concurring, in part, and dissenting, in part:
I concur in Part I of the majority opinion. However, I respectfully dissent from Parts II and III. Although I agree that the trial court erred in admitting the victim’s hearsay statements to Thelma Burns and Carlos Ragland and in excluding the testimony of Deputy Martin, I disagree with the majority’s conclusion that these errors were harmless.
We repeatedly have held as follows:
In Virginia, non-constitutional error is harmless “[w]hen it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached.” Code § 8.01-678 (emphasis added). “[A] fair trial on the merits and substantial justice” are not achieved if an error at trial has affected the verdict. Consequently, under Code § 8.01-678, a criminal conviction must be reversed unless “it plainly appears from the record and the evidence given at the trial that” the error did not affect the verdict. An error does not affect a verdict if a reviewing court can conclude, without usurping the jury’s fact finding function, that, had the error not occurred, the verdict would have been the same.
Lavinder v. Commonwealth, 12 Va.App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) (emphasis added). Where the error involves improperly admitted evidence, we hold the error harmless when that evidence is merely cumulative of other, properly admitted evidence. See Freeman v. Commonwealth, 223 Va. 301, 316, 288 S.E.2d 461, 469 (1982). Thus, “ ‘[e]ven though testimony is objectionable as hearsay, its admission is harmless error when the content of the extrajudicial declaration is clearly established by other competent evidence.’ ” West v. Commonwealth, 12 Va.App. 906, 911, 407 S.E.2d 22, 25 (1991) (quoting Schindel v. Commonwealth, 219 Va. 814, 817, 252 S.E.2d 302, 304 (1979)). Conversely, the erroneous exclusion of evidence also may be harmless if the fact sought to be proved by that evidence is established by other, properly admitted evidence.
*669Here, I agree with the majority that the trial court erroneously admitted testimony regarding the victim’s statements that she planned to move to North Carolina because she was afraid of what appellant might do to her. However, unlike the majority, I also would hold that the erroneous admission of these statements was not harmless. Although evidence properly admitted proved that appellant had threatened to kill his wife on one prior occasion, the admission of her statements that she was afraid of him gave added weight to his threat by providing evidence that she believed the threat. Evidence that the victim, as someone who presumably knew appellant well, believed the threat strengthened the probative value of the evidence of the threat itself and could have affected the jury’s finding regarding appellant’s state of mind at the time of the shooting. I would hold that the evidence that wife feared appellant was not cumulative of other properly admitted evidence. Therefore, I do not believe we may conclude, “without usurping the jury’s fact finding function, that, had the error not occurred, the verdict would have been the same.” Lavinder, 12 Va.App. at 1005, 407 S.E.2d at 911.
I also agree with the majority’s holding that the trial court erroneously excluded Deputy Martin’s testimony regarding appellant’s demeanor and willingness to cooperate after the shooting. Again, however, I would hold that the erroneous exclusion of this evidence was not harmless. Martin’s testimony as proffered by appellant was not merely cumulative of Lieutenant Powell’s testimony. Powell’s testimony, as observed by the majority, established that appellant sought out police to admit shooting his wife and that he was visibly shaken and upset. However, Powell’s testimony — which, including cross-examination, spans only three pages in the appendix (four pages in the transcript) — indicates that Powell’s contact with appellant was limited to the time of appellant’s initial arrival at the police station. Once appellant told Powell he had shot his wife in their home and did not know whether she was still alive and gave Powell a key, Powell asked the dispatcher to call the rescue squad and “[got] somebody to sit *670with [appellant] while [Powell] went out to [appellant’s] house.” Powell related no further contact with appellant. Martin’s testimony would have established that appellant remained in Martin’s company for more than “thirty minutes to an hour,” during which time he continued to cooperate, did not invoke his right to silence or counsel, and gave a lengthy statement regarding the shooting while remaining somber and quiet.
Without hearing the erroneously excluded evidence, the jury convicted appellant of second degree murder, which required a finding that appellant acted with malice in shooting his wife. However, Deputy Martin’s testimony concerning appellant’s demeanor and continued cooperation lends support to appellant’s testimony that the shooting was an accident which, if believed, would have supported appellant’s conviction for the lesser offense of manslaughter. Although all the evidence, including Deputy Martin’s testimony, supported appellant’s conviction for second degree murder, I do not believe that we can conclude, without usurping the jury’s fact finding function, that the error did not affect the verdict.
For these reasons, I respectfully dissent from Parts II and III of the majority’s opinion, and I would reverse and remand for a new trial.