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COMMONWEALTH PENNSYLVANIA v. WILLIAM VON SMITH (08/27/82)

filed: August 27, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM VON SMITH, APPELLANT



COUNSEL

Peter Foster, Harrisburg, for appellant.

William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Brosky, Wieand and Montemuro, JJ.

Author: Montemuro

[ 303 Pa. Super. Page 535]

Appellant, William Von Smith, was first tried on October 21, 1972, along with a co-defendant and both were found guilty by a jury of murder and aggravated robbery. Pursuant

[ 303 Pa. Super. Page 536]

    to a Post-Conviction Hearing Act petition filed by appellant, the Supreme Court, on November 15, 1979, reversed the judgment of sentence and awarded appellant a new trial. Commonwealth v. Smith, 486 Pa. 564, 406 A.2d 1034 (1979). Appellant was retried on March 17, 1980 and again was found guilty by a jury of murder and aggravated robbery. Post-trial motions were denied and appellant was sentenced to a term of life imprisonment. This appeal followed.

On January 15, 1972, at approximately 5:20 p.m., two men walked into the victim's barber shop and inquired as to whether or not he was hiring. The victim replied that there were no positions available. As he turned his back on the two men, he was struck in the head and rendered unconscious. Upon regaining consciousness, the victim discovered that his wallet, containing sixty dollars ($60.00), was missing. Shortly thereafter, the victim was taken to the Polyclinic Hospital in Harrisburg where, initially, he appeared not to be in a life threatening situation. While in the emergency hospital room, at approximately 6:15 p.m. the victim was questioned by a Harrisburg police officer concerning the facts involved in the robbery. The victim recalled the situation leading up to the time he was attacked and gave a general description of the assailants. As a result of the vicious blows to the head, the victim indeed suffered extreme brain damage, lapsed into a coma and died four days later.

Appellant's first contention is that the lower court erred in admitting, under the excited utterance res gestae exception, the hearsay testimony of the police officer concerning the victim's statement of the circumstances surrounding the robbery. Appellant contends that the excited utterance exception is inapplicable in the instant case because of the fifty-five (55) minute delay between the time of the robbery and the victim's statement, the fact that the victim was alert and well oriented upon admission to the hospital and that the statement was made in response to police questioning. We do not agree that these particular facts support appellant's position and, for the following reasons, we find

[ 303 Pa. Super. Page 537]

    that the lower court properly admitted the police officer's hearsay testimony.

A statement falls within the excited utterance exception to the hearsay rule if it is:

The fifty-five (55) minute interim period between the robbery and the statement is not, in and of itself, dispositive of the issue. Rather, as the Supreme Court stated in Commonwealth v. ...


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