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decided: November 26, 1975.



Alfred J. Di Bona, Jr., Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Pomeroy

[ 465 Pa. Page 38]


On the morning of February 27, 1972, Clarence Butts was fatally wounded in his apartment in Philadelphia. James Morris, a friend of Butts who lived nearby and was visiting him, suffered a gunshot wound of the neck in the same incident. The appellant, Robert James Cooley, was convicted by a jury of murder in the first degree for the death of Butts and of assault with intent to murder for the shooting of Morris. His post trial motions were denied and a sentence of life imprisonment was imposed.*fn1 This direct appeal followed.*fn2

Morris testified that he arrived at Butts' first floor front apartment at approximately 9:00 a. m. on the fatal day. Shortly thereafter Cooley, who lived in the adjacent first floor rear apartment, knocked at the front door. He was admitted by Morris who had seen appellant at Butts' residence on prior occasions and knew him as "Jim Dandy". Butts, an invalid, was seated on his bed and remained immobile during the entire episode which followed. Seconds after entering, appellant drew a pistol and commenced firing. The first two shots struck neither Butts nor Morris despite the close proximity of the three men in the room. A third shot discharged errantly as Morris knocked the gun from the appellant's hand. Appellant then retrieved the gun and shot Morris in the neck. Morris, although retaining consciousness, collapsed on the floor. In consequence, he did

[ 465 Pa. Page 39]

    not see the fifth shot fired, but he heard it and heard the door to the apartment close a few moments later. By the time Morris was able to get to his feet, appellant had departed and Butts was lying wounded on the floor. Butts hollered: "Get some help, get somebody, get somebody." Morris hastened to his cousin's nearby apartment and telephoned to the police.

Morris told the police that Butts had been shot and that "[t]he man who shot me is in the first floor, the rear apartment [of Butts' building]." Proceeding to Butts' apartment at approximately 9:30 a. m., the police discovered Butts lying on the floor near his bed moaning and bleeding from a wound in his back.*fn3 The investigating officers testified that Butts, in response to their inquiry as to what had happened, stated: "I was shot by Jim Dandy."*fn4 Then motioning with his hand toward the rear apartment, Butts added: "He's back there." Butts was rushed to a hospital where surgery proved unavailing; he died from the gunshot wound at 2:30 p. m. the same day.

Officers remaining at the scene arrested appellant in his apartment. A search uncovered a .32 caliber revolver in the trash bin at the rear of the apartment building; the subsequent ballistic test revealed that the gun was the one which was used to kill Butts.

Testifying on his own behalf, Cooley stated that the gun had not been in his possession on the day of the shooting and that it was impossible for him to have been in Butts' apartment at the time of the shootings because he was then suffering from an epileptic seizure, during which he was unconscious and incapable of any physical

[ 465 Pa. Page 40]

    action. Cooley also denied knowing the decedent or Morris except in passing and denied that he was known as "Jim Dandy".

Appellant presents four grounds for reversal. We find that they either have not been properly preserved for appellate review*fn5 or are devoid of merit. Accordingly, we affirm.

Appellant asserts that the lower court committed reversible error in admitting into evidence as either a dying declaration or a res gestae statement decedent's statement naming the appellant as his assailant. Appellant argues that, on the facts of this case, neither of those exceptions to the hearsay rule provides an adequate legal basis for the statement's admission. As did the trial court, we find that the statement was admissible on either basis.

In Allen v. Mack, 345 Pa. 407, 28 A.2d 783 (1942) the res gestae exception for spontaneous or excited utterance was defined as follows:

"A res gestae declaration may be defined as a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion

[ 465 Pa. Page 41]

    caused by some unexpected and shocking occurrence, which that person has just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties." 345 Pa. at 410, 28 A.2d at 784.*fn6

McCormick offers two basic requirements for admission of such a declaration under the excited utterance exception: "First, there must be some occurrence or event sufficiently startling to render normal reflective thought processes of an observer inoperative. Second, the statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought." McCormick, Evidence, § 297 at 704 (2d ed. 1972). Here, there can be no doubt that the declarant's having been shot was an event which is sufficiently startling to satisfy the first element. See Commonwealth v. Noble, 371 Pa. 138, 88 A.2d 760 (1952). Appellant does not contest this, but argues that the requisite spontaneity of the second element is lacking here because of the time lapse between the shooting and the statement and because the statement was made in response to police questioning. We disagree.

The spontaneity of such statements is, of course, dependent on the peculiar facts and circumstances of each case. We have held that time lapses equal to and greater than that present here do not bar

[ 465 Pa. Page 42]

    the admission of a statement where the spontaneity born of excitement is otherwise satisfactorily shown to exist. Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576 (1974) (15-20 minutes); Commonwealth v. Cheeks, 423 Pa. 67, 223 A.2d 291 (1966) (45 minutes). We have also held repeatedly that the mere fact that a statement is made in response to a question does not prevent its admission as a res gestae statement. Commonwealth v. Banks, supra; Commonwealth v. Edwards, 431 Pa. 44, 244 A.2d 683 (1968); Commonwealth v. Stokes, 409 Pa. 268, 186 A.2d 5 (1962); Commonwealth v. Rumage, 359 Pa. 483, 59 A.2d 65 (1948); Commonwealth v. Harris, 351 Pa. 325, 41 A.2d 688 (1945). It is true, of course, that in some instances the time lapse may be so long or the question and answer exchange so unhurried and reflective as to require a finding of nonspontaneity, but such was not the case here. The declarant had been shot only 15 or 20 minutes before making the statement; he had not moved from the spot where he had fallen; he was alone until the arrival of the police and was bleeding and moaning; and the man he named as his assailant lived in an adjacent apartment and could have returned at any time during the 15-20 minute interlude. These circumstances clearly demonstrate that Butts' words constituted an "excited utterance" which was not born of design or reflection.*fn7

Moreover, the statement is also admissible under the dying declaration exception to the hearsay rule. Before an accusatory declaration may be admitted as a

[ 465 Pa. Page 43]

    dying declaration, the evidence must demonstrate that at the time the statement was made death was imminent, that the declarant had a sense of impending death and that death did ensue. Commonwealth v. Speller, 445 Pa. 32, 282 A.2d 26 (1971). Appellant argues that the prosecution failed to show that Butts believed his death to be imminent at the time he made the statement.

Of course, the best evidence of this necessary element would be a direct statement by the victim. See, e. g., Commonwealth v. Edwards, supra; Commonwealth v. Logan, 361 Pa. 186, 63 A.2d 28 (1949). This sense of impending death may, however, be inferred from circumstances, such as the nature of declarant's wounds. Commonwealth v. Gause, 459 Pa. 595, 330 A.2d 856 (1975); Commonwealth v. Smith, 454 Pa. 515, 314 A.2d 224 (1973); Commonwealth v. Hawkins, 448 Pa. 206, 292 A.2d 302 (1972); Commonwealth v. Speller, supra; Commonwealth v. Plubell, 367 Pa. 452, 80 A.2d 825 (1954). Here, the deceased was shot in the back and the bullet proceeded through his lungs, his intestines and his abdomen. The nature of this wound and the pain and bleeding which accompanied it provide sufficient circumstances, in our judgment, from which the requisite sense of impending death can properly be inferred.*fn8

Appellant also asserts that the statement does not qualify for admission as a dying declaration because

[ 465 Pa. Page 44]

    it was made in response to the questioning of the police. As with the excited utterance exception, this fact alone will not bar the statement's admission as a dying declaration. Commonwealth v. Hawkins, supra; Commonwealth v. Edwards, supra.

Appellant contends that, even if the statement was properly admitted, the lower court erred in its charge to the jury with respect to dying declarations.*fn9 He urges that the trial court should have instructed the jury to assess for themselves whether the decedent believed he was about to die as he made the accusatory statement.*fn10 That determination, however, is solely for the court, to be made incident to a decision on the statement's admissibility. That decision, of course, is one of law. Factual questions which are preliminary to a legal determination of admissibility of evidence, including hearsay exceptions such as dying declarations, are simply not within the province of the jury. Commonwealth v. Speller, 445 Pa. 32, 282 A.2d 26 (1971); Commonwealth v. Edwards, 431 Pa. 44, 244 A.2d 683 (1968). See generally, McCormick, supra, § 53 at 121-125; 9 Wigmore, Evidence, § 2550 at 501-503 (3d ed. 1940). As we held in the cited cases, the customary general charge on credibility of the witnesses and the weight to be accorded their testimony is all that is required. The charge of the trial court in this case was plainly adequate in this respect.

Judgments of sentence affirmed.

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