No. 536 January Term, 1978 and No. 355 January Term, 1979, Appeals from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Criminal Trial Division, at Nos. 2310 and 2313 May Term, 1977, dated November 29, 1978.
Steven H. Serota, Philadelphia, Philadelphia County, (Court-appointed), for appellant.
Robert B. Lawler, Chief, Appeals Div., Steven Cooperste, Philadelphia, Philadelphia County, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.
Appellant James Stetler was convicted by a jury of voluntary manslaughter and possession of an instrument of crime for his involvement in the shooting death of his next-door neighbor, Robert Mendel. On these appeals, appellant asserts a number of claimed errors in support of his contention that he should be granted a new trial. Review of the record convinces us that there is no basis for relief. Hence, we affirm.
The shooting occurred at approximately 10:30 p. m., May 7, 1977. By the Commonwealth's evidence, shortly before the shooting the victim's wife Nancy Mendel was forced from her residence and assaulted by James Horner (former
husband of appellant's wife Geraldine Stetler) and Edwin Meredith (friend of the Stetlers and Horner). The Commonwealth sought to establish that, while standing on the front porch common to the Mendel and Stetler residences and waiting for police to arrive, the victim was pulled inside the Stetler residence and shot in the back several times by David Horner (son of James Horner and Geraldine Stetler) and once by appellant.
Appellant admitted that he had shot the victim, but claimed self-defense. According to appellant, the shooting occurred after the victim had burst without provocation into the Stetler residence, swinging a bat at those inside. Appellant maintained that he had used the gun only to frighten the victim.
The jury rejected the Commonwealth's charges of murder and conspiracy, and returned guilty verdicts on the charges of voluntary manslaughter and possession of an instrument of crime. Maximum consecutive sentences were imposed, totaling seven and one-half to fifteen years' imprisonment.
Appellant's first assignment of error relates to trial testimony of Philadelphia Detective Terrence Gibbs, who had immediately investigated the alleged homicide. Gibbs testified that Nicola Stetler (appellant's four year-old daughter) had told him, "My mommie didn't do anything. My daddy shot Mr. Mendel. He busted down our door." The trial court admitted the out-of-court statement under the "excited utterance" exception to the rule against hearsay. Appellant contends that this out-of-court statement failed to satisfy the excited utterance exception and should not have been admitted.
We agree with appellant that the out-of-court statement of Nicola Stetler should not have been admitted. Wholly absent here is the required showing that "the declarant perceived the happening which he or she is talking about." Commonwealth v. Pronkoskie, 477 Pa. 132, 139, 383 A.2d 858, 861 (1978) (youthful declarant's statement inadmissible as "there is nothing to indicate that [the declarant] actually
saw what occurred"). However, the record fails to disclose any basis for concluding that the out-of-court statement prejudiced appellant. Indeed, the statement supported appellant's claim of self-defense. Cf. Commonwealth v. Carr, 459 Pa. 262, 266, 328 A.2d 512, 514 (1974) (error in admitting police officer's notes of appellant's questioning harmless where "notes were almost identical to appellant's trial testimony"). See generally Commonwealth v. Story, 476 Pa. 391, 410, 383 A.2d 155, 164-65 (1978) (error harmless "[w]hen the record reveals that [the] error did not prejudice the defendant, or that the prejudice was so minimal that, beyond a reasonable doubt, it did not influence the jury . . .").
Appellant's second claim of error concerns the admission of a set of color photographs of the wife of the victim, taken one week after the alleged assault against her and the shooting of her husband. Examination of the record convinces us that the trial court did not commit an abuse of discretion. The photographs are not unduly inflammatory, and the Commonwealth properly introduced the photographs to confirm the wife's testimony. No relief is warranted. See, e. g., Commonwealth v. Petrakovich, 459 Pa. 511, 521, 329 A.2d 844, 849 (1974); Commonwealth v. Powell, 428 Pa. 275, 278-79, 241 A.2d 119, 121 (1968).
Appellant's third claim relates to the timing of his access to a statement Nancy Mendel had given to police. Appellant was furnished a copy of the statement during the Commonwealth's direct examination of Nancy Mendel. See, e. g., Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977). On the previous day of trial, appellant had been denied a copy during the Commonwealth's direct examination of the officer who took the statement. Appellant maintains that the previous day's denial precluded effective cross-examination of the officer. However, appellant fails to demonstrate that the trial court's ruling prejudiced his ability to cross-examine either Nancy Mendel or the ...