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filed: March 4, 1983.


No. 1068 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, at Nos. 458-460, July Term, 1979.


Daniel M. Preminger, Philadelphia, for appellant.

Mark S. Gurevitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Rowley and Cirillo, JJ.

Author: Rowley

[ 312 Pa. Super. Page 412]

Appellant was convicted, on October 10, 1980, after a jury trial, of murder in the first degree*fn1 and possession of an instrument of crime.*fn2 Post-trial motions for a new trial and arrest of judgment were denied and appellant was sentenced to life imprisonment on the murder conviction and to a consecutive sentence of not less than two and one-half (2 1/2) nor more than five (5) years imprisonment on the possession charge. This direct appeal followed.

Three issues are raised on appeal in support of appellant's motion for a new trial. Appellant argues that: 1) the trial court erred in admitting into evidence the victim's statements to police made at the scene of the crime; 2) the trial court erred in admitting into evidence the victim's response in the hospital two weeks after the crime to a police officer's questions; and 3) the trial court erred in ruling that appellant and his proposed character witnesses could be cross-examined concerning (a) appellant's 1966 arrest for wantonly pointing a firearm, threats, and breach of the peace, and (b) his 1961 conviction for assault. Appellant has not pursued his motion in arrest of judgment on appeal.*fn3

On appeal from an order of the trial court denying an appellant's motion for a new trial, our review is limited to a determination of whether there has been an abuse of discretion or an error of law on the part of the trial court. In the absence of either of these elements, the order denying a new trial will not be disturbed. Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068 (1978), Commonwealth v. Morales, 458 Pa. 18, 326 A.2d 331 (1974). We have concluded that the trial court's ruling relative to the cross-examination of appellant's proposed character witnesses constituted prejudicial error. The case must therefore be

[ 312 Pa. Super. Page 413]

    remanded for a new trial. We have, however, addressed appellant's remaining issues since they are likely to recur.


On June 1, 1979, at approximately 8:35 PM, Officer Winfred Hunter of the Philadelphia Police Department arrived at the northwest corner of 26th and Haggert Streets in Philadelphia in response to a radio call. He found the victim, James Fanning, lying in a pool of blood on the steps of a building. When asked what had occurred, Mr. Fanning stated that he had been shot by appellant. At about the same time, Officer Gerald Nimmo arrived on the scene. He also was told by the victim that he had been shot by appellant. Appellant's counsel objected at trial to the statements identifying appellant as Fanning's assailant on the ground that they were hearsay. The trial court overruled appellant's objection and admitted the statements into evidence, ruling that they constituted excited utterances within the scope of the res gestae exception to the hearsay rule.

[ 312 Pa. Super. Page 414]

To constitute an excited utterance, a statement must be "a spontaneous declaration by a person whose mind has been suddenly made subject to an over-powering 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 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". Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942). There is no doubt that being shot, as was Mr. Fanning, is a sufficiently shocking event. Commonwealth v. Cooley, 465 Pa. 35, 348 A.2d 103 (1975). His statements were made at the scene approximately ten minutes after the shooting and were related to the incident. The victim was trembling, bleeding, in pain and had difficulty communicating. The mere fact that the statements were made in response to questions does not preclude their being spontaneous. Commonwealth v. Page 414} Banks, 454 Pa. 401, 311 A.2d 576 (1973). Thus, the trial court properly ruled that the statements were admissible under the res gestae exception to the hearsay rule.


Appellant also claims that the court erred in overruling his objection to testimony concerning the victim's response to a detective's inquiry approximately two weeks after the shooting. On the night of June 16, 1979, Detective Edward Gallagher received a call from a registered nurse at the Women's Medical College Hospital informing him that Mr. Fanning was expected to die in a short period of time. Detective Gallagher went to the hospital where he found the victim conscious, but unable to speak because of a tube in his throat. The detective asked the victim to respond to questions by nodding his head yes or no. Detective Gallagher then informed Mr. Fanning that he was going to die. He asked the victim if appellant had shot him, to which the victim nodded yes. Mr. Fanning died six hours later. This response of the victim identifying appellant as his assailant was admitted by the trial court as a dying declaration and thus admissible as another exception to the hearsay rule.

A statement of the declarant's own observations is admissible as a dying declaration if, at the time it was made, the declarant believed he would die, that his death was imminent, and death actually ensued. Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980). In this case, Mr. Fanning died and his death was "imminent" when he was questioned by Detective Gallagher. Moreover, his response to the question was based on his own observation of appellant and was not the product of surmise or conjecture. The admissibility of such evidence, however, "depends primarily upon the state of the declarant's mind". Commonwealth v. Smith, 454 Pa. 515, 518, 314 A.2d 224, 225 (1973) (citations and quotation omitted). There is sufficient evidence in the record in this case to establish that Mr. Fanning believed he was dying.

[ 312 Pa. Super. Page 415]

While at the victim's bedside in the hospital, Detective Gallagher asked a series of twelve questions to ascertain if the victim comprehended his situation. Although the victim could not speak, his action of nodding his head was responsive to Detective Gallagher's questions and showed an understanding of who he was and where he was and what had happened to him on June 1st. Included in Detective Gallagher's testimony ...

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