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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
:
PATRICK SCOTT MONGEAU :
:
Appellant : No. 134 EDA 2020
Appeal from the PCRA Order Entered December 19, 2019
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0006068-2013
BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*
CONCURRING MEMORANDUM BY STRASSBURGER, J.:
FILED AUGUST 11, 2020
I join the Majority’s opinion except the portion where it rules the PCRA
court did not abuse its discretion in finding Appellant did not prove the
merits of his ineffective-assistance-of-counsel claim because portions of the
testimony of Officer Thomas Lundquist was admitted to explain the police
investigation. I disagree, and I write separately to express my discontent
with the way the police course-of-conduct rationale has swallowed the
hearsay rule. However, I agree that the alternative reason to admit the
evidence was permissible – i.e., to show consistency with the victim’s
statements and the injuries observed by Officer Lundquist.
In the instant case, Officer Lundquist described statements the victim
made to him when he responded to a call of a domestic in progress.
Appellant objected to the testimony as hearsay, but the trial court overruled
*Retired Senior Judge assigned to the Superior Court.
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the objection. Officer Lundquist then testified to victim’s account of what
had transpired between her and Appellant, including her accusation that
Appellant had grabbed her by the neck and threw her to the ground. The
trial court permitted this testimony, explaining that the Commonwealth did
not admit the testimony for the truth of the matter asserted (i.e., that
Appellant grabbed her by the neck and threw her to the ground), but instead
“to establish consistency between the victim’s account and her physical
condition and to explain the steps Officer Lundquist took to investigate the
complaint.” Trial Court Opinion, 2/24/2010, at 7 (citing Pa.R.E. 801(c)(2)).
The trial court defended its decision simply by noting that out-of-court
statements are admitted routinely to explain the course of police conduct
and to show the information upon which police acted. Id. (citing
Commonwealth v. Weiss, 81 A.3d 767, 606 (2013)). Without further
analysis, the Majority agrees. Majority Memorandum at 7.
The trial court is correct that courts routinely admit out-of-court
statements to explain police conduct, but that in of itself is not reason to
admit such statements without further analysis. In every case police
conduct an investigation, which leads law enforcement to conclude that the
defendant is the culpable actor. In most cases, how law enforcement
arrived at the conclusion is not relevant; what is relevant is the body of
evidence they ultimately gathered to prove the conclusion. See Anne Bowen
Poulin, The Investigation Narrative: An Argument for Limiting
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Prosecution Evidence, 101 Iowa L. Rev. 683, 690 (Jan. 2016) (arguing
courts wrongly “accord the prosecution license to present otherwise
inadmissible evidence to develop the investigation narrative” of presenting
the case through the bias of law enforcement, “rather than solely on the
admissible evidence of the defendant’s criminal activity”). Evidence to
explain background of the investigation or police course of conduct typically
has “negligible probative value” that is “overwhelmed by the risk of unfair
prejudice.” Id. Yet courts regularly admit prejudicial and otherwise
inadmissible evidence under the guise that it is not admitted to prove the
truth of the matter asserted, and simply to show the steps of the
investigation, or to explain why police took a certain action. Courts permit
this despite the Commonwealth’s ability to explain the narrative of the case
with less detail. 2 McCormick on Evid. § 249 (8th ed.) (discussing abuse
of police course-of-conduct evidence and advocating for use of a general
statement such as “an officer acted ‘upon information received’”); 30B Fed.
Prac. & Proc. Evid. § 6720 (2020 ed.) (noting that if there is a true need to
show why police acted in a certain manner, the out-of-court statement
should be “redacted or paraphrased to accommodate both the legitimate
need for some explanation of why the police acted as they did and the
critical need to protect the defense from damaging hearsay accusations”).
Our Supreme Court has recognized the dangers of admitting evidence
to explain police conduct.
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It is, of course, well established that certain out-of-court
statements offered to explain a course of police conduct are
admissible. Such statements do not constitute hearsay since
they are not offered for the truth of the matters asserted;
rather, they are offered merely to show the information upon
which police acted.
Nevertheless, it cannot be said that every out-of-court
statement having bearing upon subsequent police conduct is to
be admitted, for there is great risk that, despite cautionary jury
instructions, certain types of statements will be considered by
the jury as substantive evidence of guilt. Further, the police
conduct rule does not open the door to unbounded admission of
testimony, for such would nullify an accused’s right to cross-
examine and confront the witnesses against him.
***
Clearly, there is need for a balance to be struck between
avoiding the dangers of hearsay testimony and the need for
evidence that explains why police pursued a given course of
action. This balancing process is governed by the sound
discretion of the trial court, and, as with other evidentiary
decisions, the trial court’s decision will be upheld on appeal
unless there has been an abuse of that discretion.
The challenged statements in the present case were of a
most highly incriminating sort. They contained specific assertions
of criminal conduct by a named accused, and, indeed, were likely
understood by the jury as providing proof as to necessary
elements of the crime for which appellant was being tried. …
In this case, the police easily could have explained the
course of their conduct pertaining to the investigation and arrest
of appellant … without resorting to the full and explicit
statements given by [the out-of-court informant]. It is the
prosecutor’s duty to avoid the introduction of out-of-court
statements that go beyond what is reasonably necessary to
explain police conduct. Certainly, references to appellant’s
having purchased one pound of marijuana on the day prior to
the attempted delivery of the fifteen pounds involved in this case
could have been eliminated. The statements could have been
attenuated in other ways, too, to lessen their prejudicial impact.
Thus, an adequate explanation for police conduct could have
been provided, while minimizing the introduction of statements
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made by a person who was not under oath and who was not
available for cross-examination.
It is certainly to be recognized that there is often a subtle,
and elusive, difference between the use of statements to
establish the truth of facts averred by one not in court and their
use to establish a course of conduct by police. Further, in
weighing the prejudice to the defense versus the prosecution’s
need for the challenged statements, the ambit of the trial court’s
discretion is to be preserved. In the present case, however, the
statements were so highly incriminating, and the need for them
in the form in which they were introduced was so lacking, that
their admission cannot be sustained. Appellant is entitled to a
new trial.
Commonwealth v. Palsa, 555 A.2d 808, 810-12 (Pa. 1989) (citations and
footnotes omitted).
Despite our Supreme Court’s cautions in Palsa, trial courts regularly
permit course-of-conduct evidence without much scrutiny, and appellate
courts routinely affirm. In my view, this practice should not stand, and it is
a rare case where such evidence should be permissible. This case is not
such a case.
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