Com. v. Patterson, J.

J-A01007-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JUSTIN PATTERSON

Appellant No. 2768 EDA 2014

Appeal from the Judgment of Sentence April 14, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0011152-2009

BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED February 22, 2016

This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Philadelphia County following Appellant’s conviction on

the charges of aggravated assault, firearms not to be carried without a

license, carrying firearms on public streets or public property in Philadelphia,

possessing instruments of crime, and possession of a firearm prohibited.1

Appellant contends (1) the trial court erred in admitting into evidence at trial

a 911 call recording of an unidentified person; (2) the trial court erred in

ruling that the prosecutor’s comment during closing argument did not

constitute prosecutorial misconduct; (3) the trial court erred in permitting

the Commonwealth to “play the sympathy and emotion card” during its

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1

18 Pa.C.S.A. §§ 2702, 6106, 6108, 907, and 6105, respectively.

*Former Justice specially assigned to the Superior Court.

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direct examination of the victim’s father; and (4) the trial court erred in

refusing to give a “missing witness” jury instruction.2 We affirm.

The relevant facts and procedural history are as follows: On March 31,

2009, Arcenio Alvarado was shot approximately nine times, leaving him

paralyzed from the chest down. Following an investigation, which included

information received from an anonymous 911 caller, the police arrested

Appellant as the shooter. Thereafter, Appellant made a signed, recorded

statement to the police, explaining that he shot Mr. Alvarado three or four

times following a verbal altercation.3

Appellant filed a counseled pre-trial motion in limine seeking to

exclude the introduction of the 911 tape; however, the trial court denied the

motion. Thereafter, represented by counsel, Appellant proceeded to a jury

trial, during which the 911 recording from the anonymous caller was played.

At the conclusion of the trial, Appellant was convicted of the offenses

indicated supra, and on April 14, 2014, the trial court sentenced him to an

aggregate of eleven years to twenty-two years in prison. On April 24, 2014,

Appellant filed a timely, counseled post-sentence motion, which was denied

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2

On October 30, 2015, the Commonwealth filed a “Motion For Leave to File

Brief Out of Time.” We grant the motion.

3

In his police statement, Appellant indicated that, on the night in question,

he was with a man named Antwon Andrews, who shot the victim an

additional five or six times. However, since the only information the police

had concerning Mr. Andrews’ alleged participation was Appellant’s

uncorroborated statement, the police did not arrest Mr. Andrews. Trial Court

Opinion, filed 5/11/15, at 2 n.2.

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by operation of law on August 25, 2014. This timely, counseled appeal

followed, and all Pa.R.A.P. 1925 requirements have been met.

Appellant’s first contention is that, over defense counsel’s objection,

the trial court erred in admitting into evidence at trial the 911 tape from the

anonymous caller. In an undeveloped, one paragraph argument, Appellant

suggests the 911 tape was inadmissible hearsay, and since “there was no

required ‘sufficient corroboration,’” the tape did not qualify for the excited

utterance or the present sense impression exceptions. See Appellant’s Brief

at 8. In response, the Commonwealth avers Appellant has waived his claim,

and alternatively, the claim lacks merit.

We agree with the Commonwealth that Appellant’s undeveloped,

conclusory argument hampers meaningful review. Commonwealth v.

McMullen, 745 A.2d 683 (Pa.Super. 2000) (holding blanket assertions of

error are insufficient to permit meaningful review). Moreover, we note that,

although the trial transcript indicates a 911 tape was played in open court

for the jury, N.T. Trial, 2/18/14, at 23, the recording was not properly

transcribed.4 Furthermore, we have not been provided with the tape.

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4

The trial court acknowledged in its opinion that the 911 tape was not

properly transcribed. The trial court further indicated that “[a]s a courtesy,”

it listened to the tape and set forth in its opinion an “unofficial” transcription.

Trial Court Opinion, filed 5/11/15, at 4 n.3. In essence, according to the

trial court’s transcription, the 911 caller indicated that somebody had just

been shot at the intersection of Marshall and Tioga Streets, and the male

shooter drove off in a gray, four-door Buick. Id. at 4-5.

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Accordingly, we find Appellant’s challenge to the admissibility of the 911

tape to be waived.5 Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super.

2006) (“Our law is unequivocal that the responsibility rests upon the

appellant to ensure that the record certified on appeal is complete in the

sense that it contains all of the materials necessary for the reviewing court

to perform its duty.”) (citation omitted)).

Appellant’s next contention is the trial court erred in ruling the

prosecutor’s comment during closing argument did not constitute

prosecutorial misconduct. Specifically, Appellant contends the prosecutor

committed misconduct when, during closing argument, he stated, ‘“Did Mr.

Coard (i.e., defense counsel) ask about violence when he questioned the

detective?’” Appellant’s Brief at 9. In response, the Commonwealth

advocates waiver of Appellant’s claim. We agree that the claim is waived.

Preliminarily, we note that, though indicating closing arguments

occurred on February 20, 2014, Appellant has not provided this Court with

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5

In any event, based on our review of the 911 call, as set forth in the trial

court’s opinion, we agree with the trial court that there was evidence

adduced at trial containing sufficient “other corroborating evidence” to justify

its admission. Trial Court Opinion, filed 5/11/15, at 7; Commonwealth v.

Hood, 872 A.2d 175 (Pa.Super. 2005) (suggesting that under either the

excited utterance or present sense impression exception there must be

sufficient independent corroborating evidence to permit admission). As the

trial court indicated, the 911 caller’s description of the fleeing vehicle

“mirrored” the description provided by another witness, and the police found

the victim at the intersection of Marshall and Tioga Streets, where the 911

caller indicated the shooting had occurred. See Trial Court Opinion, filed

5/11/15, at 7.

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the relevant page of the notes of testimony where the prosecutor’s

statement, as well as defense counsel’s necessary objection, may be

located. See Appellant’s Brief at 9. Moreover, we note Appellant provided

this Court with a truncated transcript from February 20, 2014, which

included only a portion of the prosecutor’s closing statement. Nevertheless,

we independently reviewed the portion of the prosecutor’s closing

statement, which was provided to this Court, and have been unable to locate

the prosecutor’s statement or defense counsel’s objection. Thus, Appellant’s

claim is waived on this basis. See Preston, 904 A.2d at 7 (“In the absence

of an adequate certified record, there is no support for an appellant's

arguments and, thus, there is no basis on which relief could be granted.”).

Additionally, as the Commonwealth astutely notes, Appellant’s one

paragraph appellate argument is devoid of necessary development, thus

hampering meaningful review. See McMullen, supra. Simply put,

Appellant’s bald, conclusory assertions of error do not warrant relief.6

Appellant’s next contention is the trial court erred in permitting the

Commonwealth to “play the sympathy and emotion card” during its direct

examination of the victim’s father and erred in failing to give a curative

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6

Assuming, arguendo, Appellant’s claim of prosecutorial misconduct during

closing arguments is not waived for appellate review, we note the trial court,

in its Pa.R.A.P. 1925(a) opinion, adequately addressed the claim, concluding

Appellant is not entitled to relief. See Trial Court Opinion, filed 5/11/15, at

10-12.

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instruction. In this regard, Appellant contends the Commonwealth

improperly asked the victim’s father about the victim’s injuries and condition

after the shooting, as well as about the victim’s subsequent medical care at

home. In response, the Commonwealth advocates waiver of Appellant’s

claim on the basis he presented an undeveloped, one paragraph argument.

We agree with the Commonwealth that Appellant’s lack of

development hampers review. See McMullen, supra. In any event, we

have reviewed the direct examination of the victim’s father, Adriel Alvarado.

Appellant lodged three objections to Mr. Alvarado’s direct examination

testimony:

Q: Sir, when you—did you actually physically touch [the

victim] at that point?

A: No.

[DEFENSE COUNSEL]: Objection.

THE WITNESS: No.

[DEFENSE COUNSEL]: Relevance.

THE COURT: Sustained.

Q: When you saw [the victim], how close to [him] did you

get?

A: Like this. Like she’s right there.

Q: Okay. And let me ask you the relevance of that. Did

you see the injuries to [the victim].

A: No. I just seen the pool of blood.

Q: Okay. Describe where you saw the pool of blood on

[the victim].

[DEFENSE COUNSEL]: Objection.

THE COURT: Basis?

[DEFENSE COUNSEL]: Relevance, Your Honor.

THE COURT: Counsel, what is the relevance.

[PROSECUTOR]: The injuries to this man, we’re

establishing the corpus through this man. That’s the relevance.

THE COURT: Overruled.

THE WITNESS: His upper torso all shot up.

***

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Q: The condition of your son now, I’m going to go back to

that date in just a second. The condition of your son now to the

day that we are standing here in court and questioning, has your

son from the day of the shooting been able to walk?

A: No, he’s paralyzed from his chest down.

Q: Okay. Let me ask you about the conditions in your

home. Where is your son? Is your son at home with you now?

A: Yes.

[DEFENSE COUNSEL]: Objection. Relevance, Your Honor.

THE COURT: Overruled.

Q: And in terms of the care of your son, could you tell us,

where does your son sleep?

A: He’s in the living room in the corner in the hospital bed

with all of his machines, but still with his air mattress.

N.T. Trial, 2/12/14, at 30-31, 38-39 (bold in original).

With regard to Appellant’s first objection, the record reveals the trial

court sustained the objection. Contrary to Appellant’s assertion, Appellant

did not request a curative instruction. Commonwealth v. Bryant, 579 Pa.

119, 855 A.2d 726 (2004) (indicating the failure to request a curative

instruction constitutes a waiver of the claim of trial court error in failing to

issue a curative instruction).

With regard to Appellant’s second and third objections, which were

based on relevancy, the record reveals the trial court overruled the

objections.

It is well settled that questions concerning the admissibility of

evidence lies within the sound discretion of the trial court, and we will not

reverse the court’s decision on such a question absent a clear abuse of

discretion. Commonwealth v. Maloney, 876 A.2d 1002, 1006 (Pa.Super.

2005). An abuse of discretion is not merely an error of judgment, but is

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rather the overriding or misapplication of the law, or the exercise of

judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-

will or partiality, as shown by the evidence or the record. Commonwealth

v. Cameron, 780 A.2d 688 (Pa.Super. 2001).

Before any evidence is admissible in a criminal proceeding, it must be

competent and relevant. Commonwealth v. Freidl, 834 A.2d 638

(Pa.Super. 2003). Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the

evidence.” Pa.R.E. 401. “Although relevant, evidence may be excluded if its

probative value is outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative evidence.”

Commonwealth v. Williams, 91 A.3d 240, 242 (Pa.Super. 2014) (quoting

Pa.R.E. 403).

In finding the evidence to be relevant, the trial court noted that Mr.

Alvarado’s testimony that he observed the victim lying in a pool of blood

immediately after the shooting, as well as the fact the victim was paralyzed

and living with assistance at his parents’ home some time after the shooting,

was relevant to show the victim suffered “serious bodily injury” for purposes

of aggravated assault. See Trial Court Opinion, filed 5/11/15, at 14. We

find no abuse of discretion in this regard.

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To the extent Appellant suggests the evidence was overly emotional

such that its probative value was outweighed by its prejudicial effect, we

agree with the trial court that any prejudice from the admission of the

evidence was not an unfair result of a jury’s potential emotional response

but was, instead, a fair result from the nature of Appellant’s act itself.

Accordingly, Appellant is not entitled to relief on this claim.

Appellant’s final contention is the trial court erred in refusing to give a

“missing witness” jury instruction as it relates to the victim, who did not

testify at trial. In response, the Commonwealth advocates waiver of the

claim. We agree with the Commonwealth that this claim has been waived

for appellate review.

As indicated supra, Appellant has provided this Court with only a

portion of the notes of testimony from the February 20, 2014, proceedings.

While his pre-instruction request for, and the trial court’s denial of, the

“missing witness” instruction is included in the notes provided to us, see

N.T. Trial, 2/20/14, at 4-6, the trial court’s actual charge to the jury, and

any corresponding objection to the actual charge, are not included therein.

See Commonwealth v. Pressley, 584 Pa. 624, 632, 887 A.2d 220, 225

(2005) (“[T]he mere submission and subsequent denial of proposed points

for charge that are . . . omitted from the instructions actually given will not

suffice to preserve an issue, absent a specific objection or exception to the

charge or the trial court’s ruling respecting the points.”) (footnote omitted));

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Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014) (indicating

even where an appellant objects to an instruction during the charging

conference, the appellant must object to the actual instruction after it is

given in order to preserve claims of error); Preston, 904 A.2d at 7

(indicating it is the appellant’s responsibility to ensure this Court is provided

with the necessary materials to permit review).

Additionally, Appellant’s one paragraph appellate argument is devoid

of necessary development, thus hampering meaningful review. See

McMullen, supra. Simply put, Appellant’s bald, conclusory assertions of

error with respect to the jury instruction do not warrant relief.7

For all of the aforementioned reasons, we affirm. We direct the parties

to attach a copy of the trial court opinion in the event of further proceedings.

Affirmed.

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7

Assuming, arguendo, Appellant claim that the trial court erred in refusing

to instruct the jury with the “missing witness” charge as it relates to the

victim is not waived for appellate review, the trial court adequately

addressed the claim, concluding Appellant is not entitled to relief. See Trial

Court Opinion, filed 5/11/15, at 15-17.

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J-A01007-16

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/22/2016

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Circulated 02/01/2016 10:23 AM

IN THE COURT OF COMMON PLEAS

PHILADELPHIA COUNTY

FIRST JUDICIAL DISTRICT OF PENNSYL V ANLI\

CRIMINAL TRL<\L DIVISION

CP-51-CR-0011152-2009

COMMONWEAL TH OF PENNSYLVANIA

2768EDA 2014

v.

JUSTIN PATTERSON

FILED

MAY 11 2015

'Fi Crimin?~ Appeals Unit

,rst JUd1C1aJ District of PA

OPINlON

May 8, 2015

KENNEDY, SEAN r., J.

FINDINGS OFF ACT

On March 3 l , 2009, Arcenio Alvarado ("Arcenio") was shot approximately nine times,

leaving him paralyzed from the chest down. N.T. 2/12/2014 at 31, 38. A witness at the scene

informed police that the shooter drove off in a gray Buick. Id at 57, 63-64. A caller to 9-1-1

articulated the same .1 The Crime Scene Unit found 16 pieces of ballistic evidence (i.e., bullet

casings or fragments) related to the shooting. N.T. 2/12/2014 at 85. Fifteen of the pieces were

found at the crime scene; another was found in the patrol car that transported Arcenio to the

hospital. Id. at 85, 92. Some of tJ1e ballistic pieces were manufacrured by Winchester. Id. at 87-

96. All ballistic pieces, however, were fired from a 9 mm handgun. N.T. 2/19/2014 at 26. Police

also recovered from the scene one plastic Ziploc-type packet, containing a white rock-like

substance. N.T. 2/18/2014 at 13. Several packets of the same substance were also recovered

from Arcenio'sjacket. Id. at 14.

I See 9-1 · l transcript provided infra.

1

As a result of an interview with Arcenio, police obtained an arrest warrant for Justin

Patterson (the "Defendant"), and arrested him at his home. N.T. 2/18/2014 at 26, 29. There, the

police retrieved one Winchester box of fifty 9 mm rounds of ammunition. Id. at 32. The

ammunition found in the Defendant's home was compatible with a 9 mm handgun. N.T.

2/19/2014 at 26.

After waiving his rights to remain silent and to have an attorney present, the Defendant

gave police a signed, recorded statement. N.T.2/18/2014 at 48-60; N .T. 2/19/2014 at 44. In his

statement, the Defendant recounted that on the night of the shooting, he was with a man named

Antwon.2 N.T.2/18/2014 at 58. On this particular evening, Antwon informed the Defendant that

he had a "beef' with Arcenio. Id. The reasons for the "beef' allegedly included Arcenio owing

Antwon money, and because Antwon and Arcenio were involved with the same woman. Id.

With the Defendant driving, Anrwon and the Defendant drove through the neighborhood

and parked about a block from where Arcenio would later be shot. Id. Antwon then called

Arcenio on his cell phone and asked to meet. Id. When Arcenio came around the corner to meet,

Antwon informed the Defendant that he planned to rob Arcenio. Id. The Defendant admitted

that he replied, "okay" in response to Antwon's robbery declaration. Id.

According to the Defendant, when Arcenio arrived, Antwon and Arcenio began to argue.

id. The Defendant claimed that during the argument, Arcenio started to back up and reach for

something in his pocket. Id. at 59. At that moment, the Defendant and Antwon drew their

firearms and shot Arcenio. id. at 59. Although the Defendant claimed Arcenio was reaching for

something, insinuating that it may have been a weapon, police found no weapons on Arcenio or

2

Anrwon was later identified as Anrwon Andrews. The Defendant selected Anrwon Andrews's photograph from

a police photo array. N.T. 2/18/2014 at 62; N.T. 2/20/2014 at 10. The police later tried to interview Anrwon, but he

was unwilling to talk. N.T. 2/18/2014 at 82. Because the only information the police had on Anrwon were

uncorroborated statements from the Defendant. the police did not have enough for an arrest warrant. Id. at 82, 119.

2

at the shooting scene. N.T. 2/12/2014 at 53; N.T. 2/18/2014 at 96. The Defendant claimed that

he shot Arcenio about three or four times; and that Anrwon shot Arcenio approximately five or

six times. N. T. 2/18/2014 at 66.

In his statement, the Defendant claimed that both he and Antwon used a 9 mm handgun

in the shooting. Id. at 61, 63. The Defendant did not have a license to carry a firearm. Id. at 126.

After the shooting, the Defendant drove Antwon to a nightclub and then drove home. Id. at 59.

The Defendant placed his firearm in a parking lot dumpster adjacent to his apartment building.

Id. at 63. The Defendant admitted that he drove his cousin's gray 1992 Chevrolet Caprice

Classic the night of the shooting. Id. at 64. In his statement to police, he agreed that the

Chevrolet Caprice Classic is similar to a four-door gray Buick. Id. at 65.

PROCEDURAL msTORY

On February 21, 2014, before the Honorable Sean F. Kennedy, a jury found the

Defendant guilty of Aggravated Assault (18 Pa.C.S.A. § 2702); firearms not to be carried

without a license ( 18 Pa.C.S.A. § 6106); carrying firearms on public streets or public property in

Philadelphia (18 Pa.C.S.A. § 6108); and possessing instruments of crime ( 18 Pa.C.S.A. § 907).

The Trial Court subsequently found the Defendant guilty of VUFA-possession of a firearm

prohibited ( t 8 Pa.C.S.A. § 6105). The Court sentenced the Defendant to a period of incarnation

of l 0-20 years for the Aggravated Assault; and a consecutive period of incarceration of one-two

years on the Vl.JFA. The Court gave no punishment for the remaining counts. On April 24,

2014, the Defendant filed a Post-Sentencing Motion, seeking a judgment of acquittal. or, in the

alternative, a new trial. The Defendant thereafter filed a Notice of Appeal and a Statement of

Errors Complained of on Appeal.

DISCUSSION

3

In the Defendant's Statement of Matters Complained of on Appeal, the Defendant

asserted the following arguments: (I) inadmissibility of the 9-1-1 call recording; (2)

prosecutorial misconduct--{a) that the Commonwealth's statement to the jury shifted the burden

of proof; and (b) that the Commonwealth improperly played the "sympathy and emotion card"

by inquiring about the Complainant's injuries and condition after the shooting and about

subsequent medical care at home-and (3), a missing witness instruction.

I. The Court properly admitted the 9-1-1 recording.

a. The 9-1-1 recording was admissible hearsay with sufficient

corroboration.

The Defense maintains that the 9-1-1 recording played for the jury was inadmissible

because it lacked sufficient corroboration. The relevant statements on the recording were made

to a 9-1-1 operator on March 3 l , 2009. The call, logged in at I 0:07 p.m., is as follows:3

9-1-1 OPERATOR: [Inaudible).

CALLER: [Inaudible] Somebody just got shot right here on Tioga [Street].

Marshall [Street] and Tioga. Please somebody [inaudible]. Yes Marshall and

Tioga.

9-1-1 OPERA TOR: Did you see who did it?

CALLER: No. The guy is about to take off, if somebody come, he's ... he's

driving a Buick, like a Buick. He's right now on Venango [Street] and Tioga.

9-1-1 OPERATOR: What color is the Buick?

CALLER: It's gray. It's gray. He just ... he just kept on straight. He's going up,

right now, he's going up, right now, Seventh ... Marshall (inaudible], he's going

up ...

9-1-1 OPERATOR: Is he on Marshall or Tioga?

CALLER: It's a Buick. He's driving a white, urn, gray Buick.

9-1-1 OPERATOR: Gray Buick, right. Is he on Tioga or on Marshall?

3 Although played for the jury at trial, the contents of the 9-1-1 recording were not recorded into the record by the

court stenographer. N. T. 2/18/2014 at 23. As a courtesy, the Trial Court, in preparation of this appeal, transcribed

the 9-1-1 recording and provided the following transcript. Having appreciation for the obvious difficulty in

transcribing a recording, the Trial Court acknowledges that the potential exists for disagreement over the transcript's

precision.

4

CALLER: On Marshall. He's on Marshall.

9-1-1 OPERA TOR: [Inaudible] On Marshall?

CALLER: He just made a left on Venango.

9-1-1 OPERA TOR: Left?

CALLER: Down Venango Street, toward Broad Street.

9-1-1 OPERATOR: The person on the highway, where was he shot at?

CALLER: It was a Buick. It was a Buick. It was a gray, four-door, Buick.

9-1-1 OPERATOR: Ok. The person on the highway, is he ... where was he shot at?

CALLER: He was shot right here on Marshall and Tioga. On Marshall and Tioga.

9-1-1 OPERATOR: Alright. Hold on for rescue Ma'am.

Audio tape: Philadelphia Police Radio, 2 5'h District Band (Mar. 21, 2009). The admissibility of

evidence is solely within a trial court's discretion and will be reversed only if the trial court has

abused that discretion. Commonwealth v. Seilhamer, 862 A.2d 1263 (Pa. Super. 2004). Hearsay

is "a statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted." Pa.R.E. 80 l (c).

An excited utterance, an exception to the hearsay rule, is a "statement relating to a

startling event or condition made while the declarant was under the stress of excitement caused

by the event or condition." Pa.RE., Rule 803(2). The excited utterance exception requires an

event or condition to be startling. Pa.R.E., Rule 803(2). Under this exception, an excited

utterance:

( l ) 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.

Pa.RE., Rule 803(2) cmt. ( emphasis original). When a statement describes or explains an event

or condition, "made while or immediately after the declarant perceived it," the statement is

admissible as a present sense impression. Pa.RE., Rule 803(1). Under this hearsay exception,

the declarant s statements can concern observations of non-conditions or non-exciting events.

Commonwealth v. Cunningham, 805 A.2d 566, 573 (Pa. Super. 2002). Unlike an excited

5

utterance, a present-sense-impression declarant "need not be excited or otherwise emotionally

affected by the event or condition perceived." Pa.R.E., Rule 803(1 ). cmt. Despite what its

identifying title suggests, a present sense impression statement need not be made simultaneously

with the event in which it describes; rather, near contemporaneousness will suffice. Id. In

addition, a present sense impression statement can be made over the telephone. Commonwealth

v. Hood, 872 A.2d 175, 183 (Pa. Super 2005).

In the case at bar, the 9-1-1 statements plainly qualify for both hearsay exceptions. First,

for excited utterance, the declarant's statements in the instant matter related to a violent shooting.

The declarant placed the 9-1-1 call soon after the shooting while she was under the stress of

excitement caused by that event; a body lay bleeding on the street in the near vicinity; andthe

declarant observed-while on the phone with the 9-1-1 operator-a possible armed and

dangerous suspect attempting to flee from the scene.

For present sense impression, the declarant in the instant matter not only described in real

time the make and color of the suspect's car as it fled, she also described in real time which street

the suspect was currently driving on, and which street the suspect currently turned onto. The

declarant also accurately described Arcenios current location as he lay bleeding on the street. In

addition, the declarant's choice of words assists in establishing the contemporaneousness of her

statements in relation to the events in which she describes.4 During the 9-1-1 call, the declarant

~ Although courts have held that the trustworthiness of an excited utterance cannot be established by a declarant's

assertion that he or she witnessed the event, courts have yet to explicitly apply this principle when evaluating a

present sense impression. Commonwealth v. Hood, 872 A.2d l 7 5, 183-85 (Pa. Super. 2005); see also

Commonwealth v. Upshur, 764 A.2d 69, 76 (Pa. Super. 2000). Still, it should be noted that Hood and Upshur relate

to whether the declarant actually viewed the events and not specifically to the contemporaneousness of the events

perceived. In other words, if the principle in Hood and Upshur does apply to a present sense impression, Hood and

Upshur do not expressly bar the use of the declarant's statements to establish the timing of the present sense

impression statements.

6

used the phrase "right now" three times and also used the word "just" three times.5 These

phrases signify that the declarant relayed current circumstances, as she perceived them.

The Defense contends that the 9-1-1 statements lack sufficient corroboration to justify

their admission via the hearsay exceptions. This argument lacks merit. First, the declarant's

description of the fleeing vehicle mirrored the description provided by a witness later

interviewed by police at the scene; in his statement to the police, the Defendant admitted to

driving a car similar to that described by the declarant and the witness at the scene; based on the

call log, the witness placed the 9-1-1 call soon after the shooting; and the declarant accurately

identified the location-including the intersecting streets-where the police would later find the

victim. These facts sufficiently corroborate that the declarant was at the scene and actually

viewed the events in which she described. Thus, for the above-discussed reasons, the 9-1-1

statements are sufficiently corroborated and qualify as hearsay exceptions.

b. The admission of the 9-1-1 recording did not violate the Defendant's right

to confront the witnesses against him.

Whether 9-1-1 statements are admissible does not end with an analysis by way of the

hearsay exceptions. The Constitution's Sixth Amendment provides that, in all criminal

prosecutions, the accused shall have the right "to be confronted with the witnesses against him."

U.S. Const. Amend VI. This is better known as the Confrontation Clause. In Crawford v.

Washington, the Supreme Court reiterated the proposition that the Confrontation Clause is not

limited to in-court testimony. Crawfordv. Washington, 541 U.S. 36, 50 (2004). For out-of-court

statements, the Confrontation Clause bars "admission of testimonial statements of a wimess who

3 The caller relayed that "somebody just got shot right here on Tioga [Street)"; that the "[suspect]just kept on

straight" indicating the direction on the street in which the suspect was driving; and that the "[suspect]just made a

left on Venango (Street)" (emphasis added). The word "just" can be defined as "very recently; at this or that exact

moment or time. http:/!www.merriam-webster.com/dictionary/just.

7

did not appear at trial unless he was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination." Id. at 54.

In Davis v. Washington, the Supreme Court addressed whether a witness's statements

made during a 9-1-1 call were testimonial hearsay. 547 U.S. 813 (2006). There, the Court

refined the testimonial standard avowed in Crawford and held that statements made during a 9-1-

1 call are non-testimonial when the "circumstances objectively indicat[ eJ that the primary

purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Id at

822 (emphasis added). 6 The Davis Court reasoned that statements offered to police during a 9-1-

1 call to resolve an on-going emergency are considered non-testimonial because these types of

statements generally describe current circumstances, and not past events. Id. at 827. Davis also

points out that statements elicited in an effort to establish the assailant's identity-so that

dispatched officers might know whether they may encounter a violent felon-are not testimonial.

Id. at 828; see also Michigan v. Bryant, l 31 S.Ct. 1143, 1158 (2011) (holding that an

"assessment of whether an emergency that threatens the police and public is ongoing cannot

narrowly focus on whether the threat solely to the first victim has been neutralized because the

threat to the first responders and public may continue.")

Another factor included in the primary purpose analysis is the importance of

"informality" of the encounter between law enforcement and the witness. Michiganv. Bryant,

131 S.Ct. at 1160. Formality can alert the witness to focus on the possible future prosecutorial

6

The existence of an ongoing emergency must be:

objectively assessed from the perspective of the parties co the interrogation at the time, not with

the benefit of hindsight. If the information the parties knew at the time of the encounter would lead

a reasonable person to believe that there was an emergency, even if that belief was later proved

incorrect, that is sufficient for purposes of the Confrontation Clause.

Michigan v. Bryant, 131 S.Ct. at 1157 n. 8. The Court also related that if the statement's primary purpose cannot be

determined, the statement' 5 admissibility "is the concern of state and federal rules of evidence, (and] not the

Confrontation Clause." Id. at 1156.

8

use of his or her statements. Id. at 1166. For example, statements made to law enforcement at a

police station may be deemed testimonial based not only on the location, but also on the formal

interrogation used by the police. Davis, 547 U.S. at 827; see also Crawford, 541 U.S. 36. At the

station, the environment would be safe and presumably calm. id. There, the witness would

surely be aware that his or her statements could potentially be used for the suspect's prosecution.

Yet statements relayed near a crime scene, made when or immediately after the subject events

occurred, may be deemed informal, thus not testimonial. Michigan v, Bryant, 131 S.Ct. at 1160;

Davis, 54 7 U.S. at 827. Under these circumstances, a witness may not be acutely aware that the

statements may be later used at trial.

In the case at bar, the primary purpose of the interrogation in the 9-1-1 call was to enable

police assistance to meet an ongoing emergency. first, the witness undeniably faced an ongoing

emergency at the time of the call: a victim of a violent shootout Jay on the ground seriously

wounded, requiring urgent aid; and a possible armed and dangerous suspect was about to flee

from the scene. 7 Such circumstances are a veritable definition of an emergency. Also akin to

Davis, the 9-1-1 operator's efforts were to establish the armed suspect' s identity and location-

this information was necessary so dispatched officers or emergency services would be aware of

what they may encounter upon their arrival at the scene, including whether they might be

encountering a dangerous felon. See Michigan v. Bryant, supra.

Furthermore, there was no level of formality in the conversation between the 9-1-1

operator and the witness. First, the 9-1-1 call took place mere moments after the shooting, not

hours later. Second, the operator's questions were of a nature to elicit information to resolve a

present emergency. Third, the interview did not take place in a safe environment (i.e., a police

7

The caller relayed co the 9-1 · l operator that the "guy [ meaning the suspect] is a bow to take off," which suggest

that the suspect was still in the immediate vicinity. (emphasis added).

9

station). Finally, the witness was clearly frazzled by the chaos at the shooting scene. To

illustrate the conversation's "un-serene" environment, on rwo occasions the witness gave non-

responsive answers to the operator's questions, evidence that the witness may have been

distracted by the exigency of the moment. Certainly, no aspect of this interrogation would have

alerted the witness to focus on the possible future prosecutorial use of her statements.

Davis also articulated that once the emergency has been resolved, the non-testimonial

statements end. Davis, 547 U.S. at 829. Here, the witness's statements to the 9-1-1 operator

never reached a point where they were no longer about the exigency of moment. Throughout the

duration of the 9-1-1 call, the victim required urgent medical aid and a possible armed and

dangerous suspect was still in the vicinity. Thus, because the primary purpose of the questions,

and the related statements, were to resolve an ongoing emergency, the admissibility of the 9-1-1

recording does not violate the Confrontation Clause. And because the statements also qualify as

excited utterance and present sense impression hearsay exceptions-with sufficient

corroboration-the statements are admissible.

II. There was no evidence of prosecutorial misconduct.

a. The Commonwealth's closing arguments did not exceed the bounds of

propriety.

Next, the Defense argues that the Prosecutor committed a reversible error when he,

during closing arguments, asked the jury, "did [Defense Counsel] ask the detective one thing

about violence occurring to this man (the Defendant)?" The rhetorical question ostensibly

referred to the Defendant's assertion that the detective, to compel the Defendant to sign an

10

inculpatory statement, had threatened and assaulted the Defendant with a wooden stick.8 The

Defense claims that this question improperly shifted the burden of proof to the Defense.

Courts have held that "not every unwise or irrelevant remark made in the course of a trial

by a judge, a witness, or counsel ... cornpeljs] the granting of a new trial." Commonwealth v.

Goosby, 301 A.2d 673, 674 (Pa. 1973); quoting Commonwealth v. Phillips, 132 A.2d 733 (Pa.

Super. 195 7). Further, comments by a prosecutor "do not constitute reversible error unless the

unavoidable effect of such comments would be to prejudice the jury, forming in their minds

fixed bias and hostility toward the defendant so that they could not weigh the evidence

objectively and render a true verdict." Commonwealth v. Von Cliff, 397 A.2d 1173, 1176 (Pa.

1979), quoting Commonwealth v. McNeal, 319 A.2d 669, 673 (Pa. 1974) (citations omitted).

Whether a prosecutor's language violated this standard is not for appellant review. Von

Cliff, 397 A.2d at 1176, quoting Commonwealth v. Simon, 248 A.2d 289, 292 (Pa. 1968).

Rather, it is the Trial Judge's duty to rule upon the prosecutor's comments; and an appellant

court is limited in its review to whether the Trial Court abused its discretion. Von Cliff, 397 A.2d

at 1176. It is well recognized that a prosecutor "must have reasonable latitude in fairly

presenting a case to the jury, and that the trial judge must have reasonable discretion in deciding

whether the bounds of propriety have been exceeded." Von Cliff, 397 A.2d at 1176, quoting

Commonwealth v. Cronin, 346 A.2d 59, 62 (Pa. 1975).

Here, the Trial Court resolved that the Commonwealth's statement did not exceed the

bounds of propriety. The Commonwealth did not offer the rhetorical question to shift the burden

of proof to the Defense; instead, the Trial Court found that the Commonwealth used the

~ The Defendant testified that the detectives, co force the Defendant co sign the inculpatory statement, "got a

wooden stick and hit [him) with it." N.T. 2/19/2014 at 54.

11

rhetorical question to exemplify that no evidence supported the Defendant's claim that he signed

the inculpatory statement under threat. This is a far cry from prosecutorial misconduct.

Assuming, arguendo, that the Commonwealth's statement was inappropriate, the Trial

Court preemptively and sufficiently addressed the statement at the start of trial. When the trial

began, the Court properly instructed the jury that "Defense counsel may or may not present

evidence for the Defendant. As you were told before, the Defendant has no obligation to offer

evidence or to testify." N.T. 2/12/2014 at 13. Further, before closing arguments, the Trial Court

stressed to the jury that they were "not bound by the counsels' recollection of the evidence, nor

[were they] bound by counsels' perception of what the evidence in the case shows." N.T.

2/20/2014 at 30-31. Therefore, the Trial Court's ruling should be affirmed.

b. The Commonwealth did not commit prosecutorial misconduct as the line

of question of Mr. Alvarado was permissible and did not play on the

Jury's sympathies and emotions.

The Defense next argues that the Commonwealth "played the sympathy and emotion

card" by inquiring about Arcenic's medical condition and injuries. At trial, Arcenios father,

Adriel Alvarado, testified that he saw his son lying in a pool of blood. N. T. 2/12/2014 at 31. The

Defense objected to this portion of the testimony on relevance grounds. The Court found the

testimony relevant to establish corpus' and overruled the objection. Id. at 31. After the Court's

ruling, the following exchange between Mr. Alvarado and the Commonwealth took place:

MR. ALVARADO: [Arcenios] upper torso [was} all shot up.

THE COMiv!ONWEALTH: Could you see the blood all through the upper torso?

MR. ALVARA.DO: I didn't see the blood-that you see all in the pavement because

it was oozing out of him already.

9

Corpus delicti means "the body of the crime." Commonwealth v, Verticelli., 706 A.2d 820, 822 (Pa. 1998).

Corpus delicti is established by showing: (I) a specific injury or loss; and (2) a person's criminality was a source of

that injury or loss. Commonwealth v, Zugay, 745 A.2d 639, 652 (Pa. Super. 2000).

12

THE COMMONWEALTH: When you say oozing out of him, what was oozing out of

him?

MR. ALVARADO: Like a waterfall, man. His whole body, like.

THE COMMONWEAL TH: Was it blood?

MR. ALVARADO: Yes.

THE COMMONWEALTH: Okay. That's all I'm asking you ....

N.T. 2/12/2014 at 31-32. Soon after, a second exchange took place:

THE COMMONWEAL TH: When you saw [your son] hooked on the machines, did he

have his shirt off?

MR. ALVARADO: He had it off.

THE COM!\IIONWEAL TH: And what could you see on his chest area?

MR. ALVARADO: The bullet holes, how they cut him up. He was so-when we

went inside the room, he was opened. He was opened because he had blood. He

had a blood clog [sic], so they didn't want to close him up. He was still opened

up. And the holes, the holes like that, up in his torso, everywhere.

Id. at 35. Later, a third exchange:

THE COMMONWEAL TH: Did you have any chance or attempt to talk to your son

during the month and a half?

N1R. ALVARADO: We kept telling him that we were praying for you, we praying.

It's like talking to a piece of paper.

THE CoMivtONWEAL TH: Did he have his eyes open at that time?

MR. ALVARADO: No.

Id. at 36. First, the remarks alleged to be prejudicial "must be read in the context of the case as a

whole, with a particular view to the evidence presented and reasonable inferences drawn

therefrom, in order to determine whether they are indeed prejudicial." Commonwealth v. Dennis,

460 A.2d 255, 259 (Pa. Super. 1983). To place the Commonwealth's questions and the witness's

remarks in relative context, the Defendant's charges included, among other things, aggravated

13

assault. A person is guilty of aggravated assault if he "attempts to cause serious bodily injury to

another, or causes such injury intentionally, knowingly or recklessly under circumstances

manifesting extreme indifference to the value of human life. 18 Pa.C.S.A. § 2702(A)(l)

( emphasis added). For aggravated assault, evidence of injuries sustained by a victim can be an

"indication of the force and violence used, a factor clearly relevant to the degree of harm

intended by an assailant." See Dennis, 460 A.2d at 258 (holding that photographs of a victim

lying in a hospital bed, eyes closed, with discoloration and swelling around his eye, were neither

gruesome nor inflammatory, but were relevant and properly admitted). The record suggests that

the Commonwealth elicited evidence of the victim's injuries to establish Corpus as well as to

show the relevant degree of harm intended by the assailant. Therefore, because the evidence was

relevant and competent, it was admissible.

Further, the record reflects that in none of the exchanges listed above did the

Commonwealth prompt the witness to answer in a prejudicial manner. Assuming, for

argument's sake, that portions of Mr. Alvarado's testimony were non-responsive, again, courts

have held that "[not] every unwise or irrelevant remark made in the course of a trial by a judge, a

witness, or counsel ... compel[s] the granting of a new trial." See Goosby, supra. Further, a new

trial is only required "when the remark is prejudicial; that is, when it is of such a nature or

substance or delivered in such a manner that it may reasonably be said to have deprived the

defendant of a fair and impartial trial." Id. Nothing in the record reflects that the witness's

responses- or the Prosecutor's questioning-meet this standard.

The Defendant also indicates that the Trial Court erred when it failed to give a curative

instruction to the jury when Mr. Alvarado displayed, at times, emotion during his testimony.

Indeed, Mr. Alvarado cried near the end of his testimony, and at one point was offered a glass of

14

water. N.T. 2/12/2014 at 44. In response to the showing of emotion, the Commonwealth asked

for a brief pause, which the Trial Court granted. Id. 44-45. After the brief pause, the witness

was able to continue his testimony. Nonetheless, at no time did defense counsel request a

curative instruction relative to Mr. Alvarado's display of emotions. Moreover, the Trial Court

did not find that Mr. Alvarado's emotional testimony warranted a curative jury instruction.

It is not uncommon for witnesses to express emotion during testimony, especially when a

parent testifies to the events surrounding serious injuries to his child. Here, the Court did not

perceive the showing of emotion by Mr. Alvarado as anything but genuine. It was within Trial

Court's sound discretion to determine whether a curative instruction was necessary.

Commonwealth v. Sanchez, 82 A.3d 943, 982 (Pa. 2013); Commonwealth v. Pezzeca, 749 A.2d

968 (Pa. 2000). Mr. Alvarado's crying was short-lived. The Trial Court did not feel Mr.

Alvarado's showing of emotion prejudiced the jury and accordingly, the Trial Court felt that a

curative instruction was unwarranted. See Commonwealth v. A1cCloughan, 421 A.2d 361 (Pa.

Super. 1980) (holding that since the crying episode by a witness was brief and since the trial

court, which observed the episode, obviously felt that the jury had not been prejudiced by it, the

trial court did not abuse its. discretion in refusing to declare a mistrial because of it.)

m. The Court did not error by not including a witness instruction.

Next, the Defense claims that the Trial Court erred by not charging the jury with a

missing witness instruction after the Commonwealth failed to call the Complainant, Arcenio, as a

witness. Courts have held that a Missing Witness Instruction is appropriate when:

a potential witness is available to only one of the parties to a trial, and it appears

this witness has special information material to the issue, and this person's

testimony would not merely be cumulative, then if such party does not produce

the testimony of this witness, the jury may draw an inference that it would have

been unfavorable.

15

Commonwealth v. Evans, 664 A.2d 570, 573 (Pa. Super. 1995), quoting Commonwealth

v. Manigualt, 462 A.2d 239 (Pa. 1983). Courts have summarized six circumstances that

preclude the issuance of a Missing Witness Instruction, which are as follows:

(1) The witness is so hostile or prejudiced against the party expected to

call him that there is a small possibility of obtaining unbiased truth; (2) the

testimony of such a witness is comparatively unimportant, cumulative, or inferior

to that already presented; (3) the uncalled witness is equally available to both

parties; (4) there is a satisfactory explanation as to why the party failed to call

such a witness; (5) the witness is not available or not within the control of the

party against whom the negative inference is desired; and (6) the testimony of the

uncalled witness is not within the scope of the natural interest of the party failing

to produce him.

Commonwealtn v. Evans, 664 A.2d 570, 574 (Pa. Super. 1995). To charge the jury with a

Missing Witness Instruction, the witness must only be available to the Commonwealth and none

of the exceptions apply. Commonwealth v. Boyle, 733 A.2d 633, 638 (Pa. Super. 1999);

Commonwealth v. Evans, 664 A.2d 570, 574 (Pa. Super. 1995).

Here, the above-listed fourth exception is applicable as there is a satisfactory explanation

as to why the Commonwealth failed to call Arcenio as a witness. As a result of the shooting,

A.rceniosuffered serious bodily injury (N.T. 2/19/2014 at 39), including paralysis from the chest

down. N.T. 2/12/2014 at 38.10 Because of significant health issues, he was unavailable to testify

for both the Commonwealth and the Defense.

The Defense, however, argues that the Commonwealth had control over the witness,

which would still require a Missing Witness Instruction. For its position, the Defense relies on

Commonwealth v. Echevarria, 575 A.2d 620 (Pa. Super. 1990) and Commonwealth v.

Manigualt, 501 Pa. 506, 462 A.2d 239 (Pa. 1983). Yet the Defense's position is perplexing as

Echevarria involved a situation with a confidential informant-not applicable in the instant

10 The Defendant is paralyzed from the thorax down through to his legs. N.T. 2/ 18/2014 at 125.

16

I

ji

matter-and Manigualt supports a position held by the Commonwealth.11 In Manigualt, the

court held that if a party fails to ca11 a witness and that witness is equally available to both

parties, no Missing Witness Instruction is warranted. Here, like Manigualt, there is no indication

that the witness was available only to the Commonwealth. See Manigualt, supra. There is also

no evidence that the Commonwealth had exclusive control over the witness. Toe Defense knew

the Complainant's identity and had an equal opportunity to call him to testify, but failed to do so:

the Defense did not subpoena him; nor is there any indication that the Defense attempted to go to

his residence. Thus, the Missing Witness Instruction was not warranted, and the Trial Court's

ruling should be affirmed.

CONCLUSION

Based on the evidence, testimony, and the foregoing discussion, the Trial Court's rulings

should be affirmed on appeal.

SEAN F. KENNEDY, J.

11 At trial, the Commonwealth argued that the Missing Witness Instruction was inapplicable as Arcenio was

available to both the Commonwealth and the Defense; and, in the alternative, because of health issues, Arcenio was

otherwise unavailable to both parties. N.T. 2/20/2014 at 5-6.

17