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COMMONWEALTH PENNSYLVANIA v. HARRY ZUKAUSKAS (07/08/83)

decided: July 8, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
HARRY ZUKAUSKAS, APPELLANT



No. 80-3-668, Appeal from the Judgments of Sentence imposed by the Court of Common Pleas of Philadelphia on June 23, 1980 at Nos. 579-580, April Session 1979.

COUNSEL

Neil E. Jokelson, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Mariana Sorensen, Asst. Dist. Attys., Philadelphia, for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ.

Author: Mcdermott

[ 501 Pa. Page 502]

OPINION

About 12:25 on the morning of March 17, 1979, at the Mummer's Bar in Philadelphia, appellant fell into an argument with one Robert Nelson. A struggle ensued and both suffered numerous knife wounds. Police came and both were taken to the hospital. Robert Nelson later died.

Appellant, charged with voluntary manslaughter and possession of an instrument of crime, was tried at a bench trial before the Honorable Juanita Kidd Stout. He was adjudged guilty and has taken a direct appeal to this Court from that conviction. Appellant raises a single issue. He contends that the trial judge erred in assessing the admissibility of proffered res gestae statements.

After the altercation, police took both appellant and Robert Nelson to the hospital. During appellant's treatment, he had an extended conversation with a police officer, in which he gave his version of the events. At trial, where appellant did not testify, he offered the testimony of the police officer

[ 501 Pa. Page 503]

    to relate the version of the events he gave the officer at the hospital. That version was essentially exculpatory. In his conversation with the officer he said he was unarmed, that Robert Nelson was the aggressor and attacked him with a knife. The offer of the conversation was objected to as hearsay and the objection sustained. The learned trial judge held that a conversation approximately forty five minutes after the event in question was too remote in time to qualify as an excited utterance or res gestae statement. We agree and affirm the judgment of sentence.*fn1

An excited utterance is the event speaking and not the speaker. It is an exception to the hearsay rule, carved from human experience, which teaches that an unreflected, spontaneous utterance made under the impact of a shocking, unexpected emotion, precipitated by a traumatic event, renders the speaker the medium and not the message. Such an utterance is allowed in evidence because it is spontaneous and unreflected, without influence from thought, design and reason. It is not accepted because the statement is or must be true, but because it could be at least as true as any other evidence. ...


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