Appeal from the Judgment in the Court of Common Pleas of Philadelphia County, Criminal No. 2340, 2342-46 OCT 80.
Thomas L. McGill, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, President Judge, Olszewski and Cercone, JJ.
[ 343 Pa. Super. Page 204]
This appeal is from judgments of sentence for third degree murder, kidnapping, conspiracy, robbery, and possession of a prohibited offensive weapon. Appellant argues that the trial court erred in admitting hearsay evidence of statements the victim made following his abduction. We have concluded that the evidence was properly admitted, and accordingly, affirm.
On September 18, 1980, Leonard Leichter and his wife, Dorothy Leichter, went shopping at the Acme Market in the Bala Cynwyd Shopping Center in Bala Cynwyd. N.T. 54-55. They arrived at the market at about 8:10 p.m. and parked in an adjoining parking lot about 175 feet from the entrance to the market. N.T. 55. By about 9:00 p.m. they had completed their shopping, and while Mr. Leichter went to get their car, Mrs. Leichter waited outside the market with their packages. Mrs. Leichter testified:
I saw him walk down the drive, kept watching, and he walked to the car, and I saw him go in between the cars, and I kept watching to see the back light to go on so I would know he would be coming back. In the meantime,
[ 343 Pa. Super. Page 205]
my attention was drawn to a little Volkswagen that sort of revved up, and then the light came on and they started to back out. And in the meantime, my husband's car came on, and he started to back out. I thought it was he. And then I took my eyes away from that spot to pick the packages up to get them ready to put them in the car because they were down in the cart as I was picking them up. And then I looked up and he wasn't there. I didn't see what happened after they pulled out partway out of the parking lot.
Q. Your husband's car was gone?
Q. Your husband's car was gone?
At 9:13 p.m. Mr. Leichter telephoned the police from a telephone booth at Montgomery Drive and Belmont Avenue. At trial, a tape recording of his conversation with the police dispatcher was played, N.T. 2.102, and a transcript of the recording was read, N.T. 2.86-2.93. Mr. Leichter first stated that he "just got held up," and that he was "in the park at the phone booth." N.T. 2.86. The conversation continued:
"Radio: How did it happen?
"Caller: I was coming out of the Acme in Bala, and my wife was waiting, and I walked to my car, and these guys were waiting for me.
"Radio: And what happened?
"Caller: They put me -- I can't talk. I have a heart condition.
"Radio: Yeah, well, just --
"Caller: They put me in the car, cleaned me out. They let me out down here.
They had a sawed-off shotgun on me . . .["]
Mr. Leichter then described his car, which his assailants had driven off with. N.T. 2.88. The conversation continued:
[ 343 Pa. Super. Page 206]
"Caller: Yeah, two black ones and -- and there was one in a -- another one or two in a little Volkswagen was following.
"Radio: What colors on the Volkswagen?
"Radio: Go ahead, just take --
"Caller: Like a dirty grayish blue.
"Radio: Uh-hum. Where's your wife, sir?
"Caller: She's up there waiting for me at the Acme.
"Caller: She must know something happened by now.
"Radio: Yeah; just try, try to relax if you can. they'll be right there.
"Radio: I'm gonna just keep you on the line.
"Do you have any medication that you could be ...