J-S24030-20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
PATRICK SCOTT MONGEAU                    :
                                         :
                     Appellant           :   No. 134 EDA 2020

          Appeal from the PCRA Order Entered December 19, 2019
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0006068-2013

BEFORE:    BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

CONCURRING MEMORANDUM BY STRASSBURGER, J.:
                                     FILED AUGUST 11, 2020

      I join the Majority’s opinion except the portion where it rules the PCRA

court did not abuse its discretion in finding Appellant did not prove the

merits of his ineffective-assistance-of-counsel claim because portions of the

testimony of Officer Thomas Lundquist was admitted to explain the police

investigation.    I disagree, and I write separately to express my discontent

with the way the police course-of-conduct rationale has swallowed the

hearsay rule.     However, I agree that the alternative reason to admit the

evidence was permissible – i.e., to show consistency with the victim’s

statements and the injuries observed by Officer Lundquist.

      In the instant case, Officer Lundquist described statements the victim

made to him when he responded to a call of a domestic in progress.

Appellant objected to the testimony as hearsay, but the trial court overruled


*Retired Senior Judge assigned to the Superior Court.
J-S24030-20

the objection.    Officer Lundquist then testified to victim’s account of what

had transpired between her and Appellant, including her accusation that

Appellant had grabbed her by the neck and threw her to the ground. The

trial court permitted this testimony, explaining that the Commonwealth did

not admit the testimony for the truth of the matter asserted (i.e., that

Appellant grabbed her by the neck and threw her to the ground), but instead

“to establish consistency between the victim’s account and her physical

condition and to explain the steps Officer Lundquist took to investigate the

complaint.” Trial Court Opinion, 2/24/2010, at 7 (citing Pa.R.E. 801(c)(2)).

The trial court defended its decision simply by noting that out-of-court

statements are admitted routinely to explain the course of police conduct

and to show the information upon which police acted.              Id. (citing

Commonwealth v. Weiss, 81 A.3d 767, 606 (2013)).              Without further

analysis, the Majority agrees. Majority Memorandum at 7.

      The trial court is correct that courts routinely admit out-of-court

statements to explain police conduct, but that in of itself is not reason to

admit such statements without further analysis.         In every case police

conduct an investigation, which leads law enforcement to conclude that the

defendant is the culpable actor.      In most cases, how law enforcement

arrived at the conclusion is not relevant; what is relevant is the body of

evidence they ultimately gathered to prove the conclusion. See Anne Bowen

Poulin,   The    Investigation   Narrative:   An   Argument    for   Limiting



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Prosecution Evidence, 101 Iowa L. Rev. 683, 690 (Jan. 2016) (arguing

courts wrongly “accord the prosecution license to present otherwise

inadmissible evidence to develop the investigation narrative” of presenting

the case through the bias of law enforcement, “rather than solely on the

admissible evidence of the defendant’s criminal activity”).     Evidence to

explain background of the investigation or police course of conduct typically

has “negligible probative value” that is “overwhelmed by the risk of unfair

prejudice.”   Id.   Yet courts regularly admit prejudicial and otherwise

inadmissible evidence under the guise that it is not admitted to prove the

truth of the matter asserted, and simply to show the steps of the

investigation, or to explain why police took a certain action. Courts permit

this despite the Commonwealth’s ability to explain the narrative of the case

with less detail. 2 McCormick on Evid. § 249 (8th ed.) (discussing abuse

of police course-of-conduct evidence and advocating for use of a general

statement such as “an officer acted ‘upon information received’”); 30B Fed.

Prac. & Proc. Evid. § 6720 (2020 ed.) (noting that if there is a true need to

show why police acted in a certain manner, the out-of-court statement

should be “redacted or paraphrased to accommodate both the legitimate

need for some explanation of why the police acted as they did and the

critical need to protect the defense from damaging hearsay accusations”).

      Our Supreme Court has recognized the dangers of admitting evidence

to explain police conduct.



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           It is, of course, well established that certain out-of-court
     statements offered to explain a course of police conduct are
     admissible. Such statements do not constitute hearsay since
     they are not offered for the truth of the matters asserted;
     rather, they are offered merely to show the information upon
     which police acted.

           Nevertheless, it cannot be said that every out-of-court
     statement having bearing upon subsequent police conduct is to
     be admitted, for there is great risk that, despite cautionary jury
     instructions, certain types of statements will be considered by
     the jury as substantive evidence of guilt. Further, the police
     conduct rule does not open the door to unbounded admission of
     testimony, for such would nullify an accused’s right to cross-
     examine and confront the witnesses against him.

                                    ***
           Clearly, there is need for a balance to be struck between
     avoiding the dangers of hearsay testimony and the need for
     evidence that explains why police pursued a given course of
     action. This balancing process is governed by the sound
     discretion of the trial court, and, as with other evidentiary
     decisions, the trial court’s decision will be upheld on appeal
     unless there has been an abuse of that discretion.

           The challenged statements in the present case were of a
     most highly incriminating sort. They contained specific assertions
     of criminal conduct by a named accused, and, indeed, were likely
     understood by the jury as providing proof as to necessary
     elements of the crime for which appellant was being tried. …

           In this case, the police easily could have explained the
     course of their conduct pertaining to the investigation and arrest
     of appellant … without resorting to the full and explicit
     statements given by [the out-of-court informant]. It is the
     prosecutor’s duty to avoid the introduction of out-of-court
     statements that go beyond what is reasonably necessary to
     explain police conduct. Certainly, references to appellant’s
     having purchased one pound of marijuana on the day prior to
     the attempted delivery of the fifteen pounds involved in this case
     could have been eliminated. The statements could have been
     attenuated in other ways, too, to lessen their prejudicial impact.
     Thus, an adequate explanation for police conduct could have
     been provided, while minimizing the introduction of statements

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      made by a person who was not under oath and who was not
      available for cross-examination.

            It is certainly to be recognized that there is often a subtle,
      and elusive, difference between the use of statements to
      establish the truth of facts averred by one not in court and their
      use to establish a course of conduct by police. Further, in
      weighing the prejudice to the defense versus the prosecution’s
      need for the challenged statements, the ambit of the trial court’s
      discretion is to be preserved. In the present case, however, the
      statements were so highly incriminating, and the need for them
      in the form in which they were introduced was so lacking, that
      their admission cannot be sustained. Appellant is entitled to a
      new trial.

Commonwealth v. Palsa, 555 A.2d 808, 810-12 (Pa. 1989) (citations and

footnotes omitted).

      Despite our Supreme Court’s cautions in Palsa, trial courts regularly

permit course-of-conduct evidence without much scrutiny, and appellate

courts routinely affirm. In my view, this practice should not stand, and it is

a rare case where such evidence should be permissible.        This case is not

such a case.




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