stating that a weight claim may be reviewed on appeal despite the claim’s denial by operation of law because “the effect of the denial operates in the same manner as if the [trial] court had denied the motion itself”
How later courts described this case
- stating that a weight claim may be reviewed on appeal despite the claim’s denial by operation of law because “the effect of the denial operates in the same manner as if the [trial] court had denied the motion itself”
- holding weight claim, which trial court failed to address in opinion, was ____________________________________________ 13 Moreover, the trial court also focused solely on the suppression issue in its Rule 1925(a) opinion. See Trial Court Opinion, 6/30/2017, at 3-9. - 17 - J-S79012-17 still reviewable on appeal because court’s denial of post-sentence motion signified court’s dismissal of claim
- holding defendant not entitled to Kloiber charge where eyewitness “had an unobstructed view of [Upshur] . . . lit by a streetlight, at a distance of three feet and has consistently identified [him] as the shooter throughout the investigation”
- holding weight claim, which trial court failed to address in opinion, was 13 Moreover, the trial court also focused solely on the suppression issue in its Rule 1925(a
Written by the judges who cited it.
The opinion
DEL SOLE, J.,
dissenting:
¶ 1 I respectfully dissent from that portion of the Majority’s decision which affirms the trial court’s ruling excluding, as hearsay, a statement made to a police officer by an unidentified motorist. The Majority holds that the excited utterance exception to the hearsay rale does not apply because it was not established that the declarant actually witnessed the shooting. However, my review of the record indicates that defense counsel was prohibited from establishing whether the motorist actually witnessed the shooting when the trial court limited the testimony to the motorist’s “excitability” when making the statement.
¶2 At trial of the matter, the court directed defense counsel to lay a foundation for the admission of the motorist’s statement, whereupon the following transpired:
Q. Officer Sprowal, what time did you receive your radio call to proceed to that scene?
A. 9:55 p.m.
Q. What time did you get to the scene?
*80 A. I would say, within about a minute or two.
Q. Did you talk to the young man first or to the man up on the bridge first?
A. Young man.
Q. How much time did you spend with the young man before you went to the man on the bridge?
A. Maybe, a minute.
Q. Now, the man up on the bridge, did he identify himself as a motorist?
A. Yes.
Q. All right. Now, at that time did he indicate to you that he had witnessed something? Don’t tell us what he said. Did he indicate to you that he witnessed something?
THE COURT: No. Sustained on that at
this time. Describe the excited.
N.T., 5/13/97, at 21-22. (emphasis added.)
¶ 3 When the officer described the motorist’s condition as “calm” the court sustained the prosecutor’s objection to the admission of the statement as hearsay. The Majority not only fails to recognize that the officer was prohibited from establishing whether the motorist witnessed the shooting but it also finds that, even if this fact could be established, defense counsel would be required to offer corroborating evidence that the motorist witnessed the shooting. The Majority writes that “[ejven assuming that Officer Sprowal would have testified consistently with defense counsel’s offer of proof that the motorist stated to him that he witnessed the shooting, this in itself is insufficient to establish the trustworthiness of the out-of court statement.” Majority opinion at 76-77. In support, the Majority cites to Carney v. Pennsylvania Railroad Company, 428 Pa. 489 , 240 A.2d 71 (1968) and Williamson v. Philadelphia Transportation Co., 244 Pa.Super. 492 , 368 A.2d 1292 (1976).
¶4 The Williamson decision offers no support for the Majority’s ruling because it concerned a defendant who failed to make an offer of proof as to what the bystanders said to the police at the scene to establish whether they witnessed the accident. The court ruled that it would uphold the trial court’s refusal to admit this testimony “[bjecause we do not know the substance of their statements.” Id. at 1296. In this case, the officer was asked whether the motorist stated that he witnessed something, however the officer was not permitted to answer the question.
¶ 5 In Carney , a statement made by an unidentified bystander to a police officer was admitted into evidence. The officer testified that “a gentleman run [sic] up to me and excitedly said to me that this car, this engine, had come out fast and that it had no light on it.” Carney 240 A.2d at 73 . Our Supreme Court, in a plurality decision, reversed, finding that there was no evidence in the record to indicate that the unidentified bystander actually witnessed the event. The court found that it would be “mere speculation and surmise” as to whether the declarant saw the accident and that it was just as probable that the witness was repeating what others had told him. Id. at 74. In contrast, in this case we are uncertain whether the motorist relayed to the officer that he witnessed the shooting because defense counsel was stopped from exploring that line of inquiry.
¶ 6 The Majority cites Carney for the further proposition that even if the motorist claimed to have witnessed the shooting, defense counsel must offer corroborating evidence that the declarant actually viewed the event. Majority Opinion at 76. It takes support for this conclusion from a comment in Carney which reads: “[I]t is incumbent upon the party seeking its admission to persuasively and convincingly demonstrate by the use of other corroborating evidence that the declarant actually viewed the event of which he speaks.” Id. at 75. This comment in Carney , a plurality decision, is purely dicta because the court’s decision ultimately turned on the fact that the record contained no information that the declarant viewed the event. In my view, the comment in Carney is a misstatement of the law, and I note it has *81 never been referred to or relied upon by our Supreme Court. I believe that the Majority errs in relying upon it to hold that defense counsel must offer independent corroborating evidence that a declar-ant viewed the event before the court can consider whether the statement is an excited utterance.
¶ 7 From my research, I conclude that, where there is an unidentified declarant or a declarant who is unavailable or incapable of testifying, the matter to be corroborated is whether the event itself occurred. When considering the admission of a res gestae statement it is often necessary to first establish by independent proof that the underlying startling event did take place. This step is necessary in those situations where the excited utterance itself is being used to prove that the exciting event occurred. We recognized the need for such proof in Commonwealth v. Barnes 310 Pa.Super. 480 , 456 A.2d 1037 (1983).
¶ 8 In Barnes , an agitated caller summoned police to his home and told the officer that the appellant entered his apartment, attacked him and stole $300. The declarant caller died of unrelated causes prior to trial and the prosecutor offered the declarant’s statements into evidence as proof that the appellant attacked and robbed the declarant. This Court held that the statements should not have been admitted into evidence. We noted that there was no independent evidence of a forced entry, of bruising or injury to the declarant, and no evidence that money was missing from the declarant or that any money was found on the appellant. This Court concluded that the only evidence of the existence of a crime came from the extrajudicial statements made by the de-clarant and that, without corroborating evidence of the crime’s existence, the statements were not admissible.
¶ 9 Likewise, in Commonwealth v. Sanford, 397 Pa.Super. 581 , 580 A.2d 784 (1990), this Court considered not whether there was corroborating evidence of the declarant’s witnessing of the event but rather whether the startling event occurred. In Sanford , a three-year old child made unsolicited statements to her mother indicating that she had been sexually assaulted. This Court found there was circumstantial evidence to establish that the event itself did occur and that it was “not a situation where the Commonwealth is attempting to use the excited utterance itself to prove the existence of an exciting event.” Id. at 788. See also Janet Boeth Jones, Annotation, Necessity, in Criminal Prosecution, of Independent Evidence of Principal Ad to Allow Admission, under Res Gestae or Excited Utterance Exception to Hearsay Rule, of Statement made at Time of, or Subsequent to, Principal Ad, 38 A.L.R.4th 1237 (1985).
¶ 10 Our Supreme Court, in Commonwealth v. Pronkoskie, 477 Pa. 132 , 383 A.2d 858 (1978), had occasion to consider the admissibility of statements made by a young child and the application of Carney to the facts. The declarant in Pronkoskie was incompetent to testify because of her tender years but her statements indicating her father shot and killed her mother were admitted at trial. The Supreme Court, with citation to Carney , reversed, finding the Commonwealth had failed to establish that the child actually witnessed the shooting. The Court noted that the child’s responses during the competency examination indicated that she did not see the shooting. Thus, the Supreme Court relied on the language of Carney which requires a party offering a hearsay statement into evidence under the excited utterance exception to demonstrate the declarant viewed the startling event.
¶ 11 Notably, the Supreme Court did not cite to or reinforce its statement in Carney that corroborating evidence must be submitted demonstrating the declarant actually viewed the event. Rather, the Court appeared to retreat from the comments in Carney , that the statements of a declarant alone are insufficient to demonstrate that he witnessed the event. The Court in Pronkoskie remarked:
*82 This is not to say that a proponent must in all cases conclusively establish that a declarant actually viewed the event to which the declaration relates. Compare Carney v. Pennsylvania R.R. Co., supra; Williamson v. Philadelphia Transportation Company, 244 Pa.Super. 492 , 368 A.2d 1292 (1976). As Professor McCormick has noted:
“Must the declarant meet the tests of competency for a witness? In a modified manner the requirement that a witness have had an opportunity to observe that to which he testifies is applied. Direct proof is not necessary; if the circumstances appear consistent with opportunity by the declar-ant, this is sufficient. If there is low probative value, however, it is usually held inadmissible if there is no reasonable suggestion that the declarant had an opportunity to observe.” McCormick, Evidence § 297 at PP. 707-08 (2d ed.1972) (footnotes omitted.)
Pronkoskie, 383 A.2d at 862 n. 6. The Supreme Court also stated that “... [Generally, the proponent of the evidence need only establish that a declarant was in a position to view an incident...Id. 8
¶ 12 In the instant matter, it is clear that a startling event, a shooting, did occur and there is no need to corroborate this fact. However, defense counsel was not permitted to explore whether the motorist indicated to the officer that he witnessed the shooting. Nor was counsel permitted to question the officer regarding the circumstances surrounding the motorist’s declaration because the court focused solely on evidence of his demeanor. Accordingly, I cannot join that portion of the Majority’s ruling which would find the motorist’s statement cannot be admitted because it was not proven that the motorist actually witnessed the event. I believe defense counsel would likely have been able to meet that test if permitted to do so. Thus, I would remand this matter to allow defense counsel an opportunity to establish whether the motorist indicated that he witnessed the shooting. The court could then view the totality of the circumstances to determine whether the statement qualifies as an excited utterance, by looking to see if it was a spontaneous reaction to a startling event.
¶ 13 MUSMANNO, J. and TODD, J. join in this Dissenting Opinion.
. I also note that when setting forth the new Rules of Evidence, specifically Pa.R.E. 803, dealing with hearsay exceptions, the Supreme Court did not mention any requirement of corroborating evidence in the Rule or its comment.