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submitted: May 23, 1988.


Appeal from the Judgment of Sentence of November 10, 1986, in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 85-03-1537-41.


Charles P. Mirarchi, III, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

McEwen, Hoffman and Hester, JJ.

Author: Hester

[ 378 Pa. Super. Page 223]

Joseph Hess appeals from the judgment of sentence entered November 10, 1986, in the Court of Common Pleas

[ 378 Pa. Super. Page 224]

    of Philadelphia County following his conviction by a jury of murder of the second degree, robbery, possession of an instrument of crime, and conspiracy. Appellant was tried with three co-participants. All four were convicted. Appellant was sentenced to a term of life imprisonment for the murder and a consecutive five to ten year term for the conspiracy. He was given a suspended sentence on the charge of possession of instrument of crime, and for purposes of sentencing, robbery merged with murder. In this appeal, appellant raises numerous issues of trial error. Finding no merit to them, we affirm.

Late in the afternoon of January 21, 1985, appellant and co-defendants Ronald Lynch, Stanley Oliver and David Walker gathered in Brenda Walker's apartment, located in a high-rise government project in Philadelphia. The four men decided to rob David Green, an incense vendor who was selling his wares in the building. Appellant carried a thirty-eight caliber revolver, and he and the three others approached Green in a stairwell between the eighth and ninth floors. Appellant pointed the gun at him, and the conspirators demanded his money. One of the four put his hand in Green's pocket, attempting to remove cash. Green resisted. At a distance of four feet, appellant discharged the gun, and a bullet struck Green. The conspirators retreated to Brenda Walker's apartment. Mortally wounded, Green ran to the landing of the seventh floor and collapsed. Lying in a pool of blood, he died within minutes.

At trial, David Smith testified that earlier that afternoon, he visited his girlfriend, Bonnie Clark, who lived on the tenth floor of the high-rise. Smith testified that he rode up the elevator with four men, two of whom he recognized as co-defendants Walker and Oliver, and that later, while he was in Ms. Clark's apartment, he heard a scuffle and the sound of a gunshot coming from the stairwell. Peering out the door, he saw David Green, the incense vendor, running down the steps with three men in pursuit. Smith recognized two of the men as co-defendants Oliver and Walker. The three men stopped upon seeing Smith and ran back up

[ 378 Pa. Super. Page 225]

    the stairs. Smith walked to the seventh floor and, upon discovering the body of David Green, summoned police. A short time later, a crowd gathered around the body. Co-defendants Walker and Oliver were among the bystanders. Smith heard Walker say, "Wow, ain't that a shame." A third man joined Walker and Oliver, but Smith could not identify him since only his legs were visible as he stood on the stairs. Co-defendant Oliver asked the unidentified man, "What are you going to do?" The man answered, "I'm going home." He and Oliver ran up the steps.

At trial, a statement given to the police by appellant was read to the jury. The court cautioned the jury that it was not to be used against any defendant except appellant. In the statement, appellant indicated that he and three others conspired to rob Green and that appellant shot Green when Green attempted to take appellant's revolver from him. Appellant's statement was redacted to exclude the actual names of the other defendants. Inserted in their places were phrases such as "the other person."

Co-defendant Lynch's redacted statement was also read into the record. That statement includes the following:

I was coming down from the 17th floor inside 1515 Hemberger Way and I saw the other persons. They called me over. We went in Brenda Walker's apartment, No. 1406. We were all smoking a "J", parenthesis, marijuana cigarette, end of parenthesis, and somebody knocked at the door. It was the Incense Man. They said there [sic] were going to rob the Incense Man. They asked me if I was down with them. I told them I'm not about that stuff. They called me a chicken. Brenda Walker told me I had to leave if I wasn't down. The other persons walked out of the apartment and I walked out after them. I walked down the 01 side of the fire tower with one of them. The other two walked down the other stairway. The Incense Man was walking down the steps on the other stairway, the same stairway that the other two were walking down. The Incense Man stopped on all the floors trying to sell the incense. He knocked at

[ 378 Pa. Super. Page 226]

    some of the doors. The one I was with stopped at the 9th floor. I was standing on the steps between the 9th and the 8th floor. One of the others was hiding in the hallway on the 9th floor. I didn't see where one of the persons went. I think he went down to about the 8th or closer to the 7th floor. The Incense Man went in the stairway to go on the 9th floor landing and one of the persons pulled a gun on the Incense Man. He stuck the gun in the Incense Man's face. The Incense Man had some lit incense and tried to stick it in his face. The Incense Man was holding the door. Before this he hit the Incense Man in the head with the gun. The Incense Man was holding the door and he was on the other side of the door. The Incense Man ran down the steps and he shot at him one time. Two of the persons went up to an apartment. I walked up a flight behind them. They went in the apartment. I stood in the hallway. He told me that I better not say anything. I went home. I stayed in the house a couple of days. He was looking for me and told me that if I tell on him he was going to get me the same way.

Notes of Testimony (N.T.), 2/2/86, at 141-42.

Appellant first argues that the trial court erred in refusing to allow Valerie Mond to testify on his behalf. He contends that Ms. Mond, a social worker at Holmsburg prison, would have testified that appellant told her that he was beaten by the police when he was arrested. This testimony, according to appellant, should have been admitted to show that the statement which he made to the police was not voluntarily given. We find no merit to this contention.

At a pre-trial suppression hearing, Valerie Mond testified that she first met appellant on March 21, 1985, more than three weeks after his arrest. She stated that "on several occasions [appellant] said that when he was arrested he was beaten by the police . . . ." N.T., 1/30/86, at 5. The court refused to allow this testimony to be repeated at trial, holding that it was hearsay.

[ 378 Pa. Super. Page 227]

Pennsylvania recognizes a "state of mind" exception to the hearsay rule. See e.g., Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1975).

Often a person's state of mind, knowledge, intent, motive, emotion, competency, or sanity is relevant in a case. That person's contemporaneous statements are an obvious source of information as to the relevant state of mind, and such statements are admissible under the state of mind exception to the hearsay rule.

There are two reasons which support the admissibility of evidence coming within the state of mind exception. One is the necessity which is said to arise from the fact that state of mind is often impossible to prove in the absence of such statements. The second reason is that such statements are said to be reliable because of their spontaneity -- much as spontaneity is viewed as creating reliability for the present sense impression and excited utterance exceptions to the hearsay rule. State of mind is one of the hearsay exceptions that was formerly considered under the res gestae label although it is now recognized as a separate exception.

L. Packel & A. Poulin, Pennsylvania Evidence § 803.3 (1987). If statements to a third party tend to show state of mind only circumstantially, they are not hearsay. Commonwealth v. Williams, 307 Pa. 134, 160 A. 602 (1932); Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977). However, even statements which are not barred by the hearsay rule may be inadmissible if they were made at a time so remote from the incident to which they purportedly pertain that their probative value is de minimis. Commonwealth v. England, supra. As the authorities cited above suggest, state of mind evidence, whether hearsay or not, is admissible if it is probative of the speaker's mind at the time of the pertinent incident.

In the instant case, regardless of whether the statements which appellant made to Ms. Mond should technically be regarded as hearsay, we find that the trial court did not

[ 378 Pa. Super. Page 228]

    abuse its discretion in excluding them. The court noted that the statements were made too remote in time from the alleged beating to be probative of appellant's state of mind.

Whether proffered evidence is too remote to be probative is a determination left to the trial court's discretion. Commonwealth v. Gibson, 363 Pa. Super. 466, 526 A.2d 438 (1987). There is no rigid rule as to the length of time before which evidence may be said to have lost its probative value. Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1976). Instantly, more than three weeks passed from the time of the alleged beating and the time that appellant first could have reported it to Ms. Mond. The state of mind which appellant alleges was induced by the beating, i.e., fear and coercion, could hardly have persisted up to the time he made the statements to Ms. Mond. It is more than likely that the powers of reflection and deliberation returned to him, negating any reasonable chance that the statements were a spontaneous report of his state of mind at the time of the beating. Therefore, we find no abuse of discretion in the trial court's refusal to admit the testimony.

Appellant next argues that the trial court erred in preventing a witness from answering a question which, again, was designed to show appellant's state of mind at the time he gave his statement to the police. Appellant's counsel called Chuck Stone, a columnist for a Philadelphia newspaper, to the stand. Appellant had turned himself into Mr. Stone to be arrested on the instant charges. At trial, Mr. Stone was asked by appellant's counsel, "Did you ever receive any correspondence from Mr. Hess thereafter?" N.T., 2/5/86, at 22. The prosecution objected and the court refused to allow Mr. Stone to answer. Appellant argues on appeal that he wrote to Stone and complained of being beaten by the police when he was arrested. He claims that Stone's testimony concerning the correspondence would have tended to prove the involuntariness of the statement that he made to the police at the time of his arrest.

Appellant's brief fails to specify when this alleged correspondence to Chuck Stone was written. The trial court

[ 378 Pa. Super. Page 229]

    treated this argument the same as the previous contention with respect to Ms. Mond's testimony -- that is, the evidence was too remote to be admitted. Appellant's failure to specify the time when the letter was written precludes us from reviewing the merits of the contention. As explained supra, the timeliness factor is crucial in a state of mind analysis. It is most unlikely that appellant composed a letter to Stone while still ...

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