant                :       No. 259 EDA 2017

           Appeal from the Judgment of Sentence December 1, 2016
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0009635-2014

BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                          FILED FEBRUARY 27, 2018

        Keith Williams (“Williams”) appeals from the judgment of sentence

imposed following his conviction of aggravated assault, persons not to

possess firearms, firearms not to be carried without a license, and

possession of an instrument of crime.1 We affirm.

        The trial court summarized the relevant factual and procedural history

underlying this appeal in its Opinion, which we incorporate herein by

reference. See Trial Court Opinion, 6/29/17, at 1-5.

        In this timely appeal, Williams presents the following questions for our

review:

        1. Whether, as a question of law, the trial court erred in
           permitting Philadelphia Police Officer Colan Goshert [(“Officer
           Goshert”)] to identify[,] as [a] Mercedes Benz[,] the black or
____________________________________________


1   See 18 Pa.C.S.A. §§ 2702(a)(1), 6105(a)(1), 6106(a)(1), 907(a).
J-S80040-17


          dark-colored vehicle in the video in Commonwealth exhibit
          “C-3”, because Officer Goshert lacked personal knowledge of
          the contents of the video[?]

       2. Whether the trial court erred in permitting Detective Jeff
          Knoll [(“Detective Knoll”)] to testify as to what Evelyn
          McCullers [(“McCullers”)] said to another Philadelphia Police
          [d]etective[,] because it was double-hearsay offered for the
          truth of the matter[?]

Brief for Appellant at 5-6 (citations to transcript omitted).

      Williams’s issues challenge the trial court’s rulings on the admissibility

of evidence, which we review under the following standard:

      [I]n reviewing a challenge to the admissibility of evidence, we
      will only reverse a ruling by the trial court upon a showing that it
      abused its discretion or committed an error of law. To constitute
      reversible error, an evidentiary ruling must not only be
      erroneous, but also harmful or prejudicial to the complaining
      party.

Commonwealth v. Schley, 136 A.3d 511, 515 (Pa. Super. 2016) (citation

and ellipses omitted). Moreover, “a trial court, acting as the finder of fact,

is presumed to know the law, ignore prejudicial statements, and disregard

inadmissible evidence.” Commonwealth v. Smith, 97 A.3d 782, 788 (Pa.

Super. 2014).

      In his first issue, Williams argues that the trial court erred as a matter

of law when it admitted at trial, over Williams’s objection, the “lay opinion”

of Officer Goshert that the vehicle shown in the surveillance video

(hereinafter “the video”), taken from a pizza shop located in close proximity

to the scene of the shooting, was a Mercedes Benz. See Brief for Appellant




                                      -2-
J-S80040-17


at 9-10.     Williams points to Pennsylvania Rule of Evidence 602, which

provides as follows:

       A witness may testify to a matter only if evidence is introduced
       sufficient to support a finding that the witness has personal
       knowledge of the matter. Evidence to prove personal knowledge
       may consist of the witness’s own testimony. This rule does not
       apply to a witness’s expert testimony under Rule 703.

Pa.R.E. 602; see also Brief for Appellant at 10. According to Williams, “it is

undisputed that Officer Goshert did not have first-hand knowledge of the

events depicted in the [video,] and the [O]fficer did not have personal

knowledge of [Williams’s] car.” Brief for Appellant at 10.

       The trial court concisely addressed this claim in its Opinion and

determined that it properly admitted Officer Goshert’s testimony in question.

See Trial Court Opinion, 6/29/17, at 8-9.        We agree with the trial court’s

analysis and determination, and we therefore affirm on this basis as to

Williams’s first issue. See id.

       In his second issue, Williams contends that the trial court erred in

admitting, over objection, prejudicial “double hearsay.”2         See Brief for

Appellant at 10-13.          Specifically, Williams challenges Detective Knoll’s

testimony that McCullers had told another detective (who later informed
____________________________________________


2 See Pa.R.E. 801(c) (stating that “‘[h]earsay’ 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.”); see also Pa.R.E. 802
(providing that hearsay is per se inadmissible except as provided in the
Pennsylvania Rules of Evidence or by statute).



                                           -3-
J-S80040-17


Detective Knoll of same) that McCullers would not give a formal police

statement about the shooting until Williams was in police custody. See id.

According to Williams, this statement was offered for the truth of the matter

asserted and did not satisfy any exception to the rule against hearsay. Id.

at 12. Williams additionally argues that

       this testimony by Detective Knoll went beyond merely explaining
       police conduct; “[] McCullers was reluctant to speak” would be a
       permissible statement to explain subsequent police conduct and
       why [McCullers’s formal police] statement was provided 35 days
       after the shooting. But, the explanation that [] McCullers was
       reluctant to speak because [Williams] was not in custody invited
       prejudicial inferences to be made about [Williams] and his
       character.

Id.

       In its Opinion, the trial court addressed Williams’s claim, adeptly

summarized the relevant law, and opined that the court did not err in

admitting the testimony in question.           See Trial Court Opinion, 6/29/17, at

11-13. Because we agree with the trial court’s rationale and determination,

we affirm on this basis in rejecting Williams’s second issue. See id.3




____________________________________________


3 Moreover, even if it was error for the trial court to admit the testimony in
question, such error was harmless, where the trial court sat as the fact-
finder at Williams’s trial. See Smith, supra (stating that even if evidence
was inadmissible at a non-jury trial, a trial court, acting as the finder of fact,
is presumed to ignore it); see also Commonwealth v. Council, 421 A.2d
623, 625 (Pa. 1980) (stating that “judicial fact finders are capable of
disregarding most prejudicial evidence.”).



                                           -4-
J-S80040-17


      Accordingly, as we discern no abuse of the trial court’s discretion, or

error of law, in admitting the evidence presented at trial, Williams’s issues

do not entitle him to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/18




                                    -5-
0037_Opinion
                                                                                                         Circulated 01/29/2018 11:34 AM




                                        IN THE COURT OF COMMON PLEAS
                                                                                                                          FILED
                               FOR THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA                                         JUN 2 9 2017
                                           TRIAL DIVISION - CRIMINAL
                                                                                                                 Office of Judicial Records
               COMMONWEALTH                                          CP-51-CR-0009635-2014                        Appeals/Post Trial

                      v.                                               CP-51-CR-000963S.2014 Comm v Wiiiams. Keith
                                                                                         Opinion



               KEITH WILLIAMS
                                                                         -11111111111111 I I I II I II
                                                                                    7968881061
                                                                                                          Ill
                                                 MEMORANDUM OPINION

               CAMPBELL, J                                                                                      June    30, 2017

               Procedural History

                      On June 30, 2016, Appellant Keith Williams waived his right to a trial by jury and

               proceeded to trial before this Court, sitting without a jury. Trial was bifurcated for additional

               testimony and completed on July I, 2016, when Appellant was adjudged guilty of aggravated

               assault (F-1 ), possession of a firearm by a prohibited person, carrying a firearm without a license,

               and possession of an instrument of a crime. Sentencing was deferred for preparation of a mental

               health evaluation and a pre-sentence investigation.

                      On December 1, 2016, Appellant was sentenced to 10-20 years incarceration on the

               aggravated assault conviction, a consecutive term of 5-10 years incarceration on possession of a

               firearm by a prohibited person, and 5-10 years incarceration on possession of an instrument of a

               crime, to be served consecutive to the aggravated assault sentence and concurrent with the firearm

               by prohibited person sentence. The result was an aggregate sentence of incarceration of 15-30

               years. The conviction of carrying a firearm without a license merged for purposes of sentencing.



                      A Motion for Reconsideration of Sentence was filed on December 5, 2016. That motion
was denied on December 7, 2016.

       A timely Notice of Appeal was filed on January 5, 2017.

       Pursuant to Pa.R.A.P. 1925(b)(2) and (3), the Court entered an order on March 2, 2017,

directing the filing of a Statement of Errors Complained of on Appeal, not later than twenty-one

(21) days after entry of the order, with leave to file a supplemental statement of errors within

twenty-one days after receipt of all ordered notes of testimony. The order was reissued on March

9, 2017, to make service on appointed appellate counsel.

       On March 30, 2017, a Rule l 925(b) Statement was filed.

       On June 22, 2017, a timely Supplemental Rule 1925(b) Statement was filed following

preparation of the notes of testimony.

Factual History

       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 June 23, 2014, Dwayne Pierce, known to his neighbors by his

nickname, Stroll, was on his porch on 11 East Clapier Street, chatting with his neighbors in the

adjoining house, 13 East Clapier. N.T. 6/30/16, pp. 45-46, 95-96, N.T. 7/1/16, pp. 6, 8. Directly

across Clapier Street, Evelyn McCullers sat on her porch chatting with her son, Darryl McCullers,

who had stopped by to visit her. N.T. 6/30/16, pp. 32, 34, 58-59. The street had been blocked off,

a fire hydrant had been turned on, and children were playing in the street. N.T. 6/30/16, pp. 32-

33, 74-75.



       Mr. Pierce was on his porch when he saw Appellant, who he knew. N.T. 7/1/16, pp. 8, 10.


                                                 2
Mr., Pierce had loaned Appellant money a few weeks earlier, and wanted to talk to him about

repayment. N.T. 7/1/16, pp. 8-10, 37. Mr. Pierce came down from his porch to the street and was

heading toward Appellant. As Pierce approached, Appellant seemed enraged and started cursing.

N.T. 7/1/16, pp. 11-12, 41. At that point, Pierce turned to head back to the porch. N.T. 711116,

pp. 12, 14-15. A short time later, Pierce saw Appellant walking up Clapier, whereupon he again

came down off the porch and headed toward Appellant. N.T. 6/30/16, pp. 38, 45, 47-49, 67; N.T.

7/1/16,pp. 8, 10, 12, 16. Appellantthenpulledafirearm fromhiswaistbandN.T. 7/1/16,pp. 18-

19. Appellant pointed the gun at Pierce's chest and pulled the trigger, resulting in a misfire.

Appellant then manipulated the gun pointed it down and shot Pierce in the left knee, then a moment

later in the right leg. N.T. 7/1/16, pp. 20-21, 4748; C-28.

       Ms. McCullers heard shots, which caused her to look down Clavier to the end of the street,

where she saw Appellant, known to her as Keith, firing shots. N.T. 6/30/16, pp. 34-37. She could

not make out a gun in Appellant's hand, but she saw him with his arm out-stretched, making a

movement as though pulling a trigger, "shooting up the street." N.T. 6/30/16, pp. 36.

       Mr. McCullers was standing on his mother's porch with his back to the street when he

heard shots, which caused him to turn toward the street. N.T. 6/30/16, pp. 58-59. The shots were

coming from the direction of the intersection of Germantown Avenue and Clavier. N.T. 6/30/16,

pp. 60. Turning in that direction to holler for one of the children to take cover, he saw Appellant,

who he had grown up with and has known for 40 years or more, pointing an automatic-type gun

at Mr. Pierce, who had already been shot. N.T. 6/30/16, pp. 60-61, 63-64, 82-83, 94. Mr.

Mccullers could make out the gun in Appellant's hand. N.T. 6/30/16, pp. 63.

       After the gunshots, Mr. McCullers came down from his mother's porch and pulled Mr.


                                                 3
Pierce away from Appellant so he wouldn't get shot again. N.T. 6/30116, pp. 64-65, 67, 73. Mr.

Pierce said: "He shot me, man. He shot me. I can't believe he f'ing shot me." N.T. 6/30/16, pp.

61, 74. Mr. Mccullers attempted to calm Mr. Pierce, who appeared shocked, and couldn't believe

he'd been shot. N.T. 6/30/16, pp. 73; N.T. 7/1/16, pp. 23. After the shooting, Appellant put the

gun in his waist band and went down Clavier to Germanton and around the comer. N.T. 6/30/16,

pp. 67-68, 70, 92.

       Ms. McCullers called 9-1-1 and an ambulance and police responded to the scene. N.T.

6/30/16, pp. 49-50; C-5. Ms. McCullers and her son Darryl spoke briefly with police on the scene,

but did not give statements to Detectives until 35 days later. N.T. 6/30/16, pp. 50-54, 71-72, 87,

89, 97; D-1, D-7.

       Mr. Pierce was taken to Einstein hospital, where he was interviewed by police and shown

a photo array. N.T. 6/30/16, pp. 131-134, 136; C-9. Mr. Pierce identified Appellant from the

photo array. N.T. 6/30/16, pp. 135-136.

       Following the shooting, police went to the nearby store, at 3934 Germantown Avenue, over

which Appellant lives, but he was not present. Security video was obtained from a nearby pizza

shop. N.T. 6/30/16, pp. 119, 137, 152; C-13, C-14m. The video showed a black Mercedes in front

of that location at about the time of the shooting, but the car was not there when police arrived.

N.T. 6/30/16, pp. 23, 24, 26; C-14. Appellant drives a black Mercedes, which Mr. Pierce saw him

driving from the scene. N.T. 7/1/16, pp. 44-45; C-9.

       Detective Albert Ford of the U.S. Marshall's Fugitive Task Force attempted to serve an

arrest warrant for Appellant on several occasions following its assignment to him on July 8, 2014.

N.T. 6/30/16, pp. 102-104.     Based on information received, he finally located and arrested


                                                4
Appellant in a motel in Glassboro, New Jersey, on July 14, 2014. N.T. 6/30/16, pp. 103-105. The

detective's efforts were documented in his notes. N.T. 6/30/16, pp. 105-105; C-26.

       Detective Timothy Hart was assigned to process the crime scene, which he sketched and

photographed, and from which he recovered five (5) fired cartridge casings ("FCC"). N.T.

6/30/16, pp. 114, 117-118, 127-128; C-2a-m, C-12. Those five FCC's were fired from the same

gun. N.T. 7/1/16, pp. 46. He also identified and photographed a blood trail on Clapier Street. N.T.

6/30/16, pp.117; C-11. Lt. Otto conducted a neighborhood canvass for witnesses. N.T. 6/30/16,

pp. 122; C-15.

       Mr. Pierce received treatment for his wounds and was in the hospital for four or five days.

He then went to inpatie�t therapy for two-three months. He continued out-patient treatment after

discharge from the inpatient treatment. He was in a wheelchair for one and one-half to two months.

His right leg fully recovered, but he continues to suffer chronic pain in his left knee. N.T. 7/1/16,

pp. 23-26.

       There was a stipulation that Appellant did not have a valid license to carry a firearm and

was a person prohibited from possessing a firearm, as defined by 18 Pa. C.S. § 6105. N.T. 7/1/14,

pp. 47, 57-58.

Discussion

       Appellant raises the following issues for appeal: 1) The evidence was insufficient support

the convictions; 2) It was error to permit witnesses to testify to hearsay, to render opinions where

not qualified as an expert or to testify about matters as to which the witness did not have personal

knowledge; and 3) It was error to admit an exhibit which constituted hearsay.

       1. The evidence was sufficient to support the convictions.


                                                 5
        A claim challenging the sufficiency of the evidence presents a question of law.

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, part 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).

        Appellant alleges in his initial Rule 1925(b) Statement of March 20, 201 7, that the evidence

was insufficient to support the convictions "because the elements of intent and identification for

each charge were not satisfied."

        This assertion is without merit. There was overwhelming evidence that Appellant, who

was well known to Mr. Pierce and the McCullers, shot Pierce in each leg. Likewise, the three

witnesses testified credibly that Appellant shot Pierce twice with no provocation and without

justification.

        This shooting certainly constituted an aggravated assault, which is defined as follows:


                                                  6
        § 2702. Aggravated assault.

        ( a) Offense defined. --A person is guilty of aggravated assault if he:

                       (1) attempts to cause serious bodily injury to another, or causes such injury
                       intentionally, knowingly or recklessly under circumstances manifesting
                       extreme indifference to the value of human life;

18 Pa. C.S. § 2702(a)).

        Appellant caused the injury intentionally; and the gunshot wounds were certainly serious.

The evidence to this effect satisfied the requirements of the crime of aggravated assault as a felony

of the first degree.

        The Crimes Code defines, possessing instruments of crime, 18 Pa.C.S. § 907, as follows:

        (a) Criminal instruments generally.--A person commits a misdemeanor of the first degree
        ifhe possesses any instrument of crime with intent to employ it criminally.
        (b) Possession of weapon.--A person commits a misdemeanor of the first degree if he
        possesses a firearm or other weapon concealed upon his person with intent to employ it
        criminally.


        (d) Definitions.--As used in this section, the following words and phrases shall have the
        meanings given to them in this subsection:


                "Instrument of crime. 11 Any of the following:


                        (2) Anything used for criminal purposes and possessed by the actor under
                        circumstances not manifestly appropriate for lawful uses it may have.
                "Weapon:"     Anything readily capable of lethal use and possessed under
                circumstances not manifestly appropriate for lawful uses which it may have. The
                term includes a firearm which is not loaded or lacks a clip or other component to
                render it immediately operable, and components which can readily be assembled
                into a weapon.

        The gun Appellant used was clearly an instrument of a crime.

        Additionally, Appellant did not have a license to carry that gun, and he was a person


                                                  7
prohibited from possessing the gun. Accordingly, the evidence was sufficient to show that the gun

he used to shoot Mr. Pierce was possessed in violation of 18 Pa. C.S. § 6105 and § 6106.

       2. The Court's evidentiary rulings were not erroneous.

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

court and will be reversed only if the trial court has abused its discretion. Commonwealth v.

Seilhamer, 862 A.2d 1263, 1270 (Pa. Super. 2004). Moreover, a party must make a timely and

specific objection in order to preserve an issue for appeal. Commonwealth v. Brown, 701 A.2d

252, 254 (Pa. Super. 1997). "The Superior Court will not consider a claim on appeal which was

not called to the trial court's attention at a time when any error committed could have been

corrected." Commonwealth v. Montalvo, 641 A.2d 1176, 1184 (Pa. Super. 1994).

       Trial judges, as finders-of-fact, are presumed not to consider inadmissible or prejudicial

matters. Commonwealth. v. Davis, 421 A.2d 179, 183 (Pa. 1980); Commonwealth v. Glover, 405

A.2d 945, 94 7 (Pa. Super. 1979); Commonwealth. v. Green, 34 7 A.2d 682, 683 (Pa. 1975).

              a.      Testimony of Police Officer Goshert.

       Appellant claims that it was error to permit Officer Goshert to testify that the vehicle seen

in the video was a Mercedes because "he lacked personal knowledge" and the "identification

required expert testimony." Supplemental Rule l 925(b) Statement (6/22/17), §§ 1 and 2.

       Officer Goshert, who responded to the scene, ascertained that the Germantown Pizza shop

had a video surveillance camera, and screened that video at Germantown Pizza. N.T. 6/30/16, pp.

19-21. Officer Goshert testified, over objection, that a specific car in the video was an "older

model Mercedes Sedan." N.T. 6/30/16, pp. 23-24.

       First, the video spoke for itself and the car was apparent as a Mercedes sedan. Second, a


                                                  8
witness does not have to be an expert to identify a car make as a Mercedes. The testimony of a

police officer, or anyone, identifying a car make is well within the scope of opinion testimony by

lay witnesses contemplated by Pennsylvania Rule of Evidence 701, which provides:

       If a witness is not testifying as an expert, testimony in the form of an opinion is limited to
       one that is:

               (a) rationally based on the witness's perception;
               (b) helpful to clearly understanding the witness's testimony or to determining a fact
               in issue; and
               (c) not based on scientific, technical, or other specialized knowledge within the
               scope of Rule 702.

       Finally, assuming arguendo that it was error to let the officer identify the car in the

surveillance video as a Mercedes, that error was harmless beyond all doubt, as the victim, Mr.

Pierce, identified Appellant as driving off in his Mercedes following the shooting. N.T. 711116,

pp. 44-45; C-9. The officer's identification of the car make, even if error, did not contribute to the

verdict. "[T]he uncontradicted evidence of guilt is overwhelming, so that by comparison the error

is insignificant." Commonwealth v. Mitchell, 839 A.2d 202, 214-215 (Pa, 2003).

               b.      Testimony of Darry McCullers

       Appellant complains it was error to admit Darryl McCullers's testimony that the victim,

Peirce, said: "He shot me, man. He shot me. I can't believe he f'ing shot me." N.T. 6/30/16, pp.

61, 74. Supplemental Rule 1925(b) Statement (6/22/17), § 3.

       The statement was admissible both as an excited utterance and a present sense impression

under Pa.R.E. 803(1) and (2).

       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

                                                  9
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. Commonwealth v. Gray, 867 A.2d 560 (Pa. Super. 2005). The

present sense impression exception to the hearsay rule permits testimony of declarations

concerning conditions or even non-exciting events observed by the declarant. Commonwealth v.

Harper, 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).

          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.R.E., 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

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).



          Even without McCullers's testimony that Pierce appeared shocked, and Pierce's testimony

that he couldn't believe he'd been shot (N.T. 6/30/16, pp. 73; N.T. 7/1/16, pp. 23), a double gunshot

victim's exclamation about just having been shot is certainly admissible as both a present sense


                                                  10
impression and an excited utterance under Pa.R.E. 803(1) and (2). See Commonwealth v. Manley,

985 A.2d 256. (Pa. Super. 2009), appeal denied by 996 A.2d 491 (2010) (trial court did not abuse

its discretion by admitting the victim's statement to a police officer under the excited utterance

hearsay exception, where officer testified that he interviewed the victim shortly after the shooting

and that the victim was in a panicked and emotional state with multiple gunshot wounds when he

provided the description of his assailants); Commonwealth v. Jones, 912 A.2d 268 (2006) (Trial

court did not err in admitting a shooting victim's statement as excited utterances under Pa. R. Evid.

803(2) where less than 10 minutes after being shot, the victim identified defendant as one of the

shooters while the victim was bleeding from his gunshot wound and awaiting transport to the

hospital).

        Moreover, even if these hearsay exceptions did not apply, there was overwhelming,

uncontradicted evidence that Appellant shot Pierce, so as to render any error in this regard clearly

harmless.

                 c.        Testimony of Detective Knoll

        Appellant asserts that it was error to permit the assigned Detective, Jeff Knoll, to testify to

information received from his partner regarding the delay in Ms. McCullers providing a written

statement. Supplemental Rule l 925(b) Statement (6/22/17), § 4.1



        In the course of describing the process and progress of his investigation, Detective Knoll

explained that the reason for the one month gap between the time he was aware of Ms. McCullers




1 Appellant erroneously identifies the Detective as Ford. Ford was the warrant squad officer who arrested Appellant
in New Jersey. It is clear from Appellant's description of the incident and citation to the record, that his complaint
involves the testimony of Detective Knoll.
                                                         11
as a witness and the actual taking of a formal statement was due to her claimed reluctance to

cooperate until Appellant, a fugitive at that point, was taken into custody. Knoll received this

information from his partner in the investigation, Detective Knecht. N.T. 6/30/16, pp. 139-142.

       First, the testimony was not hearsay. It was not offered for the truth of whether Ms.

McCullers was in fact afraid to give a statement while Appellant was a fugitive, but rather simply

that she claimed that, which explained why the Detectives did not take her statement and that of

her son until a month after the shooting.

       Second, an out-of-court statement offered to explain a witness's course of conduct is not

hearsay and is admissible without first satisfying any of the hearsay exceptions. Commonwealth

v. Rega, 933 A.2d 997, 1017 (Pa. 2007); Commonwealth v. McLean, 387 354, 365, 564 A.2d 216,

221 (Pa. Super. 1989); Commonwealth v. Sneed, 526 A.2d 749, 754 (Pa. 1987); Commonwealth v.

Carelli, 546 A.2d 1185, 1198 (Pa. Super. 1988). As the Supreme Court has explained:

       [I]t is well established that certain out-of-court statements offered to explain the course of
       police conduct are admissible because they are offered not for the truth of the matters
       asserted but rather to show the information upon which police acted. Commonwealth v.
       Jones, 540 Pa. 442, 658 A.2d 746, 751 (Pa. 1995); Commonwealth v. Yates, 531 Pa. 373,
       613 A.2d 542, 543 (Pa. 1992); Commonwealth v. Palsa, 521 Pa. 113, 555 A.2d 808, 810
       (Pa. 1989); Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032, 1035 (Pa. 1980). The
       trial court, in exercising discretion over the admission of such statements, must balance the
       prosecution's need for the statements against any prejudice arising therefrom. See Jones,
       658 A.2d at 751; Yates, 613 A.2d at 543-44; Palsa, 555 A.2d at 811.

Commonwealth v. Chmiel, 889 A.2d 501, 532-533 (Pa. 2005).

       Here, as in Jones and Chmeil, appellant attacked the investigation by questioning the timing

of the statements as reflecting both on the credibility of the McCullers and the competency of the

investigation. This "opened the door for the prosecution to provide extensive testimony explaining

the course of the investigation." Chmiel, 889 A.2d at 533. See also Jones, 658 A.2d at 751.


                                                 12
       Because the testimony was not offered for the truth of Ms. McCullers's motivation, but to

explain the timing and course of the investigation, it was admissible and the Court properly

exercised its discretion in overruling Appellant's objection.

               3.      It was not error to admit exhibit C-26.

       Appellant objects to the admission of exhibit C-26, the case notes of Detective Albert Ford

of the U.S. Marshall's Fugitive Task Force. Supplemental Rule 1925(b) Statement (6/22/17), § 5.

       Detective Ford testified that he attempted to serve an arrest warrant for Appellant on several

occasions following its assignment to him on July 8, 2014. N.T. 6/30/16, pp. 102-104. Based on

information received, he finally located and arrested Appellant in a motel in Glassboro, New

Jersey, on July 14, 2014. N.T. 6/30/16, pp. 103-105. The detective's efforts were documented in

his notes. N.T. 6/30/16, pp. 105-105; C-26.

       As with the testimony of Detective Knoll, the evidence was only offered to explain the

course of the investigation, specifically the delay in arresting Appellant and his fugitive status. As

such, the evidence was not hearsay and was admissible. See § 2.c., supra.              Moreover, the

substance of the statement was basically covered in Detective Ford's testimony.        N.T. 6/30/15,

pp. 102-106.

       Because exhibit C-26 was offered to explain the course of Warrant Task Force Detective

Ford's piece of the investigation, and because it essentially paralleled his in-court testimony, there

was no error in admitting the exhibit.

       Accordingly, for all the reasons set forth herein, the judgments of sentence should be

affirmed.




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By the Court:




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