Commonwealth v. Green

CONCURRING OPINION BY

STRASSBURGER, J.

I concur with the conclusion that Appellant’s judgment of sentence should be affirmed. However, I write separately to note my disagreement with the Majority’s *587analysis of whether the Victim’s statements to her friend and her sister “that she just needed to get away from” Appellant, that she was afraid of Appellant, and that she did not want “to go with him” anymore, were inadmissible hearsay.

The Majority concludes, in effect, that our Supreme Court’s decision in Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981), prohibits the admission of hearsay statements made by victims in murder cases, despite the “then-existing state of mind” exception to the hearsay rule, and that this Court’s decisions since Thornton indicate that “a limited exception may exist when the inference generated by admission of the hearsay statement is strong and highly probative.” Majority Opinion at 581-82. In reaching this conclusion, the Majority Opinion overlooks the plain language of Pa.R.E. 803(3), and does not consider adequately decisions by this Court and our Supreme Court that reach contrary results, including the recently-decided Commonwealth v. Luster, 71 A.3d 1029 (Pa.Super.2013) (en banc ).1

Rule 803(3), as it currently stands,2 reads as follows:

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(3) Then-Existing Mental, Emotional, or Physical Condition. 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 declar-ant’s will.

Pa.R.E. 803(3).

Considering the plain language of this Rule, the Victim’s statements in the in*588stant matter were admissible as declarations of her then-existing intent and mental feeling.3 Nonetheless, the Majority concludes that “Thornton rejected the admission of such statements under the ‘state of mind’ exception to the hearsay rule. Either these statements were relevant but inadmissible as hearsay without an applicable exception, or they were not hearsay in which case they were irrelevant.” Majority Opinion at 581.

The statement at issue in Thornton is readily distinguishable from the statements at issue here. Applying Rule 803(3),4 it is clear why a statement like the one in Thornton is not admissible under the then-existing state of mind exception. Rule 803(3) expressly bars “statements] of memory or belief [offered] to prove the fact remembered or believed unless it relates to the validity or terms of the declar-ant’s will.” The victim’s statement in Thornton, if accepted for its truth, would be a statement of belief offered to prove the fact believed (that the Thornton brothers were “after” the victim). Moreover, Rule 803(3) applies only to statements of the declarant’s state of mind. If accepted for its truth, the statement of the victim in Thornton was not a declaration of the victim’s state of mind, but of the Thornton brothers’ state of mind.

Instantly, the Majority acknowledges that this Court’s decision in Commonwealth v. Sneeringer, 447 Pa.Super. 241, 668 A.2d 1167 (1995) dealt with a factual situation similar to the present matter, but concludes that applying Sneeringer to this case would “directly conflict” with Thom-ión. Majority Opinion at 581. Unlike in Thornton, the statements at issue in Sneeringer were not statements of memory or belief offered to prove the fact remembered or believed. They were not statements offered to prove directly the mental state of someone other than the declarant. Rather, these statements were statements of the victim’s intent or plan. While the victim’s state of mind was not directly at issue in the case, the victim’s intent to break up with Sneeringer was admissible as evidence that she did, in fact, endeavor to end her relationship. If accepted as proof that the victim attempted to break up with Sneeringer, these statements would be highly probative of Sneer-inger’s possible motive for the killing. Sneeringer is not inconsistent with Thornton.

The Majority opines that the second of these two distinctions, that the statements at issue were not offered to prove directly the mental state of Sneeringer, “does nothing to alleviate the fact that the person conveying the statement in court may have misheard, misunderstood, or even manufactured the declarant’s statement,” and describes it as “merely a linguistic joust.” Majority Opinion at 582 n. 1.

First, I note that the hearsay exceptions enumerated in Rule 803 were not intended to apply to situations where it is less likely that someone will have misheard the statements in question. For example, Rule 803(2) provides an exception for hearsay statements that are “excited utterances.” There is nothing about an excited utter-*589anee that makes it less likely that someone will mishear or misunderstand that statement. Rather, the point is that when someone says something in an excited state, it is less likely that he or she fabricated that statement. Commonwealth v. Wholaver, 605 Pa. 325, 989 A.2d 883, 909 (2010) (Castille, J. concurring) (“The underlying rationale of the excited utterance exception is the notion that a statement made in the excitement of a startling event, before the speaker has the opportunity to reflect on the event, has sufficient indicia of truthfulness to warrant admission.”). Similarly, whether or not someone might have misheard the Victim’s statement in the present case is not determinative of its admissibility.

As for what makes these types of statements reliable,

the special assurance of reliability for statements of present state of mind rests upon their spontaneity and resulting probable sincerity. The guarantee of reliability is assured principally by the requirement that the statements must relate to a condition of mind or emotion existing at the time of the statement. In addition, some formulations of the exception require that the statement must have been made under circumstances indicating apparent sincerity, although Federal Rule 803(3) [which is identical to Pa.R.E. 803(3) ] imposes no such explicit condition.

McCormick on Evidence § 274 (7th ed.) (footnotes omitted); Schmalz, 67 A.3d at 804 (“Traditionally, statements of the de-clarant’s then existing state of mind are considered reliable based on their spontaneity.”). Our Supreme Court has also observed that

[i]ntention, viewed as a state of mind, is a fact, and the commonest way for such a fact to evince itself is through spoken or written declarations. It is therefore because of the impossibility, in many cases, of proving intention apart from personal declarations, that they are admitted. The true basis of their admission, then, is necessity, because of which an exception to the hearsay rule is recognized ....

Commonwealth v. Begley, 566 Pa. 239, 780 A.2d 605, 623 (2001) (quoting Commonwealth v. Marshall, 287 Pa. 512, 135 A. 301, 304 (1926)).

Additionally, stressing the distinction between stating directly a defendant’s state of mind {e.g., “he killed her because he was upset that she broke up with him”), and proving that state of mind indirectly with circumstantial evidence {e.g., a victim saying “I intend to break up with” the defendant as evidence that she did so), is not “merely a linguistic joust.” Our Courts have held consistently that statements of a victim’s intent may be offered to prove that a victim acted in accordance with that intent.5 Schmalz, 67 A.3d at 804 (“[T]he exception can apply to demonstrate that a declarant did a particular act that was in conformity with his or her statement after having made the statement.”); Begley, 780 A.2d at 624 (“[A] deceased victim’s out-of-court statements evincing an intent to meet the defendant shortly before the killing are admissible pursuant to the state of mind exception because such an intent provides circumstantial *590proof that the victim acted in accordance with his or her stated intent[.]”).

Given the foregoing discussion, it is clear that the Victim’s first two statements were properly admitted under Rule 803(3). Like the statements in Sneeringer, the Victim’s statements that she did not want “to go with” Appellant anymore and that she “just needed to get away from” him make it more likely that she endeavored to end her relationship with Appellant, and supply a possible motive for Appellant to commit the killing. Unlike the statements in Thornton, the instant statements were not being offered to prove the mental state of Appellant directly, and were not statements of memory or belief offered to prove a fact remembered or believed.

As for the third statement at issue here, that the Victim was afraid of Appellant, this presents a closer question. Our Supreme Court has previously indicated that fear on the part of a victim is irrelevant in a homicide prosecution. Commonwealth v. Auker, 545 Pa. 521, 681 A.2d 1305, 1319 (1996) (“Although a victim’s fear of a defendant is irrelevant to the charge of criminal homicide, it is relevant to a charge of kidnapping, since one of the issues is the victim’s willingness to go with [Auker].”) (citation omitted). However, the Court has seemingly softened its stance on this issue. Commonwealth v. Moore, 594 Pa. 619, 937 A.2d 1062, 1072 (2007) (“While under some of this Court’s decisions, these statements would be admissible as circumstantial evidence of the victim’s fear of [Moore], they could not properly be admitted as substantive evidence of these prior incidents over [Moore’s] hearsay objection.”). Moreover, as noted supra, this Court in Luster held that “the victim’s statement that she feared [Luster] and he was going to harm her is admissible because it shows [Luster’s] ill will and malice toward the victim.” 71 A.3d at 1042.

Presently, the fact that the Victim was afraid of Appellant is somewhat probative insofar as it tends to explain her statements about not wanting to “go with” Appellant anymore. To the extent that the trial court in the present matter concluded that the Victim’s fear was relevant, I would conclude that she did not abuse her discretion in making this determination.

Accordingly, I would conclude that the trial court did not err by admitting the aforementioned statements.

. Luster dealt with statements by a murder victim that she was afraid Luster “was going to do something real bad to her,” that she was "scared,” and that Luster was "trying to kill" her. 71 A.3d at 1041. This Court concluded that the statements were admissible because they showed Luster’s ill will and malice toward the victim. Id. at 1042; see also, e.g., Commonwealth v. Chandler, 554 Pa. 401, 721 A.2d 1040 (1998).

In Chandler, the trial court admitted into evidence "eyewitness observations of [the victim’s] family and co-workers, which were not hearsay, and ... statements [the victim] made concerning her negative feelings about [Chandler] and her relationship with him.” 721 A.2d at 1045. Our Supreme Court concluded that the victim's "statements were admissible under the ‘state of mind' exception to the hearsay rule because [the victim’s] opinion of [Chandler] and her marriage to him went to the presence of ill will, malice, or motive for the killing.” Id.

. "The Pennsylvania Supreme Court has promulgated new rules of evidence, which [took] effect on March 18, 2013. The rule changes result in no substantive change and are intended to conform the Pennsylvania rules, which reference the federal rules of evidence, with the stylistic changes made to the federal rules[J” Schmalz v. Manufacturers & Traders Trust Co., 67 A.3d 800, 804 n. 4 (Pa.Super.2013) At the time of Appellant’s trial, Pa. R.E. 803(3) read as follows:

The following statements, as hereinafter defined, are not excluded by the hearsay rule, even though the declarant is available as a witness:
(3) Then existing mental, emotional, or physical condition. A statement of the de-clarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health. A statement of memory or belief offered to prove the fact remembered or believed is included in this exception only if it relates to the execution, revocation, identification, or terms of de-clarant’s will.

. As observed by the Commonwealth, the Victim's statements that she was afraid of Appellant and did not want to "go with” him were not objected to at trial. Commonwealth's Brief at 9. Accordingly, Appellant’s challenge to these statements is waived. See Commonwealth v. Nypaver, 69 A.3d 708, 718 (Pa.Super.2013). In light of the Majority's discussion, however, I also address the admissibility of these statements.

. Admittedly, Pennsylvania first adopted its Rules of Evidence in 1998. Thus, at the time Thornton was decided (that is, in 1981), Rule 803(3) was not in place, and Thornton was not a case interpreting the Rule.

. This concept is not specific to Pennsylvania. Indeed, the U.S. Supreme Court applied this rule in Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892). Federal Rule of Evidence 803, on which the Pennsylvania Rule was based, was intended to preserve it. F.R.E. 803, Note to Paragraph (3) (1972 Advisory Committee Notes) ("The rule of [Mutual Life Ins. Co.] allowing evidence of intention as tending to prove the doing of the act intended, is, of course, left undisturbed.”).