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filed: February 18, 1983.


No. 2098 Philadelphia 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 109-111 July Term, 1980.


Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Deborah Fox, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wieand, McEwen and Popovich, JJ. Popovich, J., files a dissenting opinion.

Author: Wieand

[ 310 Pa. Super. Page 482]

Rudolph Barnes was tried by a judge sitting without a jury and found guilty of robbery,*fn1 theft by unlawful taking*fn2 and simple assault.*fn3 Motions in arrest of judgment and for a new trial were denied, and Barnes was sentenced to a two year term of probation. On direct appeal, appellant challenges (1) the sufficiency of the evidence to sustain the convictions and (2) an evidentiary ruling admitting an extra-judicial statement under the res gestae or excited utterance exception to the hearsay rule. Our review discloses sufficient evidence to sustain the conviction. However, the evidentiary ruling was erroneous; and the conviction, therefore, is reversed and the case remanded for new trial.

The test to be applied in determining the sufficiency of evidence to sustain a conviction is whether, accepting

[ 310 Pa. Super. Page 483]

    as true all the evidence and all reasonable inferences arising therefrom upon which, if believed, the trier of fact could properly have based its verdict, it is sufficient to prove beyond a reasonable doubt that the accused is guilty of the crime or crimes with which he has been charged. As with all challenges to the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the verdict winner, in this case the Commonwealth. Commonwealth v. Waller, 498 Pa. 33, 42, 444 A.2d 653, 658 (1982); Commonwealth v. Bellis, 497 Pa. 323, 330 n. 9, 440 A.2d 1179, 1182 n. 9 (1981); Commonwealth v. Payne, 299 Pa. Super. 378, 379, 445 A.2d 804, 804 (1982); Commonwealth v. Johnson, 273 Pa. Super. 14, 17, 416 A.2d 1065, 1067 (1979). Moreover, the entire trial record must be evaluated, and all evidence actually received must be considered, whether or not the trial court's rulings thereon were correct. Commonwealth v. Waldman, 484 Pa. 217, 222-23, 398 A.2d 1022, 1025 (1979); Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965); Commonwealth v. Plusquellic, 303 Pa. Super. 1, 4, 449 A.2d 47, 49 (1982); Commonwealth v. Bentley, 276 Pa. Super. 41, 44, 419 A.2d 85, 86 (1980); Commonwealth v. Williams, 273 Pa. Super. 578, 582, 417 A.2d 1200, 1201 (1980).

So viewed, the evidence in this case establishes that appellant entered the apartment of Lemuel Rock in Philadelphia during the early morning hours of June 24, 1980. There, he struck Rock, pushed him to the floor, and threw a sheet over his head before removing $300 from a bureau drawer in Rock's bedroom. Rock died of unrelated causes prior to appellant's trial; and, therefore, the only evidence of these facts was received in the form of an extra-judicial statement made by Rock to Officer Thomas Palmer of the Philadelphia Police Department. On June 24, 1980, pursuant to a call on his police radio, Palmer had proceeded to Rock's apartment at 1926 North 18th Street, where a somewhat agitated Rock told him that appellant had entered his apartment, attacked him and stolen $300.

[ 310 Pa. Super. Page 484]

This evidence was sufficient to sustain a finding that appellant had committed the crimes of robbery, theft by unlawful taking and simple assault. Appellant's motion in arrest of judgment, therefore, was properly denied.

The evidentiary ruling by the trial judge that Rock's extra-judicial statement, although hearsay, was admissible under the res gestae exception to the hearsay exclusion presents a more difficult question and requires a closer examination of the res gestae exception and the evidence received in the instant case.

The res gestae exception to the hearsay exclusion has been said to be a dangerous rule which ought not be extended beyond the limits of reasonably immediate spontaneous declarations made in connection with a startling event by one laboring under the stress of nervous excitement caused by it. Commonwealth v. Noble, 371 Pa. 138, 144-45, 88 A.2d 760, 763 (1952), citing Athas v. Fort Pitt Brewing Co., 324 Pa. 313, 318, 188 A. 113, 115 (1936) and Commonwealth v. Gardner, 282 Pa. 458, 465, 128 A. 87, 90 (1925). Actually, "res gestae" is "a generic term encompassing four discrete exceptions to the hearsay rule: (1) declarations as to present bodily conditions; (2) declarations of present mental states and emotions; (3) excited utterances; and (4) declarations of present sense impressions." Commonwealth v. Pronkoskie, 477 Pa. 132, 136-37, 383 A.2d 858, 860 (1978). The statement made by Rock in the instant case was alleged to be an excited utterance.

To come within the excited utterance exception, a statement must be:

"'a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and ...

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