The opinion
J-A29043-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
ERIC JEFFREY PIPER
Appellant : No. 1840 MDA 2019
Appeal from the Judgment of Sentence Entered May 28, 2019
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0001819-2018
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED FEBRUARY 2, 2021
Appellant, Eric Jeffrey Piper, pro se, appeals from the aggregate
judgment of sentence of 20 to 40 years of confinement, which was imposed
after his jury trial convictions for: criminal attempt to commit criminal
homicide; aggravated assault - “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”;
burglary - enters building “adapted for overnight accommodations in which at
the time of the offense any person is present and the person commits,
attempts or threatens to commit a bodily injury crime therein”; criminal
trespass - “breaks into any building or occupied structure”; simple assault;
* Retired Senior Judge assigned to the Superior Court.
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recklessly endangering another person; harassment — subject other person to
physical contact; and aggravated assault - “attempts to cause or intentionally
or knowingly causes bodily injury to another with a deadly weapon[.]”
We affirm on the basis of the trial court opinion.
On the morning of January 28, 2018, Appellant attempted to bludgeon
his wife’s lover to death with a hammer, striking him five times in the head.
Trial Court Opinion, dated May 18, 2020, at 1.
Appellant’s wife, Theresa Piper (“Wife”), visited the victim,
Thomas McCutcheon, Jr. (“the Victim”), while he was recuperating in the
hospital; upon hearing the Victim’s description of his assailant, Wife said,
“Kind of sounds like my husband.” Id. at 3 (quoting the N.T. Trial, Volume 1,7
at 126°). Wife had to return to work but later sent the Victim photographs of
Appellant, although the Victim could not positively identify Appellant as his
attacker from the photographs. N.T. Trial, Volume 1, at 127-28.
After the Victim was released from the hospital, his aunt, a co-worker,
and Wife accompanied him to his apartment, where the attack had occurred;
upon seeing a hat and flashlight that did not belong to the Victim, Wife said,
1-18 Pa.C.S. § 901(a) (to commit § 2501), § 2702(a)(1), § 3502(a)(1)(i),
§ 3503(a)(1)(i), § 2701(a)(1), § 2705, § 2709(a)(1), and § 2702(a)(4),
respectively.
2 Volume 1 of the notes of testimony contains the transcripts for March 25
and 26, 2019.
3 At trial, the Victim testified that Wife made this comment to him. Wife did
not testify.
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“[T]hat’s my husband’s.” Trial Court Opinion, dated May 18, 2020, at 3
(quoting from testimony of the aunt, N.T. Trial, Volume 1, at 248). She then
said to the co-worker, “[T]hose look like something I have seen in my house.”
Id. (quoting co-worker’s testimony, N.T. Trial, Volume 1, at 273).
At trial, in addition to the testimony of the Victim, his aunt, and his co-
worker, the Commonwealth also presented the testimony of Trooper
Andrew Minnich, who testified that Appellant “was developed as a suspect
through interviews with [Wife].” N.T. Trial, Volume 2,4 at 109. Appellant
objected and requested a mistrial, which the trial court denied. Id. at 109,
111-12.
On March 28, 2019, a jury convicted Appellant of the aforementioned
counts.> On May 28, 2019, the trial court sentenced Appellant. Two days
later, Appellant’s counsel filed an application to withdraw and to appoint
substitute counsel. The trial court granted counsel’s petition to withdraw and
granted new counsel leave to file any post-sentence motions within 30 days
of sentencing. On June 3, 2019, new counsel filed an application for an
enlargement of time to file post-sentence motions, which the trial court
4 Volume 2 of the notes of testimony contains the transcripts for March 27,
2019.
> Appellant did not file any written pretrial motions. Before trial, Appellant
made an oral motion to suppress the hat and flashlight found in the Victim’s
apartment but not any evidence recovered from Appellant’s own home
pursuant to the execution of a warrant. N.T. Pretrial, 3/25/2019, at 14.
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granted on June 4, 2019, permitting Appellant to file post-sentence motions
no later than 30 days following receipt of the requested transcripts. Appellant
received the transcripts on June 20, 2019, and filed post-sentence motions on
July 22, 2019, within the 30 day window granted by the trial court. The trial
court denied the post-sentence motion on October 17, 2019, and Appellant
filed a timely notice of appeal on November 7, 2019, within 30 days of
October 17, 2019. See Pa.R.A.P. 903(a) (“the notice of appeal required by
Rule 902 (manner of taking appeal) shall be filed within 30 days after the
entry of the order from which the appeal is taken”); Pa.R.Crim.P. 720(A)(2)(a)
(“[i]f the defendant files a timely post-sentence motion, the notice of appeal
shall be filed within 30 days of the entry of the order deciding the motion”).®
On January 3, 2020, Appellant filed a motion to proceed pro se.
Following a Grazier’ hearing on January 13, 2020, the trial court granted
Appellant’s motion.
Appellant presents the following issues for our review:
(1) Did the [t]jrial [cJourt abuse it[s] discretion by allowing
testimony relating to the statements and opinions of [Wife], who
invoked her spousal privilege?
(2) Did the [t]rial [c]ourt abuse its discretion by denying
Appellant’s request for a mistrial after a timely objection to
Trooper Andrew Minnich’s testimony that “[Appellant] was
6 Appellant filed his statement of errors complained of on appeal on
December 2, 2019. The trial court entered its opinion on May 18, 2020.
7 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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developed as a suspect through interviews with [Wife],” as this
statement violated previously asserted spousal privilege?
(3) Did the [t]rial [cjourt abuse its discretion in granting the
Commonwealth’s Motion in Limine to introduce, under excited
utterance exception to the hearsay rule, out-of-court statements
made by [Wife]; First, representing that the [V]Jictim ... gave
[Wife] a description of his attacker, and [Wife] responded by
asking [the Victim] if he had ever seen pictures of her husband;
and Second, that [Wife] made comments that the flashlight and
the hat looked like items from her house and that they may belong
to her husband?
(4) Did the Commonwealth display deliberate misconduct in the
malicious methods used when Trooper Minnich interrogated
[Wife], threatening to take away custody of her children and
prosecute her for perjury if she did not testify for the prosecution,
causing her no other option than to invoke her spousal privilege,
and effectively denying the Appellant of a witness, in turn,
suppressing testimonial evidence favorable to the defense?
(5) Did the Commonwealth violate Appellant’s [constitutional]
rights protecting him against illegal searches and seizures when
Trooper Minnich ignored the lawful procedures of searching for
and arresting Appellant, in turn, allowed the admission of evidence
taken off Appellant’s person during the illegal search and seizure?
Appellant’s Brief at 2-3 (suggested answers omitted).
Appellant’s first four claims challenge the admissibility of Wife’s
comments incriminating Appellant, all of which were admitted through third-
party testimony, as Wife did not testify. Id. at 18-25. Appellant contends
that such statements are hearsay that do not “fall[] within a firmly rooted
hearsay exception.” Id. at 19.
The admissibility of evidence is a matter within the sound
discretion of the trial court and will be reversed only where there
is a clear abuse of discretion. . . . Evidence is admissible if it is
relevant—that is, if it tends to establish a material fact, makes a
fact at issue more or less probable, or supports a reasonable
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inference supporting a material fact—and its probative value
outweighs the likelihood of unfair prejudice.
Commonwealth v. Clemons, 200 A.3d 441, 474 (Pa. 2019) (citations
omitted).
™“Hearsay’ means a statement that (1) the declarant does not make
while testifying at the current trial or hearing; and (2) a party offers in
evidence to prove the truth of the matter asserted in the statement.” Pa.R.E.
801(c). Under the Rules of Evidence, “Hearsay is not admissible except as
provided by these rules, by other rules prescribed by the Pennsylvania
Supreme Court, or by statute.” Pa.R.E. 802. However, pursuant to Pa.R.E.
803(2):
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness: ...
(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.
The official comment to Pa.R.E. 803(2) further explains:
This exception has a more narrow base than the exception for a
present sense impression [pursuant to Pa.R.E. 803(1)], 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.
Comment to Pa.R.E. 803(2) (emphasis in original).
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After a thorough review of the record, the briefs of the parties, the
applicable law, and the _ well-reasoned opinion of the Honorable
Albert H. Masland, we conclude Appellant’s first four issues merit no relief.
The trial court opinion comprehensively discusses and properly disposes of
those questions. See Trial Court Opinion, dated May 18, 2020, at 3-4, 6-7
(finding: “[e]ach of the three statements in question was made in response
to and within moments of a startling event: namely, the conversation at the
hospital or the discovery at the apartment, both of which were startling insofar
as they implicated the declarant’s previously law-abiding husband in a most
heinous crime”; “stress and agitation was evident with respect to each
statement”; the statement of the trooper was harmless, as the jury had
already heard from other witnesses that Wife had expressed to them that she
had “grave concern and alarm that her husband was the attacker”; Appellant
presents no evidentiary support for his assertion that Trooper Minnich
threatened Wife).®
Finally, Appellant argues that “the Commonwealth violate[d]” his --
constitutional rights protecting him against illegal searches and
seizure when Trooper Minnich ignored the lawful procedures of
searching for and arresting Appellant, by making nonconsensual
entry to a private residence without a proper search warrant, and
8 The trial court opinion also presents an alternative theory that Wife’s remarks
were admissible under the “present sense impression” exception to hearsay.
Trial Court Opinion, dated May 18, 2020, at 5 (citing Pa.R.E. 803(1)).
Appellant disputes the applicability of this exception, as well. Appellant’s Brief
at 23. However, as we find that Wife’s declarations qualify for the excited
utterance exception, we need not address whether they would also qualify for
this alternative exception.
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allow[Led] the admission of evidence taken off Appellant’s person
during the illegal search and seizure[. |
Appellant’s Brief at 11. At no time prior to his appeal did Appellant challenge
the legality of the warrant or its execution, and, consequently, he has waived
any such claim. Pa.R.A.P. 302(a) (“Issues not raised in the trial court are
waived and cannot be raised for the first time on appeal.”).
Accordingly, we affirm on the basis of the trial court’s opinion. The
parties are instructed to attach the opinion of the trial court in any filings
referencing this Court’s decision.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Es¢
Prothonotary
Date: 02/02/2021
Circulated 01/25/2021 04:57 PM
Contents
Document Page
CP-21-CR-0001819-2018 - PIPER - ERIC - IN RE: OPINON PURSUANT TO PENNSYLVANIA RULE( Page Count: 9 1
CP-21-CR-0001819-2018 - PIPER - ERIC - IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE( Page Count: 9
COMMONWEALTH : IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
V,
ERIC JEFFREY PIPER —: CP-21-CR-1819-2018 on 2 oy
pe
IN RE: OPINION PURSUANT TO PENNSYLVANIA RUEE =!
OF APPELLATE PROCEDURE 1925 35 3
a5 2
2 =
Mastand, J., May 18, 2020:--
On the morning of January 28, 2018, Tom McCutcheon Jr., having
worked the overnight shift as a tow truck driver, returned to his apartment. '
Lying in wait was a man with a ball-peen hammer, who proceeded to
viciously attack Tom, striking him five times in the head.” After several
minutes of life-or-death struggle, Tom managed to get control of his
firearm; only then did the attacker relent and make his escape.” Tom was
hospitalized with horrific and potentially fatal injuries.* Subsequently, the
man with the hammer was identified as the Defendant, Eric Piper,° whose
wife, Theresa Piper, had been in a relationship with Tom for some time
'N.T. Vol. I, at 96-7.
* Id. at 98-9, 103.
* fd. at 105-110.
“NT. Vol. II, at 14.
°N.T. Vol. |, at 139.
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preceding the attack.® At the conclusion of a jury trial on March 28, 2019,
Defendant was convicted on all counts, including attempted murder and
burglary, and was subsequently sentenced, in the aggregate, to serve a
term of imprisonment of not less than 20 nor more than 40 years.’
In this appeal, Defendant alleges that this court erred (1) in admitting
hearsay evidence and (2) in failing to grant a mistrial in response to a
witness referencing a conversation with Defendant's wife, who had
previously invoked spousal privilege.® By way of a supplementary self-
represented concise statement, Defendant further contends (3) that his wife
only invoked spousal privilege in response to improper threats on the part
of the police, with the result that Defendant was wrongfully deprived of a
potentially valuable witness, and (4) that the warrant and search leading to
Defendant’s arrest were constitutionally faulty.®
° Id. at 71.
? In re: Sentencing Proceedings, at 13, filed June 20, 2019.
® Concise Statement Of The Errors Complained Of On Appeal, filed December 2, 2019.
* Concise Statement Of Errors On Appeal, filed April 21, 2020. As the Superior Court is aware, this court
held a Grazier hearing on January 13, 2020 to determine if the Defendant's waiver of counsel was
knowing, intelligent and voluntary. Having concluded that the Defendant could proceed to represent
himself, we afforded him 90 days to supplement the original concise statement filed by counsel. In light of
the COVID-19 pandemic, we granted him an additional grace period to provide his suppiement.
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I. Discussion
As to hearsay, there are three statements at issue. First, while
visiting with the victim in the hospital, Defendant’s wife, responding to the
victim’s description of his assailant, stated “Kind of sounds like my
husband.”"® Second, after the victim was released from the hospital, the
Defendant's wife accompanied him to his apartment; upon the discovery of
a hat and flashlight. which did not belong to the victim, she exclaimed,
“That’s my husband’s.”"' Third, in a separate reaction to the discovery of
the same hat and flashlight, Defendant's wife stated “Those look ike
something | have seen in my house.””
As an exception to the rule against hearsay, an excited utterance is a
“statement relating to a startling event or condition, made while the
declarant was under the stress of excitement that it caused.”’® Further, for
a declaration to qualify, “[it] 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 [the declarant's] reflective faculties.""* Each of the three
NLT. Vol. |, at 126.
"id. at 248.
2 id. at 273.
8 Pa RE, 803(2)
4 Commonwealth v. Murray, 83 A.3d 137, 157 (Pa, 2013).
3-
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statements in question was made in response to and within moments of a
startling event: namely, the conversation at the hospital or the discovery at
the apartment, both of which were startling insofar as they implicated the
declarant’s previously law-abiding husband in a most heinous crime. At the
time of each statement, Defendant's wife was described as “worried,”
“nervous,” or “obviously upset” as a consequence of what she had just
perceived.’° To illuminate one instance, we turn to the testimony of
Christopher Wilkening, who as the Assistant Fire Chief of Monroe Fire
Company, had worked with both the victim and Defendant's wife. He was
at the apartment when the items of personal property were discovered on
the dresser, and noted the following:
After we bagged the items, | walked out into the
living room, and | believe Teri was already out
there, and she, | will say kind of pulled me off to the
side and said those things look like something |
have seen in my house ... She was obviously upset,
and she had tears in her eyes. Her voice was —
there was some modulation abnormalities. It was
not normal. She appeared to be agitated. "°
Similar stress and agitation was evident with respect to each
statement. As such, we found them to fall squarely within the excited
utterance exception to the rule against hearsay.
"SN.T. Vol. |, at 133, 248, 273, resp.
8 NT. Vol. |, at 273-4.
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Although we propounded the excited utterance exception at trial, in
the alternative, we suggest that all three statements are admissible as
present sense impressions: i.e. “statements describing or explaining an
event or condition, made while or immediately after the declarant perceived
it.""” The exception for present sense impressions is both broader and
narrower than the excited utterance exception: broader in that the event
perceived need not have been startling, narrower in its temporal aspect.
The “[rjelative immediacy of the declaration insures that there will have
been little opportunity for reflection or calculated misstatement.”'®
The statements in the case sub judice were made immediately after
the events they described, those events being the statements by the victim
at the hospital and the discovery of the out-of-place items at the victim's
apartment. The near-contemporaneity of statement and event in each
instance is evidenced by the testimony of the witnesses who relayed the
hearsay to the court, each of those witnesses being present to observe
both the event and the immediately resulting statement.
Next, the Defendant contends that this court erred in denying his
motion for a mistrial, arguing that Trooper Minnich’s testimony to the effect
Pa R.E. 803(1).
"8 Commonwealth v. Coleman, 326 A.2d 387, 389 (Pa. 1974).
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that he developed Defendant as a suspect following a discussion with
Defendant's wife was inadmissible by virtue of the fact that Defendant's
wife had already invoked spousal privilege."®
The argument rests on a
misunderstanding of the privilege, which only prevents a spouse from being
compelled to testify in court, not from having her out of court conversation
with a third party mentioned by said third party in court.”° |
Moreover, we found the statement of the Trooper to be harmless.
Although the timing of the objection, which interrupted the Trooper mid-
sentence, might lead to an inference that the Defendant’s wife was the sole
source of developing the Defendant as a suspect, the entirety of the
Trooper's testimony disproved that. This was made clear by the follow-up
questioning about other witnesses the Trooper interviewed. In the context
of this case, having already heard that the Defendant’s wife had expressed
‘grave concern and alarm that her husband was the attacker, this statement
by the Trooper was insignificant. Unless the Superior Court finds that we
abused our discretion in admitting the hearsay statements of Defendant's
wife, we suggest that this issue is a red herring.
18 T. Vol. Il, at 109.
20 49 Pa.C.S. § 5913.
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in Defendant's self-represented concise statement, he argues that his
wife only invoked spousal privilege in response to improper threats by the
Commonwealth. This claim is without evidentiary support. To be sure, she
was informed of the possibility of a prosecution for filing false reports.”"
And, the Commonwealth did decline to extend immunity to Defendant's
wife for whatever testimony she may have offered had she not invoked her
privilege.” However, those actions, in and of themselves, do not constitute
any impropriety on the part of Commonwealth nor did they improperly deny
the Defendant an opportunity to call his wife as a witness. Indeed, had she
not been informed of the possibility of a false report charge, some judge
would be addressing that issue in her post-conviction appeals.
Finally, we find Defendant's rather boilerplate objections to the
constitutionality of the warrant and search leading to his arrest once again
lacking -in evidentiary support. Perhaps, the reluctance of counsel to
pursue this meritless claim is part of the reason Defendant is proceeding as
|.23
his own counse At no point prior to the filing of this appeal did
Defendant raise any objections, constitutional or otherwise, to the warrant
71NLT. Vol. U1, at 57-58.
?? Id, at 63.
3 Our Grazier finding that Defendant had knowingly, intelligently and voluntarily waived his right to
counsel does not equate with a finding that his self-represented pleadings and assertions have any true
value.
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or search, nor do we find any facts of record to sustain even the slightest
appearance of impropriety with respect thereto.
ll. Conclusion
For the foregoing reasons, we respectfully suggest that our decision
be affirmed.
By the Court,
"Albett H. Masland, J.
District Attorney’s Office
Eric Piper, Pro Se aay 19 2020
NW1015 J gee Cr
SCI Houtzdale
P.O. Box 1000
Houtzdale, PA 16698
may 1.9 2020
Copies delivered on
CP-21-CR-0001819-2018 - PIPER - ERIC - IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE( Page Count: 9
COMMONWEALTH OF PENNSYLVANIA
COURTHOUSE
1 COURTHOUSE SQUARE RM 401
CARLISLE, PA.
17013-3387
ALBERT H. MASLAND (717) 240-6294
JUDGE . .
MEMO TO: Clerk of Court
FROM: Albert H. Masland, J.
DATE: May 18, 2020
RE: Commonwealth v. Piper, CP-21-CR-1819-2018
Please be advised that the above-captioned cases are ready to be sent to
the Superior Court. If there are any problems, please advise.
AHM:sal