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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CURTIS NEWKIRK :
:
Appellant : No. 833 WDA 2018
Appeal from the Judgment of Sentence April 16, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0014209-2017
BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.
DISSENTING MEMORANDUM BY LAZARUS, J.: FILED MARCH 20, 2020
I respectfully dissent. In my opinion, the Victim’s statement does not
qualify as an excited utterance. However, even if her statement does qualify
as an excited utterance, the trial court committed reversible error by admitting
that statement where no independent proof corroborated that Appellant was
the initial aggressor. I would reverse and remand for a new trial.
On direct examination, the Commonwealth questioned the Victim about
the statement she made to Officer Stumpf regarding her altercation with
Appellant. The Victim testified that she did not recall telling Officer Stumpf
that Appellant struck her first. N.T. Trial, 4/16/18, at 9-10. The Victim further
testified:
I would like to say that I also told [the District Attorney] that
[Appellant] did not start this, I did, I attacked him[.] . . . I pepper
sprayed him first but I didn’t remember at the time. I woke up to
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him hitting me. I assumed [when speaking to Officer Stumpf that
Appellant] started first and he did not.
Id. at 6-7.
The trial court, over Appellant’s objection, permitted the Commonwealth
to introduce, through the testimony of Officer Stumpf, the Victim’s statement
from November 1, 2017, and offered the following analysis:
[The Victim] had a personal relationship with [Appellant] and was
unable to recall at trial whether she discharged the pepper spray
in an offensive or defensive situation. [Appellant] testified that
[the Victim] had been the aggressor. When interviewed shortly
after the incident, [the Victim] stated to [Officer Stumpf] that she
utilized the pepper spray to counteract the aggression of
[Appellant]. Given [the Victim’s] inability to recall what she had
done, Officer Stumpf was permitted to testify, over objection, with
regard to her statements to him close in time to the incident as
qualifying as an excited utterance exception to hearsay.
Trial Court Opinion, 1/22/19, at 3.
Apparently, the trial court premised the admissibility of the Victim’s
statement on “her inability to recall what she had done,” and not on the
grounds that her statement qualifies as an exception to the rule against
hearsay.1 See id.
The majority correctly points out that in order to admit a purported
excited utterance, “it must be shown first, that [the declarant] had witnessed
an event sufficiently startling and so close [in time] as to render her reflective
thought processes inoperable, and, second, that her declarations were a
1 To the contrary, the Victim testified at trial that she forgot what she had said
on November 1, 2017, not what she had done. She testified at trial that she
remembers pepper spraying Appellant first. See N.T. Trial, 4/16/18, at 7-11.
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spontaneous reaction to that startling event.” Majority Opinion, at *6-7
(quoting Commonwealth v. Sherwood, 982 A.2d 483, 495-96 (Pa. 2006)).
“The crucial question, regardless of time lapse, is whether, at the time the
statement is made, the nervous excitement continues to dominate while the
reflective process remains in abeyance.” Pa.R.E. 803(2), cmt. (quoting
Commonwealth v. Gore, 396 A.2d 1302, 1306 (Pa. Super. 1978)).
The record does not establish that the Victim’s statement to Officer
Stumpf was an excited utterance. The Commonwealth presented no evidence
of (1) how much time elapsed between the incident and the declaration, (2)
the Victim’s demeanor when speaking with Officer Stumpf, (3) whether the
Victim remained under the stress of the altercation at the time of her
declaration, (4) whether the Victim refrained from speaking to anyone prior
to Officer Stumpf, and (5) whether the Victim’s nervous excitement continued
to dominate such that her reflective thought processes remained inoperable.
See N.T. Trial, 4/16/18, at 3-17. Officer Stumpf did not record the statement
contemporaneously, and the Victim did not sign any statement. Moreover,
the Victim’s alleged statement was self-serving, in narrative form, and in
response to an officer’s questioning. Therefore, the Commonwealth did not
present sufficient indicia of reliability to permit the introduction of her out-of-
court statement as an excited utterance. See Gore, supra.
For a statement to qualify as an excited utterance, “evidence must show
that the declaration was spoken under conditions which ensured that it is not
the result of premeditation, consideration or design, and it cannot be in the
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form of a narration or attempted explanation of past events.”
Commonwealth v. Little, 364 A.2d 915, 917 (Pa. 1976). We have explained
that:
where the time interval between the event and the statement is
long enough to permit reflective thought, [t]he statement will be
excluded in the absence of some proof that the declarant did not
in fact engage in a reflective thought process. Testimony that the
declarant still appeared ‘nervous' or ‘distraught’ and that there
was a reasonable basis for continuing emotional upset will often
suffice. . . . Evidence that the statement was self-serving or made
in response to an inquiry, while not justification for automatic
exclusion, is an indication that the statement was the result of
reflective thought, and where the time interval permitted such
thought these factors might swing the balance in favor of
exclusion.
Lininger v. Kromer, 358 A.2d 89, 93 (Pa. Super. 1976); See also
Commonwealth v. Levanduski, 907 A.2d 3, 16 (Pa. Super. 2006)
(statement given in narrative form that refers to past events not admissible
as excited utterance).
I disagree with the majority’s assertion that the Victim’s statement “was
not made in narrative form and it was not the result of reflective thought.”
Majority Opinion, at *8. In my opinion, the Victim’s statement to Officer
Stumpf, in which she described “an argument over beer” before detailing the
altercation with Appellant, is a narrative statement explaining past events,
and is therefore not admissible as an excited utterance, especially given the
lack of testimony to establish that the statement meets the definition of an
excited utterance. See Levanduski, supra at 16; Little, supra at 917; see
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also Croyle v. Smith, 918 A.2d 142, 150 (Pa. Super. 2007) (responding
officer prohibited from introducing alleged excited utterance, made ten
minutes after automobile accident, because declarant’s “full account of what
occurred prior” disproved he was under stress of excitement caused by crash).
The narrative quality of the Victim’s statement indicates the absence of
spontaneity and suggests the use of her reflective faculties. Levanduski,
supra at 16.
Additionally, further evidence suggests that the Victim’s statement was
the result of reflective thought. While we have held that a declaration is not
per se inadmissible as an excited utterance because it was in response to a
question, Commonwealth v. Cooley, 348 A.2d 103, 106-07 (Pa. 1975), we
have recognized that where a statement was made in response to an inquiry,
it suggests “that the statement was the result of reflective thought” and
weighs against admission. Lininger, supra at 94. Here, the fact that the
Victim’s recitation of events was in response to Officer Stumpf’s questioning
weighs against admission. See id. We have further explained that the self-
serving nature of a statement also indicates the use of reflective thought and
weighs against admissibility. Id. It does not strain logic to conclude that,
even in her drunken state, the Victim must have known that if she told Officer
Stumpf that she had attacked Appellant first, she would likely have been
arrested instead of him; her alleged claim that Appellant was the initial
aggressor is, thus, self-serving.
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In light of the foregoing, I believe the Commonwealth failed to prove
that the Victim’s statement qualifies as an excited utterance and that several
factors weigh against the conclusion that it does; the court, therefore, should
not have admitted her statement through Officer Stumpf’s testimony.
However, even if her statement does qualify as an excited utterance, the trial
court committed reversible error by admitting that statement where no
independent proof corroborated that Appellant was the initial aggressor.
The crux of this case is whether Appellant was the initial aggressor or
acted in self-defense. Significantly, there is nothing in the record, other than
Officer Stumpf’s recitation of the Victim’s statement, establishing that
Appellant was the initial aggressor. The only additional evidence was Officer
Stumpf’s observations of bruises and swelling on the Victim and pepper spray
on Appellant. N.T. Trial, 4/16/18, at 4-17. Those first-hand observations do
not establish the sequence of events the Victim allegedly described out of
court (i.e., that Appellant was the initial aggressor). Those observations
support Appellant’s claim of self-defense as much as they support proof of his
guilt.
This Court has held that “[w]here there is no independent evidence that
a startling event has occurred [as described], an alleged excited utterance
cannot be admitted as an exception to the hearsay rule.” Commonwealth
v. Barnes, 456 A.2d 1037, 1040 (Pa. Super. 1983); see also
Commonwealth v. Keys, 814 A.2d 1256 (Pa. Super. 2003) (absent
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independent proof of startling event, a purported excited utterance is not
sufficient to establish that event actually occurred as described).2 In Barnes,
the defendant was found guilty of robbery, theft by unlawful taking, and
simple assault. Id. at 1038. The victim told the responding officer that
defendant had entered his apartment, struck him, and stole $300. Id. at
1039. Prior to trial, the victim died of unrelated causes, and at trial, the
Commonwealth introduced the victim’s statement as an excited utterance
through the testimony of the officer. Id. The Commonwealth offered no
additional evidence that the defendant had committed the crime. Id. This
Court stated:
[T]he only evidence that a startling event had in fact occurred was
contained in the statement sought to be admitted as a
spontaneous reaction thereto[.] . . . We are thus presented with
the troublesome situation in which the excited utterance itself is
being used to prove that an exciting event did, in fact, occur. This
circuitous reasoning is unacceptable.
Id. at 1039-40. The lack of independent evidence of the assault and robbery
precluded the Commonwealth from proving the “excitement and stress which
were necessary to make [the victim’s] extra-judicial statement admissible as
a spontaneous reaction thereto.” Id. at 1041. This Court held that in this
2 Legal scholars have noted with approval the requirement that excited
utterances be supported by independent proof. See McCormick on Evidence,
§ 297 (2nd ed. 1972); Binder, The Hearsay Handbook, Exception 2 pg. 43; 29
Am.Jur.2d, Evidence § 711 (“the principal act must first be established before
res gestae statements can be admitted”); 31A C.J.S. Evidence § 404 (“[i]t is
proceeding in a circle to use the declarations as proof of facts necessary to
constitute the declarations part of the res gestae”).
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situation, introduction of the victim’s out-of-court statement through the
officer’s testimony warranted reversing the judgment of sentence and
remanding the case for a new trial. Id. at 1041.
This Court held similarly in Keys, supra. There, the victim’s husband
held her overnight in their home against her will, threatening to cut her throat
with a sword. Id. at 1257. She managed to escape the following day and
contacted police thirty minutes later. Id. Although the victim’s “voice and
behavior were distraught and erratic,” this Court held that her statement to a
police officer narrating the overnight events, made in response to the officer’s
inquiry, was not an excited utterance. Id. at 1259-60. Significantly, the
Commonwealth offered no additional, independent evidence substantiating
the incident as described. Id. at 1259. Citing Barnes, supra, this Court held
that, absent independent proof of the event, a purported excited utterance is
not sufficient to establish that the event actually occurred as described. Keys,
supra at 1259 (“We do not find that the officer’s observations of her agitated
state independently establishes the startling event.”). The Court also found it
significant that “[n]o testimony was presented that she did not ‘engage in a
reflective thought process’ prior to her contact with the police officer.” Id.
The matter sub judice is analogous to Barnes and Keys. Here, as in
those cases, the Commonwealth presented no independent evidence
corroborating the startling event that led to the alleged excited utterance—
i.e., that the defendant/appellant was the initial aggressor. Additionally, here,
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as in Barnes and Keys, there was no evidence that the declarant refrained
from engaging in reflective thought prior to the declaration. Thus, as in those
cases, I find the trial court here committed reversible error in admitting the
Victim’s uncorroborated hearsay statement. See Barnes, supra; Keys,
supra.
Additionally, I disagree with the majority’s harmless error analysis. I
do not believe that this error was harmless beyond a reasonable doubt. The
Victim’s uncorroborated hearsay statement constituted the entirety of the
Commonwealth’s evidence of Appellant’s guilt. In fact, the trial judge told
Appellant at the conclusion of the trial, “I didn’t believe a word you said is
what it comes down to. I didn’t believe a word [the Victim] said either. I only
believed the police.” N.T. Trial, 4/16/18, at 2. Thus, the error was not
harmless in that the improperly admitted testimony was the sole basis for the
court’s verdict. See Commonwealth v. Wright, 961 A.2d 119, 143 (Pa.
2008) (“an error cannot be harmless if there is a reasonable possibility the
error might have contributed to the conviction.”).
Lastly, I respectfully disagree with the majority’s conclusion that the
trial court’s error in admitting the Victim’s statement was harmless in that
“the evidence is sufficient to support the trial court’s factual finding that, even
if the Victim pepper sprayed Appellant first, Appellant was guilty of simple
assault because he used excessive force in repelling the attack.” Majority
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Opinion, at *11. I do not believe the evidence was sufficient to support that
factual finding.
With regard to the defense of self-defense, “[t]he use of force on or
toward another person is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting himself against the use
of unlawful force by such other person on the present occasion.” 18 Pa.C.S.A.
§ 505(a). As the majority points out, “a person employing protective force
may estimate the necessity thereof as he believes them to be when the force
is used.” Majority Opinion at *9, quoting 18 Pa.C.S.A. § 505(b)(3).
We have previously explained that pepper spray, also known as mace,
“is an instrument which is likely to cause serious bodily injury . . . [i]f one
sprays mace directly into the eyes of another person[,] there is a high
probability that the victim will be seriously hurt . . . [i]t may blur vision to
cause temporary blindness, burn the eyes, [and] cause redness and swelling.”
Commonwealth v. Chambers, 157 A.3d 508, 516-17 (Pa. Super. 2017),
reversed on other grounds, 188 A.3d 400 (Pa. 2018). We have also held
that, depending on the manner in which it is used, pepper spray may qualify
as a deadly weapon under 18 Pa.C.S.A. § 2301.3 Id.
3 See 18 Pa.C.S.A. § 2301 (deadly weapon is “[a]ny firearm, whether loaded
or unloaded, or any device designed as a weapon and capable of producing
death or serious bodily injury, or any other device or instrumentality which,
in the manner in which it is used or intended to be used, is calculated or likely
to produce death or serious bodily injury”).
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Here, Appellant testified that after the Victim pepper sprayed him “right
in [the] eyes,” he had “no idea” what was going on and began “fighting for his
life.” N.T. Trial, 4/16/18, at 22. He further explained that he was simply
“struggl[ing], “just swinging to get [the Victim] to stop,” and that “[a]s soon
as she had stopped[,] [he] was able to get away.” Id. at 26. Given the
foregoing, I believe Appellant did not, as a matter of law, use excessive force
in repelling the Victim’s attack. This contradicts the conclusion that he would
have been found guilty of simple assault “even if the Victim pepper sprayed
Appellant prior.” Majority Opinion, at *10. Accordingly, introduction of the
Victim’s hearsay statement was not harmless error.
I would reverse the conviction and remand for a new trial.
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