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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: R.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: R.G. :
:
:
:
:
: No. 1050 WDA 2017
Appeal from the Order Entered June 27, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-JV-1945-2016
BEFORE: BOWES, J., NICHOLS, J., and STRASSBURGER*, J.
MEMORANDUM BY BOWES, J.: FILED JUNE 11, 2019
R.G. appeals the June 27, 2017 dispositional order placing him in a
residential education facility after he was adjudicated delinquent for acts that
would constitute robbery and simple assault if committed by an adult. We
affirm.
This appeal returns to us following our January 2, 2019 remand to the
juvenile court for the preparation of an amended Rule 1925(a) opinion. The
court complied with our directive, and the matter is now ready for our merits
review.
We previously summarized the relevant facts and procedural history as
follows:
On May 18, 2017, R.G. was adjudicated delinquent for the
commission of robbery and simple assault. The adjudication
stems from R.G.’s attempt to steal a purse, cellular telephone, and
shopping bags from Mara Pasko while she was trying to enter her
car on June 11, 2016. During the assault, R.G. punched the victim
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* Retired Senior Judge assigned to the Superior Court.
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in the face, causing her to fall to the ground. She suffered a black
eye and abrasions on her hip, legs, and knees.
In the Interest of R.G., 2019 WL 1590686, 1050 WDA 2017 (Pa.Super.
2019) (unpublished memorandum at 1).
The initial adjudication proceeding resulted in a mistrial. Appellant was
subsequently retried before a different judge and adjudicated delinquent for
committing the above-referenced offenses. As it relates to this appeal, we
observe that during the first adjudication proceeding, the Commonwealth
presented the testimony of Pittsburgh Police Officer Kalieb Hines, one of the
officers who responded to the robbery and physical assault of Ms. Pasko.1
Officer Hines testified that he assisted Police Officer Zachary Vozza, who was
the primary unit in the investigation. After arriving at the scene, Officer Hines
observed Appellant and chased him to a nearby residence. Significantly,
Appellant fit the assailant’s precise physical description and he was wearing
clothing similar to what Officer Vozza described over the police radio. Several
minutes later, Officer Hines observed Appellant emerge from the residence
wearing partially different clothing. However, as an aficionado of athletic
shoes, Officer Hines recognized that Appellant was wearing the identical pair
of rare gold-accented shoes that the suspect wore when he ran into the home.
Officer Hines apprehended Appellant and detained him for a show-up, in-
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1 While the certified record identified Officer Hines as both Kalieb and Caleb,
the officer’s testimony confirmed that the name is Kalieb. See N.T., 3/21/17,
at 74.
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person identification by the victim, who recognized Appellant as her assailant.
As Officer Hines was not the arresting officer, he did not transport Appellant
to the police station or prepare the arrest report.
During cross-examination, Officer Hines testified, inter alia, that he
prepared a supplemental police report but neglected to provide it to the
Commonwealth or bring it to the hearing. N.T., 3/21/17, at 94. After
attempting to locate the supplemental report during a recess, Officer Hines
testified that he was unable to locate the report, and he believed it was
misfiled under an incorrect identification number. Id. at 101. Therefore, it
would be impossible to locate. Id. Following argument, the juvenile court
granted Appellant’s motion for a mistrial based upon the Commonwealth’s
failure to disclose the supplemental police report. Id. at 117.
The matter was reassigned to a different juvenile court judge for the
second adjudication hearing. Ms. Pasko testified and, over Appellant’s hearsay
objection, the Commonwealth introduced an audio recording of Ms. Pasko’s
telephone call to 911 and played it for the court.2 N.T., 5/18/17, at 14-15,
98. As it relates to our discussion herein, the Commonwealth proffered the
recording under Pa.R.E 803(1) and (2), exceptions to the hearsay rule that
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2 The substance of the telephone call was not included in the notes of
testimony from the May 2017, hearing. However, portions of the exchange
were transcribed during the prior adjudication hearing, when Appellant played
excerpts in an attempt to impeach Ms. Pasko’s testimony.
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permit the introduction of a present sense impression and excited utterance,
respectively.3 The juvenile court did not immediately specify which exception
it relied upon in overruling Appellant’s objection. Id. at 15.
Officer Hines testified consistently with his prior testimony except that,
when confronted on cross-examination about the purported supplemental
police report, the officer stated that his initial belief that he prepared a
supplemental statement was inaccurate. He explained, “I didn’t write one. I
was mistaken. I thought I had written one.” Id. at 92. Officer Hines
confirmed that he was testifying from memory, having refreshed it in
anticipation of the hearing by reviewing the arrest report that Officer Vozza
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3 Rule 803 provides in pertinent part as follows:
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:
(1) Present Sense Impression. A statement describing
or explaining an event or condition, made while or immediately
after the declarant perceived it. When the declarant is
unidentified, the proponent shall show by independent
corroborating evidence that the declarant actually perceived the
event or condition.
(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. When the declarant is unidentified,
the proponent shall show by independent corroborating evidence
that the declarant actually perceived the startling event or
condition.
Pa.R.E. 803(1) and (2).
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drafted on the night of the robbery. Id. at 93-94. At the close of the
proceeding, the juvenile court adjudicated R.G. delinquent of robbery and
simple assault.
On June 27, 2017, the juvenile court entered a dispositional order
placing R.G. in the Glen Mills School, a secure residential education facility.
This timely appeal followed, wherein R.G. presents three issues:
I. Whether the [juvenile] court violated R.G.’s constitutional
confrontation right under the Sixth Amendment of the United
States Constitution and Article I, § 9 of the Pennsylvania
Constitution and/or R.G.’s right to a fair trial under the Due
Process Clauses of the United States and Pennsylvania
Constitutions when it allowed Officer Kalieb Hines to testify despite
his sworn testimony that the sole police report he authored in this
matter, the only one in which his version of events appeared, was
unable to be located, thereby foreclosing the possibility of any
pretrial investigation and meaningful cross-examination of him by
counsel at trial.
II. Whether the [juvenile] court violated R.G.’s right to a fair trial
under the Due Process Clause of the United States and
Pennsylvania Constitutions when it allowed the 911 call of the
complainant to be played, pursuant to Pennsylvania Rule of
Evidence 803(1), as a present sense impression after the
Commonwealth failed to lay a sufficient foundation for its
admission.
III. Whether the Commonwealth made an impermissible
burden – shifting argument in its closing when it commented on
defenses [sic] counsel’s failure to elicit evidence on cross-
examination.
Appellant’s brief at 7-8.
We review the juvenile court’s disposition order for an abuse of
discretion. In re Love, 646 A.2d 1233, 1238 (Pa.Super. 1994). “The Juvenile
Act is clear that a delinquent’s disposition is a duty vested in the discretion of
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the adjudicating juvenile court. This Court will not disturb a sentence absent
a manifest abuse of discretion.” Id. (citations omitted).
Appellant’s first contention is that the juvenile court erred in declining
to prohibit the testimony of Officer Hines. Appellant’s precise position is a
moving target insofar as he assails the Commonwealth both for failing to
produce Officer Hines’s supplemental police report and for neglecting to inform
him of the report’s nonexistence. For ease of disposition, we unravel
Appellant’s interwoven complaints and address them separately.
First, Appellant argues that Officer Hines’s testimony should have been
precluded in its entirety as a discovery sanction because the Commonwealth
failed to provide the supplemental police report during discovery. With a
passing reference to the Sixth Amendment of the United States Constitution
and Article I, § 9 of the Pennsylvania Constitution, he asserts that the juvenile
court violated his confrontation rights by permitting Officer Hines to testify
without the report.
In addition, Appellant relies upon Pa.R.J.C.P. 340, which governs pre-
adjudicatory discovery and inspection. Specifically, Appellant invokes Rule
340(b)(5), regarding the mandatory disclosure by the Commonwealth of
tangible objects and documents. In short, Appellant equates the
Commonwealth’s failure to provide the nonexistent supplemental police report
with undisclosed tangible evidence. Id. at 16. He continues that, since Rule
340(E) gives the juvenile court discretion to prohibit a party from introducing
evidence that was not disclosed during discovery, the court abused its
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discretion in neglecting to bar Officer Hines’s testimony in its entirety. Id. at
17-18. As Appellant phrases it, “A cross-examination of Officer Hines without
his prior statement—a police report with the events in this case—is
meaningless [because] without the relevant police report, [defense] counsel
lack[ed] any critical means to challenge Officer Hines’ testimony[.]” For the
following reasons, we disagree.
Appellant’s contention belies his understanding of Rule 340 and its
objective of encouraging the disclosure of evidence in the interest of justice.
See Rule 340 comments to (A)-(E). Appellant’s attempt to force the
application of Rule 340(E) sanctions to this situation is illogical. The sanction
is designed to prompt the disclosure of existing evidence. It is not aimed at
situations where, as here, a witness testified to the fact-finder’s satisfaction
that a document does not exist. The juvenile court’s observation is
instructive,
With respect to the facts in this particular case, there is no
evidence to suggest that the Commonwealth withheld, either
intentionally or not, a supplemental police report. Officer Hines’s
explanation was both plausible and credible. This court finds that
there was no bad faith by the Commonwealth, either through the
Assistant District Attorney or the City of Pittsburgh Police, to
withhold or mislead the appellant about [the] existence of a
supplemental report. Officer Hines testified solely by memory and
the appellant had ample opportunity to cross-examine him. As
[the officer] reported, he had made a number of arrests and
prepared a number of police reports since the incident in question.
There was no supplemental report to provide to the appellant prior
to trial and as such, he suffered no prejudice as it relates to any
pretrial investigation or trial preparation. As such, the appellant's
claim that Officer Hines’s testimony violated appellant's due
process rights must not stand.
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Juvenile Court Opinion, 1/25/19, at 7.
We agree with this rationale. The juvenile court made a credibility
determination in favor of Officer Hines’s representation that, despite his prior
indication, he did not draft a supplemental police report, and because the
record sustains the court’s determination, we will not disturb it. In re C.S.,
63 A.3d 351, 357 (Pa.Super. 2013) (“Conflicts in the evidence and
contradictions in the testimony of any witnesses are for the fact finder to
resolve.”). Once the predicate discovery violation dissolved, there was no
basis for the trial court to preclude Officer Hines’s substantive testimony as a
sanction pursuant to Rule 340(E). Officer Hines was subjected to extensive
cross-examination on his recollection of the incident, his pre-trial review of
the arrest report drafted by Officer Vozza, and the apparent inconsistencies
among his memory, the prior testimony, and the arrest report. N.T., 5/18/17,
at 91-93, 95-97. While Appellant additionally desired to impeach Officer Hines
with the phantom supplemental police report and criticized the
Commonwealth for failing to achieve the impossible and produce it, that
document simply does not exist.
Next, we address the aspect of Appellant’s contention that assails the
Commonwealth’s failure to inform him prior to the second adjudication that
Officer Hines had not drafted a supplemental police report. The crux of this
contention is that, by neglecting to advise Appellant before trial that the
supposed report did not exist, the Commonwealth “foreclos[ed] the possibility
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of any meaningful pretrial investigation or cross-examination of [Officer Hines]
by defense counsel at trial.” Appellant’s brief at 12. However, since Appellant
neglected to develop this aspect of his legal argument or cite to relevant
authority to support his proposition, it is waived. See J.J. DeLuca Co., Inc.
v. Toll Naval Assocs., 56 A.3d 402, 412 (Pa.Super. 2012).
Furthermore, assuming, arguendo, that this issue was preserved for our
review, Appellant failed to establish that the juvenile court erred in declining
to preclude Officer Hines’s testimony because the Commonwealth neglected
to update Appellant prior to trial. We observe that Officer Hines was subject
to adroit cross-examination by Appellant’s counsel, who not only challenged
the officer’s recollection of the events leading to Appellant’s arrest, but also
interrogated Officer Hines about his prior statement that he drafted a
supplemental police report, and assailed his credibility for testifying
inconsistently with the prior statement. N.T., 5/18/17, at 91, 92-93, 96-97.
Moreover, counsel revisited all of these points during summation. Id. at 99-
104. Tellingly, Appellant does not even attempt to explain how he was
prejudiced by the omission in light of counsel’s thorough cross-examination
about the phantom report. Indeed, Appellant acknowledges, “undersigned
counsel prepared for trial with the understanding that Officer Hines had no
written police reports in the matter[.]” Appellant’s brief at 12. As Appellant
had access to the evidence that the Commonwealth actually presented during
the hearing, prepared for trial accordingly, and highlighted the inconstancies
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and defects in Officer Hines’s testimony, he was afforded a meaningful
opportunity to present his defense. Hence, the juvenile court did not err in
precluding the entirety of Officer Hines’s testimony simply because the officer
previously misstated that he drafted a supplemental police report on the
evening of the incident. No relief is due.
Appellant’s second issue concerns the juvenile court’s decision to
overrule his hearsay objection to the introduction of a recording of Ms. Pasko’s
telephone call to 911 based upon the excited utterance and/or the present
sense impression exceptions to the rule against hearsay. Specifically,
Appellant asserts that the Commonwealth failed to lay the proper foundation
to sustain the court’s application of either exception. Unfortunately for
Appellant, the portion of his argument that he dedicated to challenging the
application of the excited utterance exception is waived because he omitted
that issue from both the statement of questions involved and the Rule 1925(b)
statement.4 See Commonwealth v. Einhorn, 911 A.2d 960, 969 n.2
(Pa.Super. 2006); Pa.R.A.P. 2116(a) (“No question will be considered unless
it is stated in the statement of questions involved of is fairly suggested
thereby.”); Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement
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4As the issue was not raised in the Rule 1925(b) statement, the juvenile court
did not have the opportunity to confront it. The juvenile court’s opinion only
addressed its application of the hearsay exception for present sense
impressions.
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. . . are waived.”). Accordingly, we do not address this aspect of Appellant’s
argument herein.
We address Appellant’s remaining hearsay claim mindful of our well-
ensconced standard of reviewing a trial court’s decision to admit or exclude
evidence for an abuse of discretion. In re A.J.R.-H., 188 A.3d 1157, 1167
(Pa. 2018). A court commits an abuse of discretion if it overrides or misapplies
the law, exercises manifestly unreasonable judgment, or issues a decision that
is the result of bias, prejudice, ill-will or partiality, as shown by the evidence
of record. Id.; Interests of T.M.A., __ A.3d __, 2019 WL 1415196, *4
(Pa.Super. 2019).
Concerning the rule against hearsay outlined in Pa.R.E. 802, our High
Court recently stated,
“Hearsay” is “a statement that (1) the declarant does not make
while testifying at the current trial or hearing; and (2) a party
offers in evidence to prove the truth of the matter asserted in the
statement.” Pa.R.E. 801(c). Under the Pennsylvania Rules of
Evidence, hearsay evidence is incompetent and inadmissible
unless it meets an exception set forth in the Rules or one
prescribed by this Court or statute.
In re A.J.R.-H., supra at 1167.
The hearsay exception for a present sense impression applies to “[a]
statement describing or explaining an event or condition, made while or
immediately after the declarant perceived it.” Pa.R.E. 803(1). In
Commonwealth v. Cunningham, 805 A.2d 566, 573 (Pa.Super. 2002), this
Court sustained a trial court’s application of the present sense impression
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exception in order to admit into evidence a transcript of a 911 call reporting a
robbery. Thereafter, we summarized the following relevant principles:
The observation must be made at the time of the event or shortly
thereafter, making it unlikely that the declarant had the
opportunity to form an intent to misstate his observation.
Consequently, the trustworthiness of the statement depends upon
the timing of the declaration. Commonwealth v. Gray, 867 A.2d
560, 570 (Pa.Super. 2005).
The rationale for this exception is that the “relative
immediacy of the declaration insures that there will have been
little opportunity for reflection or calculated misstatement.”
Commonwealth v. Coleman, 458 Pa. 112, 116, 326 A.2d 387,
389 (1974). “In addition, the present sense impression does not
require that the comments be made to another person also
present at the scene, but may be made over the telephone.”
Cunningham, 805 A.2d at 573.
Commonwealth v. Hood, 872 A.2d 175, 183 (Pa.Super. 2005).
Accordingly, consistent with the foregoing case law, a call to 911 may
qualify as present sense impression if the statement is reported
contemporaneously with the event or so instantaneous “that it is unlikely that
the declarant had the opportunity to form the purpose of misstating his
observation.” Cunningham, supra at 573 (quoting Commonwealth v.
Young, 748 A.2d 166, 177 (Pa. 1999)). Unlike the excited utterance
exception, however, the “declarant need not be excited or otherwise
emotionally affected by the event or condition perceived.” Pa.R.E. 803(1),
cmt.
Instantly, Appellant challenges the passage of time between the robbery
and the telephone call to 911. Appellant’s brief at 21. He contends that, by
taking the time to engage with onlookers to discern the name of the
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surrounding neighborhood prior to calling for emergency assistance, Ms. Pasko
had the opportunity to gain her composure and reflect on the incident. Id.
In support of this position, Appellant highlights the fact that the
Commonwealth did not introduce the 911 call log, disclose the precise time of
the call, or “establish how long the complainant waited to make the call.” Id.
In sum, Appellant complains, “[t]he Commonwealth’s lack of foundation
denie[d] [Appellant] the opportunity to fully consider and cross-examine the
complainant regarding her demeanor at the time the 911 call was made.” Id.
In rejecting Appellant’s argument, the juvenile court emphasized that
Ms. Pasko credibly testified that she called 911 nearly contemporaneous with
the robbery. The certified record supports this finding. See N.T., 5/18/17, at
14, 27. Indeed, Ms. Pasko informed the court that she called the police from
the scene of the robbery “seconds if not a minute” after Appellant fled, and
while she was still sitting on the ground. Id. at 14. Moreover, contrary to
Appellant’s protestations in his brief, the juvenile court accurately observed
that Ms. Pasko was, in fact, subjected to cross-examination by Appellant
regarding, inter alia, the emergency call to 911. Id. at 27-28. Hence, the
Commonwealth presented foundational evidence to demonstrate that it was
unlikely that Ms. Pasko could have “form[ed] the purpose of misstating [her]
observation.” Cunningham, supra at 573. As the certified record sustains
the juvenile court’s conclusion that the Commonwealth laid a foundation for
the recording’s admission into evidence under Rule 803, we will not disturb it.
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Appellant’s final issue relates to the Commonwealth’s closing argument.
He asserts that the juvenile court erred in overruling his objection to the
Commonwealth’s reference to the fact that, although Appellant argued that
the photographs of his image belied the witnesses’ testimony that he wore a
unique hairstyle, the “[d]efense didn’t cross [the witnesses] about [the] arrest
photo.” N.T., 5/18/17, at 110. Appellant characterizes the Commonwealth’s
reference to the defense’s trial strategy as shifting the burden upon him to
prove his innocence, and therefore, violated his constitutional rights.
Appellant’s brief at 23-24.
The juvenile court concluded that Appellant’s assertion was meritless
because the Commonwealth’s comments were not prejudicial. It reasoned,
“Any remarks made during closing arguments did not rise to the level that
would destroy the impartiality and objectivity of the factfinder.” Trial Court
Opinion, 1/25/19, at 10. We agree.
Appellant’s claim that the Commonwealth shifted the ultimate burden of
proof upon him to prove his innocence is more daring than convincing. As the
ultimate arbiter of fact, the juvenile court was positioned to determine
whether the reference to defense counsel’s cross-examination affected its
ability to render an impartial decision. The juvenile court was free to accept
or reject any part of the witnesses’ testimony, including the testimony that
characterized Appellant’s hairstyle as unique. Appellant attempted to impeach
that aspect of the testimony in his closing argument, and the Commonwealth
countered by highlighting the fundamental flaw in Appellant’s argument, i.e.,
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the absence of evidence to support the insinuation that the witnesses were
mistaken. Appellant’s claim fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2019
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