J-S80010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                          :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                             :        PENNSYLVANIA
                                          :
                                          :
              v.                          :
                                          :
                                          :
 TYRONE THOMPSON                          :
                                          :   No. 3714 EDA 2016
                    Appellant

          Appeal from the Judgment of Sentence November 4, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0000412-2016


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

MEMORANDUM BY BOWES, J.:                                FILED MAY 21, 2018

      Tyrone Thompson appeals from the judgment of sentence of eleven and

one-half months to twenty-three months confinement followed by two years

probation, which was imposed after he was convicted at a non-jury trial of

simple assault, recklessly endangering another person (“REAP”), and

terroristic threats. After careful review, we affirm.

      The relevant facts are as follows. On October 31, 2015, at 9:30 p.m.,

Philadelphia Police Officer Ronald Green and his partner responded to a radio

dispatch of a person screaming in a residence located on the 400 block of

South 60th Street. When the officers arrived at 445 South 60th Street, Shanice

Gatewood opened the door without waiting for the officers to knock. Before

Officer Green could say anything, Ms. Gatewood, Appellant’s girlfriend,

frantically and repeatedly told him that Appellant had tried to hurl a table at
J-S80010-17



her and throw her down the stairs. Officer Green described Ms. Gatewood as

excited, crying, and having a shaky voice. The officer also observed teeth

indentations on the left side of her neck, a blotch on her left cheek, and an

injured upper lip. It appeared to him that Ms. Gatewood had been choked

and bitten. When Officer Green asked Ms. Gatewood where Appellant was

located, she directed him upstairs. Officer Green took Appellant into custody

and arranged for another officer to transport him to the 18th District Station.

      Officer Green encountered Appellant later at the police station. As he

was taking Appellant’s biographical information, Appellant looked directly at

him and threatened that he should keep his vest on, that he would “pop” him

in the head, and that Officer Green’s “children were going to be rolled on.”

N.T. Trial, 6/10/16, at 11-12. The officer did not respond, but he stated that

he was “highly upset.”    Id.   He arranged for another officer to complete

processing.

      Based on his conduct involving Ms. Gatewood, Appellant was charged

with terroristic threats, aggravated and simple assault, and REAP. He also

was charged with making terroristic threats against Officer Green. Following

a non-jury trial at which Ms. Gatewood was unavailable to testify, the court

found Appellant guilty of terroristic threats against the police officer, and




                                     -2-
J-S80010-17



simple assault and REAP as to Ms. Gatewood.1 On November 4, 2016, the

court imposed the aforementioned sentence.

        Appellant filed a timely notice of appeal. On December 6, 2016, the trial

court ordered Appellant to file a Rule 1925(b) concise statement of errors

complained of on appeal, and he complied.2            The trial court permitted

Appellant to file a supplemental concise statement following receipt of the

notes of testimony.

        Appellant raises two issues for our review:

        I.    Was the evidence presented by the Commonwealth
              insufficient to prove terroristic threats, insofar as the
              Commonwealth failed to show that appellant had a settled
              intent to terrorize Officer Green?

        II.   Did not the trial court err as a matter of law, abuse its
              discretion and deny [A]ppellant his federal and state
              constitutional rights to Due Process of Law and Right of
              Confrontation; where, a hearsay statement was allowed into
              evidence as an excited utterance, where such statement did
              not meet the requirements of an excited utterance, and
              where its admission denied [A]ppellant the fundamental
              right to cross-examine and confront Ms. Gatewood?

Appellant’s brief at 4.

        Appellant first challenges the sufficiency of the evidence supporting his

conviction of terroristic threats against Officer Green.    When considering a


____________________________________________


1 Appellant was acquitted of aggravated assault, terroristic threats, and
possession of an instrument of crime, offenses allegedly committed against
Ms. Gatewood.

2   Due to the retirement of the trial judge, no Rule 1925(a) opinion was filed.


                                           -3-
J-S80010-17



challenge to the sufficiency of the evidence, our standard of review requires

us to determine “whether the evidence, and all reasonable inferences

deducible therefrom, viewed in the light most favorable to the Commonwealth

as verdict winner, are sufficient to establish all elements of the offenses

beyond a reasonable doubt.” Commonwealth v. Martinez, 153 A.3d 1025,

1028 (Pa.Super. 2016). In conducting such a review, “the entire record must

be evaluated and all evidence actually received must be considered.”

Commonwealth v. Brown, 52 A.3d 320, 323 (Pa.Super. 2012).                    The

Commonwealth can meet this burden by “wholly circumstantial evidence and

any doubt about the defendant’s guilt is to be resolved by the fact finder unless

the evidence is so weak and inconclusive that, as a matter of law, no

probability of fact can be drawn from the combined circumstances.”

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).

      A person is guilty of the crime of terroristic threats “if the person

communicates, either directly or indirectly, a threat to: (1) commit any crime

of violence with the intent to terrorize another.” 18 Pa.C.S. § 2706(a)(1).

Whether a threat actually would be carried out is irrelevant, and an “express

or specific threat is not necessary to sustain a conviction for terroristic

threats.”   Martinez, supra at 1028.        Furthermore, although spur-of-the-

moment threats produced in anger do not satisfy the intent element, being

angry “does not render a person incapable of forming the intent to terrorize.”

Commonwealth v. Fenton, 750 A.2d 863, 865 (Pa.Super. 2000).




                                      -4-
J-S80010-17



      Appellant claims that the Commonwealth failed to prove that he had a

settled intent to terrorize Officer Green. He contends that, since Officer Green

observed that he was intoxicated, agitated, and angry, and because another

officer finished processing Appellant without incident, the threats were merely

the product of transitory anger. Appellant directs our attention to the official

comments to § 2706 of the Penal Code, which define terroristic threats, and

which clarify that the offense was “not intended . . . to penalize mere spur-of-

the-moment threats which result from anger.” Commonwealth v. Anneski,

525 A.2d 373, 376 (Pa.Super. 1987). Moreover, Appellant asserts that the

purpose of this statute is to “impose criminal liability on persons who make

threats which seriously impair personal security or public convenience.”

Commonwealth v. Kidd, 442 A.2d 826, 827 (Pa.Super. 1982). He maintains

that was not the case herein.

      In support of his position, Appellant relies upon Commonwealth v.

Sullivan, 409 A.2d 888, 890 (Pa.Super. 1979). In that case, the defendant

told an officer on the telephone that he would shoot the sheriff for failing to

come to his house. The next day, upon meeting the sheriff on the street, the

defendant and the sheriff engaged in a heated argument during which he

threatened to kill the sheriff. Id. at 889. On these facts, we found insufficient

evidence of intent to terrorize the sheriff.

      Appellant also directs our attention to Commonwealth v. Walls, 144

A.3d 926, 930 (Pa.Super. 2016), where we held that the record did not

support the defendant’s conviction of terroristic threats.    In that case, the

                                      -5-
J-S80010-17



defendant angrily confronted an assistant district attorney, yelling that, “ADA

Brown prosecuted him, and ultimately sent him to jail, for a crime he did not

commit . . . [which] caused his grandmother’s death.”

      Appellant’s reliance on Walls, supra and Sullivan, supra, is misplaced

in light of the record before us. Officer Green testified that the defendant was

taken into custody and transported by another officer to the station for

processing. Officer Green testified that he came into contact with Appellant

there for purposes of taking his biographical information, and the following

occurred.

      A: [Officer Green] . . . He started threatening me saying how I
      should keep my vest on, Your Honor. Saying he was going to
      settle this in the street, that I was going to be popped in the head
      ...

                   ...

            Well, he said he was going to pop me in my head and started
            threatening my children saying my children were going to
            be rolled on.

                   ...

      Q [Attorney for the Commonwealth]: At any point did you
      respond to what he was saying?

      A: No, I did not respond, but I definitely was highly upset.

N.T. Trial, 6/10/16, at 11-12.

      The facts herein bear some resemblance to those in Commonwealth

v. Bailey, 655 A.2d 566, 566 (Pa.Super. 1995). In that case, we affirmed

the trial court’s finding of guilt of terroristic threats based upon verbal threats



                                       -6-
J-S80010-17



the defendant made to jurors in a criminal case against him. While sitting on

the steps outside the courthouse and looking directly at the jurors, Bailey

stated, “In a month a lot of people are going to die because of your decision.”

Id. at 567. The jurors testified that they were placed in fear by his threats.

Id. at 568.     We found sufficient evidence to support the conviction for

terroristic threats. Bailey’s threat implied homicide, a crime of violence. It

was directed at the jurors who were deciding his fate, and he used specific

words such as “in a month” and “your decision,” which we found evidenced

the intent to terrorize. Id. We recognized therein that “even a single verbal

threat might be made in such terms or circumstances to support the inference

that the actor intended to terrorize or coerce.” Id.

      Herein, Appellant threatened serious bodily harm to Officer Green and

his children.   The threats were made while Appellant was in custody, and

Officer Green was merely recording routine biographical information.

Significant time had elapsed between Appellant’s arrest by Officer Green and

the interview at the station where the threats were uttered, and there was no

heated confrontation or shouting as in Sullivan, supra and Walls, supra.

Furthermore, contrary to Appellant’s representation, there was no evidence

that Appellant was intoxicated, agitated, or angry when he made the threats.

According to the officer, Appellant looked him in the eye and threatened to kill

him and his children.The evidence herein, when viewed in the light most

favorable to the Commonwealth, is legally sufficient to support Appellant’s

conviction of terroristic threats.

                                     -7-
J-S80010-17



       Appellant’s second issue is a challenge to the trial court’s admission of

Ms. Gatewood’s statement to Officer Green. He contends that the statement

did not fall within the excited utterance hearsay exception.           Moreover, he

argues that its admission violated his confrontation and due process rights.3

       Our standard of review in evidentiary matters is whether the trial court

abused its discretion. Commonwealth v. Cunningham, 805 A.2d 566, 575

(Pa.Super. 2002).       An abuse of discretion is “more than just an error in

judgment and, on appeal, the trial court will not be found to have abused its

discretion unless the record discloses that the judgment exercised was

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

Id.

       Furthermore,      evidentiary     errors,   including   confrontation   clause

violations, are subject to the harmless error doctrine. Commonwealth v.

Young, 748 A.2d 166 (Pa. 2000). Even if the trial court erred in admitting

the evidence, reversal is warranted only if the court is convinced beyond a

reasonable doubt that the error was not harmless.               Commonwealth v.

Yockey, 158 A.3d 1246, 1254 (Pa.Super. 2017) (citing Commonwealth v.

Chmiel, 889 A.2d 501, 521 (Pa. 2005).

____________________________________________


3 3 Appellant did not object at trial to the admission of the statement on due
process grounds. See N.T. Trial, 6/10/16, at 15. In his Pa.R.A.P. 1925(b)
concise statement, Appellant averred that the court violated his due process
rights to confront witnesses against him under the federal and state
constitutions when it admitted Ms. Gatewood’s excited utterance. Appellant
simply has a confrontation right to confront his accusers.


                                           -8-
J-S80010-17




     Harmless error exists if the state proves either: (1) the error did
     not prejudice the defendant or the prejudice was de minimis; or
     (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. Burno, 154 A.3d 764, 787 (Pa. 2017) (quoting

Commonwealth v. Simmons, 662 A.2d 621, 633 (Pa. 1995)). Whether

Appellant's confrontation rights were violated is a pure question of law;

therefore, our standard of review is de novo and our scope of review is

plenary. Commonwealth v. Brown, 139 A.3d 208, 211 (Pa.Super. 2016);

Commonwealth v. Yohe, 79 A.3d 520, 530 (Pa. 2013).

     The statement at issue was made by Ms. Gatewood to Officer Green.

She met him at the door and told him excitedly “[t]hat [Appellant] attempted

to throw a table at her and throw her down the stairs.” N.T. Trial, 6/10/16,

at 21. The officer testified that, “she basically kept repeating that over and

over.” Id. We first examine whether the statement qualified as an excited

utterance under the hearsay rule.

      Hearsay is an out-of-court statement offered for the truth of the matter

asserted. Pa.R.E. 801(c). An excited utterance 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. 803(2). An excited




                                    -9-
J-S80010-17



utterance may be admitted as an exception to the prohibition against hearsay,

regardless of whether the declarant is available as a witness. Id.

      There are a number of factors we consider in determining whether a

statement is an excited utterance. We examine whether “the statement was

in narrative form, the elapsed time between the startling event and the

declaration, whether the declarant had the opportunity to speak with others

and whether, in fact, she did so.” Commonwealth v. Gray, 867 A.2d 560,

570 (Pa.Super. 2005).     These considerations provide the guarantees of

trustworthiness. The only factor that is indispensable is the requirement that

the declarant witness the exciting event. Commonwealth v. Keys, 814 A.2d

1256, 1258 (Pa.Super. 2003). We look at the totality of the circumstances in

determining whether a statement is an excited utterance. Id.

      In Gray, supra, the police officer testified that the declarant

approached him outside and stated that she had been assaulted and the

perpetrator was inside. Id. at 571. He described her demeanor as flustered

and noted that she was crying. Id. In considering those factors, we noted

that there was no bright-line rule as to the elapsed time between the

experience and the declarant’s statement. The critical question was “whether,

at the time the statement is made, the nervous excitement continues to

dominate while the reflective processes remain in abeyance.” Gray, supra

at 570-71 (quotations omitted).    We found that the declarant made the

statements near in both time and place to the alleged event, and that she




                                    - 10 -
J-S80010-17



approached the officers outside her home, stating that she had just been

assaulted. Id. at 565.

      Appellant argues Ms. Gatewood’s statement was not uttered in the midst

of an exciting event because he had been physically separated from Ms.

Gatewood, and the police officers did not have to calm her down. Appellant

also contends that there was “no evidence presented about the time that

elapsed between the starting event and Ms. Gatewood’s declaration.”

Appellant’s brief at 17. In addition, he alleges there was “no evidence that

the declarant’s claim – [A]ppellant’s attempt to throw a table at her and throw

her down the stairs – was the startling event at issue.” Id. Appellant cites

Keys, supra, for the proposition that there must be independent evidence

substantiating the content of the declaration, because the fact finder cannot

determine the declarant’s credibility or whether she had motive to lie, which

would undermine “reliability, which [is] the basis of an excited utterance’s

admission into evidence.” Appellant’s brief at 18.

      We find the facts herein to be much like those in Gray, supra. In the

present case, Officer Green arrived less than two minutes after the report of

screaming. N.T. Trial, 6/10/16, at 9. As he approached the residence, Ms.

Gatewood came outside and frantically told him, repeatedly, that Appellant

had attempted to throw a table at her and throw her down the stairs. N.T.

Trial, 6/10/16, at 16.     The statement was not elicited in response to

questioning, but spontaneously blurted out under the stress of the event. See

Gray, supra at 571 (holding spontaneity is why an excited utterance is the

                                    - 11 -
J-S80010-17



“source of reliability and touchstone of admissibility”). The officer described

the declarant’s demeanor: she was crying, speaking quickly, and had a shaky

voice. N.T. Trial, 6/10/16, at 13-14. Officer Green observed that she had

teeth indentations on the left side of her neck, a blotch on the left cheek, and

a bleeding upper lip, and photographs admitted into evidence at trial

confirmed those injuries. Id. at 14.

      The important question in determining whether a statement constituted

an excited utterance is whether, “regardless of the time lapse . . . at the time

the statement is made, the nervous excitement continues to dominate while

the reflective processes remain in abeyance.” Commonwealth v. Manley,

985 A.2d 256, 265 (Pa.Super. 2009). The time lapse herein was minimal,

given the officers’ quick response to the call. Furthermore, Ms. Gatewood’s

demeanor established that she remained excited and agitated when she

spontaneously blurted out what Appellant had done. Her physical injuries,

observed by the officer, and depicted in photographs, supported her claim that

Appellant had physically assaulted her.        Thus, Ms. Gatewood’s statement

satisfied the criteria for admissibility as an excited utterance.

      Appellant argues that, nonetheless, the admission of Ms. Gatewood’s

statement to Officer Green violated the Confrontation Clause of the federal

and Pennsylvania constitutions.        He maintains that the statement was

testimonial in nature because there was no emergency when it was made.

      The Confrontation Clause of the Sixth Amendment provides that “in all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted

                                      - 12 -
J-S80010-17


with the witnesses against him.”      Ohio v. Clark, 135 S. Ct. 2173, 2180

(2015). The right extends, however, only to statements that are testimonial

in nature.    Such statements include “statements that were made under

circumstances which would lead an objective witness reasonably to believe

that the statement would be available for use at a later trial.” Crawford v.

Washington, 541 U.S. 36, 53 (2004). Since it is the “primary purpose” of a

testimonial statement is to serve as evidence against the accused in a

subsequent prosecution, the test for determining whether a statement is

testimonial is commonly referred to as the primary purpose test.             The

Crawford Court indicated that testimonial statements would include extra-

judicial statements in formal records such as “affidavits, depositions, former

testimony, or confessions” as well as “ex parte in-court testimony or its

functional equivalent.” Id. at 38.

      In Clark, the Supreme Court added that, in determining whether the

primary purpose test was satisfied, we should also consider the “informality

of the situation and the interrogation,” because a less formal situation is “less

likely to reflect a primary purpose aimed at obtaining testimonial evidence

against the accused.” Clark, supra at 2180. If a statement is determined to

be testimonial, the witness who prepared it must testify at trial, unless he or

she is unavailable and the defendant had a prior opportunity for cross-

examination.   Michigan v. Bryant, 562 U.S. 344, 354 (2011).




                                     - 13 -
J-S80010-17


      Appellant’s premise that the absence of an emergency automatically

makes a statement testimonial is a faulty one. Certainly, in the midst of an

ongoing emergency or startling event, it is less likely that statements will be

made in response to interrogation with the primary purpose of implicating

someone.        While an emergency is a relevant consideration in determining

whether a statement is testimonial, it is not a prerequisite. See Clark, supra

at 2175 (recognizing that “there may be other circumstances, aside from

ongoing emergencies, when a statement is not procured with a primary

purpose of creating an out-of-court substitute for trial testimony.”) (emphasis

in original).

      We thus find that Ms. Gatewood’s statements to Officer Green were not

testimonial, and therefore, not subject to the Confrontation Clause.       The

evidence revealed that Officer Green was responding to an urgent call

reporting screaming. Since he and his partner arrived within one minute of

receiving the dispatch, there was little time lapse.         As Officer Green

approached the house, Ms. Gatewood opened the door and excitedly blurted

out these statements.       N.T. Trial, 6/10/16, at 25.   Officer Green did not

interrogate Ms. Gatewood before she began speaking; her statement was

spontaneously uttered in the stress of the moment.

      We find that these facts, together with the evidence that Ms. Gatewood

was flustered and excited, negated any reasonable inference that she intended

to create evidence in furtherance of prosecution. Although her statements


                                      - 14 -
J-S80010-17


resulted in the commencement of criminal proceedings, Appellant has not

convinced us that they were uttered with that purpose. Her “primary purpose

. . . was certainly not to invoke the coercive machinery of the State” against

Appellant. Clark, supra at 2184 (Scalia, J. concurring). Her primary purpose

was to seek aid and protection from further harm to her person, as in Gray,

supra.

      For these reasons, we find that Ms. Greenwood’s statement to Officer

Green was not testimonial, and its admission did not violate his federal and

state constitutional rights to confront his accuser.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/18




                                     - 15 -
