Petition for Writ of Certiorari — Barnyak v. Pennsylvania

Supreme Court, U.S.

a FILED

No. 41 5 2 5 MAR 1 5 1995

OFFICE GE THE CLERK

In The

Supreme Court of the United States

October Term, 1994

= —

RICHARD L. BARNYAK,

Petitioner,

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

Petition For A Wr:t Of Certiorari

To The Superior Court Of Pennsylvania

an ®

PETITION FOR A WRIT OF CERTIORARI

.

OF COUNSEL: ANNE M. Drxon

Mark S. GREENBERG 3100 Lewis Tower

3100 Lewis Tower Building

Building 15th and Locust Streets

15th and Locust Streets Philadelphia, Pennsylvania

Philadelphia, Pennsylvania 19102

19102 (215) 735-5900

(215) 735-5900 Attorney for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

m oe SRS

Rte eslini, ee eae ;

QUESTION PRESENTED FOR REVIEW

SHOULD THIS COURT ADDRESS THE ISSUE LEFT

OPEN IN WHITE v. ILLINOIS, 112 S.Ct. 736 (1992) OF

WHETHER A HEARSAY STATEMENT IMPROPERLY

ADMITTED UNDER THE EXCITED UTTERANCE

EXCEPTION TO THE HEARSAY RULE VIOLATES THE

CONFRONTATION CLAUSE REGARDLESS OF THE

DECLARANT’S AVAILABILITY AT TRIAL?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ............ i

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TEE SA GRUNER 6 605 8 6 Cd bends iba Feber iv

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SELIM co <4 60106 4Ga Nias bees aa Ces eC See enen 1

CONSTITUTIONAL PROVISION INVOLVED....... 2

RCO SOW SEOe CARR. oc decide wauseneecns 2

REASON FOR GRANTING THE WRIT............. 7

THE DECISION BELOW INVOLVES THE

ISSUE LEFT OPEN IN WHITE v. ILLINOIS, 112

S.Ct. 736 (1992): WHETHER A HEARSAY

STATEMENT IMPROPERLY ADMITTED

UNDER THE EXCITED UTTERANCE EXCEP-

TION TO THE HEARSAY RULE VIOLATES

THE CONFRONTATION CLAUSE REGARD-

LESS OF THE DECLARANT’S AVAILABILITY

| AT TRIAL. ACCORDINGLY, THIS COURT

| SHOULD GRANT THE PETITION TO

ADDRESS THE ISSUE.

ee eS 8 | ere eee Tee PTE rr ore wernt 12

*LIST OF ALL PARTIES

THE CAPTION OF THE CASE IN THIS COURT CONTAINS ~

THE NAMES OF ALL PARTIES (RICHARD L. BARNYAK AND

THE COMMONWEALTH OF PENNSYLVANIA).

|

ill

INDEX TO APPENDIX

OPINION OF PENNSYLVANIA SUPERIOR

COURT DATED JANUARY 25, 1994 AFFIRM-

ING THE JUDGMENT OF SENTENCE..........--.

ORDER OF PENNSYLVANIA SUPREME COURT

DENYING ALLOWANCE OF APPEAL.............

OPINION OF PENNSYLVANIA SUPERIOR

COURT DATED SEPTEMBER 7, 1993 REVERS-

ING THE JUDGMENT OF SENTENCE AND

REMANDING TO COURT OF COMMON

PLEAS FOR A NEW TRIAL ...........----- +0000:

ORDER OF COURT OF COMMON PLEAS

DATED MARCH 11, 1991 DENYING MOTION

IN LIMINE TO EXCLUDE STATEMENTS

MADE TO TROOPER PAUL YUHOUSE AT

HOSPITAL BY KATHY DIXON AND DOU-

eRe aT . eee nie

OPINION OF COURT OF COMMON PLEAS

DATED SEPTEMBER 14, 1992............---0e+ eee:

iv

TABLE OF CITATIONS

Page

CASES

California v. Green, 399 U.S. 149 (1970) ............. ie

Chambers v. Mississippi, 410 U.S. 284 (1973)......... 7, 8

Commonwealth v. Hess, 270 Pa. Super. Ct. 501, 411

roe RR pet Be ean ee rey ee 9

Delaney v. United States, 263 U.S. 586 (1924).......... 7

oo ae a Se Be. ae 2

Evans v. Court of Common Pleas, Delaware County,

ee A | rr ee ere 2

Idaho v. Wright, 497 U.S. 805 (1990) .................. 8

RE Oh BR, SF Bis Sek GED oc cw cee es ccctcucae 8

Maryland v. Craig, 497 U.S. 836 (1990)................ 7

Pointer v. Texas, 380 U.S. 400 (1965) ................ 7, 8

Waite v. Ulimols, 112 S.Ct. 736 (2992) ... «2. 6c nee 8, 9

Rutes

eee ee Se I $06 b's ds ns hve on Sh aed Oba can de bis 9

TREATISES

5 Wigmore, Evidence §1367 at 32 (Chadbourne rev.

SERS inc O44 Gaede Ae eats ks ke REPEAT ONDEA SESSA LEOK 7

Strong, J., McCormick on Evidence §272 at 216 (4th

i PR 0s kok Lu ee ha dnee bea eh ase cadcaae esse 9

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5 :

&

:

a

PETITION FOR WRIT OF CERTIORARI TO THE

SUPERIOR COURT OF PENNSYLVANIA

Petitioner Richard L. Barnyak respectfully prays that

a writ of certiorari issue to review the judgment and

opinion of the Superior Court of Pennsylvania entered in

the above-entitled proceeding on January 25, 1994 in

which the Supreme Court of Pennsylvania denied

Allowance of Appeal on December 19, 1994.

-

OPINIONS BELOW

The order of the Pennsylvania Supreme Court deny-

ing Petitioner’s Allowance of Appeal (Appx. B) is

reported at __ A.2d __, No. 181 M.D. 1994 (Pa. S. Ct.

Dec. 19, 1994). The opinion of the Pennsylvania Superior

Court dated January 25, 1994 (Appx. A) affirming the

judgment of sentence, which is the subject of this Petition,

is reported at 432 Pa. Super. 483, 639 A.2d 40 (1994). The

opinion of the Pennsylvania Superior Court dated Sep-

tember 7, 1993 (Appx. C) reversing the judgment of sen-

tence and remanding for a new trial is unreported. The

opinion of the Court of Common Pleas of Centre County,

Pennsylvania dated September 14, 1992 (Appx. D) is not

officially reported.

JURISDICTION

The Pennsylvania Supreme Court denied the Petition

for Allowance of Appeal in this case on December 19,

1994 (Appx. B). Petitioner’s conviction had been affirmed

by the Superior Court of Pennsylvania, an intermediate

appellate court, on January 25, 1994 (Appx. A). Petitioner

noted for the Superior Court that hearsay testimony vio-

lated the right of a defendant to confront his accusers.

The jurisdiction of this Court to review the decision of the

Pennsylvania Supreme Court is invoked under 28 U.S.C.

§1257(a).

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment VI:

“In all criminal prosecutions, the accused shall

enjoy the right to . . . be confronted with the

witnesses against him. . 24

. |

STATEMENT OF THE CASE

Petitioner Richard L. Barnyak was charged in an

information filed by the District Attorney of Centre

County, Pennsylvania, with attempted murder, first and

1 Petitioner argued in the trial court that the introduction of

the out-of-court statements of Douglas Bumbarger and Kathy

Dixon violated the hearsay rule. This Court has recognized that

“hearsay rules and the Confrontation Clause are generally

designed to protect similar values,” California v. Green, 399 U.S.

149, 155 (1970), and “stem from the same roots.” Dutton v. Evans,

400 U.S. 74, 86 (1970). Cf. Evans v. Court of Common Pleas, Dela-'

ware County, 959 F.2d 1227 (3d Cir. 1992) (not necessary to

invoke “talismanic phrases” to obtain federal review).

a EL MOT MT LR a at yr URI Oe ee NY aR ee Oe

third degree,? aggravated assault,> simple assault,* reck-

lessly endangering another person, and terroristic

threats.© The District Attorney accused Petitioner of

shooting Kathy Marie Dixon in the hand at approx-

imately 2:00 a.m. on April 21, 1990 while inside a trailer

home they shared. The case was captioned as Common-

wealth of Pennsylvania v. Richard L. Barnyak, Criminal

Action No. 1990-94 (Centre County).

Trial began on March 11, 1991 before the Honorable

Charles C. Brown, Jr., President Judge of the Court of

Common Pleas of Centre County, Pennsylvania and a

jury. On March 12, 1991, the jury returned a verdict of not

guilty on the counts charging Petitioner with attempted

murder in the first and third degree and guilty on the

other counts of the information. Petitioner was sentenced

on September 28, 1992 on the aggravated assault count to

a mandatory minimum sentence of five to ten years incar-

ceration.”? Sentences on the other counts were ordered to

run concurrently with the aggravated assault count or

were found to have merged for purposes of sentencing

with the aggravated assault count.

2 18 Pa. C.S.A. §901 (Purdon 1983). The murder statute in

Pennsylvania is found at 18 Pa. C.S.A. §2502 (Purdon 1983).

3 18 Pa. C.S.A. §2702 (Purdon Supp. 1994)

4 18 Pa. C.S.A. §2701 (Purdon 1983)

5 18 Pa. C.S.A. §2705 (Purdon 1983)

6 18 Pa. C.S.A. §2706 (Purdon 1983)

7 42 Pa. C.S.A. §9712(a) (Purdon 1983)

Petitioner did not dispute that he fired the gun that

resulted in Ms. Dixon getting shot in the hand but testi-

fied that he did not intentionally shoot Ms. Dixon.® The

trial court instructed the jury that before it could find

Petitioner guilty of any of the counts charging him with

aggravated assault or one of the two counts charging him

with simple assault,? it had to find that Petitioner acted

“intentional[ly],” and “that it was his conscious object or

purpose to cause such serious bodily injury . . . [or]

bodily injury.” R. 499(a)-504(a). Thus, the issue joined at

trial was whether Petitioner intentionally shot Ms. Dixon.

The Commonwealth, in an effort to prove that Peti-

tioner intentionally shot Ms. Dixon, elicited testimony

from Pennsylvania State Trooper Paul A. Yuhouse con-

cerning hearsay statements made to him by Ms. Dixon

and her son Douglas Bumbarger at approximately 3:10

a.m. on April 21, 1990, over one hour after the shooting,

at the hospital where Ms. Dixon was treated for her hand

injury.!° Trooper Yuhouse, over objection, testified that

Ms. Dixon told him that she and Petitioner were arguing

8 Petitioner’s testimony denying he intentionally shot Ms.

Dixon was consistent with a statement he gave to Trooper

Robert Snook, a witness called by the Commonwealth, who

testified that he took a statement from Petitioner wherein Peti-

tioner stated that he believed Ms. Dixon had left the trailer prior

to shooting the gun. R. at 195(a)-196(a). References to “R.” are to

pages in the reproduced record filed in the Superior Court of

Pennsylvania.

® Count seven of the Information charged Petitioner with.

negligently causing bodily injury with a deadly weapon.

10 Both Kathy Dixon, who married Petitioner prior to trial,

and Douglas Bumbarger refused to testify at tz:al.

~ enema

ee ata

earlier in the evening and that Petitioner fired two to four

shots, one of which struck her in the hand. R. at

142(a)-143(a).

Trooper Yuhouse also testified, over objection, to the

following hearsay statements made by Ms. Dixon’s son,

Douglas Bumbarger: (1) that before the shooting, Peti-

tioner and Ms. Dixon were verbally and physically argu-

ing; (2) that Petitioner called Mr. Bumbarger a “fucking

bastard”; (3) that Petitioner said “I’m going to kill you

all”; (4) that Petitioner fired three or four shots up the

bedroom door; and (5) that after the shooting was over,

Petitioner came out of the bedroom with a gun in his

hand and a smile on his face and ordered both Ms. Dixon

and Mr. Bumbarger to leave the trailer. R. at 143(a)-145(a).

Mr. Bumbarger’s hearsay was particularly damaging

given his attribution to Petitioner the statement “I am

going to kill you all” which directly related to Petitioner's

intent when he fired the gun.

Petitioner objected to this hearsay pretrial, during

trial and on appeal. (Appx. A; C; D; E). On September 7,

1993, the Superior Court of Pennsylvania reversed the

judgment of sentence and ordered a new trial on the

ground that, contrary to the ruling of the trial court, the

hearsay statements of Ms. Dixon and Mr. Bumbarger did

not qualify under the excited utterance exception to the

hearsay rule. (Appx. C). Commonwealth of Pennsylvania v.

Richard L. Barnyak, No. 671 Harrisburg 1992.

On January 25, 1994, the superior court, in response

to the “Commonwealth’s Application for Reargument En

Banc,” withdrew its initial opinion reversing the judg-

ment of sentence and ruled that, indeed, the hearsay

statements of Ms. Dixon and Mr. Bumbarger had been

properly admitted under the excited utterance exception

to the hearsay rule. (Appx. A).

With respect to the hearsay statements Trooper

Yuhouse attributed to Ms. Dixon, the Superior Court

cited testimony of hospital personnel and Trooper

Yuhouse that Ms. Dixon was pale, frightened and upset at

the time she allegedly made the above-referenced hearsay

statements to the Trooper. (Appx. A4-7).

As for the hearsay statements Trooper Yuhouse

attributed to Mr. Bumbarger, who was interviewed after

his mother, there was no evidence presented concerning

Mr. Bumbarger’s physical condition or state of mind at

the time he uttered the hearsay statements attributed to

him by Trooper Yuhouse. The superior court ruled, none-

theless “[c]onsidering the involvement of Ms. Dixon and

her son in the shcoting incident, and considering the

mother/son relationship between the two, we have no

difficulty finding that their statements at the hospital

were declarations made while experiencing overpower-

ing emotion caused by a shocking event.” (Appx. A6).

On April 27, 1994, Petitioner filed a “Petition for

Allowance of Appeal From the Superior to the Supreme

Court” of Pennsylvania arguing, inter alia, that the Supe-

rior Court of Pennsylvania had erred in concluding that

the statements of Ms. Dixon and Mr. Bumbarger were

admissible under the excited utterance exception to the

hearsay rule. The Supreme Court of Pennsylvania denied

this Petition for Allowance of Appeal on December 19,

1994. (Appx. B).

REASONS FOR GRANTING THE WRIT

It has long been held that the admission of hearsay

may constitute a violation of the Confrontation Clause of

the Sixth Amendment. Delaney v. United States, 263 U.S.

586 (1924). The exclusion of hearsay is based on experi-

ence and grounded in the notion that untrustworthy evi-

dence should not be presented to the triers of fact.

Chambers v. Mississippi, 410 U.S. 284 (1973).

Out-of-court statements are traditionally

excluded because they lack the conventional

indicia of reliability: they are usually not made

under oath or other circumstances that impress

the speaker with the solemnity of his state-

ments; the declarant’s word is not subject io

cross-examination; and he is not available in

order that his demeanor and credibility may be

assessed by the jury.

Id. at 298 citing California v. Green, 399 U.S. 149 (1970).

A state criminal defendant's right to confrontation is

guaranteed under the Fourteenth Amendment of the

United States Constitution. Pointer v. Texas, 380 U.S. 400

(1965). The central concern of the Confrontation Clause is

to ensure the reliability of the evidence against a criminal

defendant by subjecting it to the rigorous testing in the

context of an adversary proceeding before the trier of

fact. Maryland v. Craig, 497 U.S. 836 (1990). The chief

mechanism of ensuring the reliability of evidence is

cross-examination which has been described “beyond any

doubt the greatest legal engine ever invented for the

discovery of truth.” 5 Wigmore, Evidence §1367 at 32

(Chadbourne rev. 1974).

The right to confrontation and cross-examination con-

tributes to a system of criminal justice in which the percep-

tion as well as the reality of fairness prevails. Lee v. Illinois,

476 U.S. 530 (1986). The right of cross-examination is

included in the right of an accused in a criminal case to

confront the witnesses against him because experience

shows that it can expose falsehoods and bring out the

truth. Pointer v. Texas, 380 U.S. 400 (1965). Indeed, because

cross-examination is an essential and fundamental require-

ment for a fair trial, its deprivation to an accused may

constitute a violation of due process within the meaning of

the Fourteenth Amendment. Chambers v. Mississippi, 410

U.S. 284 (1973); Pointer v. Texas, 380 U.S. 400 (1965).

To be sure, not all hearsay violates an accused’s right

to confrontation. Hearsay falling within a traditional or

“firmly rooted” exception is admissible under the Con-

frontation Clause regardless of the declarant’s availability

at trial. White v. Illinois, 112 S.Ct. 736 (1992). In those

situations where the hearsay sought to be admitted does

not fall within a “firmly rooted” exception, the hearsay

will be excluded unless, under the totality of the circum-

stances, there has been a finding of “particularized guar-

antees of trustworthiness.” Idaho v. Wright, 497 U.S. 805

(1990). The Court in White v. Illinois, 112 S.Ct. 736 (1992)

held, in part, that a “spontaneous declaration” is a

“firmly rooted” exception to the hearsay rule and is

admissible regardless of the declarant’s availability at

ee

trial.!! This ruling was premised explicitly upon the find-

ing that the statements in question fell within a “firmly

rooted” exception to the hearsay rule. Id. at 740 n. 4.

Petitioner submits that the question left open in White is

whether the Confrontation Clause would be violated by

the improper admission of hearsay under the sponta-

neous declaration or excited utterance exception to the

hearsay rule regardless of the declarant’s availability at

trial. This Court should address this issue and hold that

Petitioner’s right of confrontation was violated by the

admission of the hearsay statements of Douglas Bum-

barger.

To be admissible as a spor.taneous declaration or an

excited utterance, two requirements must be met: “(flirst

there must be an occurrence or event sufficiently startling

to render inoperative the normal reflective thought pro-

cesses of the observer. Second, the statement of the

declarant must have been a spontaneous reaction to the

occurrence or event and not the result of reflective

thought.” Strong, J., McCormick on Evidence §272 at 216

(4th ed. 1992).

Petitioner concedes that the fact of being shot, or

a

witnessing someone being shot, is a “startling event.”

Under the circumstances of this case, however, there is no

showing that the statements of Douglas Bumbarger were

in response to this startling event. Thus, their admission

11 A “spontaneous declaration” is the equivalent of an

“excited utterance” under Pennsylvania and federal law. Com-

monwealth v. Hess, 270 Pa. Super. Ct. 501, 411 A.2d 830 (1980);

Fed. R. Evid. §803(2).

10

violated the hearsay rule and the Petitioner’s right of

confrontation.

Instructive on the issue of whether Mr. Bumbarger’s

statements were excited utterances is to compare the

evidentiary foundation that served to establish that Ms.

Dixon was still operating under the stress of being shot

when she made her statements to Trooper Yuhouse with

the paucity of evidence showing that Mr. Bumbarger was

still so influenced.

The Superior Court of Pennsylvania pointed to evi-

dence that Ms. Dixon was pale, frightened and upset at

the time she made her statements to Trooper Yuhouse to

establish that she was still laboring under the stress of

being shot when interviewed by the Trooper. By contrast,

there is no evidence on the record that Mr. Bumbarger

was in a similar mental, emotional and physical state at

the time Trooper Yuhouse took the damning statements

from him concerning Petitioner’s intent at the time of the

shooting. Although there is a reference in the record to

the effect that when Trooper Yuhouse arrived at the hos-

pital to conduct his investigation he found both Ms.

Dixon and Mr. Bumbarger to be “excited and upset,”

there is no evidence concerning Mr. Bumbarger’s condi-

tion at the time he was interviewed, which was after the

interview of his mother. Indeed, immediately after the

shooting and while still inside the trailer, Mr. Bumbarger

threatened to make Petitioner “pay” for what he had

done which reflects an emotional state bent on vengeance

rather than one laboring under fear. R. at 161(a); 170(a).

Moreover, Mr. Bumbarger’s purported non-reflexive |

statements to Trooper Yuhouse are belied by his where-

withal at assisting his mother drive to the hospital and

:

,

EEE EE

11

the fact that they were made in response to the Trooper’s

interrogation. R. at 170(a).

The instant case presents a classic example of the

importance of cross-examination and why Petitioner’s

inability to cross-examine Mr. Bumbarger’s hearsay state-

ments constituted a denial of his right of confrontation

and due process of law. Petitioner was unable to cross-

examine Mr. Bumbarger concerning Bumbarger’s ability

to even hear Petitioner state “I’m going to kill you all.”

That such a statement was not even made was raised

through cross-examination of Raymond Smeal, the

nephew of Kathy Dixon and cousin of Mr. Bumbarger,

who testified that he never heard Petitioner make any

threatening statement even though he was in the same

closed confines of the trailer as were Petitioner, Ms.

Dixon and Mr. Bumbarger. R. at 165(a)-166(a). Cross-

examination of Mr. Bumbarger would have provided con-

text to Mr. Bumbarger’s statement to Petitioner “you'll

pay for this you son of a bitch.” R. at 161(a); 170(a). Such

a statement, plainly uttered in a spirit of vengeance,

belies the notion that subsequent statements made by Mr.

Bumbarger to Trooper Yuhouse over an hour later in

response to questioning were the product of the startling

event — the shooting.

In sum, Mr. Bumbarger’s statements to Trooper

Yuhouse were hearsay not within an exception. As such,

their admission violated the Confrontation Clause. No

evidence save for these hearsay statements, was pre-

sented concerning Petitioner’s intent at the time he fired

the gun. Cross-examination was essential to test the

accuracy and motivation of Mr. Bumbarger’s hearsay

statements. Consequently, the admission of these hearsay

statements did not constitute harmless error.

.

CONCLUSION

For the foregoing reasons, Petitioner RICHARD L.

BARNYAK prays that this Court grant his petition for a

writ of certiorari to review the judgment and opinion of

the Superior Court of Pennsylvania affirming the judg-

ment of sentence imposed on Petitioner.

Respectfully submitted,

OF COUNSEL: ANNE M. Dixon

Mark S. GREENBERG 3100 Lewis Tower

3100 Lewis Tower Building

Building 15th and Locust Streets

15th and Locust Streets Philadelphia, Pennsylvania

Philadelphia, Pennsylvania 19102

19102 (215) 735-5900

(215) 735-5900 Attorney for Petitioner

A-1

COMMONWEALTH of Pennsylvania,

v.

Richard L. BARNYAK, Appellant.

Superior Court of Pennsylvania.

Argued June 23, 1993.

Filed Jan. 25, 1994.

Reargument or Reconsideration

Denied March 30, 1994.

John R. Carfley, Phillipsburg, for appellant.

J. Karen Arnold, Dist. Atty., Bellefonte, for Com.,

appellee.

Before ROWLEY, President Judge, and TAMILIA and

POPOVICH, JJ.

ROWLEY, President Judge.

Richard L. Barnyak appeals from the judgment of

sentence imposed following his conviction for aggravated

assault, simple assault, recklessly endangering another

person, and terroristic threats. Upon review of the variety

of issues raised on appeal, we affirm the judgment of

sentence.!

The charges against appellant arose from a domestic

dispute in which Kathy Dixon, now Kathy Barnyak,

appellant’s wife, was shot in the hand. The incident

occurred on April 21, 1990, at approximately 2:00 a.m.

Ms. Dixon was admitted to the hospital for treatment at

1 The memorandum decision filed on September 7, 1993,

which reversed the judgment of sentence, was withdrawn by

this panel pursuant to an order dated October 25, 1993.

5 ee ee

A-2

2:35 a.m. and was initially interviewed there by a police

officer at approximately 3:10 a.m. While present at the

hospital, Ms. Dixon’s son and nephew also made state-

ments to the officer regarding the shooting incident. The

out-of-court statements of Ms. Dixon, her son, and her

nephew were introduced at trial as substantive evidence.

Ms. Dixon and her son were subpoenaed to appear in

court at the time of trial and there reiterated, in the

presence of the jury, a prior refusal to testify against

appellant. Both were held in contempt and incarcerated

by the trial judge until the conclusion of the Common-

wealth’s case. Appellant was convicted of the offenses

named above and was acquitted on charges of attempted

first and third degree murder. The trial court denied

appellant’s motions for a new trial and in arrest of judg-

ment, his petition for reconsideration, and his motion to

modify sentence. We consider, in order, the issues he has

raised on appeal.

First, appellant argues that out-of-court statements

made at the hospital by the victim and other witnesses

were improperly admitted at trial under the excited

utterance exception to the hearsay rule. The statements

were introduced through the testimony of Trooper Paul

Yuhouse who interviewed Ms. Dixon, her son, and her

nephew at the hospital. Trooper Yuhouse did not have an

independent recollection of the interviews, but testified

with reference to field notes. Before considering the hear-

say issue raised, we address appellant’s allegation that

Trooper Yuhouse could not “accurately attribute any of,

the statements [recorded in the field notes] to any one

particular individual.” Brief of Appellant at 15. We find

this allegation without basis in the record.

SESE

A-3

Prior to relating the statements made to him at the

hospital, Trooper Yuhouse was specifically asked by the

Commonwealth's attorney i) “did Ms. Dixon make state-

ments to you... . and if so could you tell the jury what

those statements were?” N.T. 3/11/91 at 43; ii) “Do you

recall what statements Mr. Bumbarger [Ms. Dixon’s son]

made to you relative to what happened?” Id. at 44; and

iii) “With respect to Raymond Smeal [Ms. Dixon's

nephew], you indicated you had also spoken with

him?. . . . What statements did he make relative to what

had occurred that night?” Id. at 46. Our review reveals

that Trooper Yuhouse testified with specificity as to what

each individual told him. This was evident from the fact

that each individual’s rendition of the events was from

the vantage point of that individual. Because we conclude

that Trooper Yuhouse did attribute the statements

recorded in his field notes to each particular individual,

we can consider whether these statements were properly

admitted as excited utterances with respect to each

speaker.

Appellant generally cites the following factors,

among others, as persuasive that none of the statements

qualify as excited utterances: 1) the statements were not

made sufficiently close in time to the startling event; 2)

the site of the startling event was remote from the hospi-

tal where the statements were made. We also note that the

statements were made in response to police questioning.

Even so, these factors are not preclusive to a finding of an

excited utterance. See Commonwealth v. Von Smith, 303

Pa.Super. 534, 450 A.2d 55 (1982) (although victim died,

death of speaker not required for admission of excited

utterance).

A-4

The following relevant circumstances support the

conclusion that the statements made by Ms. Dixon and

her son qualified as excited utterances. See Commonwealth

v. Hess, 270 Pa.Super. 501, 411 A.2d 830 (1980) (sponta-

neous declaration made when experiencing overpower-

ing emotion in response to an unexpected or shocking

event). On April 21, 1990 at approximately 2:00 a.m.,

appellant and Ms. Dixon were drunk and arguing inside

the trailer they shared. N.T. 3/11/93 at 96 (Test. of

Trooper Robert Snook, investigating officer testifying to

statements made to him by appellant), and N.T. 3/12/93

at 14 (Test. of appellant Richard Barnyak). Ms. Dixon's

son, Douglas Bumbarger, and her nephew, Raymond

Smeal, were present in the trailer throughout the heated

and physical argument. N.T. 3/11/93 at 58-62 (Test. of

Raymond Smeal).

Appellant and Ms. Dixon continued arguing, pulling

one another’s hair, and moved toward the master bed-

room away from the area where the son and nephew

were. N.T. 3/11/93 at 96 (Test. of Trooper Snook). Appel-

lant entered the master bedroom but testified that he was

unsure whether he or Ms. Dixon, who had not entered

the room, closed the door behind him. N.T. 3/12/93 at 25 )

(Test. of Appellant). Ms. Dixon’s son went back toward

the bedroom, then ran back to the area where the nephew

was. N.T. 3/11/93 at 61 (Test. of Raymond Smeal). Appel-

lant picked up his gun from the dresser, pointed at the

closed bedroom door and fired. N.T. 3/11/93 at 97 (Test.

of Trooper Snook).

Four gunshots were fired through the door. Id. A fifth

shot was fired directly above the doorknob and struck

Ms. Dixon in the hand. Id. After appellant fired at the

A-5

doorknob, he heard Ms. Dixon scream “oh, my hand,”

N.T. 3/12/93 at 27 (Test. of Appellant), then fired one

round through the bedroom wall after he heard her

screaming. N.T. 3/11/93 at 97-98 (Test. of Trooper Snook).

Appellant did not pause at any time between the shots,

and he emptied the gun. N.T. 3/12/93 at 25 (Test. of

Appellant). Once the shots were fired and the son and

nephew heard Ms. Dixon scream, the son ran back down

the hallway. N.T. 3/11/93 at 61-62 (Test. of Raymond

Smeal). Ms. Dixon, her son and nephew then left the

trailer and went to the car which the nephew had started.

Id. at 62. Ms. Dixon was yelling “my hand,” and her son

was yelling at appellant from outside “you'll pay for this

you son of a b__.” Id., N.T. 3/12/93 at 49 (Test. of

Appellant).

Dr. Howard Bursh, the emergency room physician

who treated Ms. Dixon shortly thereafter,? testified that

she was pale and obviously frightened. N.T. 3/11/93 at

16. Her pulse was elevated; her blood pressure was mark-

edly elevated; and her pupils were dilated. Id. Dr. Bursh

adminisiered an injection of an antianxiety agent because

Ms. Dixon seemed to be “really panic stricken.” Id. at 25.

The emergency room nurse, Judy Pleskonko, further testi-

fied that Ms. Dixon was crying and saying she could not

believe this had happened to her. Id. at 27-28. When

Trooper Yuhouse arrived to interview Ms. Dixon, her son,

and her nephew, he observed that all of them were

excited and upset that Ms. Dixon had been shot. Id. at 42.

2 As stated earlier, the incident occurred at approximately

2:00 a.m. and Ms. Dixon was admitted for medical treatment at

2:35 a.m.

A-6

Nurse Pleskonko testified that Ms. Dixon was still upset

when she left treatment from the emergency room at 4:45

a.m.

Considering the involvement of Ms. Dixon and her

son in the shooting incident, and considering the mother/

son relationship between the two, we have no difficulty

finding that their statements at the hospital were declara-

tions made while experiencing overpowering emotion

caused by a shocking event. Therefore, the trial court did

not abuse its discretion by admitting them as excited

utterances. With respect to the nephew, Raymond Smeal,

who had less involvement with the incident and a more

distant relationship with Ms. Dixon, there might be some

question about whether his statements also qualified.

Even so, Raymond Smeal did testify at appellant’s trial,

and the statements he made at the hospital to Trooper

Yuhouse were covered by his own testimony. Conse-

quently, even if the admission of Smeal’s statements was

error, it was harmless error because the content of the

statements was testified to by Smeal as well as by other

trial witnesses, i.e., Trooper Snook, appellant, the emer-

gency room physician and nurse. See Commonwealth v.

Foy, 531 Pa. 322, 612 A.2d 1349 (1992) (no grounds for a

new trial when error of admission harmless).

In his second issue, appellant claims the trial court

erred in its denial of the wife/victim’s motion to quash a

subpoena and motion for a protective order. In support of

this issue, appellant argues that Commonwealth v. Hatfield,

406 Pa.Super. 139, 593 A.2d 1275 (1991), aff'd, 610 A.2d

466, 530 Pa. 590 (Pa. 1992), is “inconsistent” with the

court’s disposition of the motions in this case>

A-7

When a subpoena to testify has been challenged and

no privilege to avoid testifying exists, whether “to force

the unwilling spouse to give evidence” is a discretionary

question for the trial court. Id. 406 Pa.Super. at 142, 593

A.2d at 1276. The disposition of the discretionary ques-

tion in Hatfield is not inconsistent with the disposition of

the discretionary question in this case. As required, the

court in Hatfield based its decision to quash the wife’s

subpoena on the unique facts and circumstances of that

case. It was not an abuse of discretion for the same court

to later refuse to quash the subpoena in this case merely

because the court quashed the subpoena in Hatfield.

Appellant contends that ex parte communications

transmitted from the Commonwealth’s attorney to the

trial judge prior to trial “may have convinced the court to

decide this case contrary to the decision in Hatfield.” Brief

of Appellant at 21. We find no evidence in the record that

the trial judge was influenced. Therefore, even if the ex

parte communications were improper, in the absence of

evidence of influence, there is no basis for the grant of a

new trial.

Also, under this second issue, appellant argues that

the court prejudicially required the wife/victim “to take

the stand in open court in the presence of the jury and

state her refusal to testify.” The Commonwealth states in

3 Kathy Barnyak testified in the presence of the jury as

follows:

Q. Mrs. Barnyak, do you know an individual named

Richard Barnyak?

A-8

response to this argument that “this issue was never

raised in post verdict motions and is accordingly

waived.” Upon examination of the record, we agree with

the Commonwealth. Within appellant’s post-trial motion

for a new trial, he aileges that the trial judge “[fJailed to

permit the defendant and/or ihe alleged victim to assert

a privilege not to testify under § 5913 and § 5914 of the

Judicial Code.”* This allegation of error does not encom-

pass the issue of whether it was prejudicial to require the

victim to take the stand and state her refusal to testify

before the jury. Considering the additional fact that the

trial court did not have the opportunity to address the

issue, it is waived on appeal. See Pa.R.Crim.P. 1123(c)(3).

Appellant’s third issue argues that his conviction on

the charge of aggravated assault, 18 Pa.C.S.A.

§ 2702(a)(1), was inconsistent with his acquittal on the

charges of attempted murder of the first, 18 Pa.C.S.A.

§ 2502(a), and third, 18 Pa.C.S.A. § 2502(c), degree. He

claims these crimes have identical elements of intent, and

therefore the acquittal on the attempted murder charges

A. Ido not wish to testify against my husband.

Q. You’re stating that you know -

A. I’m stating that I’m not saying nothing against

him.

N.T. 3/11/91 at 178-79. The court then explained to Mrs. Barn-

yak that she did not have a legal privilege no: to testify. Upon

her persistent refusal, the court excused the juvy and deter-

mined to incarcerate Mrs. Barnyak for contempt of court. Id. at

180-81.

4 42 Pa.C.S.A. § 5913 (1993), Spouses as witnesses against

each other.

42 Pa.C.S.A. § 5914, Confidential communications between

spouses.

A-9

also should have resulted in an acquittal on the charge of

aggravated assault. First, attempted murder of the first

degree requires a specific intent to kill, which a convic-

tion for aggravated assault obviously does not require.

Next, it does appear that the portion of the verdict

acquitting appellant of attempted third degree murder5

and convicting him of aggravated assault might be incon-

sistent, particularly with respect to the elements of intent.

The conviction in this case for aggravated assault, section

2702(a)(1), was based on the jury’s finding that appellant

attempted to cause serious bodily injury to his wife, i.e.,

that he specifically intended to cause her serious bodily

injury. Comparatively, the court instructed the jury that

conviction for third degree murder would require a find-

ing of “malice.” The court defined malice to include “an

intent to inflict serious bodily harm.” N.T. 3/12/91, at

143. In spite of the fact that the intent elements of the two

charges overlap, we will not disturb the verdict on the

basis of tle apparent inconsistency in result where we

find the evidence sufficient to support the guilty verdict.

See Commonwealth v. Boyles, 407 Pa.Super. 343, 595 A.2d

1180 (1991), allocatur denied, 531 Pa. 651, 613 A.2d 556

(Pa.1992).

Fourth, appellant argues that certain evidence® was

obtained as a result of an illegal search and seizure and

~ Although appellant does not raise the issue, we must also

note that there is no crime of attempted third degree murder. See

Commonwealth v. Spells, 417 Pa.Super. 233, 237, 612 A.2d 458, 460

n. 5 (1992); Commonwealth v. Griffin, 310 Pa.Super. 39, 50, 456

A.2d 171, 177 (1983).

®° “The evidence complained of consists of physical evi-

dence, measurements, photographs and other evidence relating

A-10

therefore was improperly admitted at trial. The trial court

held upon its examination of the record that appellant

“did not file a Motion to Suppress or object at trial to the

admission of this evidence,” and therefore “such error, if

any, is deemed to be waived.” Opinion of Trial Court

9/14/92, at 4-5. A motion to suppress evidence must be

made pretrial, unless “the opportunity did not previously

exist, or the interests of justice otherwise require.”

Pa.R.Crim.P. 323(b); Commenwealth v. Meischke, 273

Pa.Super. 134, 416 A.2d 1126 (1979).

Appellant claims the following circumstances pre-

vented him from being apprised of facts necessary to file

a pretrial suppression motion: i) at the time the investiga-

tive team appeared at the crime scene, appellant was in

custody and had no independent knowledge of the search

and seizure event; ii) three other witnesses were likewise

unaware of the circumstances giving rise to the event; iii)

while appellant was aware that the search and seizure

had occurred, he was not apprised in the pretrial pro-

ceedings of the exact sequence of events. Upon consider-

ation of the record together with the parties’ arguments,

we find insufficient justification for the failure to file a

timely objection to the legality of the search and seizure.

The fact that appellant was not personally aware of

the facts surrounding the search and seizure does not )

mean the opportunity to file a motion to suppress did not )

to the Interior of [appellant’s and the victim’s] trailer.” Brief of

Appellant at 31. Additional evidence complained of includes

“the weapon allegedly used in this criminal incident” and

“other items of evidence eventually introduced at trial.” Id. at

32. ;

A-11

previously exist. Moreover, justice does not otherwise

require us to address the question of the legality of the

search and seizure where our review reveals that appel-

lant’s arguments” have no merit.

In his fifth issue, appellant argues that the Common-

wealth failed to provide him with reasonable notice of its

intention to seek a mandatory sentence under 42

Pa.C.S.A. § 9712(a). Appellant claims he was not pro-

vided with written notice of the Commonwealth’s intent

to proceed under section 9712(a) “until Friday, September

25, 1992, at approximately 3:30 o’clock P.M. when the

District Attorney tele-faxed a letter to the office of

defense counsel.” Appellant further asserts that the “fax

arrived after counsel had left the office for the weekend.”

Appellant was sentenced on Monday, September 28, 1992.

We cite the trial court’s correct conclusion that sen-

tencing under the statute was justified due to i) pre-trial

discussions between the Commonwealth and defense

counsel “regarding the Commonwealth’s intent to seek

the mandatory five-year sentence” and ii) the written

notice provided prior to sentencing. Also, in response to

appellant’s argument that the Commonwealth failed to

7 Appellant’s suppression arguments are as follows:

1) following a consensual entry into the trailer, an

investigating officer exited the trailer, waited several

hours for an investigative team, then reentered the

premises without additional consent or exigent cir-

cumstances;

2) with only the consent of .ppellant’s brother, a

police officer entered and searched the property of

appellant’s father.

Brief of Appellant at 31-32.

A-12

carry its burden of proof for application of the statute, we

note that the “statute specifically provides that the court

shall consider evidence from the trial, which in this

instance would be sufficient to prove the use of a

weapon.” Commonwealth v. Saksek, 361 Pa.Super. 173, 522

A.2d 70 (1987)

Judgment of sentence affirmed.

B-1

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

COMMONWEALTH OF : No. 181 Middle District

PENNSYLVANIA, : Allocatur Docket 1994

Respondent

V. : Petition for Allowance of

RICHARD L. BARNYAK, ‘ APpeal from Superior

: Court

Petitioner

ORDER

PER CURIAM:

AND NOW, this 19th Day of December, 1994, the

Petition for Allowance of Appeal is denied.

Mr. Justice Montemuro is sitting by designation.

mn + ate

C-1

COMMONWEALTH - IN THE SUPERIOR COURT

OF PENNSYLVANIA - OF PENNSYLVANIA

v. NO. 671

RICHARD L. BARNYAK, - HARRISBURG 1992

Appellant

Appeal from the Judgment of Sentence Entered

September 28, 1992, Docketed October 2, 1992,

in the Court of Common Pleas, Criminal

Division, of Centre County, No. 90-565.

BEFORE: ROWLEY, P.J., and TAMILIA and POPOVICH,

JJ.

MEMORANDUM: FILED SEP. 7, 1993

Richard L. Barnyak appeals from the judgment of

sentence imposed following his conviction for aggravated

assault, simple assault, recklessly endangering another

person, and terroristic threats. On appeal, he raises the

following issues: 1) whether out-of-court statements

made by the victim and other witnesses were improperly

admitted at trial as excited utterances; 2) whether the trial

court erred in its refusal of the victim’s motion to quash a

subpoena and motion for a protective order; 3) whether

appellant’s conviction on the charge of aggravated

assault is inconsistent with his acquittal on the charge of

attempted criminal homicide; 4) whether evidence was

obtained as a result of an illegal search and seizure and

therefore improperly admitted; and 5) whether the Com-

monwealth failed to provide appellant reasonable notice

of its intention to seek a mandatory sentence. Upon

review, we reverse due to the improper admission of

hearsay statements.

C-2

The charges against appellant arose from an alleged

domestic dispute in which Kathy Dixon, now Kathy Barn-

yak, appellant’s wife, was shot in the hand. The incident

occurred on April 21, 1990, at approximately 2:00 a.m.

Ms. Dixon was admitted to the hospital for treatment at

2:35 a.m. and was initially interviewed there by a police

officer at approximately 3:10 a.m. Ms. Dixon, as well as

two other witnesses who were present at the hospital,

made statements to the officer regarding the shooting

incident.

Ms. Dixon and her son, one of the individuals who

made statements at the hospital, were subpoenaed to

appear in court at the time of trial in order to reiterate, in

the presence of the jury, their prior refusal to testify

against appellant. Both were held in contempt and incar-

cerated by the trial judge until the conclusion of the

Commonwealth’s case. Their out-of-court statements

were then introduced as substantive evidence at trial

through the testimony of a police officer.

Appellant’s first complaint regarding the improper

admission of the out-of-court statements is meritorious.

Appellant argues that the statements are unsworn hear-

say statements which do not qualify for admission as

evidence under the excited utterance exception to the

hearsay rule. We agree that the requirements for the

admission of a statement as an excited utterance were not

met.

An excited utterance is a spontaneous declaration

made by a person who is experiencing overpowering

emotion in response to an unexpected or shocking occur-

rence. Commonwealth v. Hess, 270 Pa.Super. 501, 507, 411

C-3

A.2d 830, 833 (1980) (citation omitted). The declaration

must be made so near to the occurrence, both in time and

place, as to exclude the possibility that it emanated from

the speaker’s reflective faculties. Id. “an excited utterance

is the event speaking and not the speaker.” Commonwealth

v. Zukauskas, 501 Pa. 500, 503, 462 A.2d 236, 237 (1983).

Appellant is correct in his assertion that “the amount

of time which elapsed between the incident [and the

declaration,] and the remoteness of the location of the

incident from the interview site” belie the spontaneity

necessary to find an excited utterance. The record does

not support the conclusion that the “event” was “speak-

ing” approximately one hour after the shooting incident,

in response to the questions of a police officer, at a

hospital which was safe and removed from the location of

the shocking event.

Because appellant was prejudiced by the improper

admission of this hearsay evidence, he is entitled to a

new trial. As a result of our conclusion that a new trial is

necessary, we will not consider the issues which remain.

The judgment of sentence is reversed, and the case is

remanded for a new trial.

D-1

IN THE COURT OF COMMON PLEAS

OF CENTRE COUNTY,

PENNSYLVANIA

CRIMINAL ACTION - LAW

COMMONWEALTH OF

PENNSYLVANIA

NO. 1990-565

VS.

RICHARD L. BARNYAK

a i

ORDER

AND NOW, March 11, 1991, upon consideration of

Defendant Richard L. Barnyak’s October 1, 1990, Motion

In Limine whereby Defendant seeks to (1) exclude the

preliminary hearing testimony of Kathy Dixon-Barnyak

and Douglas Bumbarger, and (2) exclude statements

made to Trooper Paul Uhous [sic] by Kathy Dixon-Barn-

yak and Douglas Bumbarger, said motion is DENIED.

Preliminary hearing testimony of Ms. Dixon-Barnyak

and Douglas Bumbarger shall not be excluded from the

trial in this matter based on this motion. Statements made

at the hospital to Trooper Paul Uhouse [sic] by Ms.

Dixon-Barnyak and Douglas Bumbarger may be intro-

duced at trial.

BY THE COURT:

/s/ Charles Brown

Pj.

E-1

IN THE COURT OF COMMON PLEAS

OF CENTRE COUNTY,

PENNSYLVANIA

CRIMINAL ACTION -— LAW

COMMONWEALTH OF

PENNSYLVANIA

Vs.

RICHARD L. BARNYAK

NO. 1990-565

od

OPINION AND ORDER

BROWN, JR., PJ.

Presently before this Court for consideration is a

Motion for a New Trial and Arrest of Judgment and a

Supplemental Motion for New Trial and In Arrest of

Judgment filed by Defendant Richard L. Barnyak.

Defendant was tried by a jury on March 20 and 21,

1991, and found guilty on two courts of Aggravated

Assault, two counts of Simple Assault, one count of Reck-

lessly Endangering Another Person and one count of

Terroristic Threats. Defendant was acquitted on the

charges of Attempted First Degree Murder and

Attempted Third Degree Murder.

Defendant has raised three issues which he claims

were error. Defendant initially argues the trial court erred

in charging the jury on the elements of criminal attempt

and in failing to grant Defendant’s motion to dismiss

those charges. Defendant contends that this charge was a

legal impossibility pursuant to Commonwealth v. Griffith,

310 Pa.Super. 39, 456 A.2d 171 (1983). In Griffith, the

Superior Court stated:

E-2

The question squarely presented to us is

whether someone can attempt to commit mur-

der of the second or third degree. We think not.

A person commits an attempt when, with intent

to commit a specific crime, he does any act

which constitutes a substantial step toward the

commission of that crime. 18 Pa.C.S.A. Section

901. Murder of the second or third degree occurs

where the killing of the victim is the uninten-

tional result of a crim‘nal act. Thus, an attempt

to commit second or third degree murder would

seem to require proof that a defendant intended

to perpetrate an unintentional killing — which is

logically impossible. While a person who only

intends to commit a felony may be guilty of

second degree murder if a killing results, and a

person who only intends to inflict bodily harm

may be guilty of third degree murder if a killing

results; it does not follow that those persons

would be guilty of attempted murder if a killing

did not occur. They would not be guilty of

attempted murder because they did not intend

to commit murder — they only intended to com-

mit a felony or to commit bodily harm.

Griffith, 456 A.2d at 177 (1983).

The Griffith Court went on to note that:

. .. [A] Subcommittee Note to the Pennsyl-

vania Suggested Standard Criminal Jury Instruc-

tions suggests that an intent to kill is necessary

to support a charge of attempted murder. The

Subcommittee Note following the suggested

jury instruction on the crime of criminal attempt

states that in defining the crime which was

attempted, the court should limit its definition

to those aspects of the crime which are relevant

to an attempt. ‘For example, if the charge were

E-3

5 arnt: Salata pew ey

attempted murder, a definition of murder lim-

ited to murder by intentional killing should suf-

fice.’ Pennsylvania Suggested Standard Jury

Instructions (Criminal), 12.901 A —- Criminal

Attempt (1979).

Griffith, 456 A.2d at 177-78 (1983).

The Superior Court then held that in order to convict

a person of attempted murder, an intent to kill must be

shown, and that a defendant charged with attempted

murder is entitled to a jury instruction to that effect.

Griffith, 456 A.2d at 178 (1983).

In Commonwealth v. Greene, Pa.Super. Court No.

00260, Harrisburg, 1991 (July 22, 1992), the Superior

Court rejected the contention that third degree murder is

an unintentional crime. Greene held that the intent,

although not specific, is supplied by the malice. The

Greene Court noted the Subcommittee Note in the Decem-

ber, 1988, revision to the Pennsylvania Suggested Stan-

dard Criminal Jury Instructions, wherein it is stated:

Some Pennsylvania decisions appear to

equate the “intent to kill” in the definition of

malice with the “specific intent to kill” required

for first degree murder, see, e.g., Commonwealth

v. Pitts, 486 Pa. 212, 404 A.2d 1305 (1979). This is

undesirable because there are cases where a

defendant as a factual matter has an intent, i.e.,

a purpose to kill sufficient for malice that does

not amount to a specific intent to kill. Examples

where such an intent may exist to permit convic- |

tion of third degree murder included a defen- :

dant who kills in sudden passion on inadequate | |

provocation. . . . In such cases a defendant's

purposeful killing may be intentional for malice

ee TT |

E-4

purposes but his intent may not be sufficiently

formed or within his consciousness as to meet

the legal standard for specific intent. The prob-

lem about which we are talking is partly one of

semantics.

Based on the foregoing analysis of the requirements

of third-degree murder, and the evidence presented, this

Court finds that Defendant's actions, had they resulted in

the death of Kathy Barnyak, would have satisfied the

requirements necessary to sustain a finding of guilt for

third degree murder. Because this Court does not believe

that defendant’s actions were unintentional, a charge of

attempted third degree murder was neither illogical nor

illegal.

Defendant also argues that Court erred in refusing to

quash the subpoena to compel the testimony of Kathy

Barnyak, Defendant's spouse. Defendant contends that

this was inconsistent with the decision in Commonwealth

v. Hatfield, 406 Pa.Super. 139, 593 A.2d 1275 (1991). In

Hatfield, the Superior Court upheld this Court’s decision

not to compel the wife to testify against her husband. The

Court made it clear however that in domestic violence

cases the spouse may be compelled to testify. Hatfield, 593

A.2d at 1276 (1991), citing Commonwealth v. Hancharik, 388

Pa.Super. 337, 345, 565 A.2d 782, 786 (1989). (Emphasis in

original case.)

It is well settled in Pennsylvania that a spousal privi-

lege does not exist in a criminal proceeding against a

spouse for bodily injury or violence attempted, done or

threatened upon the other spouse. 42 Pa.C.S.A. Section

5913. See also, Commonwealth v. Galloway, 271 Pa.Super.

305, 413 A.2d 418 (1979). Therefore, it is the opinion of

E-5

this Court that there was no error in the refusal to quash

the subpoena for Kathy Barnyak.

Finally, Defendant argues that the evidence seized by

the investigating officers resulted from an illegal search

and seizure. An examination of the record in this case

indicates Defendant did not file a Motion to Suppress or

object at trial to the admission of this evidence. (See Trial

T. L., pp. 85 and 123-28.) Therefore, such error, if any, is

deemed to be waived by Defendant. See, Pa.R.Crim.P.

323(b); see also, Commonwealth v. Minarich, 345 Pa.Super.

269, 498 A.2d 395 (1985).

Accordingly, the Court enters the following:

ORDER

AND NOW, this 14th day of September, 1992, upon

full consideration of the record and arguments of counsel,

Defendant Richard L. Barnyak’s Motion for New Trial

and Arrest of Judgment and Supplemental Motion for

New Trial and In Arrest of Judgment are DENIED.

BY THE COURT:

/s/ Charles Brown

P.J.