J-S64012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 TYHEED K. BROWN                            :
                                            :
                    Appellant               :   No. 2808 EDA 2017

           Appeal from the Judgment of Sentence April 24, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0010293-2015


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                           FILED JANUARY 15, 2019

      Tyheed K. Brown appeals the judgment of sentence imposed following

his conviction for DUI: general impairment/incapable of driving safely. We

affirm.

      The trial court set forth the relevant factual and procedural history

underlying the instant appeal as follows:

      On November 2, 2012[,] at approximately 9:25 p.m., Lieutenant
      Mike Zimmerman was on routine patrol, driving eastbound on the
      500 block of Cambria Street. When Lieutenant Zimmerman
      reached the intersection of 5th and Cambria, he saw that several
      people were trying to get his attention by jumping up and down,
      waiving and yelling. He testified that he heard a radio call about
      the accident as he was already pulling over to investigate it, so he
      believed that he arrived “[p]robably 30 seconds to a minute” after
      the crash. As Lieutenant Zimmerman pulled over and approached
      those people, he saw a black Honda CRV with rear-end damage,
      a green 1999 Ford with front-end damage, and a severed light
      pole. He also noticed debris on the street at that intersection that
      came from the severed light pole and possibly the cars involved
      in the collision. 5th Street is a commercial corridor, and the side
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     streets intersecting 5th [S]treet are more residential, so there was
     a crowd of about 20 to 25 people at the scene of the car collision.

     Lieutenant [Zimmerman] found [Appellant] sitting on the ground
     near the green Ford, with four or five members of the larger crowd
     circled around him. They drew Lieutenant Zimmerman’s attention
     to [Appellant] by pointing their fingers at him and telling the
     lieutenant that he was driving one of the cars involved in the
     accident. Lieutenant Zimmerman approached [Appellant] at that
     point, and he observed [Appellant’s] bloodshot eyes, slurred
     speech, and a strong odor of alcohol emanating from [his] breath
     as he spoke. The [l]ieutenant did not observe anyone else inside
     the green Ford. Based on the eyewitnesses’ statements and
     behavior, Lieutenant Zimmerman believed that [Appellant] was
     driving the green Ford, and based upon his own observations, he
     concluded that [Appellant] was under the influence of alcohol and
     incapable of driving safely, so he called for backup officers to
     process [Appellant’s] arrest.

           ....

     [A magistrate] found [Appellant] guilty of DUI: general
     impairment and DUI: highest rate of alcohol. See MC 51-CR-
     0045098-2012.

     [Appellant] timely appealed, and on December 5, 2016,
     [Appellant] waived his right to a jury trial and was tried before
     th[e trial c]ourt in a bench trial. Th[e trial c]ourt convicted him of
     DUI: general impairment, and the other DUI charges were nolle
     prossed. Sentencing was deferred initially pending a Presentence
     Investigation and later due to [Appellant’s] request. On April 3,
     2017, [Appellant] filed a Motion for Extraordinary Relief. On April
     24, 2017, after oral argument, the trial court denied this Motion
     for Extraordinary Relief and sentenced [Appellant] to 48 hours to
     6 months incarceration, with immediate parole after 48 hours to
     be served on one weekend.

     [Appellant] promptly filed a post-sentence Motion for a New Trial
     in the Interests of Justice on April 27, 2017. This post-sentence
     motion was denied by operation of law on August 28, 2017.
     [Appellant] filed a timely notice of appeal on August 31, 2017. On
     September 27, 2017, the [trial c]ourt entered an [o]rder directing
     [Appellant] to file a statement of [errors c]omplained of on
     [a]ppeal within twenty-one (21) days. [Appellant complied with

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      that order, and the trial court thereafter filed its Pa.R.A.P. 1925(a)
      opinion.]

Trial Court Opinion, 12/18/17, at 1-2 (citations to the record and footnotes

omitted).

      Appellant raises the following issue for our review:

      Did the lower court err by admitting hearsay evidence elicited
      during the trial testimony of the sole Commonwealth witness,
      Lieutenant . . . Zimmerman, which mostly consisted of statements
      from unidentified members of a crowd who identified [Appellant]
      as the driver of a vehicle involved in an accident, but including any
      other hearsay evidence used substantively against [Appellant], in
      that the Commonwealth failed to establish any exception to the
      rule against hearsay which permitted the use of hearsay evidence
      as substantive evidence to prove [Appellant’s] guilt of driving
      under the influence?

Appellant’s brief at 3.

      In reviewing a trial court’s ruling on the admissibility of evidence, our

standard of review is one of deference. Commonwealth v. Selenski, 18

A.3d 1229, 1232 (Pa.Super. 2011). Questions concerning the admissibility of

evidence are within “the sound discretion of the trial court, and its discretion

will not be reversed absent a clear abuse of discretion.” Id. (citation omitted).

“An abuse of discretion is not merely an error of judgment, but is rather the

overriding or misapplication of the law, or the exercise of judgment that is

manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,

as shown by the evidence of record.” Commonwealth v. Harris, 884 A.2d

920, 924 (Pa.Super. 2005) (internal citations and quotation marks omitted).




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      “‘Hearsay’ means a statement that . . . the declarant does not make

while testifying at the current trial or hearing; and ... a party offers in evidence

to prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c).

“Hearsay is not admissible except as provided by [the Pennsylvania Rules of

Evidence], by other rules prescribed by the Pennsylvania Supreme Court, or

by statute.” Pa.R.E. 802.

      To ensure a party the guarantees of trustworthiness resulting from a

declarant’s presence in court, a proponent of hearsay evidence must point to

a reliable hearsay exception before such testimony will be admitted.

Commonwealth v. Smith, 681 A.2d 1288, 1290 (Pa. 1996).                   Thus, the

burden of production is on the proponent of the hearsay statement to convince

the court of its admissibility under one of the exceptions. Id.

      Here, the trial court determined that the hearsay statements made by

bystanders to Lieutenant Zimmerman were admissible as excited utterances

under Pa.R.E. 803(2).      In determining whether an out-of-court statement

constitutes an excited utterance, we are mindful of the following principles:

      Rule 803(2) of the Pennsylvania Rules of Evidence permits the
      admission of an excited utterance as an exception to the general
      rule that hearsay evidence is inadmissible. The Rule defines an
      excited utterance as: “A statement relating to a startling event or
      condition made while the declarant was under the stress of
      excitement caused by the event.”          In Commonwealth v.
      Stallworth, 781 A.2d 110, 119-20 (Pa. 2001), [the Supreme
      Court of Pennsylvania] held that for a statement to be considered
      an excited utterance, it must be made spontaneously and without
      opportunity for reflection:




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              [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 has 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 . . . Thus, it must be shown first, that [the
              declarant] had witnessed an event sufficiently
              startling and so close in point of time as to render her
              reflective though processes inoperable and, second,
              that her declarations were a spontaneous reaction to
              that startling event. Commonwealth v. Stokes, 615
              A.2d 704, 712 (Pa. 1992), quoting Commonwealth
              v. Green, 409 A.2d 371, 373-74 (Pa. 1979).

        In Commonwealth v. Pronkoskie, 383 A.2d 858, 862-63 (Pa.
        1978), [our Supreme Court] further held that there is no clear-cut
        rule as to the time sequence required for a statement to qualify
        as an excited utterance, but rather that fact-specific determination
        is to be made on a case-by-case basis.

Commonwealth v. Gray, 867 A.2d 560, 572 (Pa.Super. 2005) (quoting

Commonwealth v. Boczkowski, 846 A.2d 75, 95-96 (Pa. 2004) (cleaned

up)).

        Additionally, “in assessing a statement offered as an excited utterance,

the court must consider, among other things whether the statement was in

narrative form, the elapsed time between the startling event and the

declaration, whether the declarant had an opportunity to speak with others

and whether, in fact, she did so.” Commonwealth v. Carmody, 799 A.2d

143, 147 (Pa.Super. 2002). Our Courts have not established a bright line rule

regarding the amount of time that may elapse between the declarant’s


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experience and her statement. Id. Rather, “the crucial question, regardless

of time lapse, is whether, at the time the statement is made, the nervous

excitement continues to dominate while the reflective processes remain in

abeyance.”    Id. (quotations omitted). “It is the spontaneity of an excited

utterance [that] is the source of reliability and the touchstone of admissibility.”

Id. (quotations omitted).

      In addition, with respect to the excited utterances of an unidentified

bystander, an additional proof requirement is necessary before his or her

statements will be deemed admissible pursuant to the res gestae exception.

In this regard, the party seeking the admission of the out-of-court statement

must demonstrate by the use of other corroborating evidence that the

declarant actually viewed the event of which she spoke. Commonwealth v.

Hood, 872 A.2d 175, 183-84 (Pa.Super. 2005).

      Appellant argues that there was no evidence that the bystanders who

identified him as the driver of a vehicle involved in the accident had actually

observed him driving or the accident itself. Specifically, he contends “there

was no evidence from which a presumption could be made that the declarants

referred to by the officer were relating something they had actually seen (i.e.,

[Appellant] driving one of the cars), as opposed to simply repeating hearsay

from other sources, or jumping to conclusions about something they had not

personally observed.     Appellant’s brief at 14-15.     Appellant reasons that

“people gathered to view the aftermath of a car accident would not


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necessarily have personal knowledge of who was involved in the accident

unless they saw the accident as it occurred or before the vehicles were

vacated.” Id. at 15-16 (emphasis in original). Appellant concedes that certain

individuals in the crowd may have witnessed the accident and could have

stated from personal knowledge that he was driving one of the vehicles

involved, but argues that there was no way to differentiate between such

individuals and those who arrived too late to make these personal

observations.1

       Here, the trial court determined that the bystander statements to

Lieutenant Zimmerman - that Appellant was the driver of one of the vehicles

involved in the accident - were admissible under the excited utterance

exception to the rule against hearsay, reasoning as follows:

       [T]he two-car collision that knocked over a light pole was an
       “unexpected and shocking occurrence,” as evidenced by the fact
       that roughly twenty people in a commercial corridor in
       Philadelphia thought this was a significant enough event to stop
       what they were doing and flag down a patrolling police officer.
       Although it is not clear that every single bystander witnessed the
       collision, this [c]ourt was satisfied that the hearsay declarants
       reported what they observed and that they had no reason to
       fabricate the fact that [Appellant] was driving a vehicle involved
       in the collision. . . .

       Second, while the timeline here is not precise, the [c]ourt inferred
       that very little time lapsed between the collision and the
____________________________________________


1 Appellant also argues that the hearsay testimony provided by Lieutenant
Zimmerman was not admissible as a “present sense impression.” See Pa.R.E.
803(1). However, as that hearsay exception was not the basis for the trial
court’s admission of the bystander statements, we decline to address that
exception.

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     statements made to Lieutenant Zimmerman upon his arrival,
     particularly because the accident occurred in the intersection of a
     busy commercial area, and the lieutenant testified that as he
     pulled over, he could hear a radio call directing police to the
     accident. . . . Here, the facts that the hearsay declarants flagged
     down Lieutenant Zimmerman and that he observed no other police
     officers at the scene suggest that the hearsay declarants are
     analogous to the declarants in other cases; they reported startling
     events to law enforcement without much time for reflection about
     or fabrication of those events.

     Third, these statements were not presented in a detailed,
     narrative form; rather, they merely identify [Appellant] as the
     person operating a car involved in an accident. Much of Lieutenant
     Zimmerman’s testimony focused on the bystanders’ actions: they
     flagged him down by jumping and waiving their arms, and they
     clustered around [Appellant] and pointed at him as he sat by the
     car. The trial court only admitted the bystanders’ statements that
     an accident occurred and that [Appellant] drove one of the cars
     involved. The hearsay statements did not offer any detailed
     narration of how the accident occurred or what the parties
     involved in the accident said.

     Finally, it is not clear whether the declarants spoke to each other
     before making these statements to Lieutenant Zimmerman, but
     this [c]ourt determined that that factor was not dispositive in this
     case[,] given the limited nature of the hearsay admitted. . . .
     Although defense counsel correctly notes that we do not know
     what every bystander’s motives were, . . . it was apparent to this
     [c]ourt that these bystanders did not form an angry mob; rather,
     they gathered together to observe the aftermath of a car accident
     and to ensure that a police officer quickly responded to what could
     be an emergency situation.

Trial Court Opinion, 12/18/17, at 6-8 (footnote omitted).

     Based on our review, we discern no abuse of discretion by the trial court

in admitting the limited hearsay statements in question.            Lieutenant

Zimmerman testified that he believed that he arrived at the scene thirty

seconds to one minute after the accident occurred, and that there were


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already twenty to twenty-five bystanders at the scene who provided

consistent, mutually corroborating statements and gestures identifying

Appellant as the driver of one of the vehicles involved in the accident. These

circumstances sufficiently establish corroborating evidence that at least some

of the bystanders actually viewed the accident and could state with personal

knowledge that Appellant was driving one of the vehicles involved in the

collision. Hood, supra.

      Judgment of sentence affirmed.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/15/19




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