J. S08023/16 & J. S08024/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                                       :
                 v.                    :
                                       :
RONALD HUNTER,                         :
                                       :
                      Appellant        :      No. 1027 WDA 2015

               Appeal from the Order Dated June 11, 2015
             In the Court of Common Pleas of Fayette County
            Criminal Division No(s).: CP-26-CR-0000202-2015

COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                                       :
                 v.                    :
                                       :
RONALD HUNTER,                         :
                                       :
                      Appellant        :      No. 1332 WDA 2015

          Appeal from the Judgment of Sentence August 12, 2015
             In the Court of Common Pleas of Fayette County
            Criminal Division No(s).: CP-26-CR-0000202-2015

BEFORE: STABILE, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                             FILED MAY 4, 2016

     Appellant, Ronald Hunter, appeals from the judgment of sentence

entered in the Fayette County Court of Common Pleas following a jury trial

and conviction for Involuntary Deviate Sexual Intercourse by Forcible

Compulsion, Aggravated Indecent Assault without Consent, Aggravated
J. S08023/16 & J. S08024/16

Indecent Assault by Forcible Compulsion, Indecent Assault without Consent,

and Indecent Assault by Forcible Compulsion.1

      The    sexual   assault   allegedly   occurred   in   the   home   of   D.B.

(“Complainant”), so Complainant was the only witness to the assault.

Complainant, however, failed to appear at both the Preliminary Hearing and

the trial. The trial court, however, permitted two witnesses at trial to testify

about statements that Complainant made to them regarding the sexual

assault. We reverse this decision of the trial court and grant a new trial

because the testimony of the two witnesses regarding the Complainant’s

description of the sexual assault violated Appellant’s Sixth Amendment

rights.

                         Factual and Procedural History

      On November 4, 2014, the police charged Appellant with the above

crimes.2    The trial court held a preliminary hearing on February 17, 2015.

The victim failed to appear at the Preliminary Hearing, but the court held

Appellant over on the charges.




1
  18 Pa.C.S. § 3123(a)(1; 18 Pa.C.S. § 3125(a)(1); 18 Pa.C.S. §
3125(a)(2); 18 Pa.C.S. § 3126(a)(1); 18 Pa.C.S. § 3126(a)(2), respectively.
2
   Appellant was also charged with Aggravated Assault, 18 Pa.C.S. §
2702(a)(1), and Simple Assault, 18 Pa.C.S. § 2701(a)(1). The trial court
dismissed those charges at the close of the Commonwealth’s case in chief
after oral motion by Appellant’s counsel.




                                      -2-
J. S08023/16 & J. S08024/16

      The   parties   appeared   for   trial   on    June   1,   2015.   Since   the

Commonwealth predicted that Complainant would again not appear to

testify,3 the Commonwealth requested that the court permit the testimony of

two individuals to whom the victim made statements about the sexual

assault.

      In particular, the Commonwealth requested that the court permit

Michael Bittner, City of Uniontown police officer, and Ashley Stalnaker,

formerly an emergency room nurse at Uniontown Hospital, to testify about

statements that the victim made to them about the sexual assault.

      The Commonwealth argued that Complainant’s statement to Officer

Bittner was admissible as a present sense impression, an excited utterance,

and a statement of physical condition.              See Pa.R.E. 803(1-3).        The

Commonwealth similarly argued that Complainant’s statement to Nurse

Stalnaker was admissible because Complainant gave the statement for

purposes of medical treatment or diagnosis. See Pa.R.E. 803(4).

      Appellant’s counsel opposed the motion, arguing that testimony about

Complainant’s statements did not fall within an exception to the Hearsay

Rule. Appellant’s counsel further argued that the Sixth Amendment

precluded the witnesses from testifying about Complainant’s statements




3
 The record is devoid of any evidence as to the reason the prosecutor was
unable to secure the victim’s appearance at the Preliminary Hearing or trial.



                                       -3-
J. S08023/16 & J. S08024/16

because Appellant would not have the opportunity to confront and cross-

examine his accuser. See U.S. Const. amend. VI.; Pa. Const., Article I, § 9.

     The trial court deferred ruling on the Commonwealth’s Motion to Admit

the testimony of Bittner and Stalnaker until the Commonwealth presented it.

     Six witnesses testified at trial on behalf of the Commonwealth: Bittner;

Stalnaker; Jeremy Schult, City of Uniontown police officer; Michelle Barch, a

serology analyst at the State Police Greensburg Crime Lab; Beth Ann

Holsopple, a forensic DNA scientist at the Greensburg Crime Lab, specializing

in DNA analysis; and Complainant’s son.    As predicted, the prosecutor was

unable to secure Complainant’s attendance at trial.

     On the first day of the two-day trial, Officer Bittner testified to the

facts as follows. At 10:10 PM on October 10, 2014, Officer Bittner and his

patrol partner Officer Schult, were dispatched to Complainant’s apartment in

response to a 9-1-1 hang-up call.     N.T., 6/1/15, pp. 20-22.     The police

officers arrived approximately four minutes later, knocked on Complainant’s

closed door, and waited for a response.    Id. at 21. Receiving none, they

tried the doorknob, found it unlocked, and entered the apartment.         Id.

Officer Bittner testified that, upon entering Complainant’s apartment, he

observed Complainant and Appellant. Id.

     Officer Bittner testified, “[Appellant] was seated at a table straight to

the back of the apartment. And there was an elderly female in front of him

… who was on her knees with her hands on a chair. She had pajama tops on



                                    -4-
J. S08023/16 & J. S08024/16

but she was naked from the waist down.” Id. at 22. Officer Bittner testified

that Complainant’s breathing appeared “rapid,” and she seemed “upset over

something, worried.” Id. at 23-24.

     Officer Bittner testified that as soon as he opened Complainant’s

apartment door, he asked her what was going on and the reason for calling

the police. Id. at 24-25. Complainant answered him within 30 seconds or

one minute after he arrived. Id. at 26.

     Officer Bittner explained that he then helped Complainant off the floor

because she required assistance. Id. at 24-25. At that time, Officer Schult

took Appellant into the hallway while Officer Bittner spoke with Complainant

inside her apartment. Id. at 26. Officer Bittner testified that within two or

three minutes after the officers’ arrival at Complainant’s apartment, in

response to his questioning her, Complainant recounted to him what had

happened.     Id.   Specifically, Officer Bittner testified that he asked

Complainant, “[w]hat happened? Tell me what happened here.” Id. at 27.

     At this point in the trial, the Commonwealth sought to introduce the

statement Complainant made to Officer Bittner.      Id. at 28.    Appellant’s

counsel reasserted her objection to this testimony as hearsay, as an

impermissible violation of Appellant’s constitutional rights, and because the

Commonwealth had not developed the corpus delicti of the case. Id.




                                     -5-
J. S08023/16 & J. S08024/16

      After considering counsel’s objections, the trial court overruled them

and permitted Officer Bittner to testify about the contents of the statement

that Complainant made to him. Id. at 30-32.

      Officer Bittner testified that after he and Officer Schult separated

Complainant and Appellant, Complainant said, “he’s trying to rape me.” Id.

at 33-34.   According to Officer Bittner, the victim told him that her pants

were in her bedroom where Appellant had removed them from her. Id. at

34. Officer Bittner continued testifying about the victim’s statement:

         Specifically she stated that [Appellant] is a friend that
         came over to her apartment. She went into the bedroom
         to get a cigarette.     [Appellant] followed her into the
         bedroom and pushed her onto the bed. She stated that
         she told him to get off of her. He stated that he can do
         what he wants. They roll off of the bed during the struggle
         onto the floor.         [Appellant] landed on top of
         [Complainant]. She told me that [Appellant] took her
         pants off and began to give her oral sex. She said she was
         kicking him at the time and trying to get him off of her.
         She described that she found a large, or a shoe with a
         large heel on it under her bed and that she took that out
         and hit [Appellant] with it. She stated that eventually she
         had gotten him off of her where he proceeded to drag her
         towards the living room. She reported that she grabbed a
         knife from the kitchen area and threatened him with it and
         that [Appellant] took the knife off of her and threw it onto
         the floor in the hallway. She then stated that she picked
         up a large fork and threatened to gouge his eyes out with
         it.

Id. at 35-36.

      Officer   Bittner   testified   that   he   walked   around   Complainant’s

apartment to corroborate her statement and he saw pajama bottoms

matching the top she was wearing at the foot of the bed on the left side. Id.


                                        -6-
J. S08023/16 & J. S08024/16

He also reported seeing a two-pronged fork on the coffee table in the living

room, a steak knife on the floor in the hallway leading into the bedroom, and

a boot with a large heel close to the bottom of the bed. Id.

      Next, Officer Bittner testified that he arranged for Complainant to be

brought to the hospital and that he and Officer Schult assisted Complainant

in dressing. Id. at 40.

      On the second day of trial, Nurse Stalnaker testified.      Appellant’s

counsel objected to Nurse Stalnaker’s testimony on the same grounds as

Bittner’s testimony—namely that the portions of it relating to the victim’s

statement were hearsay and on Sixth Amendment grounds because

Appellant would not have the opportunity to confront and cross-examine his

accuser. Id. at 76-77, 88.

      The court overruled this objection and permitted Nurse Stalnaker to

testify, concluding that Nurse Stalnaker’s testimony constituted a statement

made for medical diagnosis or treatment. Id. at 77-79, 88; Pa.R.E. 803(4).

The trial court was specific in limiting Nurse Stalnaker’s testimony to “only

the statements the patient gave that deal with what occurred so that the

nurse may get a proper background for a medical diagnosis and for

treatment only.” N.T. at 88.

      Nurse Stalnaker testified that when Complainant originally presented

at the hospital she was distraught and anxious, but alert. Id. at 96. Nurse

Stalnaker further testified that she was the nurse who received and treated



                                    -7-
J. S08023/16 & J. S08024/16

Complainant at Uniontown Hospital on the morning of October 11, 2014, and

performed a sexual assault examination on Complainant. Id. at 85.

      Nurse Stalnaker indicated that the purpose of taking Complainant’s

statement as part of the exam was to assist her in treating and diagnosing

Complainant. Id. at 89. Reading from a copy of the sexual assault exam

report prepared by Nurse Stalnaker at the time she conducted the exam,

Nurse Stalnaker testified as follows:

         Patient states that the actor entered her apartment
         swearing at her. Patient states that the actor then passed
         her a joint and told her to smoke it. Patient states that
         she took one puff and told him she did not want it. Patient
         states that the actor told her the joint would make her feel
         good.

         The patient states that she told him she did not want it
         because she did not know what he put in it. The patient
         then states that she went into her bedroom to get a
         cigarette, and that the actor followed her and pushed her
         onto the bed. She states that she told him to get off of
         her. The patient states that the actor told her that he will
         do what he wants, in quotations.

         Patient states that they both rolled off of the bed and onto
         the floor. The actor then pulled the patient’s pajama
         bottoms and undergarments off. The patient states that
         the actor performed oral sex on her while she was kicking
         and hitting him. The patient states that he was trying to
         spread her legs and she continued kicking him.           The
         patient states the she told him she was going to call the
         police. The actor then got off of the patient and the
         patient called 9-1-1.

         . . . the patient stated that the offender held her hands
         and also restrained her body.

         I asked the patient whether or not she scratched the
         offender. Her response was yes. We also then asked what


                                        -8-
J. S08023/16 & J. S08024/16

          location this occurred, and she replied she scratched him
          on the face.

Id. at 89-92.

        Next Nurse Stalnaker testified that Complainant told her Appellant

licked her vagina and penetrated her vagina orally and digitally. Id. at 92.

She testified that Complainant denied that there was any ejaculation. Id.

Nurse    Stalnaker   testified   that   she   collected   forensic   evidence   from

Complainant and her clothing and placed it in an evidence kit for processing.

Id. at 93-94.

        Nurse Stalnaker recounted that Complainant was about to be

discharged from the hospital when Nurse Stalnaker observed Complainant

become “slightly wobbly and unsteady on her feet.” Id. at 96. She further

observed Complainant having weakness on her left side. Id. at 97. Nurse

Stalnaker concluded Complainant was having a stroke.             Id.   Complainant

was then transferred to another hospital by helicopter.4

        On cross-examination, Nurse Stalnaker testified that she did not

observe any signs of the kind of physical trauma often associated with

sexual assault when she examined Complainant. Id. at 102-103. She also

testified that she did not see any injuries on Complainant’s arms and that


4
   Complainant’s son testified that Complainant spent one month at
University of Pittsburgh Medical Center-Presbyterian followed by a little over
a month at a rehabilitation facility, before Complainant ultimately moved to
South Carolina to live with her daughter, where she remained as of the date
of the trial. N.T. at 112.



                                        -9-
J. S08023/16 & J. S08024/16

Complainant did not indicate that she had hit her head.       Id. at 101, 103.

Nurse Stalnaker reported Complainant tested positive for opiates and

marijuana, but not for alcohol. Id. at 104- 105.

      Officer Schult testified that Appellant told him that he went to

Complainant’s apartment because he believed there was a possibility that he

and Complainant might have sex that night, but that no sexual contact of

any kind took place.    Id.   at 118-119, 122.     Officer Schult testified that

Appellant stated that Complainant had fallen on her bedroom floor and he

had fallen on top of her. Id. at 119-121. Officer Schult also testified that he

believed Appellant and Complainant had been in a relationship at some

point. Id. at 122.

      With respect to forensic evidence, the Commonwealth’s witness

Holsopple testified that DNA found in saliva retrieved from Complainant’s

underwear and a DNA sample found under Complainant’s right hand

fingernail matched Appellant’s DNA. Id. at 133, 135. Barch, the serology

witness, testified that no seminal material was found on Complainant and

that tests for the presence of blood were inconclusive. Id. at 61, 68.

      At the close of the Commonwealth’s case, Appellant’s counsel made a

Motion for Judgment of Acquittal. The trial court granted the motion as to

the Aggravated Assault and Simple Assault charges, but denied the motion

as to the other charges. Id. at 151-154. Appellant did not testify at trial

and the defense did not put on any evidence.



                                    - 10 -
J. S08023/16 & J. S08024/16

        The jury convicted Appellant on June 2, 2015.          Following his

conviction, Appellant filed a Motion for Judgment of Acquittal in which he

reiterated the objections counsel had made on the record at trial to the

admission of testimony that he alleged violated his Sixth Amendment

protections. On June 11, 2015, the trial court denied the motion.

        On August 12, 2015, the court sentenced Appellant to a term of ten to

twenty years’ incarceration for the Involuntary Deviate Sexual Intercourse

by Forcible Corruption conviction,5 and ordered Appellant to register for life

under Pennsylvania’s Sexual Offender Registration and Notification Act.6 On

August 17, 2015, Appellant filed a timely Post-Sentence Motion, which the

court denied on August 20, 2015.        Appellant timely appealed7 and timely

filed a court-ordered Pa.R.A.P. 1925(b) statement.

                               Issues on Appeal

        Appellant raises the following issues:

           Was the evidence insufficient to sustain conviction based
           upon the testimony and evidence presented at trial by the
           Commonwealth and the Commonwealth failed to present
           testimony of victim, Dora Branch?

5
  The trial court accepted Appellant’s guilty verdicts on the other counts
without imposing a further penalty.
6
    42 Pa.C.S. § 9799.10, et seq.
7
  On July 6, 2015, Appellant filed a Notice of Appeal at No. 1027 WDA 2015
from the June 11, 2015 interlocutory order denying his Motion for Judgment
of Acquittal. We elect to consolidate sua sponte the appeals for purposes of
resolution.




                                      - 11 -
J. S08023/16 & J. S08024/16



         Did the lower court violate the Confrontation Clause of the
         Sixth Amendment by allowing hearsay testimony?


Appellant’s Brief at 8.

                               Legal Analysis

Sufficiency of the Evidence Challenge

      Appellant first challenges whether the Commonwealth presented

sufficient evidence for a jury to convict him of Involuntary Deviate Sexual

Intercourse by Forcible Compulsion, Aggravated Indecent Assault without

Consent, Aggravated Indecent Assault by Forcible Compulsion, Indecent

Assault without Consent, and Indecent Assault by Forcible Compulsion.

Specifically, Appellant complains that the Commonwealth did not present

any direct evidence to establish Appellant’s guilt, that the jury was confused

and could not have found Appellant guilty beyond a reasonable doubt, that

the testimony at trial was inconsistent and contradicted by the physical

evidence, and that the evidence was speculative and unreliable. Id. at 11,

13-15.

      In reviewing the sufficiency of the evidence, our standard of review is

as follows:

         The standard of review for a challenge to the sufficiency of
         the evidence is to determine whether, when viewed in a
         light most favorable to the verdict winner, the evidence at
         trial and all reasonable inferences therefrom is sufficient
         for the trier of fact to find that each element of the crimes
         charged is established beyond a reasonable doubt. The
         Commonwealth may sustain its burden of proving every


                                    - 12 -
J. S08023/16 & J. S08024/16

          element beyond a reasonable doubt by means of wholly
          circumstantial evidence.

          The facts and circumstances established by the
          Commonwealth need not preclude every possibility of
          innocence. Any doubt raised as to the accused's guilt is to
          be resolved by the fact-finder. As an appellate court, we
          do not assess credibility nor do we assign weight to any of
          the testimony of record. Therefore, we will not disturb the
          verdict 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.

Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)

(citations and quotations omitted).

      We have reviewed the record in this case and conclude that, in light of

the court’s evidentiary rulings, the jury as fact-finder had sufficient evidence

on which to base Appellant’s convictions. In conducting our review, we find

the   trial   court   ably   addressed    and     analyzed   Appellant’s   sufficiency

arguments in its Rule 1925(a) Opinion. See Trial Ct. Op., 9/14/15, at 8-11.

We therefore adopt the opinion as our own.

Sixth Amendment Challenge

      Appellant next challenges the trial court’s decision to admit the

testimony of Officer Bittner and Nurse Stalnaker over Appellant’s Sixth
                             8
Amendment objections.            Id. at 21, 28. We agree with Appellant that the


8
  To the extent that Appellant purports to challenge the trial court’s ruling
permitting Bittner and Stalnaker to testify to Complainant’s statements to
them over Appellant’s hearsay objections, we find this argument
undeveloped and, therefore, waived. See Pa.R.A.P. 2119(b), (c). Even if
they were not waived, our review indicates that testimony satisfies the



                                         - 13 -
J. S08023/16 & J. S08024/16

Sixth Amendment prohibits these witnesses from testifying about statements

Complainant made to them about the sexual assault and the trial court erred

as a matter of law in allowing these witnesses to testify about them.

      Because Appellant’s constitutional challenge raises a question of law,

our standard of review over the trial court’s admission of the contested

testimony   is de   novo   and our     scope   of review    is plenary.     See

Commonwealth v. Yohe, 39 A.3d 381, 384 (Pa. Super. 2012).

      The Sixth Amendment to the United States Constitution, made

applicable to the States via the Fourteenth Amendment, mandates that “[i]n

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

confronted with the witnesses against him.” U.S. Const. amend. VI.9

      The Supreme Court of the United States has interpreted the

Confrontation Clause to prohibit the admission of “testimonial” statements of

hearsay exceptions See Pa.R.E. 803(1-4). Moreover, “hearsay that is
offered against a defendant under an exception from the hearsay rule . . .
may sometimes be excluded because its admission would violate the
defendant’s right ‘to be confronted with the witnesses against him’ under the
Sixth Amendment of the United States Constitution, or ‘to be confronted
with the witnesses against him’ under the Article I, § 9 of the Pennsylvania
Constitution.” Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of
Evidence § 802.02 (2016 ed.).
9
  The Pennsylvania Constitution includes a right of confrontation. See Pa.
Const., Article I, § 9 (“in all criminal prosecutions the accused hath a right to
be heard by himself and his counsel [and] to be confronted with the
witnesses against him”). But, because Appellant does not argue that Article
I, section 9 provides him with greater protection than the Sixth Amendment,
we will treat the state and federal provisions as coextensive for purposes of
our review. See Commonwealth v. Kratsas, 764 A.2d 20, 27 n. 5 (Pa.
2001).



                                     - 14 -
J. S08023/16 & J. S08024/16

a witness who did not appear at trial unless the witness was unavailable and

the defendant had a prior opportunity to cross-examine the witness.

Crawford v. Washington, 541 U.S. 36, 68 (2004).             In contrast, the

Supreme Court has held that “non-testimonial statements are admissible,

however, regardless of whether the witness is available or was subjected to

cross-examination.”   See Davis v. Washington, 547 U.S. 813, 827-829

(2006).

      In 2006, the Supreme Court, in Davis v. Washington, 547 U.S. 813

(2006), provided guidance on the distinction between testimonial and non-

testimonial statements in the Confrontation Clause context.       The Davis

Court explained that, “[s]tatements are nontestimonial when made in the

course of police interrogation under circumstances objectively indicating that

the primary purpose of the interrogation is to enable police assistance to

meet an ongoing emergency.” Davis, 547 U.S. at 822.

      In contrast, statements are testimonial “when the circumstances

objectively indicate that there is no such ongoing emergency, and that the

primary purpose of the interrogation is to establish or prove past events

potentially relevant to later criminal prosecution.” Id.

      The U.S. Supreme Court in Davis addressed the factors a court should

consider when determining whether a statement a person made to a third

party is testimonial or non-testimonial. The Davis Court concluded that a




                                    - 15 -
J. S08023/16 & J. S08024/16

statement is more likely to be testimonial, and violative of a defendant’s

Sixth Amendment rights, when:

     1. the interrogation giving rise to the statement was designed

        primarily to establish a past fact;

     2. the alleged victim made the statement in an environment that was

        tranquil or safe;

     3. the alleged victim and perpetrator are not in proximity to each

        other;

     4. the victim gives the statement in the past tense in narrative form;

        and

     5. some time passes between the events described and the statement

        is made.

Id. at 827, 828-29, 831-32.

      Conversely, the Supreme Court concluded a statement is more likely

to be nontestimonial, and given to meet an ongoing emergency, when:

     1. it was given to describe current circumstances requiring police

        assistance;

     2. the environment was unsafe or chaotic;

     3. the alleged victim and perpetrator were in proximity to each other

        when the statement was made; and

     4. the statement was given in the present tense.




                                    - 16 -
J. S08023/16 & J. S08024/16

Id.   The Court drew a fine distinction between a circumstance where a

person gives a statement to determine either “what is happening”

(nontestimonial) and “what has happened” (testimonial). Id. at 830.

      Applying these principles, the Supreme Court in Davis concluded that

the alleged victim’s statements to a 9-1-1 operator was nontestimonial

because the alleged victim made it not to “establish or prove some past fact,

but to describe current circumstances requiring police assistance.”            Id. at

827. Furthermore, the alleged victim “was speaking about events as they

were actually happening, rather than describing some past event[ ]” and in

an environment that was not tranquil or safe. Id. at 827 (citation omitted,

emphasis in original).   The Court concluded that the victim was facing an

ongoing emergency and, “[a]lthough one might call 911 to provide a

narrative report of a crime absent any imminent danger, the alleged victim’s

call was plainly a call for help against a bona fide physical threat.” Id. at

827 (emphasis in original).

      In contrast, however, the Court concluded that other statements to the

police officers were testimonial because “[t]here was no emergency in

progress[ ]” and    “interrogation was conducted in a separate room, away

from her husband.” Id. at 829.

      In drawing a parallel to the declarant in Crawford, the Davis Court

concluded   that   the   statements   of   the   victims   in   both   cases    were

“testimonial” because “both declarants were actively separated from the



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J. S08023/16 & J. S08024/16

defendant.    Both statements deliberately recounted, in response to police

questioning, how potentially criminal past events began and progressed.”

Id. at 830.     When the police officers questioned the victim they were

seeking to determine not “what is happening, but rather, what happened.”

Id.   (quotation   marks   omitted).      The   Court   concluded   that   “[s]uch

statements under official interrogation are an obvious substitute for live

testimony because they do precisely what a witness does on direct

examination; they are inherently testimonial.” Id. (emphasis in original).

      In light of the framework provided to us by the Court in Davis, we

conclude that Complainant’s statements to Officer Bittner were testimonial in

nature.   The scene as described by Officer Bittner upon his arrival with

Officer Schult at Complainant’s home was tranquil. See generally, N.T. at

21-24. There is no indication that Officer Bittner perceived there to be an

ongoing emergency in progress as it was not immediately apparent that

Complainant was in danger.

      When Officer Bittner arrived at Complainant’s house, Complainant and

Appellant were calm enough that Officer Bittner was able to ask Complainant

and Appellant about the events that transpired and the reasons someone

called the police.   Id. at 24-25.     Additionally, Officer Bittner and Officer

Schult separated Complainant and Appellant before Officer Bittner began

interrogating Complainant about the events that had transpired. Id. at 26.




                                       - 18 -
J. S08023/16 & J. S08024/16

         More significantly, the statement that Complainant gave to Officer

Bittner was a narrative about past events, not a description of current

events requiring immediate police assistance. Officer Bittner testified that he

asked Complainant, “[w]hat happened? Tell me what happened here.” Id.

at 27.

         Moreover, Complainant’s statement, as testified to by Officer Bittner,

amounted to “an obvious substitute for live testimony” because it replicated

the testimony Complainant would have stated during direct examination if

she appeared at the trial, i.e. she described not “what is happening,” but

rather, “what happened.” Id.

         Therefore, the trial court violated Appellant’s Sixth Amendment to

confront Complainant when it permitted Officer Bittner’s testimony to testify

about Complainant’s narrative about the sexual assault.        See Crawford,

541 U.S. at 68.

         We note that the prosecutor presented no evidence and the trial court

made no finding about Complainant’s unavailability. Since we find that the

testimony that Officer Bittner made about Complainant’s statements were

“testimonial,” we do not need to analyze whether Complainant’s failure to

appear at trial met the standard for “unavailability.”10


10
  In his post-trial Motion for Judgment of Acquittal, post-sentence Motion for
Judgment of Acquittal, and appellate Brief, Appellant asserts that, “[t]he
Commonwealth has utterly failed to prove that the alleged victim actually
existed or was unavailable.” See Mot. for Judgment of Acquittal, 6/9/15, at



                                      - 19 -
J. S08023/16 & J. S08024/16

     For purposes of the Confrontation Clause analysis, we similarly

conclude that Complainant’s statements to Nurse Stalnaker were testimonial

in nature and the trial court should not have admitted them.          Nurse

Stalnaker’s testimony demonstrates that Complainant was narrating past

events in a quiet and safe environment, out of the presence of Appellant,

and after some time had elapsed since the alleged incident. Therefore, the

trial court violated Appellant’s Sixth Amendment right to confront the

witnesses against him when it permitted Nurse Stalnaker’s to testify about

Complainant’s statements to her. See Crawford, 541 U.S. at 68.

     Judgment     of   sentence   vacated.   Case   remanded   for   further

proceedings. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/4/2016




3 (unpaginated); Mot. for Judgment of Acquittal, 8/17/15, at 4
(unpaginated); Appellant’s Brief at 28. However, the trial court did not
develop a record with respect to Complainant’s unavailability and Appellant
did not raise this issue in his Rule 1925(b) statement. Accordingly we will
not address it here. Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth
v. Hill, 16 A.3d 484 (Pa. 2011) (any appellate issues not raised in a Rule
1925(b) statement are waived).



                                    - 20 -
                                                                     Circulated 04/06/2016 10:19 AM




              IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY,
                                PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA,                   : CRIMINAL ACTION

         v.

RONALD HUNTER,                                   : NO. 202 OF 2015

                 Defendant/ Appellant.

~~------------                                   : JUDGE JOSEPH l\tI. GEORGE, JR.

ATTORNEYS AND LAW FIRMS

Meghann Mikluscak, Esquire, Assistant District Attorney, For the Commonwealth

Mary Campbell Spegar, Esquire, Assistant Public Defender, For the Appellant


                                         OPINION
GEORGE, J.                                                      September 14, 2015

          Following a trial by jury, Appellant, Ronald Hunter, was found guilty of

Involuntary Deviate Sexual Intercourse          by Forcible Compulsion,1 Aggravated

Indecent Assault without Consent,2 Aggravated Indecent Assault by Forcible

Compulsion," Indecent Assault without Consent,4 and Indecent Assault by Forcible

Compulsion."         On August 12, 2015, Appellant was sentenced to a term of



1   18 Pa. C.S. § 3123(a)(l).

2   18 Pa. C.S. § 3125(a)(1).

3   18 Pa. C.S. § 3125(a)(2).

4   18 Pa. C.S. § 3126(a)(l).

s 18 Pa. C.S. § 3126(a)(2).

                                            1
                              . . ~.                              -~.

imprisonment for a period of not less than ten (10) years nor more than twenty (20)

years.     Moreover, Appellant was informed of his duty to register for life under

Pennsylvania's       Sexual Offender     Registration   and Notification Act (SORNA).6

Appellant filed a timely post-sentence motion and this Court denied same.             This

Opinion is in support of the jury verdict.

                                       CONCISE ISSUES

         Appellant filed the following Statement of Errors Complained of on Appeal:

      1. WAS THE EVIDENCE INSUFFICIENT TO SUSTAIN CONVICTION BASED
         UPON THE TESTIMONY AND EVIDENCE PRESENTED AT TRIAL BY
         THE COMNIONWEALTH AND THE COMMONWEALTH FAILED TO
         PRESENT TESTIMONY OF VICTIM, DORA BRANCH?

      2. DID THE LOWER COURT VIOLATE THE CONFRONTATION CLAUSE OF
         THE SIXTH AMENDMENT BY ALLOWING HEARSAY TESTIMONY?

                                           FACTS

          On October 10, 2014, Officer Bittner and Officer Schult of the Uniontown City

Police Department were dispatched to apartment 508 of Mount Vernon Towers in

Uniontown on a 9-1-1 hang-up call. (T.T. pp. 19-21, 116-117).           Upon arrival, the

officers knocked on the door and announced their presence. (T.T. pp. 21, 117). After

waiting "a little while" and hearing no noise coming from the apartment, the officers

noticed the door was unlocked. (T.T. pp. 21, 117).

          Officers Bittner and Schult entered the apartment and observed Appellant

sitting at a round table to the back of the apartment.     (T.T. pp. 22, 117-118). In front

of Appellant was Dora Branch, a seventy-six year old woman. She was on her knees


6   42 Pa. C.S. § 9799.10 et seq.


                                               2
with her hands on a chair and naked from the waist down. (T.T. pp. 22, 118). Officer

Bittner asked what was going on; neither Appellant nor Branch answered. (T.T. pp.

25, 120-121). At that time, the officers thought it was best to separate the two parties.

Officer Schult escorted Appellant out into the hallway and Officer Bittner stayed

inside the apartment with Branch. (T.T. pp. 26, 118).

      Officer Bittner knelt down and asked Branch what happened.                  Branch

responded that Appellant was trying to rape her. (T.T. p. 33). Officer Bittner assisted

Branch in moving to the couch. (T.T. pp. 25-26). At that time, Branch explained what

happened, which Officer Bittner testified to at trial as follows:

             [SJhe stated that [Appellant was] a friend that came over
             to her apartment. She went into the bedroom to get a
             cigarette. [Appellant] followed her into the bedroom and
             pushed her onto the bed. She stated that she told him to
             get off of her. He stated he can do what he wants. They
             roll off of the bed during the struggle onto the floor.
             [Appellant] landed on top of Miss Branch. She told me that
             [Appellant] took her pants off and began to give her oral
             sex. She said she was kicking him at the time and trying
             to get him off of her. She described that she found a large,
             or a shoe with a large heel on it under her bed and that she
             took that out and hit [Appellant] with it. She stated that
             eventually she had gotten him off of her where he
             proceeded to drag her towards the living room. She
             reported that she grabbed a knife from the kitchen area
             and threatened him with it, and that [Appellant] took the
             knife off of her and threw it onto the floor in the hallway.
             She then stated that she picked up a large fork and
             threated to gouge his eyes with it. She stated at that point
             she was able to get to the phone and dial 9-1-1 which is
             when we were dispatched.

(T.T. pp. 35-36).




                                            3
      After this brief discussion with Branch, Officer Bittner noticed a boot with a

large heel and Branch's pajama bottoms at the foot of the bed and a steak knife on

the floor in the hallway leading into the bedroom. (T.T. p. 37).

      At the same time that Officer Bittner assisted Branch, Officer Schult spoke

with Appellant. Appellant told Officer Schult that he anticipated he was going to

have sex with Branch that night but that nothing happened. (T.T. pp. 118-119). He

did say that Branch rolled off the bed and he fell on top of Branch. (T.T. pp. 119-120).

However, he said that he did not have any sexual contact with Branch. (T.T. p. 119).

      Officer Bittner contacted EMS to transport Branch to Uniontown Hospital to

seek further treatment.   (T.T. p. 40). Once she arrived at the hospital, Branch was

physically distraught and anxious, yet alert. (T.T. p. 96). She was treated by Ashley

Stalnaker, an Emergency Room Nurse.            As part of determining treatment     and

diagnosis, Ms. Stalnaker conducted a sexual assault examination of Branch. Branch

gave Ms. Stalnaker a statement, which Ms. Stalnaker testified to at trial as follows:

             Patient states that the actor entered her apartment
             swearing at her. Patient states that the actor then passed
             her a joint and told her to smoke it. Patient states that she
             took one puff and told him she did not want it. Patient
             states that the actor told her the joint would make her feel
             good.

             The patient states that she told him she did not want the
             joint because she did not know what he put in it. The
             patient then states that she went into her bedroom to get a
             cigarette, and that the actor followed her and pushed her
             onto the bed. She states that she told him to get off of her.
             The patient states that the actor told her that he will do
             what he wants, in quotations.




                                           4
                                                                 -~   -.




                Patient states that they both rolled off of the bed and onto
                the floor. The actor then pulled the patient's pajama
                bottoms and undergarments off. The patient states that
                the actor performed oral sex on her while she was kicking
                and hitting him. The patient states that he was trying to
                spread her legs and she continued kicking him. The
                patient states that she told him she was going to call the
                police. The actor then got off of the patient and the patient
                called 9-1-1.

(T.T. pp. 90-91). Branch also told Ms. Stalnaker that there was oral contact, licking

of her vagina, and vaginal penetration by the actor's fingers and tongue. (T.T. p. 92).

          Ms. Stalnaker   also collected items for the sexual assault         kit, including

Branch's clothing, fingernail clippings, scrapings under each fingernail, hairs from

Branch's head and pubic area, as well as vagina, rectal, and mouth swabs. (T.T. pp.

93-94).

          Later, Branch became physically weak, appearing wobbly and unsteady on her

feet. (T.T. p. 96). She needed a wheelchair to get her from her bed to the restroom.

(T.T. p. 97). Within forty minutes after using the restroom, Ms. Stalnaker went to

Branch's room. (T.T. p. 97). With the intent to discharge Branch, Ms. Stalnaker

checked Branch's vital signs. (T.T. p. 97). Ms, Stalnaker noticed weakness on the

left side of Branch's body, including Branch's inability to lift her left arm. (T.T. pp.

97-98). This unilateral      weakness indicated to Ms. Stalnaker           that Branch was

possibly having a stroke. (T.T. pp. 97-98).

          After sharing her observations with the Dr. Briggs, the attending physician,

he and Ms. Stalnaker did a full neurological exam on Branch and she was taken for

a CT exam. (T.T. pp. 98-99). Once the CT test was completed, Ms. Stalnaker placed



                                              5
                            --":   -,




the patient on a cardiac monitor, placed her on oxygen, inserted an IV, and drew blood

as part of the hospital's stroke protocol. (T.T. p. 99). Finally, when the results of the

CT scan came back, Branch was transferred from Uniontown Hospital to UPMC-

Presbyterian by Stat Medevac, a medical helicopter, at approximately               5:30 a.m.7

(T.T. pp. 95, 99).

       The items collected by Ms. Stalnaker, as well as a buccal swab from Appellant,

were sent to the State Police Greensburg Crime Lab. The items were first assigned

to Michelle Barch, a serologist with the Greensburg Crime Lab who was recognized

at trial as an expert in the field of serology."         (T.T. pp. 57-58).     The serology

department did not test DNA; rather, it prepared the samples that were then

forwarded to the DNA laboratory. (T.T. p. 60). Ms. Barch concluded that no seminal

fluid was detected in the vaginal, rectal, and oral samples nor on Branch's underwear

or bra. (T.T. pp. 61-63). No serology testing was done on the fingernail clippings and

scrapings because there was no indication of any seminal material or saliva on

Branch's hands. (T.T. p. 63). Finally, the pubic and head hair combings were not

suitable for DNA testing because there was no root on the hair. (T.T. p. 64).

       After the serology testing, the items were sent to the DNA Laboratory, where

Beth Ann Holsopple, recognized at trial as an expert in DNA analysis, conducted the




7 Branch spent approximately one month at UPMC-Presbyterian. She then went to a
rehabilitation center for another month. After that, she moved to South Carolina where she
currently resides with her daughter. (T.T. pp.112-113).

s Serology is the detection and identification of bodily fluids which include blood, semen,
saliva, urine, and feces, as well as hair identification and bloodstain pattern analysis. (T.T.
p. 55).

                                              6
                         ..............




DNA analysis.    (T.T. p. 130). Ms. Holsopple's analysis concluded that the sample

from Branch's underwear had the DNA of two individuals on it, Branch and

Appellant. (T.T. p. 133). While there was too little DNA to make a determination on

the left hand fingernails and scrapings, the samples from the right hand indicated a

match of Branch and Appellant's DNA. (T.T. pp. 134-135).

       Branch did not appear at any criminal proceedings, including the trial.

However, this Court allowed Officer Bittner and Ms. Stalnaker to testify about the

statements made to them by Branch over Appellant's objections. On Tuesday June

2nd, 2015, Appellant was found guilty. On June 9, 2015, Appellant filed a written

motion for judgment of acquittal. Said motion was denied on June 11th, 2015. On

July 6th, 2015, Appellant appealed this Court's Order denying said motion at 1027

WDA 2015. This Court issued a Statement in Lieu of Opinion on July 14th, 2015,

respectfully requesting the Superior Court to deny the appeal for being premature

since Appellant was not sentenced.          On August 12, 2015, Appellant was sentenced

on Count 1, IDSI by Forcible Compulsion to a term of imprisonment for a period of

not less than ten (10) years nor more than twenty (20) years.         On the remaining

Counts, this Court accepted Appellant's guilty verdicts without imposing a further

penalty.   On August 28, 2015, Appellant appealed from the judgment of sentence

entered by this Court at 1332 WDA 2015.

                                          DISCUSSION

      Appellant's first concise issue is whether the evidence presented at trial by the

Commonwealth established sufficient evidence to sustain Appellant's guilty verdicts.



                                               7
             The standard of review for a challenge to the sufficiency of
             the evidence is to determine whether, when viewed in a
             light most favorable to the verdict winner, the evidence at
             trial and all reasonable inferences therefrom is sufficient
             for the trier of fact to find that each element of the crimes
             charged is established beyond a reasonable doubt. The
             Commonwealth may sustain its burden of proving every
             element beyond a reasonable doubt by means of wholly
             circumstantial evidence.

             The   facts   and     circumstances       established   by   the
             Commonwealth        need   not preclude    every   possibility of
             innocence. Any doubt raised as to the accused's guilt is to
             be resolved by the fact-finder. [In this context, Courts} do
             not assess credibility nor ... assign weight to any of the
             testimony of record. Therefore, we will not disturb the
             verdict unless the evidence is so weak and inconclusive
             that as a matter oflaw no probability of fact may be drawn
             from the combined circumstances.

Comrnonusealtli v. Vogelsang, 90 A.3d 717, 719 (Pa. Super. 2014).

      First, Appellant was found guilty ofIDSI by Forcible Compulsion. One is guilty

of this offense if the Commonwealth establishes beyond a reasonable doubt that

deviate sexual intercourse took place by forcible compulsion. 18 Pa. C.S. § 3123(a)(l).

Deviate sexual intercourse is defined as sexual intercourse per os or per anus between

human beings, including penetration however slight. 18 Pa. C.S. § 3101. ·'In order

to establish penetration, some oral contact is required.          Moreover, a person can

penetrate by use of the mouth or the tongue." Commonwealth v. Wilson, 825 A.2d

710, 714 (Pa. Super. 2003).

      Branch told Officer Bittner that Appellant "took her pants off and began to give

her oral sex." (T.T. pp. 35-36). She also told the attending nurse, Ms. Stalnaker, that

there was "oral contact," "licking of her vagina," and vaginal penetration by "fingers



                                             8
and tongue." (T.T. p. 92). These statements made by Branch are enough to establish

that deviate sexual intercourse took place.

      The Commonwealth also provided sufficient evidence that Appellant was the

individual who performed oral sex on her. Along with statements to Officer Bittner

that Appellant performed oral sex on Branch, Ms. Stalnaker conducted a sexual

assault exam. The exam included a collection of items, including Branch's clothing,

clippings of her fingernails, scrapings under each fingernail, as well as hairs from

Branch's head and pubic area. These items were sent to the Forensic DNA Division

of the Greensburg Laboratory. The items were tested for DNA matching by Ms.

Holsopple. Her testimony concluded that evidence of Appellant's DNA was found on

Branch's underwear as well as the clippings of Branch's right hand fingernails.

      Finally, the Commonwealth proved beyond a reasonable doubt the element of

forcible compulsion. In order to prove forcible compulsion, the Commonwealth is

"required to establish beyond a reasonable doubt that Appellant used either physical

force, a threat of physical force, or psychological coercion..." Commonwealth     v.

Brown, 556 Pa. 131, 136, 727 A.2d 541, 544 (1999). Here, physical force was

established by Officer Bittner's testimony. Officer Bittner indicated there was a

struggle between Branch and the victim. Specifically,Appellant pushed Branch onto

a bed, at which time they rolled off onto the floor where Appellant landed on top of

Branch. Appellant also removed Branch's pants and underwear and dragged her

from the bedroom towards the living room. While this was happening, Branch was

kicking and finding objects in the apartment to hit Appellant with to get him off of


                                          9
                         -~                                    _,,
                                                                     ,,.




her. Branch also reiterated to Ms. Stalnaker that a struggle took place. Therefore,

sufficient evidence was provided by the Commonwealth to prove beyond a reasonable

doubt Appellant's conviction of IDSI by Forcible Compulsion.

      Appellant was also convicted of Aggravated Indecent Assault without Consent

and Aggravated Indecent Assault by Forcible Compulsion. The Commonwealth thus

had to provide sufficient evidence that Appellant engaged in penetration, however

slight, of the genitals or anus of Branch without her consent and by forcible

compulsion.    Sufficient evidence provided by the Commonwealth            included:   (1)

Branch's statement to Officer Bittner that she told him to get off of her, indicating

lack of consent; (2) Branch's statement to Ms. Stalnaker that there was penetration

by fingers and tongue; (3) Branch's statement that Appellant took her pants and

underwear off of her and dragged her, indicating force; and (4) Ms. Holsopple's

testimony explaining her report that Appellant's DNA was found on Branch's

underwear and right hand fingernails.

      This evidence was also enough to establish beyond a reasonable doubt that

Appellant was guilty of Indecent Assault without Consent and Indecent Assault by

Forcible Compulsion.

              A person is guilty of indecent assault if the person has
              indecent contact with the complainant, causes the
              complainant to have indecent contact with the person or
              intentionally causes the complainant to come into contact
              with seminal fluid, urine or feces for the purpose of
              arousing sexual desire in the person or the complainant
              and:

                 (1) the person does so without the complainant's
                    consent;

                                          10
                    (2) the person does so by forcible compulsion

18 Pa. C.S. 3126(a)(l),(2). Indecent contact includes "[a]ny touching of the sexual or

other intimate parts of the person for the purpose of arousing or gratifying sexual

desire, in any person."       18 Pa. C.S. § 3101. As mentioned above, evidence was

presented that there was vaginal penetration without Branch's consent and by

forcible compulsion. Furthermore, Appellant told Officer Schult that there was a

possibility that he and Branch would have sex that night, thus providing a reasonable

inference that he performed oral sex for the purpose of arousing or gratifying sexual

desire.     Therefore, the Commonwealth provided sufficient evidence to sustain the

guilty verdicts against Appellant.

          Appellant's final concise issue is whether the Court violated the Confrontation

Clause of the Sixth Amendment by allowing into evidence hearsay testimony. This

issue relates to the admission of evidence at trial and the standard of review is as

such:

                The admissibility of evidence is solely within the discretion
                of the trial court, and a trial court's evidentiary rulings will
                be reversed on appeal only upon abuse of discretion. An
                abuse of discretion will not be found merely because an
                appellate court might have reached a different conclusion,
                but requires a result of manifest unreasonableness, or
                partiality, prejudice, bias, or ill-will, or such lack of support
                so as to be clearly erroneous. Moreover, an erroneous
                ruling by a trial court on an evidentiary issue does not
                necessitate relief where the error was harmless beyond a
                reasonable doubt.




                                               11
Commonuieoltli   v. Travaglia,   611 Pa. 481, 28 A.3d 868, 873-74 (2011) (citation

omitted). Appellant asserts the Court erred by allowing Officer Bittner and Ms.

Stalnaker to testify about statements made to them by Branch.

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

asserted. Pa. R.E. 801(c). While hearsay statements generally do not come into

evidence due to lack of trustworthiness, certain exceptions allow for admissibility

based on the inherent reliability of the statements.

      At trial, Branch's statement to OfficerBittner was admitted under the excited

utterance exception. This exception applies when the declarant, while under the

stress of excitement, makes a statement relating to a startling event. Pa. R.E. 803(2).

The statement must be:

             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 had 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.

Commonwealth v. Stohes, 532 Pa. 242, 258, 615 A.2d 704, 712 (1992). There exists

no bright line rule on how much time may elapse from the time of the declarant's

experience and her statement. Commonwealth v. Carmody, 799 A.2d 143, 147 (Pa.

Super. 2002). However,regardless of time, the main question is whether the nervous

excitement continued to dominate without giving the declarant the ability to reflect

on the event. Commonwealth v. Gore, 396 A.2d 1302, 1305 (Pa. Super. 1978).


                                          12
      Here, Officer Bittner was dispatched at 10:00 pm and arrived on scene four

minutes later. When he entered the apartment, he saw Branch on her knees, without

any pants or underwear on, and with Appellant sitting at a table directly behind her.

About two minutes after he arrived, Officer Bittner obtained a statement from

Branch that Appellant pulled her pants down and started to perform oral sex on her,

prompting her to fend off Appellant and call 9-1-1 for help.

      This statement was made very close in time to the incident, at the scene of the

incident, and in close proximity to Appellant. Although the statement was made in

response to police questioning, this fact alone does not preclude the statement from

being spontaneous. Commonwealth v. Farrior, 458 A.2d 1356, 1359 (Pa. Super. 1983).

It is reasonable that with the surrounding circumstances, Branch was still under the

stress of excitement when she made the statement to Officer Bittner. Thus, the

statement met the standard of the excited utterance exception.

      Appellant also argued that even if the statement was deemed admissible under

a hearsay exception, allowing the statement to come into evidence violated his

constitutional right to confront his accuser. The Supreme Court of the United States

adopted a standard under the Confrontation Clause of the Sixth Amendment which

prohibits the admission of testimonial statements of a witness who did not appear at

trial unless: (1) the witness was unavailable; and (2) the defendant had a prior

opportunity to cross examine the witness. Crawford v. Washington, 541 U.S. 36

(2004). There is no doubt that Branch was unavailable at trial and Appellant had no

prior opportunity to cross-examine Branch. Therefore, the issue is whether the


                                          13
                          --
statement to Officer Bittner was nontestimonial and thus admissible at trial. The

Supreme Court defined the meaning of testimonial statements as such:

             Statements are nontestimonial when made in the course of
             police interrogation under circumstances objectively
             indicating that the primary purpose of the interrogation is
             to enable police assistance to meet an ongoing emergency.
             They are testimonial when the circumstances objectively
             indicate that there is no such ongoing emergency, and that
             the primary purpose of the interrogation is to establish or
             prove past events potentially relevant to later criminal
             prosecution.

Davis v. Washington, 547 U.S. 813, 822 (2006).

      In order to determine the primary purpose of the interrogation, the court must

"objectively evaluate the circumstances in which the encounter occurs and the

statements and actions of the parties." Michigan v. Bryant, 562 U.S. 344, 359 (2011).

"That is, the relevant inquiry is not the subjective or actual purpose of the individuals

involved in a particular       encounter, but rather    the purpose that reasonable

participants would have had ... " Bryant, 562 U.S. at 360. Lastly, an objective analysis

requires the Court to look at the situation in the eyes of the interrogator and the

declarant at the time the statements were given.

             The existence of an ongoing emergency must be objectively
             assessed from the perspective of the parties to the
             interrogation at the time, not with the benefit of hindsight.
             If the information the parties knew at the time of the
             encounter would lead a reasonable person to believe that
             there was an emergency, even if that belief was later
             proved incorrect, that is sufficient for the purposes of the
             Confrontation Clause.

Bryant, 562 U.S. at 361 n.8.



                                           14
      Looking at the circumstances at the time the statement was given by Branch

to Officer Bittner, evaluated objectively,the statement was given for the primary

purpose of meeting an ongoing emergency. OfficerBittner and Officer Schult were

dispatched to Branch's apartment on a 9-1-1hang up call. Thus, prior to arriving at

the apartment, the officerswere unaware of the type of situation they were heading

into and the condition of the parties. After Officers Bittner and Schult knocked on

the door and announced they were police, they received no response. At this point,

there was concern on the part of the policethat no one was answering the door after

receiving a 9-1-1 hang-up call from the apartment, as shown by Officer Schult's

testimony. Rather than knocking again, the officers entered the apartment after

determining the door was unlocked.

      Getting their first observation of the situation, Officers Bittner and Schult

noticed Branch naked from the waist down on her knees with Appellant sitting at a

table behind her. Within two minutes on scene, OfficerSchult escorted Appellant out

of the apartment while OfficerBittner assisted Branch from the floor to the couch. It

was at this point that Branch made a statement to OfficerBittner.

      It was not until after Branch made a statement to the police that they were

aware of the circumstances surrounding the incident. In Davis, the Supreme Court

held the statement produced in that case was nontestimonial because instead of

describingpast events, the victim's statement was about events as they were actually

happening. Davis, 547 U.S. at 827. However,the fact that Branch made statements

about what happened minutes before the police arrived does not in and of itself


                                         15
indicate a lack of an emergency situation. More often than not, in order for the police

to effectively respond to and resolve an ongoing emergency, they have to know what

happened. See Bryant, 562 U.S. at 376 (the questions the police asked - what had

happened, who had shot him, and where the shooting occurred- were the exact type

of questions necessary to enable them to meet an ongoing emergency).

      As such, Officer Bittner's "interrogation" of Branch several minutes after the

incident occurred was not for the primary purpose of proving past events. When

looking at all the facts surrounding the events that occurred, Officer Bittner did not

interrogate Branch to create a record for trial. Officer Bittner went into the situation

blind. He did not know what he was responding to, he did not know who the assailant

was, he did not know what, if any weapon was used, and he did not know whether

Branch needed immediate medical attention.        The only way for him to know the

answers to those questions and how and what to do next to effectively respond to the

situation was to surely ask the questions.

      Furthermore, "it is in the final analysis the declarant's statements, not the

interrogator's questions, that the Confrontation requires us to evaluate." Davis, 547

U.S. at 822 n.1. Branch did respond to questions asked by Officer Bittner and her

answers explained past events. Nevertheless, it is reasonable to believe that Branch

answered Officer Bittner not for the purpose of the statement to be used at a later

criminal proceeding, but rather to assist her in seeking aid, comfort and immediate

medical attention.




                                             16
      At the time of the incident, Branch was seventy-six years old. When Officer

Bittner entered the apartment, Branch was neither wearing pants nor underwear.

She was unable to stand on her own and required assistance in getting up off the floor

and onto the couch. Officer Bittner also testified that Branch was breathing rapidly.

Looking at the situation from the perspective of Branch at the time the statement

was made, it is entirely reasonable to believe that Branch was not contemplating that

her statements might later be used against Appellant in a criminal prosecution.

      Moreover, the formality of the encounter between Branch and Officer Bittner

also suggests the statement was not sought for later criminal proceedings. While this

is not the key factor in the primary purpose inquiry, it is an important factor.

Comrnonuiealth. v. Allshouse,   614 Pa. 229, 249, 36 A.3d 163, 175 (2012).         The

encounter was made a short time after the incident, at the scene of the incident, with

Appellant standing right outside the apartment. This informality was to address

what was perceived to be an ongoing emergency. Therefore, Officer Bittner's

testimony regarding Branch's statement did not violate the Confrontation Clause.

      This Court also took into consideration Commonwealth v. Burrus, 631 EDA

2013, unpublished memorandum (PA. Super. December 11, 2014).            In Burrus, the

trial court allowed into evidence the testimony of a police officer regarding a victim's

statements moments after he was shot under the excited utterance exception.

Similarly to the Appellant in this case, Burrus argued that the victim's declaration

to the police was a testimonial statement made in violation of the Confrontation

Clause. The Superior Court, citing Michigan v. Bryant, affirmed the decision of the


                                          17
trial court and held that the statement was not testimonial within the meaning of the

Confrontation Clause, but rather was an informal exchange where the police obtained

basic information about the shooting, the location and identity of the shooter.

Therefore, as in Burrus, the Confrontation Clause is not implicated in this matter.

      Next, Appellant argues the statement given by Branch to Ms. Stalnaker should

have also been inadmissible.      The statement was admitted under the medical

diagnosis or treatment hearsay exception. This exception exists when the statement:

             (A) is made for - and is reasonably pertinent to - medical
                 treatment or diagnosis in contemplation of treatment;
                 and

             (B) describes medical history, past of present symptoms,
                 pain, or sensations, or the inception or general
                 character of the cause or external source thereof, insofar
                 as reasonably pertinent to treatment, or diagnosis in
                 contemplation of treatment.

Pa. R.E. 803(4). Essentially, the statement must be necessary and proper for the

purpose of receiving medical treatment.    Commonwealth v. Smith, 545 Pa. 487, 493,

681 A.2d 1288, 1291 (1996). Such statements are admissible because a person who

finds herself in need of medical treatment is presumed to give a reliable statement.

This exception is limited to statements that are relevant for medical diagnosis and

treatment.   Therefore, statements     that indicate who caused the injuries are

irrelevant and impermissible. Smith, 545 Pa at 495, 681 A.2d at 1292.

      Ms. Stalnaker was the treating nurse of Branch, maintained care of her while

she was a patient at Uniontown Hospital, and performed the sexual assault exam.

She used words such as 'actor' or 'individual' instead of making any reference to



                                          18
                                                             .   ....,..



Appellant. Ms. Stalnaker's testimony included Branch's admission that she took one

puff of marijuana, prompting Appellant to object. Nevertheless, that statement was

admitted as medically relevant since Ms. Stalnaker testified that taking illegal

substances can affect the nature of treatment.

      Additional testimony by Ms. Stalnaker revealed how Branch sustained her

injuries. The testimony showed Branch stated that: (1) she was pushed onto a bed

and then rolled off onto the floor; (2) her pajama bottoms and undergarments were

pulled off of her; (3) oral sex was performed on her while she was kicking and hitting

him; and (4) there was oral contact, including licking of her vagina and vaginal

penetration by his fingers and tongue. (T.T. pp. 91-92). These statements were

medicallyrelevant for Ms. Stalnaker in treating Branch since an altercation between

her and Appellant took place. Events surrounding an injury may be important for

medical treatment or diagnosis. Commonwealth v. Vining, 744 A.2d 310, 319 (Pa.

Super. 1999); Commonwealth v. Finh, 791 A.2d 1235, 1246 (Pa. Super. 2002).

Therefore, Ms. Stalnaker's testimony regarding Branch's statements met the medical

diagnosis or treatment exceptionto hearsay.

      Appellant also asserts Branch's statement to Ms. Stalnaker violated his rights

under the Confrontation Clause. Issues regarding the Confrontation Clause and

statements made to medical providers have not been nearly as discussed as

statements made to law enforcement personnel. Crawford and its progeny have

heavily focused on interactions with the police. The difference regarding medical

providers is that often times statements made between a medical provider


                                         19
("interrogator) and a patient ("declarant") are neither for the purpose of meeting an

ongoing emergency nor for the purpose of establishing past facts that may be later

used at a criminal proceeding. Rather, these statements are made for the primary

purpose of treating the patient.

      Nevertheless, still keeping in mind the standard set by the Supreme Court on

a Confrontation Clause analysis, we must determine whether the primary purpose of

the statement was to meet an ongoing emergency or to establish past events that may

later be used at a criminal proceeding. "The victim's medical state also provides

important context for first responders to judge the existence and magnitude of a

continuing threat to the victim ... " Bryant, 562 U.S. at 365. Once Branch arrived at

the hospital, Ms. Stalnaker maintained care of her and was the lead nurse of the

sexual assault exam. While one role of a sexual assault nurse examiner may be to

collect evidence, the primary goal is to treat the patient.      Thus, Ms. Stalnaker's

questioning of Branch was not solely for the purpose of collecting evidence, but mainly

for treating the patient.   See State u. Stahl, 111 Ohio St.3d 186, 855 N.E.2d 834

(statements made by a rape victim to a nurse during an emergency-room examination

at the unit of hospital     specializing in treating   sexual assault    victims were

nontestimonial since the unit's prosecutorial function by collecting evidence was

secondary to its primary motivation, which was care of its patients).

      However, as mentioned above, the standard requires the trial court to make a

final determination on the basis of the declarant's statement.    An objective analysis

would require this Court to determine whether Branch's primary purpose of giving



                                          20
                                                               ......




the statement to medical personnel, specifically Ms. Stalnaker, was to establish past

events. After careful consideration, it is reasonable to conclude that Branch's primary

purpose of giving her statement to Ms. Stalnaker was to seek treatment.

      Ms. Stalnaker testified that Branch was physically distraught and anxious

when she arrived at the hospital. The assault took place only a couple hours prior to

arriving at the hospital. Additionally, as the night progressed, Branch's symptoms

worsened, including weakness on the left side of her body to the point where she was

unable to lift her left arm.   After further testing, Branch was transported from

Uniontown Hospital to UPMC-Presbyterian via Stat Medevac, a medical helicopter.

Taking all of these circumstances into consideration, there is nothing in the record to

establish that a reasonable person in Branch's position would believe that Ms.

.Stalnaker's primary role was an agent of the state in aiding a criminal prosecution.

See State v. Stahl, 111 Ohio St.3d 186, 855 N.E.2d 834 (statements made by a rape

victim to a nurse during an emergency-room examination at the unit of hospital

specializing in treating sexual assault victims were not rendered testimonial for

purposes of Confrontation Clause as nothing established that a reasonable person in

victim's position would have believed that the unit served primarily as a prosecutorial

function). Therefore, Ms. Stalnaker's testimony regarding Branch's statement did

not violate the Confrontation Clause.




                                          21
                                              _.,
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             Wherefore, it is respectfully submitted that this appeal is without merit and

     should be denied.




     ATTEST:



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