J-A16013-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DAVID WOODS,

                         Appellant                   No. 244 EDA 2016


    Appeal from the Judgment of Sentence Entered December 17, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0000818-2014


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                  FILED SEPTEMBER 24, 2018

      Appellant, David Woods, appeals from the judgment of sentence of an

aggregate term of 20 to 40 years’ incarceration, imposed after a jury convicted

him of aggravated assault and robbery. Appellant challenges the trial court’s

decision to admit certain evidence. After careful review, we affirm.

      Because the trial court did not provide a summary of the facts of this

case in its Pa.R.A.P. 1925(a) opinion, we adopt the Commonwealth’s

recitation, which aligns with Appellant’s version of the facts in all pertinent

respects:

            On December 16, 2013, at about 8:00 p.m., 67-year-old
      Loretta Marcello was walking home from her mother’s house on
      the 2400 block of 15th Street in Philadelphia, and heard a noise
      behind her. When she turned around, [Appellant] punched her in
      the face twice. She fell and hit her head on a car. [Appellant]
      grabbed her bag and fled.
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            The victim, bleeding from her eye, crawled to the neighbor’s
     house, and banged on the front door, screaming that she was just
     robbed. A few people came out of the house and called 911 to
     report the incident. When the first responding officers arrived at
     the scene, the victim described her assailant as a black male with
     a brownish tannish jacket. Medics thereafter transported the
     victim to Thomas Jefferson[] [Hospital’s] trauma unit, where she
     was hospitalized for seven days with bleeding from her eye, a
     fractured hand, and a neck injury[.] (N.T.[,] 8/4/15, [at] 36-
     52)[.]

            A witness to the assault had chased after [Appellant] and
     saw him get into a silver car with license plate number JKJ3505.
     The witness returned to the scene and provided a description of
     the car to the responding officers, who gave flash of the
     information over the police broadband. Officer [Daniel] Farrelly
     was on routine patrol when he heard the report, and determined
     that the assailant’s car was registered to a home on the 22nd
     block of Cross Street - only one mile from the assault. He drove
     with his partner to the location, observed a parked car that
     matched the description of the one the assailant fled in, and
     approached the vehicle. [Appellant] was sitting in the driver’s
     seat, counting money, and wearing a tan jacket. Officer Farrelly
     asked him to get out of the car and, after determining that he
     matched the description of the perpetrator, [the officer] placed
     [Appellant] under arrest. The police then transported him to the
     hospital, but the victim did not identify him as her assailant. Police
     later searched [Appellant’s] car pursuant to a search warrant and
     recovered the victim’s purse, driver’s license, credit cards, and
     senior citizen SEPTA card[.] (N.T.[,] 8/5/15, [at] 10-39, 60, 63-
     66, 119-[]23).

           On August 4, 2015, [Appellant] was tried by a jury sitting
     before the Honorable Angelo J. Foglietta. The Commonwealth
     presented the testimony of the victim and several police officers.
     The jury heard 911 tapes of the neighbors reporting the assault,
     and radio tapes of police communications that contained the flash
     description of [Appellant’s] car.1 Following a three day trial, the
     jury convicted [Appellant] of aggravated assault and robbery. On
     December 17, 2015, the court sentenced him to [10] to [20] years
     of incarceration for aggravated assault, and a consecutive term of
     [10] to [20] years of incarceration for robbery.
        1[Appellant] litigated a motion to suppress the 911 tapes
        and the radio tapes of police communications. The lower

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         court found that both tapes were admissible (N.T.[,] 8/4/15,
         [at] 17-18; 8/5/15, [at] 8).

Commonwealth’s Brief at 2-4.

      Appellant filed a timely notice of appeal. The court then ordered him to

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal

within 21 days of Appellant’s receipt of the transcripts. On July 26, 2016, the

trial court issued a Rule 1925(a) opinion stating that all of the transcripts had

been completed, yet Appellant had not filed a Rule 1925(b) statement.

Consequently, the court deemed his issues waived. Appellant thereafter filed

with this Court a petition to remand, arguing that he had not received certain

transcripts as stated by the court.      On September 19, 2016, this Court

remanded Appellant’s case, directing him to file a Rule 1925(b) statement

within 21 days, and ordering the trial court to file a Rule 1925(a) opinion

within 30 days of receiving Appellant’s concise statement. Appellant timely

filed his Rule 1925(b) statement on October 7, 2016. Unexplainably, the trial

court did not file its Rule 1925(a) opinion until one year after receiving

Appellant’s concise statement.

      Herein, Appellant raises two issues for our review:

      1. Did the lower court err in permitting the 911 tapes of persons
         calling to report a crime and request an ambulance to be played
         in court and admitted in[to] evidence, as these phone calls
         relayed inadmissible hearsay statements concerning the
         manner in which the complainant sustained her injuries and the
         identification of the alleged perpetrator of the assault and
         robbery?

      2. Did not the lower court err in permitting the radio tapes of
         police communications to be played in court and admitted
         in[to] evidence, as these communications relayed inadmissible

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         hearsay statements purportedly obtained from an unidentified
         witness concerning the identification of the perpetrator and the
         vehicle in which the perpetrator allegedly fled?

Appellant’s Brief at 3.

      Both of Appellant’s issues challenge the trial court’s admission of certain

evidence and, therefore, we will address his claims together.

      Questions concerning the admissibility of evidence lie within the
      sound discretion of the trial court, and a reviewing court will not
      reverse the trial court’s decision absent a clear abuse of discretion.
      Commonwealth v. Hunzer, 868 A.2d 498 (Pa. Super. 2005).
      Abuse of discretion is not merely an error of judgment, but rather
      where the judgment is manifestly unreasonable or where the law
      is not applied or where the record shows that the action is a result
      of partiality, prejudice, bias or ill will. Id.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citation

omitted). Our Supreme Court has also explained that,

      [i]n the event of an erroneous admission of evidence, a verdict
      can still be sustained if the error was harmless.             See
      Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 144
      (2008). An error is harmless if it could not have contributed to
      the verdict, or stated conversely, an error cannot be harmless if
      there is a reasonable possibility the error might have contributed
      to the conviction. Id. We have found harmless error where:

         “(1) the error did not prejudice the defendant or the
         prejudice was de minimis;

         (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.”

      Id. (quoting Commonwealth v. Young, 561 Pa. 34, 748 A.2d
      166, 193 (1999) (citation omitted)). The Commonwealth has the

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      burden of proving harmless error beyond a reasonable doubt. Id.
      at 143.

Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015).

      Appellant first contends that the trial court erred by admitting recordings

of 911 calls made by unidentified individuals to report the victim’s assault and

robbery. Appellant argues that these tapes contained inadmissible hearsay

statements, “including that the complainant was punched, mugged, hit and

robbed, that the perpetrator was a black male, and that other witnesses had

seen the perpetrator leave in a vehicle and had obtained the license plate tag

number of that vehicle.” Appellant’s Brief at 27. The trial court concluded

that the statements on the tapes constituted hearsay, but were admissible

under either of the following exceptions to the rule precluding hearsay:

      (1)   Present Sense Impression. A statement describing or
            explaining an event or condition, made while or immediately
            after the declarant perceived it.

                                          …

      (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(1), (2).     On appeal, Appellant avers that neither of these

exceptions applied to the at-issue hearsay statements, because there was no

evidence “that the 911 callers had personally observed the matters about

which they were talking, at [least] as to the actions of the assailant and as to

the identification of the assailant and his vehicle, including the tag number of

that vehicle.” Appellant’s Brief at 30.




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      Second, Appellant attacks the admission of “police radio tapes of

numerous officers’ communications involving the investigation of the assault

of the complainant.”      Id. at 33.     Appellant asserts that “[t]he police

communications conveyed hearsay information obtained from individuals who

did not testify at trial, as well as hearsay information procured from police

computers and databases, including that the assailant was a black male

wearing a tan jacket who fled the scene in a silver SUV with a certain license

plate tag number, and that the tag number was registered to a vehicle at

[Appellant’s] home address (near where [Appellant] was apprehended by the

police, inside the vehicle in question).” Id. In deciding to admit this evidence,

the trial court reasoned that the recordings were ‘course of conduct’ evidence,

as they “were offered to show how the police came into contact with

[Appellant] by the relay of the vehicle’s license plate number.” Trial Court

Opinion, 10/17/17, at 5. The court noted that “[i]t is well-established that an

out-of-court statement offered to explain a course of conduct is not hearsay.”

Id. (citing Commonwealth v. Sampson, 311 A.2d 624 (Pa. 1973);

Commonwealth v. Ryan, 384 A.2d 1243 (Pa. Super. 1978). While Appellant

seemingly concedes that the tapes constituted course-of-conduct evidence,

see Appellant’s Brief at 35, he contends that they should not have been

admitted as their probative value was outweighed by their prejudicial impact.

      We need not discuss whether the tapes of the 911 calls, or the recorded

police communications, were properly admitted by the court because, even if

not, the Commonwealth has demonstrated that the admission of that evidence

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was harmless error. First, in regard to the 911 calls, the Commonwealth avers

that,

        the information relayed in the 911 calls was cumulative of other
        evidence admitted at trial. The victim testified that her assailant
        was a black male wearing a tan jacket, and that he punched her
        in the face twice[.] (N.T.[,] 8/4/15, [at] 42-47). The first
        responding officer then testified that a purported witness
        approached him at the scene and gave him a license plate number
        and description of [Appellant’s] car. (N.T.[,] 8/5/15, [at] 12). The
        independent testimony of the victim and the first responding
        officer relayed all of the information contained in the 911 calls that
        [Appellant] challenges as inadmissible hearsay. Thus, the calls
        were merely cumulative of other untainted evidence.

Commonwealth’s Brief at 10. Having reviewed the portions of the record cited

by the Commonwealth, we agree with its position that the hearsay statements

in the 911 calls were cumulative of other evidence admitted at trial.

        Additionally, the Commonwealth claims that the admission of the 911

calls, and the recordings of the police communications, were harmless because

the evidence of Appellant’s guilt was overwhelming. Pertaining to the 911

calls, it explains:

               Police found [Appellant] in a car that was located less than
        a five minute drive from the scene of the assault[.] (N.T.[,]
        8/5/15, [at] 34). The officers who received the flash information
        responded in less than a minute and found [Appellant] reclined in
        the driver’s seat, counting dollar bills[.] ([Id. at] 62). He was
        wearing a tan jacket, as the victim reported to police. Inside
        [Appellant’s] car, officers recovered the victim’s purse, her
        driver’s license, credit cards, senior citizen SEPTA identification,
        and $273. The amount of money recovered matched the amount
        the victim reported she had in her purse when she was assaulted.
        Given the overwhelming evidence against [Appellant], the trial
        court’s decision to admit the 911 tapes did not entitle [Appellant]
        to relief.



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J-A16013-18



Commonwealth’s Brief at 11.         The Commonwealth reiterates this same

argument regarding the admission of the police communication evidence,

stating:

      [T]he police recordings were only a small part of two officers’
      testimony over the course of a three[-]day trial, and the other
      evidence against [Appellant] was overwhelming. As discussed in
      the above section, police found [Appellant] in possession of the
      victim’s purse, wallet, identification cards, and other belongings
      less than one minute after [the] flash was given. [Appellant] was
      reclined in the front seat of his car, counting the victim’s money,
      and wearing a tan jacket, as described by the victim. The amount
      of money [Appellant] possessed matched the quantity that the
      victim said she possessed when she was assaulted. Thus, in light
      of the direct evidence linking [Appellant] to the crime, this is not
      a case where the “course of conduct” [evidence] should have been
      excluded….

Id. at 14-15.

      In response to the Commonwealth’s position, Appellant avers that the

at-issue recordings were the only evidence linking his vehicle to the scene of

the crime. He argues that without it, the jury would have likely only convicted

him of a less serious offense, like receiving stolen property, especially given

“some significant discrepancies in the evidence….” Appellant’s Brief at 41.

Specifically, Appellant claims that the victim described the coat of the assailant

as being “a down coat with a fur collar[,]” but Appellant’s coat “was neither

down nor had fur….”      Id. at 41.   Appellant also asserts that “there were

discrepancies regarding the reported tag number of the car in which the

assailant allegedly fled, with the number first being reported as KJ3505 and

later being reported as JKJ3505, the latter being the tag number of the car in



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which [Appellant] was seated just before he was arrested.”            Id.   While

Appellant acknowledges that “this discrepancy was explained by an officer who

claimed that the unidentified male witness who provided the information first

gave one tag number, but then later remembered the first letter of the tag

when questioned by the police[,]” he argues that “since this unidentified

witness was not present in court, the veracity of this story could not effectively

be explored by the defense.”      Id.   In sum, Appellant maintains that “the

uncontradicted evidence was not so overwhelming that the improperly

admitted, but potent, hearsay statements tying … [Appellant] to the vehicle

the assailant allegedly used to flee the scene could be deemed to be

insignificant.” Id.

      We disagree. Initially, Appellant ignores that there was other evidence,

aside from the hearsay statements on the 911 calls and the police

communication recordings, that linked his vehicle to the scene. Namely, the

first-responding officer testified that a witness at the scene provided him a

description and license plate number of the fleeing vehicle. While that witness

initially forgot the first letter of the license plate, he provided six numbers of

the plate that matched the license number of Appellant’s vehicle. The witness

also later remembered the first letter on the plate, which also matched

Appellant’s license plate number. Additionally, the color of Appellant’s coat

matched that described by the victim, although she did not remember other

aspects of his coat accurately. These facts, combined with Appellant’s being

found in close temporal and physical proximity to the scene of the robbery,

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and in possession of multiple items taken from the victim, constituted

overwhelming proof of his guilt. Therefore, any error in the admission of the

cumulative 911 call recordings, or the police communications, was harmless.

Appellant is not entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/18




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