The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AKEEM EDWARDS :
:
Appellant : No. 1511 EDA 2019
Appeal from the Judgment of Sentence Entered April 30, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001578-2017
BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 4, 2021
Akeem Edwards appeals from the judgment of sentence imposed on his
convictions for Simple Assault, Harassment, and Driving While Operating
Privilege Suspended or Revoked.1 Edwards challenges the admission of
hearsay evidence through the excited utterance hearsay exception and the
court’s imposition of the costs of prosecution. We affirm.
The facts giving rise to Edwards’ convictions are as follows. On February
3, 2017, at approximately 11:05 a.m., Officer John Herring of the Lower
Moreland Township Police Department responded to a 911 call from a frantic
woman later identified as the victim, Sharondah King. N.T., Trial, 4/30/2019,
at 9-11. When he arrived at the scene, Officer Herring observed a black 2006
Nissan Pathfinder that was partially in the street in the lane opposite him and
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1 18 Pa.C.S.A. §§ 2701(a)(1), 2709(a)(1) and 75 Pa.C.S.A. § 1543(a),
respectively.
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partially on the shoulder. Id. at 9-11, 21. Edwards was at the open driver’s
door. Id. at 21. Officer Herring also observed a black female – later identified
as King – walking from the street where the vehicle was stopped to the
sidewalk, about 50 feet from the vehicle. Id. 10-11.
Officer Herring approached King, who was bleeding from the lip and
crying, and asked her, “What happened?” Id. at 11, 15. King said that her
boyfriend hit her because she called him “gay.” Id. at 13. She was angry and
yelling. Id. at 11. While Officer Herring was speaking with King, Edwards, who
was also visibly angry, walked towards them and yelled, “What did she just
say?” Id. at 14. Officer Herring then told Edwards to walk away from King so
he could talk to Edwards about what happened. Id.
Edwards told Officer Herring that he and King had gotten into an
argument because he got lost while he was driving King to a job interview.
Id. at 15. Edwards said he then threatened to hit King and did in fact hit her.
Id at 18-19. Officer Herring asked Edwards specifically how he hit King and
Edwards admitted that he backhanded her. Id. at 19. Officer Herring then
placed King in a patrol car to separate her from Edwards. Id. at 20. After
speaking with King further, he learned that Edwards had struck her with the
back of his open hand. Id. at 21. At this point, King was still visibly upset from
the situation. Id. at 20. Officer Herring then placed Edwards under arrest for
the above offenses. Id. at 21. While he was being placed under arrest,
Edwards stated that his license was suspended. Id. at 21-23.
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At his bench trial, Edwards raised a hearsay objection when Officer
Herring attempted to testify about what King told him when he arrived on the
scene. Id. at 11. The court overruled the objection, allowing the
Commonwealth the opportunity to lay a foundation. Id. After giving further
background, Officer Herring again attempted to testify about King’s
statements to him at the scene, and Edwards again objected. Id. at 12.
[Defense Counsel]: Objection, Your Honor. They haven’t
established that this is an excited utterance. At this point,
this is just hearsay. It is a nonfactor, after three minutes
and 20 seconds from when the incident may have occurred.
We actually don’t even know when the incident would have
occurred, based on what the Commonwealth has
established. We just know that there was a phone call; we
don’t know who it was from. And we know the officer arrives
on the scene about three minutes later and sees somebody
who is crying. That isn’t enough to establish an excited
utterance. It has to be something that shows they’re still
under the stress of the excited event.
Id. The Commonwealth responded that it had met the excited utterance
exception because “we have an officer who is arriving on scene, in the middle
of a situation, and receiving information of that time while still under the stress
of the events.” Id. at 13. The trial court overruled Edwards’ objection. Id.
Later during the trial, Edwards lodged a hearsay objection when the
Commonwealth asked Officer Herring if King was able to identify her
boyfriend, who had hit her. Id. at 13-14. The court overruled this objection
as well. Id. at 14. Edwards also lodged a hearsay objection when the
Commonwealth asked Officer Herring if he was able to “establish any further
information that either corroborated what you had learned from the defendant
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or not?” Id. at 19. The trial court again gave the Commonwealth the
opportunity to establish a foundation, and after additional questioning, the
Commonwealth asked Officer Herring the question again. Id. at 20. Edwards
lodged another hearsay objection to the question of what King had told Officer
Herring, which the trial court overruled. Id. at 20-21.
The trial court found Edwards guilty of all three counts and sentenced
him to one year of reporting probation on the Simple Assault conviction.2 It
also imposed a $200 fine for Driving with a Suspended License, and required
Edwards to pay the costs of prosecution for both convictions. This timely
appeal followed.
In his appellate brief, Edwards raises a single issue: “Did the trial court
erroneously admit the hearsay statements of [King] as excited utterances?”
Edwards’ Br. at 2. Edwards maintains that the trial court erred in overruling
his hearsay objections to Officer Herring’s testimony about King’s statements.
Edwards argues that “[t]he factors that allow excited utterances to enter were
not met: time had passed since the startling event; the statements were in
response to officer questioning; and the statements were a narrative of the
events.” Id. at 6.
We review the admission of evidence for an abuse of discretion.
Commonwealth v. Saez, 225 A.3d. 169, 177 (Pa.Super. 2019). “A
determination that a trial court abused its discretion in making an evidentiary
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2 The court found that harassment merged with simple assault.
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ruling ‘may not be made 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 to be clearly erroneous.’” Id. at 178 (quoting Commonwealth v.
Hoover, 107 A.3d 723, 729 (Pa. 2014)).
“Hearsay is an out-of-court statement offered to prove the truth of the
matter asserted in the statement.” Commonwealth v. Kuder, 62 A.3d 1038,
1055 (Pa.Super. 2013). Hearsay is inadmissible unless it falls within an
exception to the hearsay rule. See Commonwealth v. Le, 208 A.3d 960, 970
(Pa. 2019).
One exception to the hearsay rule is an excited utterance. 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.” Pa.R.E.
803(2). This exception applies regardless of whether the declarant is available
as a witness. Id. To qualify as an excited utterance, the declarant must have
spontaneously made the statement either while experiencing the startling
event, or “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.” Commonwealth v. Murray, 83 A.3d 137, 157 (Pa. 2013) (quoting
Commonwealth v. Sherwood, 982 A.2d 483, 496 (Pa. 2009)).
There is no particular time after the startling event that the statement
must occur. See Commonwealth v. Wholaver, 989 A.2d 883, 906-07 (Pa.
2010). Rather, the question is whether the declarant was still under “nervous
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excitement” at the time the declarant made the utterance. Id. at 907 (quoting
Pa.R.E. 803(2), cmt.)). To determine whether a statement qualifies 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).
The trial court did not abuse its discretion in determining that King’s
statements fell within the excited utterance hearsay exception. Officer Herring
testified that he arrived on the scene only three minutes and 20 seconds after
the 911 call. See N.T., Trial, at 10, 21. When he arrived on the scene, and
when King made the statements at issue, King was bleeding from her lip,
crying, and visibly angry. See id. at 11, 15. Edwards’ argument that too much
time had elapsed for at least some of the statements to qualify as excited
utterances lacks merit. The record is sufficient to support the finding that King
was still under the effect of the startling event when she made the statements.
Edwards also points out that King made at least some of the statements
in response to police questioning, which, according to Edwards, in combination
with King’s continuing to argue with Edwards, gave King time to reflect.
However, as Edwards concedes, police questioning does not render a
statement per se inadmissible as an excited utterance. Rather, police
questioning does not render a statement ineligible for admission as an excited
utterance so long as it was a “spontaneous” utterance while the declarant was
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under the stress of a startling event. Statements in response to police
questioning that nonetheless are excited utterances include those where an
officer merely asked what happened. See Commonwealth v. Colon, 102
A.3d 1033, 1038 (Pa.Super. 2014). Such was the case here. The officer’s
questioning was brief and the continued argument with Edwards, if anything,
continued the startling event. Edwards’ argument does not go to admissibility
but rather to credibility.
Edwards’ last point regarding the admissibility of King’s statements is
his claim that she may have spoken to others because she had her phone with
her between the time of the 911 call and when the police arrived. However,
this argument is pure speculation, as nothing in the record suggests King in
fact spoke to anyone. Thus, the evidence supports the trial court’s finding that
King made the statements while still under the influence of the startling event,
such that the statements qualified as excited utterances. Moreover, even if
the trial court erred in admitting the statements as excited utterances, the
error was harmless, as Officer Herring also testified that Edwards admitted to
hitting King.
Edwards also claims a violation of both the Pennsylvania and Federal
Confrontation Clauses due to the trial court’s admitting King’s statements.
Edwards argues that the court’s doing so “denied him the right to confront
and cross-examine the only eyewitness to the event.” Edwards Br. at 6. This
issue is meritless.
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Whether the admission of the statements violated Edwards’
Confrontation Clause rights is a question of law for which the standard of
review is de novo and the scope of review is plenary. Commonwealth v.
Brown, 139 A.3d 208, 211 (Pa.Super. 2016).
Edwards relies on Commonwealth v. Keys, 814 A.2d 1256 (Pa.Super.
2003), to support his Confrontation Clause argument. Edwards’ Br. at 10.
However, Keys is not on point. There, this Court concluded that hearsay
statements were not admissible as excited utterances and then stated, “Most
importantly, the admission of the hearsay served to deny the accused the
right of confronting and cross-examining the sole eyewitness against him.”
Keys, 814 A.2d at 1259. This Court did not intend that statement as a finding
of a Confrontation Clause violation, and indeed, at no point even entertained
a Confrontation Clause challenge.
Edwards also makes an argument in the body of his brief that the trial
court “erred in assigning costs without considering Mr. Edwards’ ability to
pay,” which raises a challenge to the legality of his sentence. See Edwards’
Br. at 10; Commonwealth v. Childs, 63 A.3d 323, 325 (Pa.Super. 2013).
Edwards claims that the trial court “wrongly ordered [him] to pay the costs of
prosecution as part of his sentence.” Edwards’ Br. at 10.
This issue is meritless. A court is not required to hold “a presentence
ability-to-pay hearing . . . when costs alone are imposed.” Commonwealth
v. Ford, 217 A.3d 824, 827 n.6 (Pa. 2019). Rather, a trial court only has to
hold an ability-to-pay hearing before it sentences a defendant to prison
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because of the failure to pay costs. Id.; see also Pa.R.Crim.P. 706(A);
Childs, 63 A.3d at 326; Commonwealth v. Lopez, ---A.3d----, 2021 WL
1096376, at * 5 (Pa.Super. filed Mar. 23, 2021) (en banc).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/04/2021
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