No. 1973 October Term, 1978 Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 278 November Term, 1977.
Jeffrey Miller, Philadelphia, for appellant.
Thomas McGarrigle, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, President Judge, and Watkins and Hoffman, JJ.
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This is an appeal from a conviction for aggravated assault. The primary question presented is whether Commonwealth v. Bennett, 224 Pa. Super. 238, 303 A.2d 220 (1973) and its progeny preclude a finding of guilt beyond a reasonable doubt where the evidence of guilt adduced at trial consists mainly of the victim's out-of-court inculpatory "excited utterance," when at trial the victim cannot recall either making the statement or the accuracy of its content. The lower court reasoned that Bennett does not prevent a conviction for assault where the declarant's in-court testimony is found to be wholly incredible and where there is additional evidence presented which is probative of the accused's opportunity and motive for committing the assault. We agree.
At approximately seven o'clock in the morning on October 5, 1977, in Philadelphia, Pennsylvania, Edward Owens heard a knock at the door of his residence. Since Mr. Owens was unclothed, he went to the kitchen on his way to the bathroom
[ 283 Pa. Super. Page 266]
and shouted "come on in." Apparently within moments thereafter, Owens was stabbed in the upper portion of the left side of his chest. Debbie Monoghan, who at this time was present in another area of the Owens' household, came to Owens' aid upon hearing his pleas for help. Since there was no telephone in the Owens' house, Ms. Monoghan went to a fire station across the street in order to call for assistance. However, no more than 10 or 15 minutes elapsed between the stabbing and the arrival of the paramedics. Almost immediately thereafter, as two paramedics were placing Mr. Owens in the ambulance, Officer L. Thomas Szelagowski arrived on the scene.
Before questioning Mr. Owens, Officer Szelagowski observed that most of Owens' upper abdomen was covered with blood, indicating Owens had faced his assailant, and was informed that Owens' condition was serious. During Szelagowski's conversation with Owens, Owens is alleged to have unequivocally stated that the police should "get" Joseph LaRosa, a friend of Owens' because he was the perpetrator of the assault.
Later that same morning Officer Frank Mondrosch apprehended LaRosa who, after receiving the appropriate Miranda warnings, gave Mondrosch a statement. At trial Officer Mondrosch testified that LaRosa admitted having been in Owens' house earlier that morning, but denied having stabbed Owens. LaRosa had stated the purpose of his visit was to laugh at Owens, presumably tauntingly, for allegedly having attacked LaRosa's girlfriend, firing a gun at her on several occasions, and having threatened LaRosa. LaRosa also accused Owens somewhat incredibly, of being a "junkie" who sometimes kept girls bound in his house for several days so he could burglarize their homes. Obviously, to the extent that LaRosa's statement was credible it was partially exculpatory, containing as it did his denial of being Owens' assailant. On the other hand, his statement was inculpatory insofar as it placed LaRosa at the scene of the crime approximately at the time it was committed, and established a motive for LaRosa's assaulting Owens.
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LaRosa was subsequently charged with and brought to trial for the crimes of simple assault,*fn1 aggravated assault,*fn2 and possession of instruments of crime.*fn3 During LaRosa's non-jury trial, Owens' inculpatory statement to Officer Szelagowski was admitted over timely objection that it did not qualify as an "excited utterance." At the conclusion of the trial, LaRosa was found guilty of only aggravated assault. Timely motions for ...