ON APPEAL from the UNITED STATES DISTRICT COURT for the EASTERN DISTRICT of PENNSYLVANIA. (Crim. No. 91-00338-01)
Before: Sloviter, Chief Judge, and Cowen and Nygaard, Circuit Judges
A jury convicted defendant Steven Sallins on one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (1988). Sallins claims that the district court erred by admitting hearsay evidence of a police radio dispatch and a police computer record detailing the contents of a call to 911. Because we agree that the contents of the police radio dispatch and the police computer record were inadmissible hearsay, we will reverse Sallins' conviction and remand for a new trial.
The government first tried Sallins on the charge of possession of a firearm by a convicted felon in November 1991. At that trial, Sallins objected to the disputed hearsay evidence. The district court sustained the objection and excluded the evidence. The trial ended in a mistrial because the jury failed to reach a unanimous verdict.
Sallins' second trial resulted in the present conviction. At trial, Philadelphia Highway Patrol Officer Antonio Santiago testified that on January 25, 1991 at approximately 7:00 p.m., he and his partner, Officer Mark Howard, received a police radio dispatch. Over defense counsel's objection,*fn1 Santiago revealed the contents of the radio call by stating that, as a result of the call, he proceeded to the 2500 block of North Franklin Street looking for a black male wearing all black clothing who was carrying a gun. Howard, who testified after Santiago, also told the jury that the radio call prompted him to look for a black male with all black clothing carrying a gun.
Officer Santiago testified that as he turned onto North Franklin Street at a high rate of speed, he observed a black male dressed in all black clothing, later identified as Sallins, walking quickly along the sidewalk. As the police car neared Sallins, he turned his head and looked in the officers' direction. Sallins then threw down what appeared to be a gun and ran. The two officers continued down the block, stopped, and exited the police car. While Howard chased and apprehended Sallins, Santiago went to the area where Sallins had been walking and retrieved a gun from underneath a car parked near the sidewalk.
On cross-examination of Santiago, defense counsel questioned whether the audio tape of the communication between the dispatcher and the police car had been preserved. Santiago responded that he was not sure. The government later called as a witness Kimberly Casey, a Police Officer assigned to the police radio room. Over defense counsel's objection, the government was permitted to introduce the contents of a radio room computer record, which revealed that on January 25, 1991 at approximately 7:00 p.m., a call was received via 911 stating there was a black male wearing all black clothing carrying a gun on the 2500 block of North Franklin Street. The government argued that it was offering Casey's testimony to rebut any intimation by defense counsel that the police radio call never occurred.
Sallins first claims that the contents of the message received by Santiago and Howard over police radio was inadmissible hearsay. Hearsay is a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted. Fed. R. Evid. 801(c). The government argues that the radio dispatch was not hearsay because it was not offered to prove the truth of the matter asserted -- that there was in fact a black male dressed in all black with a gun on the 2500 block of North Franklin Street. According to the government, the contents of the radio call were introduced only as background to explain why the officers went to North Franklin Street and acted as they did.*fn2 Whether evidence is hearsay is a question of law subject to plenary review. See United States v. McGlory, 968 F.2d 309, 332 (3d Cir. 1992).
Several courts have admitted testimony by police officers or government agents revealing information received out-of-court for the limited purpose of establishing background for the officers' actions. See, e.g., United States v. Brown, 923 F.2d 109, 111 (8th Cir.), cert. denied, U.S. , 112 S. Ct. 110 (1991); United States v. Vizcarra Porras, 889 F.2d 1435, 1439 (5th Cir. 1989), cert. denied, 495 U.S. 940, 110 S. Ct. 2192, 109 L. Ed. 2d 520 (1990), United States v. Mejia, 909 F.2d 242, 247 (7th Cir. 1990). While officers generally should be allowed to explain the context in which they act, the use of out-of-court statements to show background has been identified as an area of "widespread abuse." 2 McCormick On Evidence § 249, at 104 (4th ed. 1992).
In criminal cases, an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct. His testimony that he acted "upon information received," or words to that effect, should be sufficient. However, cases abound in which the officer is allowed to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports, on the ground that ...