J-S30035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DOUGLAS MOODY

                            Appellant                  No. 1799 EDA 2014


          Appeal from the Judgment of Sentence November 22, 2011
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010967-2009


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                               FILED JUNE 16, 2015

        Douglas Moody files this direct appeal from his aggregate judgment of

sentence of 2-10 years’ imprisonment for criminal trespass1 and criminal

mischief.2 We affirm.

        A brief procedural history is in order. Following a bench trial on July 6,

2011, the trial court found Moody guilty of both aforementioned charges.

On November 22, 2011, the court imposed sentence. Moody did not file a

direct appeal, but he filed a timely pro se petition under the Post Conviction

Relief Act (“PCRA”)3 seeking reinstatement of his appellate rights nunc pro
____________________________________________


1
    18 Pa.C.S. § 3502.
2
    18 Pa.C.S. § 3304.
3
    42 Pa.C.S. § 9541 et seq.
J-S30035-15



tunc.    On March 7, 2014, through counsel, Moody filed an amended PCRA

petition alleging that trial counsel, now deceased, failed to file a direct

appeal despite Moody’s requests.               The docket provides that on May 29,

2014, the trial court entered an order restoring Moody’s appellate rights

nunc pro tunc and granting him thirty days within which to appeal.4 On June

19, 2014, Moody timely filed a notice of appeal. Both Moody and the trial

court have complied with Pa.R.A.P. 1925.

        Moody raises three questions in this appeal:

              Did the trial court err in not finding the evidence was
              insufficient to show as a matter of law that [Moody]
              was guilty of criminal trespass where the testimony
              was based solely upon hearsay, [where the]
              statements were the only evidence provided showing
              that [Moody’s] presence was not welcome?

              Did the trial court err in allowing the statements of
              complainant, Latasha Rosas, as it consisted of
              impermissible hearsay?

              Did the trial court err in allowing the statements of
              complainant, Salvatore Gutierrez, as it denied
              [Moody] the right to confrontation, protected under
              the Sixth Amendment of the United States
              Constitution and the Pennsylvania Constitution?

Brief For Appellant, p. 5.


____________________________________________


4
  Although the order itself is not in the certified record, the docket provides
the text of the order and date of entry, and the Commonwealth concedes
that the trial court entered the order. Brief For Appellee, p. 4 n. 1.
Therefore, the absence of the order from the record does not impede
appellate review.



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       Moody first challenges the sufficiency of the evidence of criminal

trespass.5 Our standard of review for such challenges is well-settled:

              [W]hether[,] viewing all the evidence admitted at
              trial   in    the  light most     favorable   to  the
              [Commonwealth as the] verdict winner, there is
              sufficient evidence to enable the fact-finder to find
              every element of the crime beyond a reasonable
              doubt. In applying [the above] test, we may not
              weigh the evidence and substitute our judgment for
              the fact-finder. In addition, we note that the facts
              and       circumstances     established     by    the
              Commonwealth need not preclude every possibility
              of innocence. Any doubts regarding a defendant’s
              guilt may be resolved by the fact-finder 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.    The
              Commonwealth may sustain its burden of proving
              every element of the crime beyond a reasonable
              doubt by means of wholly circumstantial evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa.Super.2015).

       The trial court’s opinion recounts the evidence adduced during trial:

              Philadelphia Police Officer, Joseph Innamorato,
              testified that on June 1, 2009, at approximately 8:30
              p.m., he and his partner, Officer Borith Long,
              received a radio call of a burglary in progress at
              2244 Catherine Street in the City of Philadelphia. On
              arriving approximately two minutes later he was
              directed to the kitchen by the complainants, Ms.
              Latisha Rosas and Mr. Salvatore Gutierrez, both of
              whom he described as ‘very frantic, distraught and
              scared.’     On entering the kitchen he observed
              [Moody]      lying   unconscious    on    the   floor,
____________________________________________


5
  Moody does not challenge the sufficiency of the evidence underlying his
conviction for criminal mischief.



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          approximately five feet away from a broken window,
          bleeding from his head and hands. In addition, on
          examining the window he observed a trail of blood
          leading from the window sill to [Moody].         He
          described Mr. Gutierrez’s speech as being very rapid
          and ‘more emotional and had more scared,
          scaredness to it.’ He also described Mr. Gutierrez’s
          breathing as labored and very rapid.

          Philadelphia Police Officer, Borith Long, testified that
          on June 1, 2009 at approximately 8:30 p.m. he and
          his partner received a radio call directing them to
          2244 Catherine Street and arrived within two
          minutes of receiving the call. He testified that on
          entering the home, he observed [Moody] lying
          unconscious on the kitchen floor. He also testified
          that, on entering, Mr. Gutierrez kept repeating in
          broken English, ‘He just kept saying that the guy
          came into my house, he broke my window. He kept
          saying that. He kept saying he coming into my house
          and he broke my window.’ Officer Long described
          Mr. Gutierrez as having a red face and looking upset.
          He also described him as sweating, breathing hard
          and appearing angry. He also described Ms. Rosas
          as being ‘scared and shaking’ and speaking in
          Spanish.

          Philadelphia Police Officer, James Battista, testified
          that on June 1, 2009, he arrived at 2244 Catherine
          Street at approximately 8:30 p.m., after Officer
          Innamorato had arrived. On entering the house he
          observed [Moody] lying unconscious on the floor
          between the living and dining rooms with blood on
          his hands. He also observed that the rear window
          was broken and the presence of blood on the sill.
          Officer Battista observed that [Moody] wasn’t
          wearing shoes. On investigating the rear of the
          property, he discovered a brown boot in a common
          alleyway behind the house. Tracing the boot tracks
          he came upon a pickup truck, parked at an odd angle
          with the hood up, in which he observed another
          brown boot. On checking the vehicle registration of
          the truck, he discovered the truck was registered in
          the name of Fareed Hasan, the same name and

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            address as that listed on the Pennsylvania photo ID
            he had removed from [Moody]’s pocket.

            At [Moody’s] preliminary hearing held on August 18,
            2009, before the Honorable Craig M. Washington,
            Ms. Latisha Rosas testified that on June 1, 2009, she
            was in her kitchen when at approximately 8:30 p.m.:

                  ‘I was cooking in the kitchen when I heard a
                  noise on the backside of the house as though
                  somebody was breaking some wood. At that
                  moment I didn’t pay much attention to it.
                  Suddenly I heard a noise that was even
                  stronger. So then I got near the window. So
                  then I saw that this person was already inside
                  the patio. He went directly to the window that’s
                  in the living room and started breaking it. I
                  got scared and I started to yell. I started to
                  yell for my husband who was asleep. He did
                  not hear me. At that moment, I went to his
                  room and woke him up. He woke up, asked
                  me what’s happening. I told him there was a
                  person that was breaking the glass. He woke
                  up and looked at the person. At that time we
                  didn’t know what to do. So then he went
                  outside, he went to the next-door neighbor to
                  ask for help … The neighbor next-door was not
                  there, they didn’t answer. At that moment, a
                  car was going by and I stopped it. There were
                  two ladies in it. I asked them if they could
                  please call the police. The police arrived. The
                  police came in. We came in with them. And at
                  that time the person who’s here was laying
                  down on the kitchen floor.’

            When asked if she had given Defendant permission
            to come into her home, she responded, ‘No, I have
            never seen him before.’ She also testified that the
            broken window was the only damage done to her
            house.

Pa.R.A.P. 1925(a) Opinion, pp. 3-6 (citations to trial transcript omitted).




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      The criminal trespass statute provides in relevant part: “A person

commits an offense if, knowing that he is not licensed or privileged to do so,

he: ... breaks into any building or occupied structure or separately secured

or occupied portion thereof.” 18 Pa.C.S. § 3503(a)(1)(ii). “Breaks into” is

defined as “to gain entry by force, breaking, intimidation, unauthorized

opening of locks, or through an opening not designed for human access.” 18

Pa.C.S. § 3503(a)(3).       Viewed in the light most favorable to the

Commonwealth, the evidence establishes each element of criminal trespass

beyond a reasonable doubt. The trial court correctly reasoned:

            The testimony of the three police officers, who
            arrived within minutes of receiving the call, that they
            observed [Moody] lying unconscious on the kitchen
            floor leaves little doubt that he had entered the
            premises. The testimony of Officer Innamorato that
            he observed a broken window with a trail of blood
            leading to [Moody] was sufficient to establish that
            [Moody] forced his way into the premises through
            the broken window. The testimony of Officer Battista
            that he recovered a brown boot in a common
            alleyway behind the house and another in a truck
            registered in a name matching that on the ID he
            recovered from [Moody]’s person further supports
            the conclusion that [Moody]’s means of entry was
            through the broken window. Finally, the testimony
            of all three officers that the complainants appeared
            to be in a highly agitated state when they arrived
            was sufficient to establish that [Moody]’s entry was
            unauthorized. The conclusion that [Moody]’s entry
            was neither licensed nor privileged is further
            supported by Ms. Rosas’s testimony that she had
            never seen him before.

Pa.R.A.P. 1925(a) Opinion, p. 8.



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         In his second argument, Moody contends that the trial court erred by

admitting the preliminary hearing testimony of Latisha Rosas when she

failed     to   appear     as   a   Commonwealth      witness    during     trial.   The

Commonwealth established at trial that Rosas was unavailable to testify

despite the Commonwealth’s good faith attempts to find her. Thus, the trial

court acted within its discretion by admitting Rosas’ preliminary hearing

testimony into evidence.

         Evidentiary rulings are within the sound discretion of the trial court

and      will   not   be   disturbed    absent   an   abuse     of   that   discretion.

Commonwealth v. Bronshtein, 691 A.2d 907, 916 (Pa.1997). An

unavailable witness’s prior recorded testimony is admissible and will not

offend the defendant’s right of confrontation if the Commonwealth made

good faith efforts to locate the witness, and the defense had a full and fair

opportunity to cross-examine that witness at the earlier proceeding.6

Pa.R.E. 804(b)(1); Commonwealth v. Bazemore, 614 A.2d 684, 685

(Pa.1992).

         To meet its burden of demonstrating a witness’s unavailability, the

Commonwealth is not required to establish that she “has disappeared from

the face of the earth,” only that the prosecution made a “good faith effort”
____________________________________________


6
  Moody does not argue in this appeal that he lacked a full and fair
opportunity to cross-examine Rosas during his preliminary hearing.
Accordingly, we will not discuss this subject below.



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to find her yet failed to do so. Commonwealth v. Blair, 331 A.2d 213, 215

(Pa.1975).     It is within the trial court’s discretion to determine what

constitutes a good faith effort, and we will not overturn its decision absent

an abuse of that discretion. Commonwealth v. Douglas, 737 A.2d 1188,

1196 (Pa.1999).

       Here,   neither   complainant    appeared      during   trial     despite   the

Commonwealth’s efforts to serve them with subpoenas.               Officer Rosario

testified with regard to the Commonwealth’s efforts to locate Rosas and

serve her with a trial subpoena.       N.T., 7/6/11, pp. 4-13.         Officer Rosario

reviewed Rosas’ biographical information to determine her address and

mailed subpoenas to two possible addresses for Rosas and her husband. Id.

at 5-6.    After the subpoenas returned to Officer Rosario unserved, she

attempted personal service by visiting each address on two different dates at

different times of day. Id. at 8-9. On both occasions, she tried to speak

with next-door neighbors, who did not respond. Id. She also reviewed the

JNET    database,   which   provides    information    regarding       addresses    of

individuals who receive welfare. Id. at 7. Closer to trial, she surveyed local,

state, and federal prisons using the PARS database to confirm that Rosas

was not in custody. Id. She further contacted numerous local hospitals and

the medical examiner’s office without finding any trace of the witness. Id.,

pp. 7-8.




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       The trial court acted within its discretion by concluding that Officer

Rosario made a good faith effort to locate Rosas.       Officer Rosario exerted

considerable effort to find Rosas through a variety of means.           Merely

because Officer Rosario might have taken other measures – such as

checking whether Rosas was on vacation or in the custody of immigration

officials - does not nullify the efforts that she made. See Commonwealth

v. Douglas, 737 A.2d 1188, 1196 (Pa.1999) (police made good faith effort

to find witness, including attempt to find him at multiple addresses; lack of

additional surveillance did not negate good faith effort actually undertaken);7

Commonwealth v. Wayne, 720 A.2d 456, 467 (Pa.1998) (police made

good faith effort to locate witness, even though they did not begin search

until four days prior to trial, where they visited his last known address as

well as addresses on driver’s license and car registration and asked family

members about his whereabouts; “the Commonwealth is held to making a

reasonable effort to secure the witness’s presence, not to being omniscient

regarding the potential for a witness to leave the jurisdiction”).

       Lastly, Moody asserts that the trial court violated his Confrontation

Clause rights by admitting Officer Long’s testimony into evidence concerning

Gutierrez’s statements to police officers who were responding to the break-
____________________________________________


7
  While certain portions of the Supreme Court’s opinion in Douglas did not
command a majority of the Court, five of the seven justices joined in the
portion of the opinion approving the trial court’s decision to declare a
missing witness unavailable for trial.



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in.   Gutierrez, as noted above, was not available for trial.         Officer Long

testified that Gutierrez repeatedly stated to the responding officers that

Moody “came into my house” and “broke my window”. Moody contends that

these statements were “testimonial” in nature and therefore inadmissible

under Crawford v. Washington, 541 U.S. 36 (2004). We disagree.

        Moody’s assertion of a Confrontation Clause violation presents an issue

of law.    Our scope of review is plenary, and our standard of review is de

novo.     Commonwealth v. Abrue, 11 A.3d 484, 487 (Pa.Super.2010),

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

        In Commonwealth v. Williams, 103 A.3d 354 (Pa.Super.2014),

Judge Stabile analyzed when statements are “testimonial” under the

Confrontation Clause by discussing three recent United States Supreme

Court decisions: Crawford, Davis v. Washington, 547 U.S. 813 (2006),

and Michigan v. Bryant, 562 U.S. 344 (2011). We can do no better than

to recite Judge Stabile’s thorough discussion:

             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


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          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 princip[al] 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
          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 [].

          Davis [consisted of two] companion cases (Davis v.
          Washington and Hammond v. Indiana)[,] 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 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

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          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 they 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 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

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          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 victim’s 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 [].

          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.

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           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 cases, such as those at issue in Davis,
           often have a narrower zone of potential victims. Id.

Wlliams, 103 A.3d at 358-60.

     Furthermore, in assessing the primary purpose of an “interrogation”,

the court must “objectively evaluate the circumstances surrounding the

interrogation, including the formality and location, and the statements and

actions of both the interrogator and the declarant.”          Commonwealth v.

Allshouse, 36 A.3d 163, 175-76 (Pa.2012).

     Applying   these     principles    here,   Gutierrez’s   declarations   were

spontaneous reactions to a shocking event, were not in contemplation of

prosecution, and were in response to ongoing police efforts to assist in

response to an emergency call. When Officers Long and Battista arrived at

the victims’ home, they found Moody on the kitchen floor with blood on his

hands and wearing no shoes.        Gutierrez repeatedly stated that “the guy

came into my house” and “broke my window.” Gutierrez was “scared and

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shaking”, had a red face, and was sweating and breathing hard. The officers

saw that the rear window of the home was broken and observed blood on

the window sill. The officers found boots outside the home, one in the rear

alleyway and another inside Moody’s truck outside.              The circumstances

demonstrate that the officers were carrying out their security and public

safety functions to protect the victims from possible harm. The purpose of

Gutierrez’s spontaneous explanation was to assist the police in responding to

the emergency and assessing how many intruders were in the home. The

informal, urgent nature of the encounter and the spontaneity of Gutierrez’s

utterances   further   compel   the   conclusion   that   his    statements   were

nontestimonial.   Accordingly, the trial court correctly determined that the

admission of Gutierrez’s utterances did not violate Moody’s right of

confrontation. See also Williams, 103 A.3d at 361-63 (victim’s statements

in 911 call from neighbor’s house informing operators that defendant, her

ex-boyfriend, forced her to have intercourse, that he burned her by pouring

gasoline and lighter fluid on her and igniting the mixture, that her row house

was on fire, and that defendant ran out of house were made for the primary

purpose of seeking medical assistance and assisting first responders in

addressing an ongoing emergency, and therefore statements were not

testimonial for confrontation clause purposes, even though defendant was

not in victim’s immediate presence during call, where victim made

statements at a time when she was severely and mortally wounded with first


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and second-degree burns over half of her body and frantically pleading for

help, victim’s breathing was labored, and victim repeatedly stated that she

was going to pass out); Commonwealth v. Gray, 867 A.2d 560, 577

(Pa.Super.2005) (spontaneous statements made to secure police assistance

are not made subject to interrogation or in contemplation of prosecution and

thus are nontestimonial).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2015




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