Com. v. Poulson, D.

J-S13026-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DOMINIC POULSON :

:

Appellant : No. 1784 EDA 2020

Appeal from the Judgment of Sentence Entered July 20, 2020

In the Court of Common Pleas of Chester County Criminal Division at

No(s): CP-15-CR-0000203-2018

BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY OLSON, J.: FILED JULY 13, 2021

Appellant, Dominic Poulson, appeals from the judgment of sentence

entered on July 20, 2020, as made final by the denial of post-sentence motions

on August 17, 2020, following his jury trial convictions for third-degree murder

and firearms not to be carried without a license.1 We affirm.

We briefly summarize the facts and procedural history of this case as

follows. Appellant’s convictions “stem[] from the shooting death of Victor

Wilson, Jr. outside of an after-hours club in South Coatesville, Chester County,

Pennsylvania in the early morning hours of January 30, 2017.” Trial Court

Opinion, 1/29/2021, at 2. A jury convicted Appellant of the aforementioned

crimes on March 13, 2020. On July 20, 2020, the trial court sentenced

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(c) and 6106(a)(1), respectively.

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Appellant to 20 to 40 years of incarceration for third-degree murder and a

consecutive sentence of two to four years of incarceration for Appellant’s

firearm conviction. Appellant filed a timely post-sentence motion on July 28,

2020. The trial court entered an order denying post-sentence relief on August

17, 2020. This timely appeal resulted.2

On appeal, Appellant presents the following issues for our review:

1. Did the trial court permit prejudicial out[-]of[-]court

statements into evidence even though the proponent witnesses

were entirely unable to describe the circumstances of the

statements or the nature of the declarant?

2. Did the trial court allow the Commonwealth to inflame the

passions of the jury by displaying excessively visual depictions

of the decedent’s body?

____________________________________________

2 On September 2, 2020, Appellant filed a notice of appeal. In that notice of

appeal, appointed counsel stated that Appellant wished to appeal, but that

another notice of appeal would be forthcoming after the appointment of new

counsel. In its Pa.R.A.P. 1925(a) opinion, the trial court states that the notice

of appeal did not comply with our appellate rules and so “it directed counsel

to file a proper [n]otice of [a]ppeal, which [counsel] did on September 4,

2020[.]” Trial Court Opinion, 1/29/2021, at 1. Upon review of the certified

record, there is no trial court order directing counsel to file another notice of

appeal and there is no entry on the trial court docket indicating an order was

filed. Moreover, there is no second notice of appeal contained within the

certified record and no trial court docket entry indicating that such a filing

occurred. We conclude, however, that the notice of appeal filed on September

2, 2020 was sufficient. Pennsylvania Rule of Appellate Procedure 904 governs

the content of a notice of appeal. “A failure to comply with Pa.R.A.P. 904 will

not result in a dismissal of the notice of appeal as long as the notice of appeal

is timely filed.” In re McElhatton, 729 A.2d 163, 165 (Pa. Cmwlth. 1999),

citing Commonwealth v. Gumpert, 512 A.2d 699 (Pa. Super. 1986). The

trial court subsequently ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 4, 2021,

following the appointment of new counsel and several court-granted

extensions of time, Appellant filed a timely Rule 1925(b) statement. The trial

court issued an opinion pursuant to Pa.R.A.P. 1925(a) on January 29, 2021.

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3. Did the trial court err in accepting the emotionally charged and

entirely irrelevant testimony of the victim’s family regarding

their reaction to their loved one’s death?

4. Did the trial court commit error when it admitted into evidence

a photograph depicting [Appellant’s] brother [who was]

incarcerated when there was no relevant purpose and its

introduction tends to associate [Appellant] with criminality?

Appellant’s Brief at 4.

All of Appellant’s issues challenge trial court evidentiary rulings. Our

Supreme Court has held:

The admissibility of evidence is a matter for the discretion

of the trial court and a ruling thereon will be reversed on

appeal only upon a showing that the trial court committed

an abuse of discretion. An abuse of discretion may not be

found merely because an appellate court might have

reached a different conclusion, but requires a result of

manifest unreasonableness, or partiality, prejudice, bias, or

ill-will, or such lack of support so as to be clearly erroneous.

Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015) (internal

citations and quotations omitted).

In his first issue presented, Appellant claims that the trial court abused

its discretion by allowing “Commonwealth witnesses[,] Jennifer Hawn-Restick

and Brian Garrity” to testify at trial because their testimony was hearsay. Id.

at 8. Appellant contends that neither witness was present when the victim

“was killed; however, both were home and lived close enough [to the crime

scene] that they claimed to hear unseen individuals around the time that they

also heard gunshots.” Id. Appellant claims that the trial court erred by

permitting the witnesses’ testimony under the present sense impression

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and/or the excited utterance exceptions to the rule against hearsay, because

“both [witnesses] were explicit that they did not see the declarant when the

statements were made” and were unable to “describe the mental and physical

state of the declarant or the circumstances surrounding the declaration.” Id.

at 9.

In this case, Appellant filed a motion in limine to preclude the

aforementioned witnesses’ testimony on the basis of hearsay. Prior to their

trial testimony, the trial court heard argument on Appellant’s motion. The

Commonwealth argued that the statements the witnesses heard qualified

under the present sense impression and excited utterances exceptions to

hearsay. See N.T., 3/9/2020, at 3-5. Ultimately, the trial court “provisionally

den[ied Appellant’s] motion in limine[,] subject to [] proper trial objections at

the time, if the testimony comes in from either witness.” Id. at 8. However,

upon our review, counsel for Appellant did not lodge any specific,

contemporaneous objections to the witnesses’ testimony during trial. See

N.T., 3/9/2020, at 54-82. As such, the trial court concluded Appellant “has

waived his hearsay objection to these witnesses for purposes of appeal.” Trial

Court Opinion, 1/29/2021, at 5.

We agree. “We have long held that failure to raise a contemporaneous

objection to the evidence at trial waives that claim on appeal.”

Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013)

(citations, quotations and brackets omitted); see also Poplawski, 130 A.3d

at 735 (holding that “a generic, pre-trial motion may not substitute for a

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specific, contemporaneous objection never made to a trial court”); see also

Pa.R.A.P. 2117(c) (where an issue is not reviewable unless raised or preserved

below, an appellate brief must set forth specific references to the places in the

record where the matter appears to show that the question was timely and

properly raised below so as to preserve the issue on appeal). As such, we

conclude Appellant waived his first issue on appeal.

Moreover, “[h]earsay is an out-of-court statement offered for the truth

of the matter asserted. Hearsay generally is inadmissible unless it falls within

one of the exceptions to the hearsay rule delineated in the Pennsylvania Rules

of Evidence.” Commonwealth v. Rivera, 238 A.3d 482, 492 (Pa. Super.

2020) (internal citation omitted). This Court has stated:

The following are not excluded by the rule against hearsay,

regardless of whether the declarant is available as a witness:

(1) Present Sense Impression. A statement describing or

explaining an event or condition, made while or immediately

after the declarant perceived it.

When the declarant is unidentified, the proponent

shall show by independent corroborating evidence

that the declarant actually perceived the event or

condition.

Comment: ...

For this exception to apply, declarant need not be

excited or otherwise emotionally affected by the event

or condition perceived. The trustworthiness of the

statement arises from its timing. The requirement of

contemporaneousness, or near

contemporaneousness, reduces the chance of

premeditated prevarication or loss of memory.

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(2) Excited Utterance. A statement relating to a startling

event or condition, made while the declarant was under the

stress of excitement that it caused.

When the declarant is unidentified, the proponent

shall show by independent corroborating evidence

that the declarant actually perceived the startling

event or condition.

Comment: ...

This exception has a more narrow base than the

exception for a present sense impression, because it

requires an event or condition that is startling.

However, it is broader in scope because an excited

utterance (1) need not describe or explain the

startling event or condition; it need only relate to it,

and (2) need not be made contemporaneously with,

or immediately after, the startling event. It is

sufficient if the stress of excitement created by the

startling event or condition persists as a substantial

factor in provoking the utterance.

There is no set time interval following a startling event or condition

after which an utterance relating to it will be ineligible for

exception to the hearsay rule as an excited utterance. In

Commonwealth v. Gore, 396 A.2d 1302, 1305 (Pa. Super.

1978), the court explained:

The declaration need not be strictly contemporaneous with

the existing cause, nor is there a definite and fixed time limit

... Rather, each case must be judged on its own facts, and

a lapse of time of several hours has not negated the

characterization of a statement as an “excited utterance.”

... The crucial question, regardless of the time lapse, is

whether, at the time the statement is made, the nervous

excitement continues to dominate while the reflective

processes remain in abeyance.

Pa.R.E. 803 (emphasis in original).

Commonwealth v. Rivera, 238 A.3d 482, 493–494 (Pa. Super. 2020)

(original emphasis omitted; emphasis added). As the comments to Rule 803

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make clear, for purposes of applying the exceptions for present sensory

impressions and excited utterances, the declarant need not be identified, so

long as there is independent corroborating evidence that the declarant actually

perceived the event or startling condition. Here, both of the proffered

Commonwealth witnesses testified that the declarant was involved in an

excited argument in the precise location where the shooting occurred, while

perceiving and describing the events at issue. Thus, the trial court’s

determination to allow the testimony at trial was not clearly erroneous or the

product of bias, prejudice, or ill-will. Accordingly, although Appellant waived

his opening claim by failing to raise a contemporaneous hearsay objection, his

first appellate issue is otherwise without merit.

In his second issue presented, Appellant asserts that the trial court erred

by allowing the Commonwealth to introduce into evidence multiple

inflammatory and unduly prejudicial photographs of the decedent, as well as

a three-dimensional crime scene recreation depicting the victim, because:

[t]he repeated display of [the victim’s] body [was] not relevant to

any issue of fact. Those constant images of a dead young man

would naturally and unavoidably inflame the passions of a jury. It

was error for the trial court to permit the Commonwealth to

publish multiple depictions of the victim’s body through multiple

witnesses, and [Appellant] was denied a fair trial by that error.

Appellant’s Brief at 11.

Our Supreme Court has stated:

[An appellate court] review[s] a challenge to the trial court's

admission of photographs under the standard of abuse of

discretion. When considering the admissibility of photographs of

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a homicide victim, which by their very nature can be unpleasant,

disturbing, and even brutal, the trial court must engage in a

two-step analysis:

First a trial court must determine whether the photograph

is inflammatory. If not, it may be admitted if it has

relevance and can assist the jury's understanding of the

facts. If the photograph is inflammatory, the trial court

must decide whether or not the photographs are of such

essential evidentiary value that their need clearly outweighs

the likelihood of inflaming the minds and passions of the

jurors.

As [our Supreme Court has] repeatedly recognized, photographic

images of a homicide victim are often relevant to the intent

element of the crime of first-degree murder. Indeed, in some

cases, the condition of the victim's body may be the only evidence

of the defendant's intent. [Our Supreme Court has] affirmed a trial

court's admission of photographs of a murder victim that

illustrated the brutality of the beating and sexual assault he [or

she] sustained, in order to allow an inference of the defendant's

intent to kill. [Our Supreme Court has] stated that the depiction

of the victim's deep and gaping injuries was essential as evidence

of intent beyond mere infliction of bodily injury. [Our Supreme

Court has] made clear[, it] will not sanction a sanitizing of the

evidence that deprives the Commonwealth of the opportunity to

prove intent to kill beyond a reasonable doubt.

The fact that a medical examiner or other comparable expert

witness has conveyed to the jury, in appropriate clinical language,

the nature of the victim's injuries and the cause of death does not

render photographic evidence merely duplicative. The meaning of

words, particularly the clinical words employed by a pathologist,

can be properly and usefully illustrated and explained to a lay jury

via photographic images. In determining the intent of the

defendant in a criminal homicide case, the fact-finder must be

aided to every extent possible.

Although the possibility of inflaming the passions of the jury is not

to be lightly dismissed, a trial judge can minimize this danger with

an appropriate instruction, warning the jury members not to be

swayed emotionally by the disturbing images, but to view them

only for their evidentiary value.

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Commonwealth v. Pruitt, 951 A.2d 307, 319 (Pa. 2008) (internal citations

and quotations omitted).

In this case, the trial court explained:

[T]he photographs and visual evidence of the victim's body

show[n] to the jury were not inflammatory. Most of the visuals

[we]re taken from a distance and d[id] not depict the extent or

severity of the victim's injuries. Although there [was] blood visible

on some of the visual [e]xhibits, no damaged or eviscerated bodily

organs or [] gruesome conditions [were] depicted such as would

shock the sensibilities of a viewer [considering] the nature of the

case and the type of crime committed. The visual [e]xhibits of

the victim's body, while disturbing, [were] not inflammatory.

Further, the [trial c]ourt gave a cautionary instruction to the jury

as to how they were to consider the visual depictions of the

victim's body in its closing charge before deliberations. A jury is

presumed to follow the instructions of the [trial c]ourt.

[Furthermore,] the visual depictions provided at this trial [we]re

of such essential evidentiary value that the need for them clearly

outweigh[ed] the likelihood of inflaming the minds and passions

of the jurors. Each of these photographs and/or visual depictions

show the victim's body at a different angle[. I]n the case of the

autopsy photos, [the photographs display] the multiple bullet

wounds, the location of the victim's injuries, and why those

injuries resulted in the victim's death[. The photographs from the

crime scene] provide different perspectives of the scene to allow

jurors to get a good impression of the distance between the [bar]

and the shooting, how long it might have taken the participants

to walk to the location of the shooting, and how the shooting

physically occurred, i.e., the distance between the parties and the

positions of each vis-a-vis the other. [Appellant] was charged

with [f]irst[-d]egree [m]urder in connection with the victim's

death. He testified on his own behalf and argued that the killing

was justifiable self-defense.

* * *

There was no other way to present the details of the crime with

sufficient clarity to permit the jury to navigate the factual nuances

critical to the question of [Appellant’s] guilt than to provide them

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with multiple [] vantage points from which they could reconstruct

the events that led to the crimes at issue.

Trial Court Opinion, 1/29/2021, at 16-17 (citations omitted).

Upon review of the certified record, including the photographs at issue

and the trial court’s cautionary instruction, we discern no abuse of discretion

in admitting the photographs into evidence. We agree with the trial court that

the photographs were not inflammatory. While several photographs, both

from the crime scene and subsequent autopsy, show the victim at close

angles, they are not overly gruesome or gory. Moreover, while some of the

crime scene photographs show the victim laying in a pool of his own blood,

the photographs are not so grotesque as to inflame the jury and render it

incapable of fairly considering the evidence and facts of the case. Here, the

victim was shot multiple times and the position of his body was important to

determining whether Appellant acted in self-defense. Finally, even though the

photographs were not inflammatory, the trial court issued the following

cautionary instruction directing the jury not to allow the photographs to

prevent it from carefully and impartially considering all the evidence:

There were photographs and video footage admitted into evidence

for the purpose of showing the nature of the wounds received by

the deceased, the conditions at the scene of the alleged crime

meant for helping you to understand the testimony of the

witnesses who refer to them. Some of the photographs and video

footage [were] not pleasant to look at. You should not let this stir

up your emotions to the prejudice of [Appellant]. Your verdict

must be based on rational and fair consideration of all the

evidence and not on passion or prejudice against [Appellant], the

Commonwealth, or anyone else connected with this case.

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N.T., 3/12/2020, at 85. We presume the jury followed the trial court’s

instruction. Commonwealth v. Webb, 236 A.3d 1170, 1179 (Pa. Super.

2020). As such, there is no merit to Appellant’s second claim on appeal.

Next, Appellant asserts that the trial court erred by allowing three

members of the victim’s family, who were not present to witness the crime,

to testify at trial. He claims that the “[d]escriptions of the family’s grief was

graphic” and “entirely irrelevant.” Appellant’s Brief at 11. He argues that

although the trial court characterized the evidence as life-in-being testimony,

it was victim impact testimony which is impermissible during the guilt phase

of trial. Id.

Our Supreme Court has held:

Testimony that is a personal account describing the devastating

impact [a] murder[] had on the surviving families is wholly

appropriate and admissible at the sentencing phase of a capital

case. Commonwealth v. Flor, 998 A.2d 606, 634 (Pa. 2010)

(citation omitted).

* * *

In contrast to victim impact testimony, life-in-being testimony is

admissible during the guilt phase of a murder trial. Life-in-being

testimony is proffered to show that the victim was alive at a time

prior to the murder, and thus it is relevant to the first element of

murder, i.e., that a human being was unlawfully killed. See, e.g.,

Commonwealth v. Carson, 913 A.2d 220, 237 (Pa. 2006)

(upholding as proper life-in-being testimony [from] the victim's

mother [showing] that the victim was alive and well prior to the

date of his murder and that she identified his dead body at the

medical examiner's office); Commonwealth v. Miller, 746 A.2d

592, 602 (Pa. 2000) (concluding that testimony as to the ages

and physical characteristics of two victims, their clothing at the

time of disappearance, and the last sightings of the victims

“demonstrated that each victim was a life in being and was elicited

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for the purpose of placing the disappearances of the victims in the

proper time frame and identifying them by clothing and

appearance.”).

Commonwealth v. Jordan, 65 A.3d 318, 332 (Pa. 2013); see also

Commonwealth v. Reed, 990 A.2d 1158, 1169 (Pa. 2010) (finding no abuse

of discretion in allowing the Commonwealth to “utilize[ a family witness’

life-in-being] testimony for limited, permissible purposes of establishing

background and ‘time-frame facts,’ [where] there was no effort [by the

Commonwealth] to elicit sympathy or emotion through the presentation[]”).

Moreover, even if the “admitted testimony was inadmissible at the point

in the proceedings at which it was admitted,” it is still subject to a harmless

error analysis. Jordan, 65 A.3d at 333. “An error is harmless when the

Commonwealth can establish that the properly admitted and uncontradicted

evidence of guilt was so overwhelming and the prejudicial effect of the error

so insignificant by comparison that the error could not have contributed to the

verdict.” Id. (citation omitted).

Upon review of the certified record, we note the following. The victim’s

father testified about the last time he saw his son and how he learned the

victim had been shot. He further testified that he went to the location of the

shooting to identify the victim, but was not permitted by police to approach

because it was an active crime scene. N.T., 3/9/2020, at 136-138. The

testimony of the victim’s father related solely to how he learned of the death

of his son and the steps he took to identify the victim. The victim’s sister and

brother-in-law also briefly testified. The victim’s brother-in-law testified that

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a distraught eyewitness to the murder woke him up to tell him about the

shooting. N.T., 3/10/2020, at 95-96. The victim’s brother-in-law also

testified that he then called other family members to ascertain the victim’s

status, find out what happened, and ultimately learned the victim was dead.

Id. at 97-99. The victim’s sister testified similarly to her husband. Id. at

101-103. Upon review, all of the proffered testimony was brief, matter of

fact, devoid of emotion, and related to the specific time-frame of the murder.

We reject Appellant’s suggestion that the family described their grief in graphic

detail. Moreover, there was no effort by the Commonwealth to elicit sympathy

or emotion through the presentation of the proffered evidence. Therefore, we

find the evidence qualified as life-in-being testimony which was properly

admitted during the guilt phase of trial. As such, we discern no abuse of

discretion by the trial court and conclude that Appellant’s third allegation of

error lacks merit.

In his final issue presented on appeal, Appellant claims that the trial

court abused its discretion by allowing the Commonwealth to introduce into

evidence a photograph which depicted Appellant’s brother in prison.

Appellant’s Brief at 14. The photograph was introduced in connection with a

recorded prison conversation between Appellant and his brother, while

Appellant’s brother was incarcerated. Id. Appellant claims that the

introduction of the photograph into evidence was an attempt by the

Commonwealth to “shroud[ Appellant] in a cloak of criminality” and “akin to

the jurors observing a defendant in custody.” Id. Initially, we note that

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Appellant does not cite any authority to support his novel legal theory, and

our independent research has not revealed relevant precedent. Instead,

Appellant relies upon caselaw which states that a jury cannot view a defendant

in custody. Moreover, as the trial court recounted, by the time the photograph

at issue was introduced at trial, “the jury knew [Appellant] had a brother,

knew [Appellant’s] brother was incarcerated in [s]tate [p]rison, and knew that

the police had intercepted phone calls between [Appellant] and his brother

made during his brother's incarceration.” Trial Court Opinion, 1/29/2021, at

29. We agree with the trial court’s assessment. Accordingly, we conclude

Appellant’s final claim is without merit, but would otherwise constitute

harmless error. Hence, Appellant’s final appellate claim fails.

Judgment of sentence affirmed.

Judge Pellegrini joins.

Judge King did not participate in the consideration or decision of this

matter.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/13/2021

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