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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
LANCE BRASWELL,                            :          No. 398 EDA 2015
                                           :
                          Appellant        :


            Appeal from the Judgment of Sentence, January 7, 2015,
                in the Court of Common Pleas of Chester County
               Criminal Division at No. CP-15-CR-0000884-2014


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED FEBRUARY 16, 2016

        Lance Braswell appeals from the judgment of sentence entered

January 7, 2015, by the Court of Common Pleas of Chester County, after a

jury convicted him of burglary,1 criminal trespass,2 simple assault,3 and

criminal conspiracy.4 We affirm.

        The record reflects that appellant’s conviction resulted from an incident

that occurred on the evening of September 29, 2013. At that time, a group

of people entered the victim’s home and assaulted her. At appellant’s trial,



1
    18 Pa.C.S.A. § 3502(a)(1).
2
    18 Pa.C.S.A. § 3503(a)(1)(ii).
3
    18 Pa.C.S.A. § 3701(a)(1).
4
    18 Pa.C.S.A. § 903(C), § 2701(a)(1).
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the victim and one of the perpetrators testified that appellant and his uncle,

Jason Smith, were among the assailants. Smith had previously pled guilty

to criminal trespass, simple assault, conspiracy to commit criminal trespass,

and terroristic threats in connection with this incident.

      At trial, appellant called Smith to testify on his behalf. On the advice

of   counsel,   Smith    invoked    his   Fifth   Amendment    right   against

self-incrimination. The trial court accepted Smith’s invocation and found him

unavailable as a witness.       Subsequently, appellant took the stand and

testified that he did not participate in the crimes that the group committed

on September 29, 2013, which was his defense theory. He further testified

that he did not learn about the incident until about a week later when Smith

told him what had occurred.      When defense counsel asked appellant what

Smith told him, the Commonwealth objected on hearsay grounds.             The

following sidebar took place:

            THE COURT: What’s your basis of your objection?

            [THE COMMONWEALTH]: Well, A, it’s hearsay. I
            don’t know what he’s planning on offering it for, so
            maybe we ought to hear that now, see if it satisfies
            any of the exceptions.

            THE COURT: What’s your offer of proof?

            [DEFENSE COUNSEL]: He’s going to testify this is
            when he first heard about when this took place that
            he had a conversation and Jason told him that he
            went into [the victim’s] residence with [others] and
            assaulted [the victim].




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            THE COURT: All right. Isn’t it also a statement of a
            co-defendant?

            [DEFENSE COUNSEL]: Yeah. It would be.

            [THE COMMONWEALTH]:            It’s not in furtherance of
            the conspiracy.

            THE COURT:       Well, the statement occurs after the
            event.

            [THE COMMONWEALTH]: That’s why it’s inherently
            unreliable, too much time for deliberation. If it’s
            anything it would be the statement against interest.

            THE COURT: I am going to sustain the objection.

Notes of testimony, 11/13/14 at 319-320.

      Appellant raises one issue on appeal:

            Whether the Court erred by not permitting Appellant
            to testify at trial concerning a conversation he had
            with Jason Smith, a co-defendant, one week after
            the incident, wherein the Appellant claimed he first
            learned about the incident and the specific people
            involved in the incident?

Appellant’s brief at 3.

      The admissibility of evidence lies within the sound discretion of the

trial court and will not be reversed absent a clear abuse of discretion.

Commonwealth v. Maloney, 876 A.2d 1002, 1006 (Pa.Super 2005). An

abuse of discretion is not merely an error of judgment, but occurs when a

court overrides or misapplies the law; exercises a manifestly unreasonable

judgment;    or   results   from   partiality,   prejudice,   bias,   or   ill-will,   as




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demonstrated by the evidence or the record.                 Commonwealth v.

Cameron, 780 A.2d 688, 692 (Pa.Super. 2001).

      Appellant complains that the trial court should have admitted Smith’s

out-of-court   statement   as   an   exception   to   the   hearsay   rule   under

Pennsylvania Rule of Evidence 804(b)(3).         Under that exception, when a

declarant is unavailable as a witness, an out-of-court statement against

penal interest is admissible as follows:

            (3)   Statement Against Interest. A statement that:

                  (A)   a reasonable      person in the
                        declarant’s position would have
                        made only if the person believed it
                        to be true because, when made, it
                        was so contrary to the declarant’s
                        proprietary or pecuniary interest or
                        had so great a tendency to
                        invalidate the declarant’s claim
                        against someone else or to expose
                        the declarant to civil or criminal
                        liability; and

                  (B)   is supported by corroborating
                        circumstances that clearly indicate
                        its trustworthiness, if it is offered
                        in a criminal case as one that tends
                        to expose the declarant to criminal
                        liability.

Pa.R.E. 804(b)(3).

      Therefore, in order to fall within the statement against interest

exception to the hearsay rule, the statement must be (1) against the

declarant’s penal interest and (2) supported by corroborating circumstances




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that clearly indicates its reliability. Id.; e.g., Commonwealth v. Robins,

812 A.2d 514 (Pa. 2002).

       With respect to the first element, a statement that exculpates a

declarant’s accomplice is not a statement against interest because it does

not    subject    the   declarant      to     any     additional    crime       or    punishment.

Commonwealth v. Colon, 846 A.2d 747, 757 (Pa.Super. 2004), citing

Commonwealth v. Colon, 337 A.2d 554, 558 (Pa. 1975).

       Here,      because    Smith’s        alleged    statement      serves         to   exculpate

appellant, who was Smith’s accomplice, appellant cannot meet the first

element of the exception, and the statement, therefore, is inadmissible.

       Even if appellant could satisfy the first element of the exception, he

could not satisfy the second because it lacks indicia of reliability. One of the

reasons that an appellant must demonstrate a statement’s reliability in order

for it to be admissible under this exception is the recognition that it is not

rare for friends, peers, and family members to go to extraordinary measures

to    help   an    accused    win      an     acquittal    or      avoid    a    jail     sentence.

Commonwealth v. Bracero, 528 A.2d 936, 941 (Pa. 1987) (plurality). Our

supreme court has reminded us that criminal cases often involve “witnesses”

who themselves are actively engaged in a criminal lifestyle and that “telling

a story” to help a friend or relative “beat the rap” is not an extraordinary

occurrence. Id.




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      When determining the reliability of a statement against interest, courts

evaluate any factors that bear upon the statement’s reliability, such as the

circumstances under which the declarant made the statements, including the

custodial/non-custodial nature of the setting and the listener’s identity; the

contents of the statement, including whether it minimizes the declarant’s

responsibility or spreads or shifts the blame; other possible motivations of

the declarant, including improper motive to lie, gain favor, or distort the

truth; the degree and nature of the “against interest” aspect of the

statements, including the extent to which the declarant apprehends that the

making of the statement is likely to actually subject him to criminal liability;

the circumstances or events that prompted the statements, including

whether the listener encouraged or requested that they be made; the timing

of the statement as related to the events described; the declarant’s

relationship to the defendant; and any other factors bearing upon the

statement’s reliability.   Robins, 812 A.2d at 525-526.      A statement that

exculpates a declarant’s accomplice lacks the safeguards of trustworthiness

attributed to a statement truly against interest. Colon, 846 A.2d at 757.

      Here, because the statement exculpates appellant, it lacks the

requisite indicia of reliability and would also be inadmissible for that reason.

Additionally, it is unreliable because it was allegedly made one week after

the commission of the crimes, which indicates that there was sufficient time

for reflection. Moreover, the statement was made by one co-defendant to



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another, and the two are also family members.       The criminal and familial

relationship between appellant and Smith, therefore, indicate a motive to lie.

      Finally, we note that appellant concedes that he was permitted to

introduce evidence that he first learned of the assault when Smith told him

about it approximately one week after it occurred. (Appellant’s brief at 7.)

He nevertheless contends that Smith’s out-of-court statement should have

been admissible “to further explain the circumstances of the statement made

by Jason Smith, as well as, the statement itself” and, without it, the jury

was only left with a “general statement.” (Id. at 7-8.) At sidebar and in his

brief, however, appellant not only failed to demonstrate how the statement

was against Smith’s penal interest, but he also failed to show any

corroborating circumstance to support its reliability.    Our review of the

record reveals none.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/16/2016




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