The opinion
J-S64012-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYHEED K. BROWN :
:
Appellant : No. 2808 EDA 2017
Appeal from the Judgment of Sentence April 24, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010293-2015
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED JANUARY 15, 2019
Tyheed K. Brown appeals the judgment of sentence imposed following
his conviction for DUI: general impairment/incapable of driving safely. We
affirm.
The trial court set forth the relevant factual and procedural history
underlying the instant appeal as follows:
On November 2, 2012[,] at approximately 9:25 p.m., Lieutenant
Mike Zimmerman was on routine patrol, driving eastbound on the
500 block of Cambria Street. When Lieutenant Zimmerman
reached the intersection of 5th and Cambria, he saw that several
people were trying to get his attention by jumping up and down,
waiving and yelling. He testified that he heard a radio call about
the accident as he was already pulling over to investigate it, so he
believed that he arrived “[p]robably 30 seconds to a minute” after
the crash. As Lieutenant Zimmerman pulled over and approached
those people, he saw a black Honda CRV with rear-end damage,
a green 1999 Ford with front-end damage, and a severed light
pole. He also noticed debris on the street at that intersection that
came from the severed light pole and possibly the cars involved
in the collision. 5th Street is a commercial corridor, and the side
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streets intersecting 5th [S]treet are more residential, so there was
a crowd of about 20 to 25 people at the scene of the car collision.
Lieutenant [Zimmerman] found [Appellant] sitting on the ground
near the green Ford, with four or five members of the larger crowd
circled around him. They drew Lieutenant Zimmerman’s attention
to [Appellant] by pointing their fingers at him and telling the
lieutenant that he was driving one of the cars involved in the
accident. Lieutenant Zimmerman approached [Appellant] at that
point, and he observed [Appellant’s] bloodshot eyes, slurred
speech, and a strong odor of alcohol emanating from [his] breath
as he spoke. The [l]ieutenant did not observe anyone else inside
the green Ford. Based on the eyewitnesses’ statements and
behavior, Lieutenant Zimmerman believed that [Appellant] was
driving the green Ford, and based upon his own observations, he
concluded that [Appellant] was under the influence of alcohol and
incapable of driving safely, so he called for backup officers to
process [Appellant’s] arrest.
....
[A magistrate] found [Appellant] guilty of DUI: general
impairment and DUI: highest rate of alcohol. See MC 51-CR-
0045098-2012.
[Appellant] timely appealed, and on December 5, 2016,
[Appellant] waived his right to a jury trial and was tried before
th[e trial c]ourt in a bench trial. Th[e trial c]ourt convicted him of
DUI: general impairment, and the other DUI charges were nolle
prossed. Sentencing was deferred initially pending a Presentence
Investigation and later due to [Appellant’s] request. On April 3,
2017, [Appellant] filed a Motion for Extraordinary Relief. On April
24, 2017, after oral argument, the trial court denied this Motion
for Extraordinary Relief and sentenced [Appellant] to 48 hours to
6 months incarceration, with immediate parole after 48 hours to
be served on one weekend.
[Appellant] promptly filed a post-sentence Motion for a New Trial
in the Interests of Justice on April 27, 2017. This post-sentence
motion was denied by operation of law on August 28, 2017.
[Appellant] filed a timely notice of appeal on August 31, 2017. On
September 27, 2017, the [trial c]ourt entered an [o]rder directing
[Appellant] to file a statement of [errors c]omplained of on
[a]ppeal within twenty-one (21) days. [Appellant complied with
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that order, and the trial court thereafter filed its Pa.R.A.P. 1925(a)
opinion.]
Trial Court Opinion, 12/18/17, at 1-2 (citations to the record and footnotes
omitted).
Appellant raises the following issue for our review:
Did the lower court err by admitting hearsay evidence elicited
during the trial testimony of the sole Commonwealth witness,
Lieutenant . . . Zimmerman, which mostly consisted of statements
from unidentified members of a crowd who identified [Appellant]
as the driver of a vehicle involved in an accident, but including any
other hearsay evidence used substantively against [Appellant], in
that the Commonwealth failed to establish any exception to the
rule against hearsay which permitted the use of hearsay evidence
as substantive evidence to prove [Appellant’s] guilt of driving
under the influence?
Appellant’s brief at 3.
In reviewing a trial court’s ruling on the admissibility of evidence, our
standard of review is one of deference. Commonwealth v. Selenski, 18
A.3d 1229, 1232 (Pa.Super. 2011). Questions concerning the admissibility of
evidence are within “the sound discretion of the trial court, and its discretion
will not be reversed absent a clear abuse of discretion.” Id. (citation omitted).
“An abuse of discretion is not merely an error of judgment, but is 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 of record.” Commonwealth v. Harris, 884 A.2d
920, 924 (Pa.Super. 2005) (internal citations and quotation marks omitted).
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“‘Hearsay’ means a statement that . . . the declarant does not make
while testifying at the current trial or hearing; and ... a party offers in evidence
to prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c).
“Hearsay is not admissible except as provided by [the Pennsylvania Rules of
Evidence], by other rules prescribed by the Pennsylvania Supreme Court, or
by statute.” Pa.R.E. 802.
To ensure a party the guarantees of trustworthiness resulting from a
declarant’s presence in court, a proponent of hearsay evidence must point to
a reliable hearsay exception before such testimony will be admitted.
Commonwealth v. Smith, 681 A.2d 1288, 1290 (Pa. 1996). Thus, the
burden of production is on the proponent of the hearsay statement to convince
the court of its admissibility under one of the exceptions. Id.
Here, the trial court determined that the hearsay statements made by
bystanders to Lieutenant Zimmerman were admissible as excited utterances
under Pa.R.E. 803(2). In determining whether an out-of-court statement
constitutes an excited utterance, we are mindful of the following principles:
Rule 803(2) of the Pennsylvania Rules of Evidence permits the
admission of an excited utterance as an exception to the general
rule that hearsay evidence is inadmissible. The Rule defines an
excited utterance as: “A statement relating to a startling event or
condition made while the declarant was under the stress of
excitement caused by the event.” In Commonwealth v.
Stallworth, 781 A.2d 110, 119-20 (Pa. 2001), [the Supreme
Court of Pennsylvania] held that for a statement to be considered
an excited utterance, it must be made spontaneously and without
opportunity for reflection:
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[A] spontaneous declaration by a person whose mind
has been suddenly made subject to an overpowering
emotion caused by some unexpected and shocking
occurrence, which that person has just participated in
or closely witnessed, and made in reference to some
phase of that occurrence which he perceived, and this
declaration must be made so near the occurrence both
in time and place as to exclude the likelihood of its
having emanated in whole or in part from his reflective
faculties . . . Thus, it must be shown first, that [the
declarant] had witnessed an event sufficiently
startling and so close in point of time as to render her
reflective though processes inoperable and, second,
that her declarations were a spontaneous reaction to
that startling event. Commonwealth v. Stokes, 615
A.2d 704, 712 (Pa. 1992), quoting Commonwealth
v. Green, 409 A.2d 371, 373-74 (Pa. 1979).
In Commonwealth v. Pronkoskie, 383 A.2d 858, 862-63 (Pa.
1978), [our Supreme Court] further held that there is no clear-cut
rule as to the time sequence required for a statement to qualify
as an excited utterance, but rather that fact-specific determination
is to be made on a case-by-case basis.
Commonwealth v. Gray, 867 A.2d 560, 572 (Pa.Super. 2005) (quoting
Commonwealth v. Boczkowski, 846 A.2d 75, 95-96 (Pa. 2004) (cleaned
up)).
Additionally, “in assessing a statement offered as an excited utterance,
the court must consider, among other things whether the statement was in
narrative form, the elapsed time between the startling event and the
declaration, whether the declarant had an opportunity to speak with others
and whether, in fact, she did so.” Commonwealth v. Carmody, 799 A.2d
143, 147 (Pa.Super. 2002). Our Courts have not established a bright line rule
regarding the amount of time that may elapse between the declarant’s
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experience and her statement. Id. Rather, “the crucial question, regardless
of time lapse, is whether, at the time the statement is made, the nervous
excitement continues to dominate while the reflective processes remain in
abeyance.” Id. (quotations omitted). “It is the spontaneity of an excited
utterance [that] is the source of reliability and the touchstone of admissibility.”
Id. (quotations omitted).
In addition, with respect to the excited utterances of an unidentified
bystander, an additional proof requirement is necessary before his or her
statements will be deemed admissible pursuant to the res gestae exception.
In this regard, the party seeking the admission of the out-of-court statement
must demonstrate by the use of other corroborating evidence that the
declarant actually viewed the event of which she spoke. Commonwealth v.
Hood, 872 A.2d 175, 183-84 (Pa.Super. 2005).
Appellant argues that there was no evidence that the bystanders who
identified him as the driver of a vehicle involved in the accident had actually
observed him driving or the accident itself. Specifically, he contends “there
was no evidence from which a presumption could be made that the declarants
referred to by the officer were relating something they had actually seen (i.e.,
[Appellant] driving one of the cars), as opposed to simply repeating hearsay
from other sources, or jumping to conclusions about something they had not
personally observed. Appellant’s brief at 14-15. Appellant reasons that
“people gathered to view the aftermath of a car accident would not
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necessarily have personal knowledge of who was involved in the accident
unless they saw the accident as it occurred or before the vehicles were
vacated.” Id. at 15-16 (emphasis in original). Appellant concedes that certain
individuals in the crowd may have witnessed the accident and could have
stated from personal knowledge that he was driving one of the vehicles
involved, but argues that there was no way to differentiate between such
individuals and those who arrived too late to make these personal
observations.1
Here, the trial court determined that the bystander statements to
Lieutenant Zimmerman - that Appellant was the driver of one of the vehicles
involved in the accident - were admissible under the excited utterance
exception to the rule against hearsay, reasoning as follows:
[T]he two-car collision that knocked over a light pole was an
“unexpected and shocking occurrence,” as evidenced by the fact
that roughly twenty people in a commercial corridor in
Philadelphia thought this was a significant enough event to stop
what they were doing and flag down a patrolling police officer.
Although it is not clear that every single bystander witnessed the
collision, this [c]ourt was satisfied that the hearsay declarants
reported what they observed and that they had no reason to
fabricate the fact that [Appellant] was driving a vehicle involved
in the collision. . . .
Second, while the timeline here is not precise, the [c]ourt inferred
that very little time lapsed between the collision and the
____________________________________________
1 Appellant also argues that the hearsay testimony provided by Lieutenant
Zimmerman was not admissible as a “present sense impression.” See Pa.R.E.
803(1). However, as that hearsay exception was not the basis for the trial
court’s admission of the bystander statements, we decline to address that
exception.
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statements made to Lieutenant Zimmerman upon his arrival,
particularly because the accident occurred in the intersection of a
busy commercial area, and the lieutenant testified that as he
pulled over, he could hear a radio call directing police to the
accident. . . . Here, the facts that the hearsay declarants flagged
down Lieutenant Zimmerman and that he observed no other police
officers at the scene suggest that the hearsay declarants are
analogous to the declarants in other cases; they reported startling
events to law enforcement without much time for reflection about
or fabrication of those events.
Third, these statements were not presented in a detailed,
narrative form; rather, they merely identify [Appellant] as the
person operating a car involved in an accident. Much of Lieutenant
Zimmerman’s testimony focused on the bystanders’ actions: they
flagged him down by jumping and waiving their arms, and they
clustered around [Appellant] and pointed at him as he sat by the
car. The trial court only admitted the bystanders’ statements that
an accident occurred and that [Appellant] drove one of the cars
involved. The hearsay statements did not offer any detailed
narration of how the accident occurred or what the parties
involved in the accident said.
Finally, it is not clear whether the declarants spoke to each other
before making these statements to Lieutenant Zimmerman, but
this [c]ourt determined that that factor was not dispositive in this
case[,] given the limited nature of the hearsay admitted. . . .
Although defense counsel correctly notes that we do not know
what every bystander’s motives were, . . . it was apparent to this
[c]ourt that these bystanders did not form an angry mob; rather,
they gathered together to observe the aftermath of a car accident
and to ensure that a police officer quickly responded to what could
be an emergency situation.
Trial Court Opinion, 12/18/17, at 6-8 (footnote omitted).
Based on our review, we discern no abuse of discretion by the trial court
in admitting the limited hearsay statements in question. Lieutenant
Zimmerman testified that he believed that he arrived at the scene thirty
seconds to one minute after the accident occurred, and that there were
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already twenty to twenty-five bystanders at the scene who provided
consistent, mutually corroborating statements and gestures identifying
Appellant as the driver of one of the vehicles involved in the accident. These
circumstances sufficiently establish corroborating evidence that at least some
of the bystanders actually viewed the accident and could state with personal
knowledge that Appellant was driving one of the vehicles involved in the
collision. Hood, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/15/19
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