J-S61045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    JAMES LEE COKER, JR.,

                             Appellant                No. 665 EDA 2017


            Appeal from the Judgment of Sentence January 13, 2017
               in the Court of Common Pleas of Delaware County
               Criminal Division at No.: CP-23-CR-0004079-2016


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 22, 2018

        Appellant, James Lee Corker, Jr., appeals from the judgment of sentence

imposed on January 13, 2017, following his non-jury trial conviction of simple

assault.1 Specifically, he contends that the trial court erred when it admitted

hearsay testimony from the investigating officer. We affirm.

        We take the factual and procedural history in this matter from our

review of the certified record and the trial court’s April 3, 2017 opinion. On

April 25, 2016, Patrol Officer Roland Norman responded to a call at 120

Chester Avenue in Yeadon, Delaware County, Pennsylvania. (See Trial Court

Opinion, 4/03/17, at 3). Officer Norman spoke to Lavanna Murray, the victim,


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 2701(a)(1).
J-S61045-17



who claimed that Appellant assaulted her after an argument. Officer Norman

observed that she was distraught and bleeding from cuts on her forehead, and

that there was blood on the floor. (See id.).

      On January 13, 2017, the court conducted a non-jury trial.         Officer

Norman testified that upon arriving at the residence, he saw the victim had

cuts on her head, and was bleeding from them. (See N.T. Trial, 1/13/17, at

8). He further stated that he noticed blood on the floor of the apartment, and

that the victim was distraught when he got there. (See id. at 8-9). The trial

court overruled Appellant’s objection, and permitted Officer Norman to testify

as to what the victim told him about how she injured her head, under the

excited utterance exception to the hearsay rule.     (See id. at 10).    Officer

Norman explained that the victim told him that, after Appellant knocked on

the window, she let him into her apartment. Shortly thereafter, she received

a text message from a male, which made Appellant upset. The victim and

Appellant started arguing, and she tried to run upstairs. Appellant caught her

on the stairs and started assaulting her. (See id. at 10-11).

      Appellant testified in his own defense. He stated that he went to the

victim’s apartment to get his toothbrush and she attacked him. He claimed

that the cut on the victim’s forehead happened earlier when she was getting

her hair done. (See id. at 34, 36-38). Appellant denied hitting the victim.

(See id. at 38). At the conclusion of trial, the court found Appellant guilty of

simple assault, and entered a sentence of no further punishment. The court




                                     -2-
J-S61045-17



found Appellant not guilty of recklessly endangering another person.2 (See

id. at 55). This timely appeal followed.3

        Appellant presents one question on appeal.

        I)    [Whether] the court erred in allowing the hearsay testimony
              of the investigating officer to be admitted over objection
              where the statements were offered as substantive proof as
              to what transpired on the night in question between
              [Appellant] and the alleged victim, and where the alleged
              victim never appeared for the trial and the officer was not
              present to observe what actually took place[?]

(Appellant’s Brief, at 7) (unnecessary capitalization omitted).

        In his issue, Appellant claims that the court abused its discretion and

admitted hearsay evidence when it permitted Officer Norman to testify about

what the victim told him. (See id. at 11-18). Specifically, he argues that,

“the out-of-court statements did not amount to an excited utterance and,

more importantly, they were of such broad scope that Appellant was entirely

stripped of all confrontation rights afforded him by the United States

Constitution and the Pennsylvania Constitution.” (Id. at 12). We disagree.

              When reviewing a challenge to the admissibility of evidence,
        we note that [t]he admissibility of evidence rests within the sound
        discretion of the trial court, and such a decision will be reversed
        only upon a showing that the trial court abused its discretion. An
        abuse of discretion is not merely an error of judgment, but is
        rather the overriding or misapplication of the law, or the exercise

____________________________________________


2   18 Pa.C.S.A. § 2705.

3Pursuant to the court’s order, Appellant filed his concise statement of errors
complained of on appeal on March 13, 2017. The trial court entered its opinion
on April 3, 2017. See Pa.R.A.P. 1925.


                                           -3-
J-S61045-17


     of judgment that is manifestly unreasonable, or the result of bias,
     prejudice, ill-will or partiality, as shown by the evidence of record.
     Hearsay is defined as a statement, other than one made by the
     declarant while testifying at trial or hearing, offered in evidence to
     prove the truth of the matter asserted. Hearsay testimony is per
     se inadmissible in this Commonwealth, except as provided in the
     Pennsylvania Rules of Evidence[,] by other rules prescribed by the
     Pennsylvania Supreme Court, or by statute.

Commonwealth v. Gray, 867 A.2d 560, 569-70 (Pa. Super. 2005), appeal

denied, 879 A.2d 781 (Pa. 2005) (citations and quotation marks omitted).

     Here, the trial court admitted Officer Norman’s testimony about the

victim’s statement under the excited utterance exception to the hearsay rule.

           In determining whether an out-of-court statement
     constitutes an excited utterance, we are mindful of the following
     principles:

                  Rule 803(2) of the Pennsylvania Rules of
           Evidence permits the admission of an excited
           utterance as an exception to the general rule that
           hearsay evidence is inadmissible. The Rule defines an
           excited utterance as: [a] statement relating to a
           startling event or condition made while the declarant
           was under the stress of excitement caused by the
           event. [Pa.R.E. 803(2).] . . . [F]or a statement to be
           considered an excited utterance, it must be made
           spontaneously and without opportunity for reflection:

                        [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 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

                                     -4-
J-S61045-17


                  shown first, that [the declarant] had
                  witnessed an event sufficiently startling
                  and so close in point of time as to render
                  her    reflective   though[t]   processes
                  inoperable and, second, that her
                  declarations were a spontaneous reaction
                  to that startling event.

                  . . . [T]his Court further held that there is no
            clear-cut rule as to the time sequence required for a
            statement to qualify as an excited utterance, but
            rather that fact-specific determination is to be made
            on a case-by-case basis.

             Additionally, [i]n assessing a statement offered as an
      excited utterance, 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, she did so. Our [c]ourts have not established a bright line
      rule regarding the amount of time that may elapse between the
      declarant’s experience and her statement. Rather, [t]he crucial
      question, regardless of time lapse, is whether, at the time the
      statement is made, the nervous excitement continues to dominate
      while the reflective processes remain in abeyance. It is the
      spontaneity of . . . an excited utterance [that] is the source of
      reliability and the touchstone of admissibility.

Id. at 570-71 (citations and quotation marks omitted).

      In the instant case, the trial court explained that Appellant testified that

he woke up at 2:00 a.m. and decided to go to 120 Chester Avenue. The victim

called the police at 2:53 a.m., thus the trial court surmised that a “reasonable

inference may be drawn that the incident did not occur earlier than 2:30 a.m.”

(Trial Ct. Op., at 6-7). When Officer Norman arrived on scene, the victim was

“distraught, upset about what happened, and dabbing at her wounds.” (Id.

at 7). The court reasoned that although there was testimony that another

woman arrived on scene after the incident and before Officer Norman,


                                      -5-
J-S61045-17


         nothing suggests that during the minutes between the incident
         and [the victim’s] statements there was an opportunity to
         fabricate a false version of events. [The victim] said that during
         the heat of the argument with [Appellant] she became upset and
         ran up the steps. [Appellant] caught her at the top of the steps
         where the assault occurred. It is submitted that sufficient indicia
         of reliability existed based on the totality of these circumstances
         and that the “excited utterances” of the victim were admissible.

(Id.).

         Upon review, we conclude that the trial court did not abuse its discretion

when it permitted Officer Norman to testify about the victim’s statements

under the excited utterance hearsay exception. The record supports that the

victim “witnessed an event sufficiently startling and so close in point of time

as to render her reflective though processes inoperable and, second, that her

declarations were a spontaneous reaction to that startling event.” See Gray,

supra at 570 (citations omitted). Furthermore, based on our review of the

record, we agree that, regardless of time lapse between the attack and the

victim’s statement, her “nervous excitement continue[d] to dominate while

[her] reflective processes remain[ed] in abeyance[,]” and her statements to

Officer Norman were spontaneous. Id. at 571 (citation omitted). Therefore,

we conclude that the trial court did not abuse its discretion. Appellant’s issue

does not merit relief.

         Judgment of sentence affirmed.

         Judge Lazarus joins the Memorandum.

         Judge Ransom concurs in the result.




                                        -6-
J-S61045-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/18




                          -7-
