J-S37027-14



                                  2014 PA Super 249



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DONALD EARL WILLIAMS, JR.

                            Appellant                   No. 2016 MDA 2013


    Appeal from the Judgment of Sentence entered September 20, 2013
              In the Court of Common Pleas of Berks County
             Criminal Division at No: CP-06-CR-0004165-2009


BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.

OPINION BY STABILE, J.:                               FILED OCTOBER 30, 2014
       Appellant, Donald Earl Williams, Jr., appeals from the trial court’s

September 20, 2013 judgment of sentence imposing life imprisonment and

various concurrent and consecutive sentences for first-degree murder, rape,

aggravated assault, two counts of arson, involuntary deviate sexual

intercourse, indecent assault, and possessing an instrument of crime. 1 We

affirm.

       A jury found Appellant guilty of the aforementioned offenses on

September 18, 2013.         The trial court imposed life imprisonment for first-

degree murder after the jury was unable to reach a unanimous verdict in the
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1
    18 Pa.C.S.A. §§ 2502(a), 3121(a)(1), 2702(a)(1), 3301(a)(1)(i-ii),
3123(a)(1), 3126(a)(2), 907(a).
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penalty phase. See 42 Pa.C.S.A. § 9711(c)(1)(v).2 The trial court denied

Appellant’s post-sentence motions on October 15, 2013. Appellant filed this

timely appeal on November 12, 2013. He argues that the trial court erred in

admitting into evidence statements the victim made to neighbors and first

responders shortly after the crimes occurred. The victim died prior to trial,

and Appellant argues admission of her statements violated his right to

confront witnesses guaranteed by the Sixth Amendment to the United States

Constitution.3

       In assessing Appellant’s pre-trial motion to exclude the victim’s

statements, the trial court made the following findings of fact:

       1. On June 25, 2009, shortly after 11:00 a.m. Maria Serrano
          placed a telephone call to Berks County 9-1-1.

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2
  “The court may, in its discretion, discharge the jury if it is of the opinion
that further deliberation will not result in a unanimous agreement as to the
sentence, in which case the court shall sentence the defendant to life
imprisonment.” 42 Pa.C.S.A. § 9711(c)(1)(v).

3
    The Sixth Amendment provides:

       In all criminal prosecutions, the accused shall enjoy the right to
       a speedy and public trial, by an impartial jury of the State and
       district wherein the crime shall have been committed, which
       district shall have been previously ascertained by law, and to be
       informed of the nature and cause of the accusation; to be
       confronted with the witnesses against him; to have compulsory
       process for obtaining witnesses in his favor, and to have the
       Assistance of Counsel for his defence.

U.S. CONST. amend. VI.



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     2. The telephone call was placed from 826 Lincoln Street in the
        City of Reading, Berks County, Pennsylvania.

     3. During the 9-1-1 call, Maria Serrano stated that [Appellant],
        her ex-boyfriend, had burned her in her home at 82 Lincoln
        Street, and that she was currently at the next-door neighbor’s
        house.

     4. Ms. Serrano said that she was burned “all over the place,”
        stated that she was bleeding, and also indicated that there
        was a fire.

     5. Ms. Serrano indicated that [Appellant] poured gasoline and
        lighter fluid onto her and then ignited the mixture, causing
        burns to her face, hair, feet, and arms.

     6. She further stated that she felt “sick,” “horrible,” and that she
        was going to pass out.

     7. In addition, she stated that [Appellant] had subsequently fled
        the home.

     8. Katia Lopez, who resided at 828 Lincoln Street, testified that
        at approximately 11:00 a.m. on June 25, 2009, Maria Serrano
        (hereinafter the “victim”) came out of 824 Lincoln Street
        screaming.

     9. Ms. Lopez stated that the resident of 826 Lincoln Street,
        whom she knew only as “Juana,” took the victim into that
        residence.

     10. The 800 block of Lincoln Street consists of a series of
        connected row homes. 824 Lincoln Street is located in the
        middle of the block with residential units connected on both
        sides.

     11. Ms. Lopez testified that the victim was bleeding and
        screaming for help. She further stated that the victim was
        wearing “only a bra and a piece of a pair of pants or a skirt,
        whatever she had on the bottom.”

     12. Ms. Lopez also testified that the victim “was completely
        burned” and that she was “screaming frantically to please
        help her.”



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     13. While at 826 Lincoln Street, the victim told Ms. Lopez that
        “Don-Don” had stabbed her with a screwdriver in the middle
        of her forehead and to the side of her head. Ms. Lopez
        observed wounds in that area of the victim’s head.

     14. The victim further confided that “Don-Don” took her to the
        basement, hit her on the ribs, poured gasoline on her, and
        then set her on fire.

     15. Ms. Lopez knew “Don-Don” to be the victim’s ex-boyfriend,
        whom she identified as [Appellant].

     16. Finally, Ms. Lopez testified that after medical personnel
        arrived, she stepped outside and observed [Appellant]
        standing on Douglass Street and looking toward Lincoln
        Street.

     17. Ms. Lopez began screaming to other people in the area
        about [Appellant], at which point he ran away from her
        location.

     18. Donald Hirsch, a paramedic working for the City of Reading
        Fire Department, was dispatched to 824 Lincoln Street at
        11:14 a.m. on June 25, 2009 due to a reported fire.

     19. When Mr. Hirsch arrived, he observed that the victim was
        in pain and that she was screaming, “Help me.” Mr. Hirsch
        testified that he would describe her emotional state as “very,
        very, very upset” and that she asked him numerous times if
        she were going to die.

     20. On June 25, 2009, Officer Craig Hevalow of the Reading
        Police Department was also dispatched to 824 Lincoln Street
        due to a reported fire and domestic assault.

     21. Officer Hevalow observed that blood spatter covered the
        victim’s body. He also testified that the victim’s legs were
        badly bruised, that her clothing was burned, and he described
        her as “high strung,” “loud,” and “in pain.”

     22. Officer Hevalow engaged in a brief and abrupt conversation
        with the victim in order to obtain basic information.

     23. The only question Officer Hevalow asked the victim was
        “What happened?”


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     24. The victim, who was being attended to by medical
        personnel, told Officer Hevalow that [Appellant] entered her
        home, poured gasoline on her, set her on fire, and tried to kill
        her.

     25. Officer Brian Burr, who had also been dispatched to the
        scene, described the victim’s demeanor as “frantic,” and
        observed burns on the victim’s clothes, skin, and hair.

     26. Officer Burr learned from the victim that [Appellant]
        resided at ADAPPT, a halfway house located in Reading,
        Pennsylvania.

     27. While carrying the victim from 826 Lincoln Street to the
        ambulance, paramedic Donald Hirsch was stopped by the Fire
        Chief, who asked where the victim was located when she was
        set on fire.

     28. After arriving at the ambulance Donald Hirsch and his
        partner continued to treat the victim. The victim’s hair was
        singed and her upper body, which appeared to have first-
        degree burns, had a large amount of soot on it.

     29. The victim had first and second-degree burns on her lower
        back, lower abdomen, and feet. Some of her skin was
        “sloughing off” because of the burns. Her inner thighs and
        buttocks appeared to be the most badly burned area of her
        body, and Hirsch classified those burns as second-degree
        burns. The victim’s clothing had melted to her inner thighs
        and buttocks. She also had a laceration on the bridge of her
        nose that was bleeding.

     30. The victim repeatedly kept asking Hirsch if she were going
        to die. Hirsch initially tried to deflect the questions; but when
        the victim continued to ask him if she were going to die, he
        replied that death was a possibility because “burns like she
        has can be life-threatening.” Hirsch also told her that he
        would do the best he could to prevent her from dying.

     31. In order to determine the extent of the victim’s injuries,
        Hirsch asked her what had happened. The victim told him
        that she was taking a shower when a man broke into the
        house and subsequently pulled her out of the shower. She
        stated that the man punched her multiple times in the



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       stomach, ribs, and face. She was then forced to engage in
       oral and vaginal sex with the man.

     32. The victim then told Hirsch that following the sexual
        assault, the man forced her to get back into the shower.
        After that, he forced her to go downstairs into the basement,
        where he poured gasoline on her and lit her on fire.

     33. Hirsch also recalled the victim stating that her assailant’s
        first name was Donald.



                                  [. . .]

     39. Todd Iager, the Fire Marshall for the City of Reading, is an
        expert in the field of fire investigations.

     40. When Fire Marshall Iager arrived at the scene on June 25,
        2009, the victim was being carried to the ambulance and a
        fire was still actively burning at 824 Lincoln Street.

     41. Fire Marshall Iager, who spoke to the victim in the
        presence of paramedics Hirsch and Bauer, described her
        demeanor as “exceptionally emotional.”

     42. The victim conveyed to Fire Marshall Iager that her ex-
        boyfriend [Appellant] entered her home armed with a
        screwdriver. She stated that [Appellant] physically accosted
        her and then took her to the basement and began speaking
        about her “judgment day.” [Appellant] next forced her to
        perform oral sex on him.

     43. The victim then told Fire Marshall Iager that [Appellant]
        poured gasoline on her and that as she was trying to get up
        off the ground, she saw [Appellant] use a cigarette lighter to
        ignite her.

     44. While speaking to Fire Marshall Iager, the victim
        continually and frequently asked him if she were going to die.

     45. Fire Marshall Iager told her that everything would be okay
        and to hang in there, be strong and listen to what the
        paramedics were telling her.




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      46. The victim did not calm down after hearing this and
         continued to ask Fire Marshall if she were going to die.

      47. Fire Marshall Iager then assessed the fire damage to 824
         Lincoln Street. He determined the origin of the fire to be in
         the basement near the bottom of the stairwell and on the
         victim’s body.

                                      [. . .]

      54. The victim was taken by ambulance to the Car Tech
         Helipad so that she could be transported by helicopter to the
         Lehigh Valley Hospital.

      55. Upon arrival at the hospital, vaginal swabs were taken of
         the victim in accordance with the performance of a rape kit.

      56. Subsequent DNA analysis indicated a statistical probability
         that the spermatozoa found inside the victim belonged to
         [Appellant].

      57. The victim was intubated and placed into a medically-
         induced coma from which she never awoke.     She was
         pronounced dead on August 8, 2009.

Trial Court Findings of Fact, 4/18/11, at ¶¶ 1-33, 39-47, 54-57 (record

citations omitted).

      Appellant argues the trial court violated his confrontation clause rights

by admitting into evidence the testimony of police officers Brian Burr

(“Burr”) and Craig Hevalow (“Hevalow”), Fire Marshall Todd Iager (“Iager”),

the transcript and recording of Maria Serrano’s (“Serrano”) 9-1-1 call, the

testimony of paramedic Donald Hirsch (“Hirsch”) and the testimony of Katia

Lopez (“Lopez”).      Appellant’s assertion of a Confrontation Clause violation

presents an issue of law. Our scope of review is plenary and our standard of




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review is de novo.     Commonwealth v. Abrue, 11 A.3d 484, 487 (Pa.

Super. 2010), appeal denied, 21 A.3d 1189 (Pa. 2011).

      In support of his argument, Appellant relies on a trilogy of United

States Supreme Court cases: Crawford v. Washington, 541 U.S. 36

(2004), Davis v. Washington, 547 U.S. 813 (2006), and Michigan v.

Bryant, 131 S. Ct. 1143 (2011).           Appellant argues Serrano’s various

statements were testimonial and therefore inadmissible at trial because

Appellant never had the opportunity to cross-examine her.

      In Crawford, the trial court admitted the tape-recorded statement of

a wife implicating her husband as the perpetrator in a stabbing. Crawford,

541 U.S. at 38.      The wife was unavailable at trial because the husband

objected to her testimony on marital privilege grounds.                 Id. at 40.

Washington state law did not prohibit introduction of the wife’s tape-

recorded statement so long as it bore “adequate indicia of reliability.”       Id.

The Washington Supreme Court ultimately concluded the wife’s statement

bore sufficient indicia of reliability to warrant its admission at trial.   Id. at

41. The husband argued the wife’s statement violated his rights under the

Confrontation Clause, regardless of its admissibility under state law. Id.

      The   United    States   Supreme    Court   held   the   wife’s    statement

inadmissible under the Confrontation clause. “[T]he principle evil at which

the Confrontation Clause was directed was the civil-law mode of procedure,

and particularly its use of ex parte communications as evidence against the


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accused.”     Id. at 50.       Likewise, “the Framers would not have allowed

admission of testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had a prior

opportunity for cross-examination.” Id. at 53. The Crawford Court found

no occasion to offer a “comprehensive definition of ‘testimonial[.]’”     Id. at

68.    “Whatever else the term covers, it applies at a minimum to prior

testimony at a preliminary hearing, before a grand jury, or at a former trial;

and to police interrogations.”            Id.    The wife’s tape-recorded police

interrogation was testimonial and therefore plainly inadmissible under the

Crawford analysis. Id. at 68-69.

       The Davis Court considered companion cases (Davis v. Washington

and Hammon v. Indiana4), one of which involved admission of a victim’s

statement to a 911 operator.            Davis, 547 U.S. at 817-18.    The victim

described an ongoing domestic disturbance. Id. When the victim told the

operator her assailant ran out the door, the operator instructed the victim to

stay on the line and answer questions. Id. at 818. Thereafter, the operator

gathered more information about the perpetrator and the circumstances of

the assault. Id. Within four minutes of the 911 call, police arrived to find

the victim “shaken” and “frantic.” Id. The trial court admitted a recording



____________________________________________


4
    The analysis of Hammon also appears at 547 U.S. 813.



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of the 911 call into evidence over the defendant’s Confrontation Clause

objection. Id. at 819.

       In Hammon, two police officers traveled to the site of a domestic

disturbance and interviewed the wife after the disturbance was over. Id. at

819-20.    The victim filled out and signed a battery affidavit while the

defendant was detained in a separate room. Id. The victim did not testify

at trial, but the police officer testified about the contents of the victim’s

interview and authenticated the affidavit. Id. at 820.

       In considering these two cases, the Davis Court distinguished

testimonial and nontestimonial hearsay:

             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.

Id. at 822.     The Supreme Court confirmed that the protection of the

Confrontation Clause attaches only to testimonial hearsay. Id. at 823-25.

       Concerning the 911 call in Davis, the Supreme Court noted that 911

operators are not law enforcement officers, but they may be “agents of law

enforcement when the conduct interrogations of 911 callers.”      Id. at 823

n.2.   “For purposes of this opinion (and without deciding the point), we

consider their acts to be acts of the police.” Id. “The question before us

[…] then, is whether, objectively considered, the interrogation that took

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place in the course of the 911 call produced testimonial statements.” Id. at

826.

       In answering that question, the Court noted the victim was describing

events as they were happening, rather than rendering an account of past

events. Id. at 827. The 911 call was “plainly a call for help against a bona

fide physical threat. The operator’s follow up questions “were necessary to

be able to resolve the present emergency, rather than simply to learn (as in

Crawford) what happened in the past.”          Id.   “That is true even of the

operator’s effort to establish the identity of the assailant, so that the

dispatched officers might know whether they would be encountering a

violent felon.”   Id.   Likewise, the informality of the 911 call – the victim

provided   frantic   answers    via   telephone   from   a   potentially   unsafe

environment – evinced the nontestimonial nature of the victim’s statements.

Id.

       By way of contrast, the victims’ interview in Hammon took place

several hours after the domestic disturbance, and the victim gave a formal,

tape-recorded interview while the assailant was detained in another room.

Id. The Court concluded the primary purpose of 911 call in Davis “was to

enable police assistance to meet an ongoing emergency.” Id. The interview

in Hammon, on the other hand, was clearly an investigation into a past

event. Id. at 830.




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      Finally, in Bryant, 131 S. Ct. at 1150, police found the victim dying of

a gunshot wound. They asked him “what had happened, who had shot him,

and where the shooting had occurred.”        Id.   The victim identified the

defendant by first name and explained that the defendant shot him through

the back door of the defendant’s house. Id. The victim died within several

hours of his conversation with police.   Id. The Bryant Court summarized

the issue as follows:

            We now face a new context: a nondomestic dispute,
      involving a victim found in a public location, suffering from a
      fatal gunshot wound, and a perpetrator whose location was
      unknown at the time the police located the victim. Thus, we
      confront for the first time circumstances in which the ‘ongoing
      emergency’ discussed in Davis extends beyond an individual
      victim to a potential threat to the responding police and the
      public at large.

Id. at 1156.

      The Court also explained the objective nature of the ‘primary purpose’

inquiry: “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, as ascertained from the individuals’

statements and actions and the circumstances in which the encounter

occurred.”     Id.   The existence of an ongoing emergency is important

because it indicates that the declarant’s purpose in speaking was to help

resolve a dangerous situation rather than prove past events. Id. at 1157.

The “zone of potential victims” and the type of weapon involved inform the

inquiry.   Id. at 1158.   The Bryant Court opined that domestic violence

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cases, such as those at issue in Davis, often have a narrower zone of

potential victims. Id.

       In a passage highly relevant to the matter on appeal, the Bryant

Court discussed the relevance of the victim’s medical condition.

              The medical condition of the victim is important to the
       primary purpose inquiry to the extent that it sheds light on the
       ability of the victim to have any purpose at all in responding to
       police questions and on the likelihood that any purpose formed
       would necessarily be a testimonial one. 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, themselves, and the public.

Id.

       Finally, the Bryant Court explained that the statements of both parties

are relevant to determining a conversation’s primary purpose. Id. at 1160-

61.    The Court recognized that police serve as first responders and as

investigators and therefore can have mixed motives. Id. at 161. Likewise,

an injured victim could have mixed motives in making a statement to a

police officer.   Id.    The nature and severity of the victim’s injuries are

relevant to the victim’s purpose in making his or her statements.     Id.   In

summary, “the existence and duration of an emergency depend on the type

and scope of danger posed to the victim, the police, and the public.” Id. at

115.

       The Bryant Court held that the facts before it presented an ongoing

emergency because “an armed shooter, whose motive for and location after

the shooting were unknown, had mortally wounded [the victim] within a few

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blocks and a few minutes of the location where the police found [him].” Id.

at 1164. The victim made the statements introduced at trial within minutes

of his encounter with police and before they had secured the scene. Id. at

1165. The victim was in pain and repeatedly asked when paramedics would

arrive.   Id.   The Court therefore did not believe the victim had a primary

purpose of establishing events relevant to a criminal prosecution. Id. The

questions from the police officers simply allowed them to “assess the

situation, the threat to their own safety, and possible danger to the potential

victim and to the public.” Id. at 1166. The encounter between the victim

and the police lacked formality, and was “similar, though not identical, to the

informal, harried 911 call in Davis than to the structured, station-house

interview in Crawford.”        Id. at 1166.     The Court therefore concluded the

victim’s statements were nontestimonial and their admission at the

defendant’s trial did not violate his Confrontation Clause rights. Id. at 1167.

      Instantly, the Commonwealth offered Serrano’s hearsay statements

through several sources, including a recording of her 911 phone call and the

testimony of neighbors, police officers, and paramedics.         We will begin by

reviewing the 911 recording, as similar evidence was directly at issue in

Davis. At the beginning of the phone call, Serrano informs a Berks County

911   operator    that   her    ex-boyfriend,    Donald   Williams,   burned   her.

Commonwealth’s Exhibit 66.         Serrano also informs the operator that her

house is on fire. Id. Serrano’s voice is frantic, her breathing is labored, and


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she repeatedly states that she is burned all over and needs help.         Id.

Several times, Serrano states that she feels ready to pass out.     Id.   The

operator asks what Williams burned her with, and Serrano states that he

used gasoline and lighter fluid to start a fire. Id. The operator asks where

Williams is, and Serrano states that he ran out of the house. Id.

     After a short conversation (the run time on the compact disc is two

minute and fifty seconds), the Berks Count operator transfers Serrano to the

Reading City police department. Serrano immediately informs the Reading

City operator that her house is on fire and that Appellant, her ex-boyfriend,

burned her. Commonwealth’s Exhibit 67. The Reading City operator asks

what happened, and Serrano states that her ex-boyfriend came in when she

was in the shower, forced her to “make love” to him, hit her, and attacked

her with a screwdriver. Id. The operator asks where Appellant is and if he

is armed. Id.   Serrano states that she does not think Appellant is armed

and that he fled the house. Id. She also identifies the halfway house where

Appellant had been living. Id. Serrano’s conversation with the Reading City

operator lasted one minute and twelve seconds. Id.

     Appellant argues that these facts present a domestic violence case in

which Appellant posed no further threat to Serrano. According to Appellant

no ongoing emergency existed during Serrano’s 911 call (or any other

statements she made to first responders).     Since Serrano was out of her




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burning house and called 911 from a neighbor’s home, Appellant asserts the

fire posed no further threat to her.

      We believe Appellant construes “ongoing emergency,” as that phrase

is used in Davis and Bryant, too narrowly. We are cognizant that in Davis,

the victim called while the assault was ongoing. Davis, 547 U.S. at 817-18.

The Davis Court noted that an initially nontestimonial conversation could

change into a testimonial one depending upon the circumstances.        Id. at

828-29. The Davis Court also noted that it was asked to analyze only the

victim’s statements identifying her assailant. Id. at 829.

      In the case on appeal, Appellant was not in Serrano’s immediate

presence during the 911 conversation.           Nonetheless, we believe other

factors present here but absent in Davis indicate an ongoing emergency.

For instance, Serrano was severely and mortally wounded at the time of the

911 call. See Bryant, 131 S. Ct. at 1159 (“Davis and Hammon did not

present medical emergencies, despite some injuries to the victims.”). The

record indicates that she sustained first and second degree burns over 49

percent of her body, and a Commonwealth expert testified that Serrano had

only a 2 percent chance of survival. N.T., 9/11-13/2013, at 280. Serrano

repeatedly and frantically pled for help during the 911 call, and repeatedly

stated she felt ready to pass out. Serrano’s demeanor, her repeated pleas

for immediate help, and her severe injuries plainly indicate the presence of

an ongoing emergency.


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      In addition, Serrano’s account of the fire’s origin was necessary to aid

firefighters in containing the fire.     Serrano lived in a row house with

adjoining homes on either side, and the zone of potential victims of

Appellant’s arson therefore included Serrano’s neighbors. We are cognizant

of the Bryant Court’s statement that the zone of potential victims is

normally smaller in a domestic violence case than in a case that involves a

threat to the general public. Bryant, 131 S. Ct. at 1158. In relying on that

point here, Appellant focuses on his physical and sexual assault of Serrano

but ignores the ongoing row house fire. The Bryant Court noted that the

“duration and scope of an emergency may depend in part on the type of

weapon employed.” Id. at 1158. Here, Appellant used gasoline and lighter

fluid to start a fire in a row house. This posed risks to Serrano’s neighbors,

and we believe her account of the fire’s location and means of origin

pertained to an ongoing emergency.

      The Bryant Court considered an ongoing emergency “among the most

important    circumstances   informing       the   ‘primary   purpose’   of   an

interrogation.”   Id. at 1157. Thus, the ongoing emergency in this case is

highly indicative of Serrano’s primary purpose in making her statements. In

addition, Serrano’s conversation with the 911 operators was highly informal.

Serrano was in severe pain, frantic, and repeatedly asking for help. Neither

operator engaged in any formal questioning, nor could they, given Serrano’s




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circumstances. Both operators asked how the fire started, which garnered

information necessary to help firefighters do their job.

      Next we consider Serrano’s account of the sexual assault. Serrano did

not offer an account of the sexual assault until more than three minutes into

the 911 call, after the Berks County operator transferred her to Reading City

police.   Even so, we are not persuaded that the primary purpose of the

conversation changed at that point. Prior to Serrano’s account of the rape,

the Reading City operator simply asked, “what happened?”         The Reading

City operator’s questioning was less detailed than that at issue in Bryant:

“[t]he police asked him ‘what had happened, who had shot him, and where

the shooting had occurred.’”      Id. at 1150, 1163.       The Bryant Court

assessed the victim’s answers as follows:

             When he made the statements, [the victim] was lying in a
      gas station parking lot bleeding from a mortal gunshot wound to
      his abdomen. His answers to the police officers’ questions were
      punctuated with questions about when emergency medical
      services would arrive. He was obviously in considerable pain and
      had difficulty breathing and talking. From this description of his
      condition and report of his statements, we cannot say that a
      person in [the victim’s] situation would have had a ‘primary
      purpose’ ‘to establish or prove past events potentially relevant to
      later criminal prosecution.’

Id. at 1165.   Here, Serrano suffered mortal burn wounds and was at her

neighbor’s house, but the circumstances are otherwise identical to those of

Bryant. Further, simply asking a victim “what happened” allows the police

to assess the nature of the threat posed by the perpetrator. Id. at 1166;

see also Davis, 547 U.S. at 827. Without Serrano’s account of Appellant’s

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identity and the nature of the assault, law enforcement would be unaware of

whether Appellant knew Serrano or committed a random act of violence.

      For all of the foregoing reasons, we conclude the primary purpose of

Serrano’s statements during the 911 call was to seek medical assistance and

assist first responders in addressing an ongoing emergency. Her statements

were not testimonial, and their admission at trial did not violate Appellant’s

rights under the Confrontation Clause.

      Appellant also challenges the trial court’s admission of his statements

to paramedic Hirsch.     Serrano’s statement to Hirsch included additional

details of the sexual assault not included in the 911 recordings. Specifically,

Hirsh testified that Serrano told him Appellant forced her to perform oral and

vaginal intercourse. N.T., 9/11-13/13, at 123. After Hirsch got Serrano into

the back of an ambulance, he asked her “what happened.”              Hirsh did so

because he “needed to know exactly what kind of injuries I am looking for

beyond what I, you know, externally saw.”           Id.   Appellant concedes that

Serrano’s statements to assist Hirsh in assessing the medical emergency are

non-testimonial.   Appellant’s Brief at 33.        He argues that the trial court

should have refused to permit Hirsh to testify to facts not necessary to his

assessment of the medical emergency.         Id.    Given Appellant’s concession,

we need not address Hirsch’s testimony any further.

      The remainder of Hirsch’s testimony, as well as that of Iager, Hevalow,

Burr, and Lopez, is simply cumulative of statements we have already


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determined to be nontestimonial. That is, all of the remaining statements

relate to Appellant’s identity as the perpetrator, the nature of the physical

and sexual assault, and the means and point of origin of the fire.           All of

these facts were established through Serrano’s nontestimonial statements to

the 911 operators and to Hirsch.           As such, any error5 in the trial court’s

admission of the remaining statements was harmless. Commonwealth v.

Allshouse, 36 A.3d 163, 182 (Pa. 2012).

       Finally, we address the Commonwealth’s argument that Serrano’s

statements were admissible as dying declarations. See Pa.R.E. 804(b)(2).

In Crawford, the Court noted that dying declarations were historically

admitted against criminal defendants regardless of whether they were

testimonial:

             Although many dying declarations may not be testimonial,
       there is authority for admitting even those that clearly are. We
       need not decide in this case whether the Sixth Amendment
       incorporates an exception for testimonial dying declarations. If
       this exception must be accepted on historical grounds, it is sui
       generis.

Crawford, 541 U.S. at 55 n.6 (citation omitted) (emphasis added).              The

parties argued the applicability of dying declaration in Bryant, but

abandoned that issue before it rose to the United States Supreme Court.

             In [Crawford], this Court noted that, in the law we
       inherited from England, there was a well-established exception
       to the confrontation requirement: The cloak protecting the
____________________________________________


5
    We do not decide whether the trial court erred.



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J-S37027-14


     accused     against    admission   of  out-of-court   testimonial
     statements was removed for dying declarations. This historic
     exception, we recalled in Giles v. California, 554 U.S. 353,
     358, [. . .] applied to statements made by a person about to die
     and aware that death was imminent. Were the issue properly
     tendered here, I would take up the question whether the
     exception for       dying declarations   survives   our recent
     Confrontation Clause decisions. The Michigan Supreme Court,
     however, held, as a matter of state law, that the prosecutor had
     abandoned the issue. The matter, therefore, is not one the
     Court can address in this case.

Bryant, 131 S. Ct. at 1177 (Ginsburg, J. dissenting).

     In a case with facts strikingly similar to those before us, the

Pennsylvania   Supreme   Court    treated    the   victim’s   statements   as   an

admissible dying declaration.    Commonwealth v. Stickle, 398 A.2d 957

(Pa. 1979).    That case, however, predates Crawford and contains no

analysis of the substance of the victim’s statements and no analysis of their

admissibility under the Confrontation Clause.

     In summary, a dying declaration was admissible at common law

against an accused without regard the accused’s right to confront his

accusers.   It is unclear whether that rule survives after Crawford and its

progeny. The Crawford majority (“If this exception must be accepted on

historical grounds . . .” Crawford, 541 U.S. at 55 n.6 (emphasis added))

and Justice Ginsberg’s dissent in Bryant treat the question as an open one.

In other words, it is not clear whether a trial court can admit a testimonial

dying declaration into evidence without violating an accused’s Confrontation




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Clause rights.   We need not attempt to answer that question here, as we

have concluded Serrano’s statements were not testimonial.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2014




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