Com. v. White, M.

J-S15012-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW BRIAN WHITE :
:
Appellant : No. 860 WDA 2018

Appeal from the Judgment of Sentence May 11, 2018
In the Court of Common Pleas of Warren County Criminal Division at
No: CP-62-CR-0000273-2017

BEFORE: GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.: FILED JULY 09, 2019

Appellant, Matthew Brian White, appeals from the judgment of

sentence of life imprisonment without the possibility of parole, which was

imposed after his jury trial conviction for murder of the first degree.1

We affirm.

On June 21, 2017, Appellant murdered his wife, Jessica White, by

shooting her four times in the chest and abdomen. The murder took place in

the driveway of their home while their three children – ages seven-years-old

and younger – were inside the house.

____________________________________________

1 18 Pa.C.S. § 2501(a).

* Retired Senior Judge assigned to the Superior Court.
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At 5:07 p.m. on that date, a “priority abandon” call2 came into the

Warren County 911 Center from the Whites’ address. N.T. Trial at 60, 66,

79-80, 85-88, 97. When Pennsylvania State Police (“PSP”) Trooper

Shea Sedler arrived at the Whites’ home, he observed Appellant and his wife

(“Jessica” or “the Victim”) seated in the passenger and driver seats,

respectively, of a car parked in their driveway, both covered in blood; the

trooper called for backup and emergency medical service (“EMS”). When

PSP Corporal James Shaw arrived, he “cleared” the house, then spoke with

Appellant and the Victim’s seven-year-old child, B.W.

Appellant was transported via helicopter to the University of Pittsburgh

Medical Center Hamot Specialty Center in Erie, where the trauma surgeon

concluded that Appellant had a self-inflicted gunshot wound. Id. at 519,

609. Two days later, about two hours after Appellant was moved from the

intensive care unit (“ICU”), Troopers Jeffrey Osborne and Scott Sipco went

to Appellant’s hospital room and had a conversation with him, which they

recorded. Appellant was read his Miranda3 rights and stated, “I don’t even

____________________________________________

2 According to the lead telecommunicator for the Warren County Department
of Safety, a “priority abandon” call “happens when a person dials 911 from a
telephone, but hangs up before a 911 telecommunicator can answer the
call.” N.T. Trial at 66.
3 Miranda v. Arizona, 384 U.S. 436 (1966).

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know what the hell happened.” Appellant was charged with the murder of

Jessica.

Prior to trial, the Commonwealth filed a petition to admit B.W.’s

statements to Cpl. Shaw into evidence pursuant to the Tender Years Hearsay

Act (TYHA).4 On April 12, 2018, the trial court held a hearing on the

petition.5 At the TYHA hearing, Cpl. Shaw testified as follows:

____________________________________________

4 An out-of-court statement made by a child victim or witness,
who at the time the statement was made was 12 years of age or
younger, describing any of the offenses enumerated in 18
Pa.C.S. Ch. 25 (relating to criminal homicide) . . . not otherwise
admissible by statute or rule of evidence, is admissible in
evidence in any criminal or civil proceeding if:

(1) the court finds, in an in camera hearing, that the
evidence is relevant and that the time, content and
circumstances of the statement provide sufficient
indicia of reliability; and

(2) the child either:

(i) testifies at the proceeding; or

(ii) is unavailable as a witness.

42 Pa.C.S. § 5985.1(a).
5 TYHA requires that the hearing to determine the admissibility of a child’s
hearsay statements be conducted in camera. Id. § 5985.1(a)(1). There is
nothing in the record to indicate that the TYHA hearing in the current action
was conducted in camera, and, in fact, the cover of notes of testimony from
that hearing states that it was conducted “in the Main Courtroom of the
Warren County Courthouse[.]” N.T., 4/12/2018, at 1. However, neither
party appears to have objected to the setting, and Appellant does not raise
this setting as an issue on appeal.

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[Q.] So, how many officers were on scene at the time that you
got there?

A. I think when I got there, there was two or three on scene.
...

Q. Where there any [emergency medical technicians] on
scene at that time that you are aware of?

A. No, there were not. . . . I think, as I was arriving, a couple
troopers were pulling [the Victim] out of the driver’s seat of the
car and started to perform CPR on her. . . . I believe there was
like another Trooper in front of the cars. Like checking the back
of that house. . . .

Q. Had anybody, to your knowledge, from law enforcement,
cleared the house prior to your arrival?

A. No. I was the first one.

N.T., 4/12/2018, at 28-29. The corporal further testified that, although

Appellant and the Victim’s three children had been removed from the home

while he was clearing the house, he “took the children back inside the

house” “[a]fter we cleared the house,” because it was “safe in there,”

whereas “there w[ere] two people outside that had . . . been shot.” Id. at

32, 34. His testimony continued:

I asked [B.W.] if he could tell me what happened before his dad
went outside. . . . He said, let me start from the beginning. My
dad got off the phone. He seemed very upset, like he was
starting to cry. He came over and hugged us kids, and kissed
us. And, then said goodbye. . . . And he then left the residence.
...

I asked him, too, if after his father went outside, if he heard
anything. He said he heard something popping, like firecrackers
outside.

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Id. at 33.6 The corporal testified that his conversation with B.W. occurred at

“probably 5:25 [or] 5:30 [p.m.] . . . less than a half hour” after the 911

phone call “came in[.]” Id. at 34.

During cross-examination, Corporal Shaw described the scene as

“calm as it could be” and acknowledged that “all the other personnel” were

“safe at that point[.]” Id. at 40. Corporal Shaw was then asked his purpose

in speaking with B.W.:

Q. All right. So, you at that point were looking to gather
evidence or information of what had occurred that day?

A. Correct. . . .

Q. Would you agree with me that there wasn’t an ongoing
emergency at that point, because the scene was secure?

A. I don’t know. I mean, there was still emergency. They
were still treating people outside. You know. Still.

Q. So, the purpose of you questioning [B.W.] was to gather
further evidence to see what happened there?

A. To get information of what was, happened there that day.
. . . Just to gather information, so we could see what we had.
You know, what we were looking for. A suspect. If he saw
anybody else outside or any information he could give us to help
us start investigating, you know, what happened to [Appellant]
and [the Victim].

Q. So, it was for investigative purposes?

A. Yes.
____________________________________________

6 At the TYHA hearing, Corporal Shaw additionally testified that B.W. told
him he saw that “his mother and father were laying in the car and his
mother was like flailing, and honking the horn.” Id. at 34. However, this
evidence was never presented to the jury at trial. Compare id. with N.T.
Trial at 97.

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Id. at 41-42.

Upon being questioned directly by the trial court, Corporal Shaw

clarified that there were two other troopers present in the house at the time

he spoke to B.W. -- one who “might have been holding” one of B.W.’s

siblings and another who “might have been holding [the other child’s] hand

or something.” Id. at 43. Cpl. Shaw was the only person speaking to B.W.

Id.

On re-direct examination, Corporal Shaw made clear: “when I first

arrived on scene, really, all I knew, there was two people that had been shot

outside the residence, you know, in the car, beside the car.” Id. at 44. He

further explained that, although the house itself was secure, the out

buildings, back yard, and woods bordering the property had not yet been

secured. Id. at 46-47.

At the conclusion of the hearing, the trial court determined that B.W.’s

statements were nontestimonial and permitted the Commonwealth to

introduce the statements at trial, through Cpl. Shaw. Id. at 76.

Additionally, prior to trial, Appellant filed a motion in limine to prevent

the Commonwealth from admitting a text message written by Jessica to her

mother (“Mother”). The text message at issue stated: “It’s been decided.

We are getting a divorce and I am pretty sure it’s going to be messy.”

Commonwealth Exhibit 2. The message was sent May 29, 2017, which was

Memorial Day, approximately one month before the Victim was killed. The

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trial court denied the motion in limine and ruled that the text message was

admissible to show motive.

At trial, Mother testified that she spoke to Jessica about the status of

her marriage --

Q. The months and weeks prior to June 21st of [2017], did
you speak with Jessica about the status of her marriage, the
status of the Defendant, Matthew White?

A. Yes, I did. Multiple times. . . . She said they were really
struggling. And, not getting along well. Having arguments.
There was a lot of stress in the house. She was worried about
possibly getting a divorce.

N.T. Trial at 51. After the Commonwealth introduced and the trial court

admitted Commonwealth Exhibit 2, Mother’s testimony continued:

[A.] [Jessica] was pretty well set that she was going to need a
divorce. To the point that I looked into some attorneys, and had
given her an attorney’s name. . . .

Q. Prior to this, had Jessica discussed with you anything
about her divorce or separating or anything like that?

A. She had talked about things not going real well. The home
life being very stressful, and she was worried about her
marriage. . . . She did talk to me saying that she wanted, that
she was hoping that she would be able to stay in the house and
have Matthew move out. That way the kids weren’t disrupted.
They would still be in their same home.

N.T. Trial at 54-55.

Appellant also took the stand. After agreeing that he and the Victim

had discussed divorce “on Memorial weekend[,]” id. at 554, Appellant

testified that two masked men killed his wife and shot him. Specifically,

Appellant testified that, beginning at 5:01 p.m. at the earliest, he was

outside on the porch, went back inside to check on his children, heard shots,

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ran outside, struggled with one of the masked men, ran around the back of

the house, was shot, fired shots, and laid down for approximately five

minutes before going into the house while covered in blood to call 911 at

5:07 p.m.

During cross-examination, the following dialogue took place between

the Commonwealth and Appellant:

Q. You didn’t tell her that you thought she . . . is cheating on
you with guys at work?

A. I suspected that. But, I didn’t know.

Q. And, you told her that, right?

A. Yeah.

Id. at 581. Appellant then agreed with the majority of Cpl. Shaw’s

testimony about B.W.’s statement: that he hung up the telephone, was

crying, gave the children a hug and a kiss, told them he loved them, said

goodbye, and went outside. Id. at 584-85. The following exchange then

occurred:

Q. Do you have any idea who these masked men are?

A. I have an idea but. . . .

Q. What [are] their names?

A. I would rather not state their names right now on the
record.

Q. They killed your wife.

A. Exactly. Why didn’t you come and ask me this before[?]

Q. What, say that again?

A. No cop ever –

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Q. Say, say that again, why what?

A. No, why didn’t you guys come and ask me this before?
Nobody came and asked me who did this.

Q. I am glad you asked me that. You don’t remember being
in the hospital on June 23rd and having this (Indicating)
gentleman back here and another Trooper come and ask you
what happened? . . . And you responded to them, I don’t know
what the hell happened. I can’t tell you anything?

A. I couldn’t believe you were charging me. Yes, did you
record that?

Q. Actually we did. Actually we did. . . . Would you like to
hear?

A. I don’t care. . . . They would have investigated and found
out. . . .

Q. How did [the troopers] treat you? . . .

A. Very rudely. . . . I can’t remember anything they said.

Q. You don’t remember that?

A. But, I always know that if you are charged with [a] crime
not to freakin say anything.

...

Q. What you told them was, I don’t have any idea what
happened, isn’t that true?

A. Yes. But I did tell. I did tell a doctor that

...

[Q.] Basically, you said, why didn’t someone ask you what
happened. And, I, we went to June 23rd, two days after the
incident, when you are in the hospital.

I believe you are in the hospital still. Under guard. And
the two troopers came in and asked you what happened. And,
you told them, I don’t know what the hell happened. And, that’s
because they were rude to you?

A. Yes. . . . I[f] you would’ve asked me this ten or eleven
months ago. I don’t know what to say.

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Id. at 606-10, 613, 630-31.

During Appellant’s re-direct examination, the following exchange about

the interrogation of Appellant while he was in the hospital occurred:

Q. [Trooper Osborne] is trying to ask you what happened?

A. That’s to my knowledge. I am not sure how it went down.
I would like to see the video.[7]

Q. But, you are arrested once. You are arrested, and you
don’t want to talk to him, because you are under arrest?

A. Right. Exactly. Yep. I was always told never to, if they
arrest you, to never say anything until they, till court.

Id. at 637-38.

Based on Appellant’s statement “I would like to see the video[,]” id. at

637, the Commonwealth sought to introduce the recording. Id. at 639. At

side bar, defense counsel informed the trial court that, on the recording,

Appellant “assert[ed] the Constitutional rights. He said he didn’t want to

talk to them. He asserted that right.” Id. at 639. The trial court answered

that it was “fine” to play those statements and allowed the Commonwealth

to broadcast the recording in open court. Id. at 639-40. The recording8

contained the following relevant excerpts --

____________________________________________

7At this time, Appellant mistakenly believed that the recording was a video,
whereas it was actually an audio recording only.
8 The recording itself was not initially included with the certified record, and
no transcript thereof was provided by either party. Our Prothonotary
obtained the recording from Warren County, and we transcribed the excerpts
included herein.

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Appellant:9 Don’t know anything to say.

Trooper Sipco: I’m Trooper Sipco at the Pennsylvania State
Police currently at Hamot Hospital, Room 440. The date’s
June 23, 2017. Time is approximately 14:35 hours. Here with
Matthew White and Trooper Osborne. Are you aware you are
being recorded, Matthew?

Appellant: Yes.

...

Trooper Osborne: Just so everybody understands, Matt,
you have a gunshot wound to your chest, I mean that’s,
basically correct me if I’m wrong at any time, but that seems to
be – that’s why you’re here, is that correct, why you’re here at
Hamot? O.K.? Like Trooper Sipco said, what we want to do is -
and, unfortunately, I have to tell you again and again for anyone
who is listening - your wife did not make it, O.K.? And that’s
why we are here, O.K., because we want to figure out what
happened to you and what happened to her.

Appellant: My kids O.K.?

Trooper Osborne: Your kids are perfectly fine. O.K., you
got nothing to worry about with the kids right now. But we want
to figure out exactly what happened, (Appellant moans) figure
out what you can tell us. Every detail you can possibly
remember, O.K.? (Appellant moans).

You understand that? That’s why we are here. Matt, do
you understand that?

Appellant: Yes, I do. I … I …

Trooper Osborne: O.K. One thing I am going to do, and it
has nothing to do with you, it’s to protect you, and it protects
us. O.K. I’m gonna read you your rights. Have you ever had
your rights read to you before?

...

____________________________________________

9 The recording begins with Appellant’s statement, with nothing directly
preceding it. Commonwealth Exhibit 62.

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[Miranda rights are read.]

Appellant: I’m gonna wait to hell call in an attorney,[10]
because I don’t -- I don’t even know what the hell
happened.

Trooper Osborne: O.K. and then that’s why I read you your
rights, O.K. Um, if you’re telling me right now and that’s what
you’re telling me, I want to make sure that’s 100% accurate,
that you’re telling me that you don’t want to talk to me right
now, you want to talk to an attorney before you talk to us is that
correct?

Appellant: Yes.

Trooper Osborne: O.K.

Trooper Sipco: This interview will be concluded at 14:40.

Commonwealth Exhibit 62 (emphasis added).

Appellant was found guilty of murder of the first degree and sentenced

to life imprisonment without the possibility of parole on May 11, 2018. On

June 1, 2018, Appellant filed this timely direct appeal.11

____________________________________________

10As noted above, neither party provided a transcript of the audio recording
at issue, and this Court transcribed the recording. We found part of
Appellant’s response immediately after Trooper Osborne finished reading the
Miranda rights to him difficult to discern – specifically, the section that we
have transcribed as “to hell call in.” Nevertheless, we believe that our
perception of the words “I’m gonna wait” and “attorney” are correct, as is
everything after “because.”
11Appellant filed his statement of errors complained of on appeal on June 4,
2018, although one was not ordered by the trial judge. The trial court
entered its opinion on July 24, 2018. Additionally, Appellant attached the
wrong trial court docket to his notice of appeal; he attached the docket for
CP-62-CR-0000496-2001. The trial court added that docket number to this
appeal. Appellant filed an amended notice of appeal with the correct trial
court docket attached. Appellant is only filing an appeal from CP-62-CR-
(Footnote Continued Next Page)

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Appellant presents the following issues for our review:

1. Did the trial court commit reversible error in permitting the
Commonwealth to play for the jury an audio recording of a
custodial interrogation where Appellant asserted his right to
remain silent and invoked his right to counsel?

2. Did the trial court commit reversible error in admitting the
hearsay statement of the minor child when it was testimonial
and the Appellant did not have an opportunity to cross-
examine the witness?

3. Did the trial court commit reversible error in admitting the
hearsay text message of the victim?

Appellant’s Brief at 3 (renumbered to facilitate disposition).

Audio Recording of Interrogation12

Appellant contends that the trial court erred in permitting the

Commonwealth to play for the jury an audio recording of the interaction

between Appellant and state troopers, on June 23, 2017, when Appellant

was at the hospital.13 Appellant argues that the conversation was a

(Footnote Continued) _______________________

0000273-2017, therefore, Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018), is not implicated.
12 As Appellant does not point to any questions asked by the prosecutor as
impermissibly commenting on Appellant’s post-arrest silence, our analysis is
limited to the error complained of by Appellant, the introduction of the
recording, which includes the statement by Appellant: “I’m gonna wait to
hell call in an attorney, because I don’t - I don’t even know what the hell
happened.” Commonwealth Exhibit 62.
13We note that defense counsel never formally objected to the admission of
the audio recording during trial, and the trial court never explicitly stated
that it was overruling any objection. However, we will consider the
exchange at side bar transcribed at N.T. Trial at 639 to be sufficient to have
(Footnote Continued Next Page)

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custodial interrogation and that he asserted his right to remain silent, and

any reference to his silence therefore was reversible error per

Commonwealth v. Turner, 454 A.2d 537 (Pa. 1982).

“No person . . . shall be compelled in any criminal case to be a witness

against himself . . .” U.S. Const. Amend. V. The right against self-

incrimination includes the right of a criminal defendant not to testify at trial,

and the right to remain silent as explained in the Miranda cases.

Additionally, the Supreme Court of Pennsylvania has held that the

prosecution cannot impeach a testifying criminal defendant with his post-

arrest silence, because an accused has a legitimate expectation that no

penalty will attach to a lawful exercise of his constitutional right to remain

silent, whether Miranda warnings are given or not. Turner, 454 A.2d at

540.

An appellant court’s review of a constitutional right issue is a question

of law; therefore the standard of review is de novo and the scope of review

is plenary. Commonwealth v. Baldwin, 58 A.3d 754, 762 (Pa. 2012).

Preliminarily, we must determine whether Appellant was under arrest

or otherwise in custody at the time the interrogation was recorded, because,

as mentioned above, Turner only pertains to the post-arrest silence of the

(Footnote Continued) _______________________

preserved this issue. We further note that defense counsel also never
requested a curative instruction.

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accused. 454 A.2d at 540; see also Commonwealth v. Bolus, 680 A.2d

838, 843-44 (Pa. 1996) (defendant was interviewed prior to his arrest and

made several statements to law enforcement inconsistent with his trial

testimony; Supreme Court held Turner is only relevant to post-arrest

silence; when a defendant chooses to testify, he waives his Fifth Amendment

protection and is subject to impeachment through reference to pre-arrest

silence); Commonwealth v. Fischere, 70 A.3d 1270, 1280 (Pa. Super.

2013) (en banc) (admission of evidence of pre-arrest silence is subject to a

more lenient standard than post-arrest silence; in order for evidence of pre-

arrest silence to be admissible, defense must “open the door,” and the trial

court assess probative value versus prejudicial effect; defense counsel

opened the door when, “through no provocation from the Commonwealth,” it

“engaged in a line of questioning that inquired into why law enforcement did

not conduct a more comprehensive interview with Appellant”; the probative

value of Appellant’s silence was to show “that Appellant’s refusal to speak to

the officers . . . limited law enforcement’s ability to conduct the full

investigation that defense counsel was insinuating should have been

conducted”); Commonwealth v. Moury, 992 A.2d 162, 176 (Pa. Super.

2010) (“To run afoul of Turner, it must be clear that the testimonial

reference is to post-arrest silence.” (quoting Commonwealth v. Mitchell,

839 A.2d 202, 213 (Pa. 2003)).

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Appellant contends that “the circumstances are . . . compelling that

[he] would conclude he was in custody and could not freely leave.”

Appellant’s Brief at 25. He continues that this “custodial interrogation”

began “upon the officers’ arrival at his room[.]” Id. at 26. Appellant relies

upon Commonwealth v. Whitehead, 629 A.2d 142, 144 (Pa. Super.

1993), where this Court found that a reasonable person being questioned

while in a hospital bed or gurney would conclude that he was in custody, as

he could not leave freely. Appellant’s Brief at 24.14

The Supreme Court of Pennsylvania has “defined an arrest as any act

that indicates an intention to take the person into custody and subjects him

to the actual control and will of the person making the arrest.”

Commonwealth v. Lovette, 450 A.2d 975, 978 (Pa. 1982). Examples of

such acts may include placing physical or verbal restraints upon a person or

giving him the Miranda warnings. Commonwealth v. Monahan, 549 A.2d

231, 234 (Pa. Super. 1988).

The test is an objective one, i.e., viewed in the light of the
reasonable impression conveyed to the person subjected to the
seizure rather than the strictly subjective view of the officers or
the persons being seized.

Finally, whether an encounter is to be deemed ‘custodial’ must
be determined with reference to the totality of the
circumstances.
____________________________________________

14The Commonwealth presents no argument as to whether Appellant was in
custody or under arrest at the time of the audio recording at issue and thus
appears to concede the point. Commonwealth’s Brief at 13-18.

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Id. (citations omitted) (some formatting).

In the current case, Appellant was in the hospital, having just been

moved from the ICU two hours before, and could not leave freely. Compare

N.T. Trial at 609 with Whitehead, 629 A.2d at 144. He was then read his

Miranda rights. Compare Commonwealth Exhibit 62 with Monahan, 549

A.2d at 234. Ergo, we conclude that, based upon the totality of the

circumstances, the reasonable impression conveyed to Appellant was that he

was being taken into custody.15 See Lovette, 450 A.2d at 978; Monahan,

549 A.2d at 234. Accordingly, his statements on the recording were made

post-arrest, and the Turner standard applies. See Turner, 454 A.2d at

454; see also Bolus, 680 A.2d at 843-44; Fischere, 70 A.3d at 1280;

Moury, 992 A.2d at 176.

Appellant claims that playing the recording was an impermissible

comment on his post-arrest silence, because he was heard stating, “I’m

gonna wait to hell call in an attorney, because I don’t - I don’t even know

what the hell happened.” Commonwealth Exhibit 62. We disagree and find

that, in the context the recording was presented, Appellant’s Fifth

Amendment rights were not violated.

____________________________________________

15Although “[t]he test is an objective one[,]” Monahan, 549 A.2d at 234,
we observe that Appellant testified that he believed that he was being placed
under arrest at the time the audio recording was made. See N.T. Trial at
613, 637.

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In Commonwealth v. Copenhefer, 719 A.2d 242, 251 (Pa. 1998),

the defendant alleged the prosecutor improperly commented on his post-

arrest silence when the prosecutor challenged his testimony about the

police investigation. The Supreme Court explained:

In general, after a defendant has been given Miranda warnings,
the defendant’s post-arrest silence may not be used against him
to impeach an explanation subsequently offered at trial.
However, where a prosecutor’s reference to a defendant’s silence
is a fair response to a claim made by defendant or his counsel at
trial, there is no violation of the Fifth Amendment privilege
against self-incrimination. . . . Appellant may not assert to a jury
that on the one hand he was entirely cooperative with
investigators but on the other hand not place before that same
jury the fact that he belatedly invoked his right to remain silent
to refuse to answer the most incriminating questions put to him.
Not only would such a situation be misleading to the factfinder,
but it would allow appellant to convert the Fifth Amendment
shield into a sword which could not be countered by the
prosecutor’s further inquiry or fair comment thereon.
Accordingly, we find that the prosecutor’s comments were a fair
response to a claim made by defendant or his counsel; thus, the
comments did not violate appellant’s Constitutional rights.

Id. at 251-52 (internal citations and quotation marks omitted).

Just like the defendant in Copenhefer, id. at 252, Appellant implied

to the jury that he would have been cooperative with investigators and

blamed the police for a conducting a poor investigation by not asking him

appropriate questions. N.T. Trial at 607-08 (“Why didn’t you come and ask

me this before . . . No cop ever -- . . . why didn’t you guys come and ask me

that before? Nobody came and asked me who did this. . . . They would have

investigated and found out.”). Therefore, as with the defendant in

Copenhefer, 719 A.2d at 252, Appellant cannot be permitted to preclude

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the Commonwealth from placing before the same jury the fact that he

refused to cooperate with said investigators and invoked his right to remain

silent, declining to answer the potentially incriminating questions that he

was now claiming they never asked him. Thus, the Commonwealth’s playing

of the audio recording referencing Appellant’s post-arrest silence,

Commonwealth Exhibit 62, was a “fair response to a claim made by

defendant or his counsel at trial” about the nature of the investigation

and thereby was not a “violation of the Fifth Amendment privilege against

self-incrimination.” Copenhefer, 719 A.2d at 251.

Furthermore, the cases relied upon by Appellant in his brief to this

Court are nondispositive. Appellant first relies upon Turner itself.

Appellant’s Brief at 26. Although we apply the test from Turner, the facts of

Turner itself are also distinguishable from the current action. In Turner,

454 A.2d at 538-39, at trial, the defendant, for the first time, stated that his

shooting of the victim had been in self-defense. During cross-examination,

the prosecutor inquired as to why the defendant had never told the police

that someone had been shooting at him on the night of the murder. Id. On

appeal the Supreme Court of Pennsylvania reversed, holding that, in cases in

which the defendant offers his version of the events for the first time at trial

– i.e., where he had never made a statement to the police, the prosecution

is not permitted to impeach the defendant’s testimony by reference to the

defendant’s previous silence, id. at 540, explaining:

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the Commonwealth must seek to impeach a defendant’s relation
of events by reference only to inconsistencies as they factually
exist, not to the purported inconsistency between silence at
arrest and testimony at trial. Silence at the time of arrest may
become a factual inconsistency in the face of an assertion by the
accused while testifying at trial that he related this version to the
police at the time of arrest when in fact he remained silent.

Id. at 539-40.

In the current action, as in Turner, Appellant, for the first time, stated

that he saw someone else shoot Jessica. See id. at 539. Unlike in Turner,

however, it was not the prosecutor who inquired as to why the defendant

had never told police this information, see id., but Appellant who ask why

he was never asked by police for this information, N.T. Trial at 607 (“Why

didn’t you come and ask me this before”), and who asked to have the

recording played. Id. at 637 (“I would like to see the video.”). See also

Wainwright v. Greenfield, 474 U.S. 284 (1986) (officers’ testimony – not

prosecutor’s comments or questions – about the defendant’s response to the

Miranda warnings was held to violate the defendant’s Fifth Amendment

rights). The facts of Turner are consequently distinguishable to those of the

current appeal.

Appellant likewise relies upon Commonwealth v. Freeman, 562 A.2d

375 (Pa. Super. 1989). Appellant’s Brief at 27-28. In Freeman, the

prosecutor asked the appellant if he “ever gave the police [his] version of

what happened, or try to give them [his] version?” 562 A.2d at 377. Upon

review of the appellant’s trial testimony, this Court “found no indication that

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appellant ever asserted that he told his version of the incident to police at

the time of his arrest.” Id. This Court concluded: “Because appellant made

no claim that he related his version at the time of arrest, appellant’s post-

arrest silence is not ‘factually inconsistent’ with his testimony at trial, and

the trial court should not have permitted inquiry in this area.” Id.

Unlike Freeman, where the appellant did not make any statement to

police and consequently the issue concerned his post-arrest silence, 562

A.2d at 377, Appellant in the current appeal did not remain silent but,

instead, told police he did not know what happened. Commonwealth Exhibit

62. Additionally, Appellant testified that no one asked him what happened

during the shooting. N.T. Trial at 607. This testimony was “factually

inconsistent” with the recording where Trooper Osborne asked Appellant

what happened to him and Jessica. Commonwealth Exhibit 62. Appellant’s

assertion during trial that he knew who killed Jessica was also “factually

inconsistent” with his statement on the recording that he did not know

anything. Compare N.T. Trial at 607 with Commonwealth Exhibit 62. For

all these reasons, Freeman is not controlling.

In conclusion, we find the circumstances of Copenhefer the most

analogous to those of the current case, and we therefore hold that, as in

Copenhefer, 719 A.2d at 252, the playing of the audio recording was a fair

response to Appellant’s claim that investigators never asked him about the

shooting, whereas the cases cited by Appellant, Freeman and Turner, are

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inapposite. Hence, Appellant’s Fifth Amendment right against self-

incrimination was not violated when the trial court allowed the

Commonwealth to introduce the recording into evidence. Appellant’s first

issue on appeal is thereby meritless.

Admission of B.W.’s Statements to Police

Appellant next argues that introduction of the hearsay statements of

B.W. via the trial testimony of Corporal Shaw violated Appellant’s right to

confront witnesses against him under the Sixth Amendment. Appellant’s

Brief at 10.

“[W]hether a defendant has been denied his right to confront a

witness under . . . the Sixth Amendment . . . is a question of law, for which

our standard of review is de novo and our scope of review is plenary.” In re

N.C., 105 A.3d 1199, 1210 (Pa. 2014).

The Sixth Amendment guarantees that, “in all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with the witnesses

against him.” U.S. Const. Amend. VI. “The Confrontation Clause . . .

prohibits out-of-court testimonial statements by a witness unless the

witness is unavailable and the defendant had a prior opportunity for cross-

examination.” Commonwealth v. Yohe, 79 A.3d 520, 531 (Pa. 2013)

(emphasis added).

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Thus, we must first consider whether B.W.’s statements to

Corporal Shaw immediately follow the “clearing” of the Whites’ home by the

police were “testimonial statements.” See id.

Appellant argues that B.W.’s on-scene statements to the police were

testimonial. Appellant’s Brief at 10.

[I]n analyzing whether a statement is testimonial, and,
therefore, subject to the protections of the Confrontation Clause
. . . , a court must determine whether the primary purpose of
the interrogation was to establish or prove past events relevant
to a later criminal prosecution. In making the determination as
to the primary purpose of an interrogation, a court first should
determine whether the interrogation occurred during the
existence of an ongoing emergency, or what was perceived to be
an ongoing emergency. Although the existence—actual or
perceived—of an ongoing emergency is one of the most
important factors, this factor is not dispositive because there
may be other circumstances, outside of an ongoing emergency,
where a statement is obtained for a purpose other than for later
use in criminal proceedings. In determining the primary purpose
of an interrogation, a court must also 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).

We will examine each factor in turn. As the trial court rendered its

decision about the admission of B.W.’s hearsay statements after the pretrial

hearing mandated by TYHA, 42 Pa.C.S. § 5985.1(a)(1), on April 12, 2018,

we will only consider the evidence presented during that hearing for our

review of this issue. The trial court only had that information available to it

when it rendered its decision, not the evidence presented during trial, similar

to how “as a matter of law our scope of review in suppression matters is

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limited to the suppression hearing record, and excludes any evidence elicited

at trial.” Commonwealth v. Yong, 177 A.3d 876, 883 (Pa. 2018), cert.

denied, 139 S. Ct. 374 (2018).

Ongoing Emergency

In order to determine whether there was an ongoing emergency or a

perceived emergency, the focus must be on the perspective of the parties at

the time of the interrogation and not based on hindsight, for “[i]f the

information the parties knew at the time of the encounter would lead a

reasonable person to believe that there was an emergency, even if that

belief was later proved incorrect, that is sufficient for purposes of the

Confrontation Clause.” Allshouse, 36 A.3d at 174. Whether an emergency

exists and is ongoing is a highly context-dependent inquiry, and the duration

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

employed. Michigan v. Bryant, 562 U.S. 344 (2011).

Appellant contends that, “[a]t the time the child was questioned, there

was not an ongoing emergency under an objective standard.” Appellant’s

Brief at 13. He continues:

B.W. was not questioned immediately upon the arrival of police
to the scene and instead approximately a half an hour had
passed before they sat down to talk with him. By the time
Corporal Shaw questioned B.W., the home had been searched,
cleared, and secured by the police. [N.T., 4/12/2018, at 33-35.]
Corporal Shaw acknowledged that the house was safe and that
was why he had returned the children inside before talking to
B.W. [Id. at 32.] . . . [Corporal Shaw] agreed that although
unpleasant, the scene was calm at the point he began
questioning B.W. [Id. at 40.]

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Id. at 13-14.

We conclude there was an ongoing emergency based on several facts.

Corporal Shaw testified that his conversation with B.W. occurred “less than

a half hour” after the 911 call, N.T., 4/12/2018, at 34 (emphasis added),

contrary to Appellant’s contention that a full half hour had elapsed.

Appellant’s Brief at 13. More importantly, although Appellant is correct that

Corporal Shaw referred to the home as “safe[,]” Appellant’s Brief at 13

(citing N.T., 4/12/2018, at 40), the out buildings, back yard, and

surrounding woods had not yet been secured. N.T., 4/12/2018, at 46-47. A

gun was used in the crime, as in Bryant, further suggesting an emergency

existed and was ongoing. Compare N.T., 4/12/2018, at 34 with 562 U.S.

344.

As for Appellant’s argument that Corporal Shaw stated that “the scene

was calm,” Appellant’s Brief at 13 (citing N.T., 4/12/2018, at 40), the

corporal actually stated that the scene was “calm as it could be[.]” N.T.,

4/12/2018, at 40. This statement is ambiguous, because he could have

meant that the situation was as calm as anything could ever be or as calm

as the scene of a murder investigation could possibly be, all things

considered. In context, the latter interpretation makes more sense, because

when Cpl. Shaw arrived on the scene, no EMS personnel were present and

another trooper was pulling Jessica out of the driver’s seat and starting to

perform CPR. Id. at 28-29. Finally, we note that at the time he arrived,

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Cpl. Shaw only had information that two victims were shot. Id. at 44. For

these reasons, we find the existence of an ongoing emergency -- or what

was perceived to be an ongoing emergency -- at the time Corporal Shaw

spoke with B.W. See Allshouse, 36 A.3d at 175.

Circumstances Surrounding the Interrogation

Next, we will discuss the formality of the interrogation and the

location. See id. The interrogation occurred in B.W.’s home. N.T.,

4/12/2018, at 32. The conversation happened immediately after Cpl. Shaw

had completed clearing the house, less than a half hour after receiving the

911 call. Id. at 34. There were two other troopers present in the house at

the time Cpl. Shaw spoke to B.W. -- one who “might have been holding” one

of B.W.’s siblings and another who “might have been holding [the other

child’s] hand or something.” Id. at 43. Cpl. Shaw was the only person

speaking to B.W. Id. We conclude that the questioning by Cpl. Shaw was

informal based on the location of the questioning in B.W.’s house, at the

scene of the emergency, with two other troopers present but tending to the

two other small children.

Actions and Words of Corporal Shaw

As for “the statements and actions of . . . the interrogator[,]”

Allshouse, 36 A.3d at 176, the questioning occurred at the scene of the

emergency, immediately after Cpl. Shaw completed clearing the house.

N.T., 4/12/2018, at 32, 34. Cpl. Shaw brought the children back inside the

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house, id. at 32, and asked B.W., the oldest child, what happened in order

“to gather information,” to see “what [they] were looking for[,]” such as “[a]

suspect[,]” and “[i]f he saw anybody else outside or any information he

could give [them] to start investigating . . . what happened to” Appellant

and Jessica. Id. at 42.

Appellant is suggesting that, since B.W. was not questioned

immediately upon police arrival, the statement was made in furtherance of

future prosecution. Objectively viewing the circumstances, Cpl. Shaw was

the first person able to speak to B.W. Id. at 29. There is no indication the

other troopers knew there were children in the home. The first responding

trooper, Trooper Sedler, could not have questioned B.W. as he was

attending to Appellant and the Victim. Id. Additionally, at least one other

trooper was helping him with the Victim, and another trooper was checking

the immediate exterior of the home. Id. Cpl. Shaw was the first on the

scene to go into the house to determine if there was a potential suspect

inside. Id.

Appellant characterizes Cpl. Shaw’s question to B.W. about what

happened before Appellant went outside, id. at 33, as a clear intent to

gather information to build the case against Appellant; we do not agree.

Cpl. Shaw only knew that two victims were shot upon arriving at the scene.

Id. at 44. The question was posed to a seven year old and did not appear to

implicate Appellant, but it was directed to the child and asked what, if

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anything, the child observed Appellant doing in the house before going

outside, as the children were inside while Appellant was found outside in the

car. Id. at 33.

Additionally, Appellant’s focus on the specific question or questions

asked by Cpl. Shaw is inconsistent with the Bryant Court’s reminder that “it

is the statements, and not the questions that must be evaluated under the

Sixth Amendment.” 562 U.S. at 367 n.11.

Actions and Words of B.W.

We must also consider the statements and actions of B.W. during his

interview with Cpl. Shaw to determine whether his primary purpose in

making the statements was to establish past events for use during a

subsequent criminal prosecution. See id. at 367 (the statements and

actions of both the declarant and interrogators provide objective evidence of

the primary purpose of the interrogation).

We find that Appellant’s age is informative. An assessment of whether

or not a reasonable person in the position of the declarant would believe a

statement would be available for use at a later trial involves an analysis of

the expectations of a reasonable person in the position of the declarant.

Allshouse, 36 A.3d at 181. Expectations derive from circumstances, and,

among other circumstances, a person’s age is a pertinent characteristic for

analysis. Id. We find that B.W.’s statement is not one that a seven year old

would have made with the purpose of it being used in the future prosecution

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of his own father. B.W. did not state “I saw my father shoot my mother”; in

fact, his statements were not even close to an outright implication of his

father in any crime. B.W. would have to understand the nature of

circumstantial evidence to know that what he said could potentially be

relevant in a later prosecution of his own father, which, based on his

statements, is not a reasonable expectation. Additionally, B.W. did not state

that he saw what happened. He described an interaction with his father, in

his home, that did not appear on the surface to be in any way related to a

crime. These are not statements a seven year old would make with the

purpose for use in a future prosecution.

* * *

Upon consideration of the above factors, we find that the statements

made by B.W. to Cpl. Shaw were nontestimonial.16 The statements occurred

during an ongoing emergency, were informal, and made at the scene of the

emergency; the actions and statements of both Cpl. Shaw and B.W. indicate

the questions and answers were made to help assist in an ongoing

emergency.

____________________________________________

16 As we find that B.W.’s statements were nontestimonial, we need not
address the other requirements of admissibility – i.e., whether “the witness
is unavailable” and whether “the defendant had a prior opportunity for cross-
examination.” Yohe, 79 A.3d at 531. Nevertheless, we observe that
Appellant “did not advance an argument concerning the minor’s availability,
and the [trial c]ourt deemed that the minor was unavailable.” Trial Court
Opinion, filed July 24, 2018, at 3.

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As B.W.’s statements were nontestimonial, they were not barred by

Appellant’s right to confront the witness against him. See Yohe, 79 A.3d at

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

(nontestimonial statements are not barred by defendant’s right to confront

the witness against him).

Admission of the Text Message

Next, Appellant argues that the trial court erred in admitting the text

message sent by the victim to her mother regarding her impending divorce,

because it was inadmissible hearsay and violated Appellant’s right to

confrontation of a witness.

The [trial c]ourt found that the text messages were admissible
under the exception to the rule against hearsay for present state
of mind at Pa.R.E. 803(3).[17] Generally, out of court
statements by homicide victims are admissible when they are
relevant to show proof of motive or malice. The [trial c]ourt
found that the text messages were relevant to show motive or
malice on the part of [Appellant]. The marital difficulties
experienced by [Appellant] and the victim were a possible
motive which the jury could weigh along with all the other
evidence presented.

____________________________________________

17 The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:
. . . A statement of the declarant’s then-existing state of mind
(such as motive, intent or plan) or emotional, sensory, or
physical condition (such as mental feeling, pain, or bodily
health), but not including a statement of memory or belief to
prove the fact remembered or believed unless it relates to the
validity or terms of the declarant’s will.

Pa.R.E. 803(3).

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Trial Court Opinion, filed July 24, 2018, at 4 (citations omitted).

In reviewing the admissibility of the evidence, our standard of review

is as follows:

An appellate court’s standard of review of a trial court’s
evidentiary rulings, including rulings on the admission of hearsay
... is abuse of discretion. Thus, we will not disturb an
evidentiary ruling unless the law is overridden or misapplied, or
the judgment exercised is manifestly unreasonable, or the result
of partiality, prejudice, bias, or ill-will, as shown by evidence of
record.

Commonwealth v. Fitzpatrick, 204 A.3d 527, 531 (Pa. Super. 2019),

reargument denied (Apr. 23, 2019) (citations and quotation marks omitted).

Not all errors at trial, however, entitle appellant to a new trial,
and the harmless error doctrine, as adopted in Pennsylvania,
reflects the reality that the accused is entitled to a fair trial, not
a perfect trial. . . . Harmless error exists when the erroneously
admitted evidence was merely cumulative of other untainted
evidence which was substantially similar to the erroneously
admitted evidence.

Commonwealth v. Reese, 31 A.3d 708, 719 (Pa. Super. 2011) (citations

omitted).

We find the statement was hearsay and not admissible under the state

of mind exception, as “I think it’s going to be messy” is a statement of belief

being offered to prove the fact believed and is expressly excepted from

Pa.R.E. 803(3). Although the statement would be admissible as non-

hearsay to prove Appellant’s malice or ill will, counsel for the Commonwealth

argued that the divorce was going to be messy in his closing argument, and

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we therefore must conclude it was being offered to prove the truth of the

matter asserted.

However, the statements were merely cumulative of other evidence

adduced at trial. There was no dispute that Appellant and the Victim were

discussing divorce, which Appellant himself corroborated; he also

acknowledged that he suspected the Victim of having affairs. N.T. Trial at

554, 581. Mother additionally testified that she regularly spoke to the Victim

about the status of her marriage, including that Appellant and the Victim

were “struggling[,]” “not getting along well[,]” and considering divorce. Id.

at 51, 54-55. Thus, the phrase “it’s going to be messy” was merely

cumulative of other evidence presented that Appellant and Jessica were

having marital issues and discussing divorce, and “erroneously admitted

evidence that is merely cumulative of other untainted evidence is harmless

error.” Commonwealth v. Koehler, 737 A.2d 225, 237 (Pa. 1999); see

also Allshouse, 36 A.3d at 182 (concluding that erroneous admission of

cumulative evidence was harmless). Accordingly, any error in the admission

of the Victim’s hearsay statement was harmless.

Based on the foregoing, Appellant is not entitled to relief.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/9/2019

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