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COMMONWEALTH PENNSYLVANIA v. RICHARD HOLLIHAN (09/28/89)

filed: September 28, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD HOLLIHAN, JR., APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Allegheny County, Criminal Division, at No. 8503016A.

COUNSEL

James R. Wilson, Asst. Public Defender, Pittsburgh, for appellant.

Edward M. Clark, Asst. Dist. Atty., Pittsburgh, for Com.

Brosky, Popovich and Montgomery, JJ. Popovich, J., concurs in the result. Montgomery, J., files a dissenting opinion.

Author: Brosky

[ 388 Pa. Super. Page 528]

This is an appeal from the judgment of sentence of life imprisonment entered against appellant following his conviction by a jury of first-degree murder.

Appellant's issues on appeal are that: (1) The trial court erred in admitting an out-of-court statement under the excited utterance exception to the hearsay rule; (2) the trial court erred in admitting the "psychological" testimony of Detective Payne; (3) appellant's trial counsel was ineffective for failing to object to a portion of the trial court's jury charge; and (4) his trial counsel was ineffective for failing to object to the firing of the murder weapon in the presence of the jury, and post-trial counsel was ineffective for failing to preserve this issue for appellate review. We affirm.

Appellant shot and killed his wife with a sawed-off shotgun. He claimed at trial that the gun accidentally discharged, but a jury found him guilty of first-degree murder.

Appellant's first claim is that the trial court erred in admitting his seventeen year old daughter Jewelie's out-of-court statement under the res gestae exception to the hearsay rule, which encompasses the excited utterance exception. Appellant admits that Jewelie was excited, the statement was spontaneous, and it was within a very short time of the incident. Appellant's Brief at p. 10. But he avers three reasons why the statement was inadmissible and we will address them seriatim.

Appellant first claims that Jewelie did not perceive the incident. Jewelie was on the first floor of the family home and appellant and the victim were in their second floor bedroom. Jewelie heard a loud noise, akin to a door slamming. Immediately thereafter, appellant told Jewelie to, "[G]et an ambulance, your mother's hurt." N.T., 1/28-2/3/86, at p. 270. Jewelie ran up the steps to the second floor, saw a leg protruding from the bedroom, and ran back

[ 388 Pa. Super. Page 529]

    downstairs and to the next-door neighbor's house. While there, she made the statements in question to neighbor Joseph Dorsch, and he reiterated them at trial:

She was very upset. My mother-in-law was hugging her, trying to calm her down, and during the time, she was talking like she knew something like this was going to happen eventually, she knew --

I really don't remember the exact words, but it was to the effect of she knew something was going to happen sooner or later. It was like she was --

She was upset, oh, yeah. The way she talked, the way I took it, it was like she had been in fear of something like this happening at sometime or other.

Id. at pp. 23, 28. Jewelie did not learn that her mother had been shot and killed until after she made the statement.

To qualify a statement as an excited utterance the 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 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.

Commonwealth v. Stohr, 361 Pa. Super. 293, 297, 522 A.2d 589, 591 (1987); Commonwealth v. Pronkoskie, 477 Pa. 132, 137-38, 383 A.2d 858, 860 (1978) (citation omitted). There is no requirement that the available declarant corroborate the statement. Pennsylvania Evidence, L. Packel and A. Poulin, at p. 564 (1987). If the declarant is unable to remember the statement, it is still admissible. Id.

[ 388 Pa. Super. Page 530]

We find that Jewelie clearly perceived the incident giving rise to the excited utterance. Although she didn't realize that her mother had been shot and killed, the auditory instruction from appellant, coupled with Jewelie's visual perception of a leg, establishes that she perceived an unexpected and shocking occurrence.

Appellant next claims that Jewelie's statement that, "something like this was going to happen sooner or later[,]" supra, was only an opinion of a past event, and there is therefore no way to ascertain her rationale for the opinion.

To be admissible, the "opinion" stated in an out-of-court statement by a person who has witnessed a shocking occurrence should (a) be rationally based upon personal knowledge of the facts upon which she based her conclusion, and (b) her conclusion should not mislead the jury. Commonwealth v. Galloway, 336 Pa. Super. 225, 485 A.2d 776 (1984).

We agree with appellant's contention. Galloway mandates that the statement be a condensed version of what the declarant had just perceived. Jewelie testified that her parents had not fought on the evening of the murder; therefore, there were no facts within her personal ...


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