J-S07026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                    v.

TYLER STEVEN MARLATT

                          Appellant                   No. 1356 MDA 2016


                 Appeal from the PCRA Order July 18, 2016
              In the Court of Common Pleas of Centre County
            Criminal Division at No(s): CP-14-CR-0000326-2012


BEFORE: BOWES, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                           FILED MARCH 23, 2017

      Tyler Steven Marlatt appeals from the order of the Court of Common

Pleas of Centre County denying his petition under the Post-Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After review, we affirm.

      In its May 9, 2013 opinion, the trial court set forth the relevant facts of

this matter as follows:

      On January 17, 2012, Marlatt was charged with murder of the
      first degree, murder of the second degree, murder of the third
      degree, robbery, and aggravated assault, as a result of an
      incident involving the death of Tyler Struble on January 16,
      2012. On that date, Tyler Struble took marijuana from Marlatt’s
      girlfriend without paying her the approximately twenty-five
      dollar value. Marlatt then drove to Tyler Struble’s residence,
      armed with weapons, and the death occurred during an
      altercation between the two men. At the preliminary hearing
      held on February 1, 2012, the Commonwealth moved to amend
      and add two additional counts of robbery and two counts of
      criminal conspiracy to commit robbery, which was subsequently
      granted.
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      At the conclusion of the jury trial on November 7, 2012, the jury
      found Marlatt guilty of murder in the second degree, murder of
      the third degree, aggravated assault, two counts of robbery
      (felonies of the first degree), three counts of criminal conspiracy,
      one count of robbery (felony of the second degree), and not
      guilty of murder in the first degree and voluntary manslaughter.
      Marlatt was then sentenced to life imprisonment in a state
      correctional institution that same day.

Trial Court Opinion, 5/9/13, at 1-2.

      Marlatt appealed his judgment of sentence, which was affirmed by this

Court on November 21, 2013.        On May 15, 2014, the Supreme Court of

Pennsylvania denied Marlatt’s petition for allowance of appeal.

      On February 2, 2015, Marlatt filed a pro se PCRA petition. The PCRA

court appointed counsel, who filed an amended PCRA petition on January 11,

2016. On June 9, 2016, the PCRA court filed an opinion and notice of intent

to dismiss Marlatt’s petition without a hearing, pursuant to Pa.R.Crim.P. 907.

Marlatt did not respond to the Rule 907 notice and, on July 18, 2016, the

PCRA court dismissed Marlatt’s PCRA petition. Marlatt filed a timely notice of

appeal to this Court, as well as a court-ordered statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On September 9,

2016, the PCRA court filed its Rule 1925(a) opinion.

      On appeal, Marlatt raises the following issue for our review:

      Did the PCRA Court commit an error of law and abuse of
      discretion in determining that trial counsel’s failure to raise an
      exception to a hearsay objection, which would permit admission




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       of statements to support a self-defense claim, did not make him
       ineffective?[1]

Brief for Appellant, at 2.

       This Court's standard of review regarding an order dismissing a
       petition under the PCRA is whether the determination of the
       PCRA court is supported by evidence of record and is free of
       legal error. In evaluating a PCRA court’s decision, our scope of
       review is limited to the findings of the PCRA court and the
       evidence of record, viewed in the light most favorable to the
       prevailing party at the trial level. We may affirm a PCRA court’s
       decision on any grounds if it is supported by the record.

Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010)

(citations omitted).

       Marlatt’s claim challenges the effectiveness of his trial counsel.   Our

standard of review when faced with a claim of ineffective assistance of

counsel is well settled:

       First, counsel is presumed to be effective and the burden of
       demonstrating ineffectiveness rests on appellant. To prevail on
       a claim of ineffectiveness, appellant must show that his
       underlying contentions possess arguable merit.         Finding no
       merit, our inquiry would cease because counsel will not be
       deemed ineffective for failing to pursue a baseless or meritless
       claim. If appellant's contention is found to be of arguable merit,
       he must also establish that the course chosen by counsel had no
       reasonable basis designed to effectuate his client’s interests.
       Finally, appellant must show how counsel’s commission or
       omission prejudiced [him].



____________________________________________


1
  In his statement of questions involved, Marlatt raised a second issue,
namely that counsel was ineffective for failing to properly brief issues on
direct appeal. However, he abandoned that issue in the argument section of
his brief.



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Commonwealth v. Thomas, 783 A.2d 328, 332-33 (Pa. Super. 2001),

quoting Commonwealth v. Harrison, 663 A.2d 238, 240 (Pa. Super.

1995). All three of these prongs must be proven for a petitioner to succeed

on an ineffectiveness      of counsel claim.     “The   threshold inquiry   in

ineffectiveness claims is whether the issue/argument/tactic which counsel

has foregone and which forms the basis for the assertion of ineffectiveness is

of arguable merit.”     Commonwealth v. Pierce, 645 A.2d 189, 194 (Pa.

1994), quoting Commonwealth v. Weiss, 606 A.2d 439, 441 (Pa. 1992).

“Counsel cannot be found ineffective for failing to pursue a baseless or

meritless claim.” Id.

      Marlatt claims that trial counsel was ineffective for failing to offer a

proper exception in response to a hearsay objection raised by the

Commonwealth.     Specifically, Marlatt attempted to introduce the oral and

written statements of David Williams, a recently deceased eyewitness to the

incident. Williams, who was dating the mother of the victim, witnessed the

altercation between Marlatt and the victim and at one point intervened to

break up the fight.      Williams gave a statement in response to police

questioning approximately ten to fifteen minutes after the police arrived on

the scene. Williams also provided a written statement at the police station

approximately five-and-a-half hours later. The Commonwealth objected to

the admission of Williams’ statements on hearsay grounds.       In response,

Marlatt’s counsel cited Pa.R.E. 804, which relates to the admission of former

testimony where the witness is unavailable and the adverse party had a

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prior opportunity to cross-examine the witness.    However, here, Williams’

prior statements were not “testimony” and the Commonwealth did not have

the opportunity to cross-examine him.     Thus, trial counsel’s response was

improper.   However, for the following reasons, trial counsel cannot be

deemed ineffective, as Marlatt’s underlying claim—that the statements by

Williams should have been admitted as an excited utterance pursuant to

Pa.R.E. 803(2)—has no merit.

      Pennsylvania Rule of Evidence 803 provides, in relevant part, as

follows:

      The following [is] not excluded by the rule against hearsay,
      regardless of whether the declarant is available as a witness:

                                    ...

      (2) Excited Utterance. A statement relating to a startling event
      or condition, made while the declarant was under the stress of
      excitement that it caused.

Pa.R.E. 803(2). This Court has further noted:

      The declaration need not be strictly contemporaneous with the
      existing cause, nor is there a definite and fixed time limit.
      Rather, each case must be judged on its own facts, and a lapse
      of time of several hours has not negated the characterization of
      a statement as an “excited utterance.” The crucial question,
      regardless of the time lapse, is whether, at the time the
      statement is made, the nervous excitement continues to
      dominate while the reflective processes remain in abeyance.

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

omitted). “[I]t must be shown first, that [the declarant] had witnessed an

event sufficiently startling and so close in point of time as to render [his]

reflective thought processes inoperable and, second, that [his] declarations


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were a spontaneous reaction to that startling event.”    Commonwealth v.

Murray, 83 A.3d 137, 157-58 (Pa. 2013) (citation omitted).

     In determining whether a statement is an excited utterance, we
     have considered the following: 1) whether the declarant, in fact,
     witnessed the startling event; 2) the time that elapsed between
     the startling event and the declaration; 3) whether the
     statement was in narrative form (inadmissible); and, 4) whether
     the declarant spoke to others before making the statement, or
     had the opportunity to do so.

Commonwealth v. Keys, 814 A.2d 1256, 1258 (Pa. Super. 2003). Courts

must assess these four factors in light of the surrounding circumstances to

determine whether a statement is an excited utterance. Id.

     Here, it is clear that Williams witnessed a sufficiently startling event.

This Court recognizes the brutal nature of the killing and Williams’ close-up

perception of Struble’s gaping neck wound while he attempted to render first

aid to the victim. However, we do not agree that his declarations constitute

a spontaneous reaction to the event.

     Marlatt attempted to enter into evidence Williams’ oral statement in

response to an officer’s questions at the scene of the crime as well as a

written statement provided at the police station approximately five to six

hours later. The police report regarding Williams’ oral statement describes

the circumstances under which it was given:

     I asked [Williams] what else he remembers . . . He stated he
     was not as emotionally attached to [the victim] as everyone else
     on scene and was trying to calm people down and get them
     inside away from [the victim]. I recapped [Williams’] story. He
     reviewed the events again[.]

Incident Supplement, Amended PCRA Petition, 1/11/16, at Exhibit C.

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      Here, it is clear that Mr. Williams’ statement to the police was not a

spontaneous declaration made without any reflective thought.         Murray,

supra.    While the record shows that his statement was made only ten to

fifteen minutes after the stabbing, Williams’ statement reveals that he was

not emotionally attached to the victim and that he had spent the time

between the stabbing and the arrival of police attempting to calm down the

other witnesses. Moreover, Williams’ statements were not spontaneous, but

rather in direct response to an officer’s queries, and the report explicitly

states that the officer had Williams review his story after a brief summary by

the officer. Additionally, Williams’ statement to the officer was in narrative

form, explaining in detail how he came to arrive at the scene of the crime,

followed by a blow-by-blow description of the altercation.           Williams’

statements also contained some factual differences from the testimony of

other witnesses at the scene, which indicates that the Commonwealth would

have been prejudiced by its inability to cross-examine Williams. Finally, the

fact that Williams spent time attempting to calm the other witnesses at the

“chaotic” scene suggests that he was no longer excited by the time he made

his statement. For all the foregoing reasons, Williams’ oral statement to the

responding officers does not constitute an excited utterance under Rule

803(2).

      Having concluded that Williams’ oral statement to police ten to fifteen

minutes after witnessing the event was not an excited utterance, it follows




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that his written statements given at the police station some five to six hours

later cannot constitute an excited utterance.

       Marlatt’s underlying claim is without merit, and the outcome of the

trial would not have been different had trial counsel argued that Williams’

statements were subject to the excited utterance exception to the hearsay

rule   when   the   Commonwealth    objected     to    the   admission    of   those

statements.    Pierce, supra.    Accordingly, the PCRA court did not err in

concluding that trial counsel’s failure to offer a Rule 803(2) exception to the

Commonwealth’s      hearsay   objection    did   not    rise   to   the   level   of

ineffectiveness.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2017




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