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Commonwealth v. Luster

Superior Court of Pennsylvania

July 23, 2013

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
AARON THOMAS LUSTER, APPELLANT

Appeal from the Order entered February 28, 2011, in the Court of Common Pleas of Allegheny County, Criminal Division, at No(s): CP-02-CR-0003599-2003

BEFORE: STEVENS, P.J., BENDER, BOWES, GANTMAN, DONOHUE, ALLEN, OLSON, OTT, and WECHT, JJ.

OPINION

ALLEN, J.

Aaron Thomas Luster ("Appellant") appeals from the trial court's order denying his petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. Claiming ineffective assistance of counsel, Appellant seeks relief from an aggregate sentence of 14 to 28 years' imprisonment, which was imposed following his conviction by a jury of third degree murder and murder of an unborn child.[1] We affirm.

We glean the following facts and procedural history from the record. On January 28, 2003, at approximately 2:30 a.m., the corpse of Christine Karcher, ("victim"), was discovered by police on Route 60 in the Moon Township/Coraopolis area of Allegheny County. At that time, the victim was approximately seven months pregnant. She was romantically involved with Appellant, but lived with Chester Bell. Bell had been the victim's boyfriend for ten years. She had informed Bell that Appellant was the father of her unborn child.

On January 27, 2003, at approximately 9:00 p.m., Bell had a drink with the victim at a Coraopolis bar known as the Black Stones. The victim was a drug user and a heavy drinker. The victim left the bar stating that she was going to play cards with some friends. About one hour later, Bell went home and fell asleep. At approximately 3:30 a.m. on January 28, 2003, Bell awoke and discovered that the door to his residence was open, and that his Dodge Dynasty, cell phone, and a red Toyota Camry belonging to his employer were missing. Bell assumed that the victim had borrowed the missing items and went back to sleep. When he awoke the following morning, the items were still missing. Bell was unable to reach the victim on the cell phone. Bell contacted his employer, and the red Toyota Camry was reported as stolen. Later that day, Bell learned that the police wanted to speak with him in connection with the victim's death.

At approximately 10:30 p.m., on January 27, 2003, Eric Branaugh, the victim's friend, was walking home after work when he encountered the victim driving the Dodge Dynasty. The victim appeared drunk, nervous, and afraid. The victim explained to Branaugh that she and Appellant had argued, and that she feared Appellant was planning to harm her. Although Branaugh refused the victim's request to accompany her to a bar, he gave her his telephone number and told her that she could call him.

Between 10:00 p.m. and 11:00 p.m. on January 27, 2003, Michael Smith arrived at Chez Lounge, a bar near the Black Stones. Smith knew the victim and Appellant. Smith saw the victim drinking at Chez Lounge. Sometime before 1:00 a.m. on January 28, 2003, Smith accompanied the victim to a nearby bar named Wayne's Lounge, and then back to Chez Lounge. During their return drive to Chez Lounge, the victim's cell phone "kept ringing, " but she "kept … turning it off." N.T., 3/15-19/04, at 109. Smith and the victim encountered Appellant when they arrived at the parking lot of Chez Lounge between 1:00 a.m. and 2:00 a.m. on January 28, 2003. Appellant appeared to be angry with Smith and the victim. Appellant approached Smith with clenched fists and accused Smith of having sex with the victim. Smith explained to Appellant that they were merely friends. Appellant then said to the victim, "[G]et the f__ out of the car, now, you bitch." Id. at 111. Smith described Appellant as "real angry" and reported that Appellant also said "get the F out of the car, are you F'ing my girlfriend, what the hell, I've been calling you, what the F." Id. at 112. Smith entered the bar after being assured by the victim that she was "okay." Id. at 111. Smith exited the bar approximately five minutes later and noted that Appellant and the victim had left. Smith observed that the Dodge Dynasty that the victim had been driving was in the parking lot, while the red Toyota Camry that Appellant had been driving was gone.

Following her departure with Appellant, the victim made several calls to 911 with Bell's cell phone. The conversations with the 911 operator began at 1:52 a.m. on January 28, 2003. During the 911 calls, the victim was either moaning and crying, or desperately pleading for help while a male voice was heard in the background. The recordings of those 911 calls were played for the jury and they lasted twelve to fifteen minutes. Bell listened to the 911 calls and identified the male voice as belonging to Appellant. Id. at 377. On January 28, 2003 at 2:09 a.m., state police in the area of Route 60 were advised "to be on the lookout for a red Toyota Camry with a female possibly being assaulted on the interstate." Id. at 190.

The victim also telephoned Branaugh. In that telephone conversation, the victim told Branaugh that Appellant was trying to kill her. Branaugh overheard Appellant in the background threatening to kill the victim. Branaugh was unable to ascertain where the victim was calling from and he did not obtain help for her.

At approximately 2:15 a.m. on January 28, 2003, the victim was lying prone on Route 60 when she was struck by a vehicle driven by James Caleffi. Caleffi had a few beers prior to the incident and thought that he had hit a deer or other object. He stopped his vehicle in a hotel parking lot nearby. Caleffi phoned 911 to report that there was an obstruction on the road. Police discovered the victim's corpse on Route 60 at approximately 2:30 a.m. Most of the victim's brain was on the road next to her body. Her unborn child had died as well. A police accident reconstructionist was immediately dispatched to the scene, and his subsequent investigation included a review of the accident scene, Caleffi's car, and the red Toyota Camry. He concluded that Caleffi ran over the victim's head while she was lying on the road.

Sometime in the early morning hours of January 28, 2003, Appellant gave the red Toyota Camry to James Dixon in exchange for crack cocaine. During the same time frame, Appellant used Bell's cell phone to call his wife, Cherryl Ann Luster ("Wife"). Appellant asked his wife, "will you love me no matter what I did[?]" Id. at 132. Wife answered affirmatively, but Appellant refused to tell her what he had done. Later in the day on January 28, 2003, Wife saw Appellant at his mother's home. Wife testified that she observed Appellant kneeling over a bed with his hands on his face. Appellant would not respond to Wife's inquiries about why he appeared upset. Police then arrived at the residence.

Appellant gave two statements to police. On January 28, 2003, at approximately 5:00 p.m, State Trooper Kevin S. Scott went to Appellant's home. Appellant agreed to accompany Trooper Scott to the police station. Trooper Scott testified that during the trip, Appellant asked Trooper Scott whether the investigation was "about the girl that got hit on 60 last night." Id. at 399. Trooper Scott responded affirmatively and said that police were attempting to ascertain a timeline of the victim's whereabouts the previous night.

Trooper Scott further testified that Appellant stated he had been "partying in Coraopolis" with the victim, that they had gone to Bell's home "to get some money for crack, " and that the victim had left Appellant at Bell's home. Id. Appellant reported to Trooper Scott that following the victim's departure, Appellant took the keys to the red Toyota Camry and Bell's cell phone and began looking for her. Id. at 399-400. Appellant told Trooper Scott that Appellant found the victim with another man. Id. at 400. Trooper Scott testified that Appellant explained that "there was an argument" and Appellant "put [the victim] into the Camry and said we're going to go to Carnegie [where Appellant and the victim had an apartment together] to try to work things out." Id. Appellant explained to Trooper Scott that the "fighting intensified" while they were on the way to Carnegie. Id. According to Trooper Scott, Appellant "said that [the victim] didn't want to go to Carnegie so he was going to put her out of the car." Id. Trooper Scott stated that Appellant's exact words were that he planned to "put her out of the car." Id. Appellant relayed that at that point, Appellant and the victim observed a police car and "the fighting relaxed, " but as soon as they "passed the police car, the fighting got more intense." Id. at 400-401. Appellant "said that is when he put her out of the car. Slammed the gear shift into park and put her out of the car." Id. Appellant offered to show Trooper Scott "where he put her out of the car." Id. at 401. "After [Appellant] told [Trooper Scott] that he put her out of the car four times, then he showed [Trooper Scott] where it occurred." Id. at 401. Appellant showed Trooper Scott that Appellant removed the victim from the Camry at the point where the victim's body was found. Id. Appellant concluded his conversation with Trooper Scott by relating that after he removed the victim from the car, he went to another section of Pittsburgh to purchase crack cocaine. Id. at 401-402.

State Trooper Pierre Wilson testified that Appellant agreed to speak with police once Appellant arrived at the police station. A tape recording of this interview was played for the jury at trial. Id. at 379. That interview was not placed in the trial transcript, but trial counsel's closing arguments indicate that Appellant told police that Appellant and the victim were arguing while they were traveling along Route 60 in the red Toyota Camry. Id. at 455. According to Appellant, the victim "threw the car into park, " propelling Appellant and the victim "forward." Id. at 455. The victim "banged her face into [the] dashboard." Id. Appellant reported that the victim then left the car of her own accord and ran away. Id. at 453.

In the course of their investigation, police found the victim's blood on Appellant's clothing and on three different locations inside the red Toyota Camry. A hair matching the victim's DNA was discovered wrapped around a bar located on the rear passenger side of the undercarriage of the Toyota.

Dr. Leon Rozin, chief forensic pathologist with the Allegheny County Coroner's Office, autopsied the victim's body. Dr. Rozin testified that the victim was severely intoxicated and had a blood alcohol content of .35%. Id. at 329. According to Dr. Rozin, the victim had cocaine metabolites in her urine. Id. The unborn child was normally developed and died from cessation of blood flow due to the victim's death. Id. at 331. The majority of the trauma was located on the victim's head and the upper portion of her chest, while the abdomen and baby were intact. The victim's head had been squeezed between a tire and the surface of the road such that her skull was totally disfigured and the brain was located on the road. Dr. Rozin concluded that the skull disfigurement was consistent with the victim lying on the ground and having been run over by "at least one tire of a motor vehicle." Id. at 333. Her right shoulder also sustained a "huge laceration." Id. at 334. As to her upper torso, her ribs were fractured and her heart had been crushed. Both of the victim's bones in her right forearm were fractured. Id. at 340. Several bruises and abrasions were found on the victim's chest and abdominal areas, and two bruises were located on the inner surface of her right arm. The victim's hands and left arm were bruised and she had a strangulation injury around her neck. None of these injuries were inflicted by a car, but rather, were the result of a manual assault. Id. at 337-39, 343. Dr. Rozin concluded that the victim died from being run over by a car while lying on the highway, and that the manually-inflicted injuries, coupled with the level of intoxication, would have "compromised" the victim. Id. at 353. Dr. Rozin stated that the victim would not have been "incapacitated" by the manual trauma. Id.

Appellant was charged with the aforementioned murder crimes. On March 19, 2004, following a weeklong trial, a jury found Appellant guilty of third degree murder in both the death of the victim and her unborn child. Two months later, Appellant was sentenced to two consecutive terms of imprisonment of seven to 14 years, for an aggregate term of imprisonment of 14 to 28 years. Appellant filed a timely direct appeal challenging the sufficiency of the evidence, the trial court's jury instructions on causation and the trial court's ruling which permitted the Commonwealth to play the 911 tape recording to the jury. On April 17, 2006, this Court affirmed the judgment of sentence. Commonwealth v. Luster, 902 A.2d 979 (Pa.Super. 2006) (unpublished memorandum). On February 27, 2007, the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Luster, 917 A.2d 313 (Pa. 2007). Appellant filed a timely pro se PCRA petition on July 5, 2007. Counsel was appointed, but on Feburary 11, 2008, counsel filed a petition to withdraw his appearance, and a no-merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). Two days later, the PCRA court granted counsel's petition to withdraw. On April 4, 2008, the trial court denied Appellant's PCRA petition without holding an evidentiary hearing. Appellant filed a pro se appeal to this Court. On September 21, 2009, a panel of this Court concluded that at least seven of the issues raised by Appellant in his PCRA petition were, potentially, of arguable merit. Thus, we reversed the order of the PCRA court and remanded the case "with directions for the trial court to reinstate [Appellant's] PCRA petition, and appoint new counsel to assist him in his pursuit of PCRA relief." Commonwealth v. Luster, 986 A.2d 1259 (Pa.Super. 2009) (unpublished memorandum at 31).

Upon remand, the PCRA court appointed Scott Coffey, Esquire, to represent Appellant. Mr. Coffey filed an amended PCRA petition on March 2, 2010. However, Appellant refused to sign a verification for the petition since he asserted that he wished to raise several more issues in his PCRA petition. Following a brief hearing on October 27, 2010, Mr. Coffey filed a second amended PCRA petition in which he included the additional issues Appellant wished to raise. The PCRA court conducted a hearing on January 11, 2011, at which both trial and direct appeal counsel testified. On February 28, 2011, the PCRA court entered an order, with an accompanying opinion, again dismissing Appellant's petition for PCRA relief. This timely appeal followed.

Appellant presents the following issues for our review:
1. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S PCRA PETITION SINCE TRIAL COUNSEL FOREMAN WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE HEARSAY TESTIMONY OF COMMONWEALTH WITNESS ERIC BRANAUGH?
2. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CROSS-EXAMINE BRANAUGH REGARDING TRIAL TESTIMONY THAT WAS INCONSISTENT WITH A STATEMENT THAT HE HAD GIVEN TO POLICE?
3. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S PCRA PETITION SINCE APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE THE TESTIMONY OF APPELLANT'S WIFE REGARDING COMMENTS THAT HE ALLEGEDLY MADE TO HER FOLLOWING THE INDICENT [sic] WITH [THE VICTIM]?
4. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO RETAIN A FORENSICS EXPERT TO COUNTER THE COMMONWEALTH'S ADVANCED THEORY THAT APPELLANT HAD STRUCK [THE VICTIM] WITH HIS CAR AFTER FORCING HER OUT OF THE CAR, OR TO COUNTER THE COMMONWEALTH'S THEORY THAT THE VICTIM WAS LYING ON THE ROADWAY WHEN HIT BY CALEFFI [SHE MAY HAVE BEEN ALERT AND WALKING, OR NOT EVEN ON THE ROADWAY (ON THE BERM), WHEN STRUCK AND KILLED BY CALEFFI]?
5. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR'S MISCONDUCT IN ALLEGING IN CLOSING ARGUMENT THAT APPELLANT RAN OVER AND [sic] INCAPACITATED [VICTIM]; THERE WAS NO EVIDENCE OF RECORD TO SUPPORT SUCH AN ASSERTION?
6. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S PCRA PETITION SINCE TRIAL COUNSEL AND/OR APPELLATE COUNSEL WERE INEFFECTIVE FOR FAILING TO RAISE A WEIGHT OF THE EVIDENCE CLAIM, REGARDING THE THIRD-DEGREE MURDER CONVICTIONS, IN POST SENTENCING MOTIONS/DIRECT APPEAL?
7. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S PCRA PETITION SINCE APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE A CLAIM REGARDING THE TRIAL COURT ERROR IN ADMITTING THE IRRELEVANT AND PREJUDICIAL TESTIMONY OF ROBERT PENNYBAKER, AND TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INCLUDE AS PART OF HIS OBJECTION A CLAIM THAT THE TESTIMONY CONSTITUTED PREJUDICIAL PRIOR BAD ACTS OF APPELLANT?
8. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A SUPPRESSION MOTION REGARDING APPELLANT'S STATEMENT TO TROOPER SCOTT WHILE BEING TRANSPORTED SINCE APPELLANT WAS NEVER GIVEN MIRANDA WARNINGS?
9. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR PRESENTING A "FRIVOLOUS AND MEANINGLESS DEFENSE" TO THE HOMICIDE CHARGES?
10. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE TESTIMONY OF ERIC BRANAUGH INDICATING THAT HE HEARD APPELLANT'S VOICE IN THE BACKGROUND DURING A TELEPHONE CALL BETWEEN BRANAUGH AND [THE VICTIM]?
11. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO IMPEACH CORONER DR. LEON ROZIN REGARDING HIS "CONTRADICTORY TESTIMONY"?
12. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING [TO] OBJECT TO TELEPHONE RECORDS INTRODUCED INTO EVIDENCE SINCE THEY WERE NOT ACCOMPANIED BY TESTIMONY FROM THE CUSTODIAN OF THOSE TELEPHONE RECORDS?
13. DID THE TRIAL COURT ERR IN DENYING APPELLANT'S PCRA PETITION SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR "FAILING TO CHALLENGE THE CAUSATION RULE AT EVERY LEVEL OF TRIAL"?

Appellant's Brief at 3-4.

When reviewing the denial of PCRA relief, "we must determine whether the ruling of the PCRA court is supported by the record and is free of legal error." Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011) (internal citation omitted). Here, all of Appellant's claims allege the ineffectiveness of prior counsel.

To prevail on an ineffective assistance claim, a defendant must establish "(1) [the] underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his [client's] interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different." A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim.

Commonwealth v. Johnson, 27 A.3d. 244, 247 (Pa.Super. 2011) (internal citations omitted). The Pennsylvania Supreme Court has emphasized, "'[i]f it is clear that [the petitioner] has not demonstrated that counsel's act or omission adversely affected the outcome of the proceedings, the claim may be dismissed on that basis alone and the court need not first determine whether the first and second prongs have been met.'" Commonwealth v. Rios, 920 A.2d 790, 799 (Pa. 2007), quoting Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998).

Appellant's first, second, and tenth issues involve Branaugh's testimony. Because these issues are interrelated, we will address them together. Branaugh testified that he was walking home from work at approximately 10:30 p.m., on the evening of January 27, 2003, when the victim pulled up in the Dodge Dynasty. Branaugh described the victim as "nervous and scared, " and noted that "[s]he sounded like she had been drinking." N.T., 3/15–19/04, at 100. Branaugh testified that the victim told him that she and Appellant "had an argument that night and [Appellant] was going to do something real bad to her and she was … really scared." Id. at 100–101. The victim then asked Branaugh to have a drink and "hang out with her to make sure that nothing happen[ed] to her." Id. at 101. Branaugh declined but gave her his cell phone number, and told her to call him "a little later." Id. Branaugh testified that approximately an hour later he received a call from the victim, which he described as follows:

At that time when she called me … she was in a car. She says she was with [Appellant], she was scared. She was crying. I heard [Appellant] in the background screaming and cussing at her. She was telling me that he's trying to kill me. He's trying to kill me.

Id. at 102. Branaugh testified specifically that during the phone call, he heard Appellant "cussing and screaming" at the victim, saying things such as "[y]ou bitch, mother f[]er and I'm going to kill you, bitch, and a couple just obscenities." N.T., 3/15–19/04, at 102. Branaugh estimated that the call lasted approximately three to four minutes before "the phone went dead". Id. at 102-103.

Appellant challenges trial counsel's effectiveness for (1) failing to object to Branaugh's identification of Appellant's voice, (2) failing to object to the testimony as inadmissible hearsay, and (3) failing to cross-examine Branaugh with a prior inconsistent statement.

Appellant contends that Branaugh acknowledged that he did not know Appellant well and that he had not talked with him much, rather only to "say hi." N.T., 3/15–19/04, at 103. However, Branaugh's identification of Appellant was not based upon his recognition of Appellant's voice, but rather upon the fact that the victim told him that she was in a car with Appellant. Branaugh testified that the victim told him that "she was in a car…with [Appellant]…" Id. at 102. Significantly, trial counsel testified at the PCRA hearing as follows:

[Branaugh's] testimony was based on possible assertions by [the victim] that she was with [Appellant], and that he was doing these terrible things to her, and then [Branaugh] said he overheard in the background certain things threats or expletives being used. It was fairly clear I believe that [Branaugh] believed based on his conversation that it was [Appellant]. [Branaugh] didn't say it was based on voice identification. [Branaugh] said it was based upon what [the victim] had told him and what he heard on the phone call.

N.T., 1/11/11, at 29 (emphasis supplied). We agree, and do not find that Branaugh's identification of Appellant was based on Appellant's voice. Further, considering that Appellant admitted he was in a car with the victim that evening, and that the 911 recording which was played for the jury provided evidence of an ongoing assault in that vehicle, we determine that any error that could be derived from Branaugh's identification by voice, rather than by the victim's statement, of Appellant as the man "cussing and screaming" at the victim was harmless. Id. at 102.

Appellant also argues that trial counsel was ineffective for failing to object to Branaugh's testimony as hearsay. Hearsay testimony is "a statement, other than one made by the declarant … offered in evidence to prove the truth of the matter asserted, " and is generally, inadmissible at trial. Pa.R.E. 801(c), 802. However, excited utterances and statements relating to the declarant's existing state of mind are admissible exceptions to the hearsay rule. See Pa.R.E. 803(2), (3). Branaugh's testimony concerning the victim's statements to him (1) on the street when she stated that she was fearful that Appellant "was going to do something real bad to her, " and (2) in Appellant's car when she stated that she was "scared" and that Appellant was "trying to kill" her, both constitute hearsay. N.T., 3/15-19/04, at 100-101. Therefore, we must determine whether they qualify as exceptions to the hearsay rule.

In its opinion, the PCRA court found that the victim's statements "fit squarely" into the "state of mind" and "excited utterance" exceptions to the hearsay rule. PCRA Court Opinion, 2/28/11, at 3. We disagree with the trial court's determination that the victim's statement to Branaugh on the street that she was scared that Appellant "was going to do something real bad to her" was an excited utterance. The victim was not under the stress of a startling event at the time that she made that statement. See Pa.R.E. 803(2). However, we find that this statement fell under the "state of mind" exception to the hearsay rule.

Rule 803(3) provides an exception to the preclusion of evidence under the hearsay rule for "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain and bodily health." Pa.R.E. 803(3). As a panel of this Court noted in the prior PCRA appeal, "[t]he admissibility of statements such as those by Branaugh … have been subject of considerable discussion in Pennsylvania jurisprudence." Commonwealth v. Luster, 986 A.2d 1259 (Pa.Super. 2009) (unpublished memorandum at 13). Generally, our appellate courts have held that out-of-court statements by homicide victims are admissible when the statements are relevant for some other purpose, such as proof of motive or malice. See Commonwealth v. Puksar, 740 A.2d 219, 225 (Pa. 1999), cert. denied, 531 U.S. 829 (2000) (victim's statements that he did not trust defendant/brother and that he believed that defendant was trying to pass off replica model trains as originals were admissible to prove motive and ill will between brothers). Here, the victim's statement that she feared Appellant and he was going to harm her is admissible because it shows Appellant's ill will and malice toward the victim. Id. at 225. Further, the statement explains why the victim did not want to accompany Appellant to Carnegie to address their relationship, a rejection which, according to Appellant, prompted him to remove the victim from the car.

We recognize that hearsay evidence concerning the victim's state of mind is admissible only where the victim's state of mind is a "factor in issue" at trial. Commonwealth v. Laich, 777 A.2d 1057, 1061 (Pa. 2001). Appellant's trial counsel, when presented at the PCRA hearing with Appellant's argument that Laich and "the Rules of Evidence" supported a finding that the victim's statement to Branaugh inadmissible, testified:

The prosecution's theory, as I understood it at the time, was that the [victim] was being held against her will, and that goes to the question of whether she voluntarily left the car, and again, it's all tied into the root question of causation, and the [trial] [c]ourt made it clear that it was going to hold admissible anything that tended to show what her state of mind was at the time of the incident, and in fact, what her state of mind might have been remote to the incident.

N.T., 1/11/11, at 7.

We similarly do not find that Laich supports Appellant's contention that the victim's statements concerning her fear and apprehension of Appellant were inadmissible hearsay. In Laich, the defendant admitted his guilt, and therefore our Pennsylvania Supreme Court determined that the victim's statements regarding defendant's jealous threats to kill her were "simply not relevant given appellant's defense" of sudden provocation. Laich, 777 A.2d at 1062. In contrast, Appellant has repeatedly denied his guilt, has not claimed any sudden provocation relative to the victim, and has denied acting with malice.

Even if we accept Appellant's contention that the victim's statement that she feared Appellant and that Appellant was going to harm her was irrelevant to the disputed issues of causation or malice, we conclude that the hearsay statement was merely cumulative of other evidence discussed more fully below, and was harmless error. See Commonwealth v. Thornton, 431 A.2d 248, 251-252 (Pa. 1981) (While the trial court erred in admitting statement that murder victim carried a gun for protection against defendant and his siblings who were "after" victim because "the victim's state of mind was not a matter in issue in the case, " the admission was harmless error due to the overwhelming evidence of the appellant's guilt and the lack of support for the appellant's defenses of self-defense and provocation.).

With respect to Branaugh's testimony regarding the victim's cell phone call that occurred while she was riding in the car with Appellant, Branaugh testified that the victim was crying when she called him, and that she said she was scared and that Appellant was "trying to kill" her. N.T., 3/15– 19/04, at 102. Pennsylvania Rule of Evidence 803(2) defines an excited utterance as "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The Pennsylvania Supreme Court has explained that "it must be shown first, that [the declarant] had witnessed an event sufficiently startling and so close in point of time as to render her reflective thought processes inoperable and, second, that her declarations were a spontaneous reaction to that startling event." Commonwealth v. Sherwood, 982 A.2d 483, 496. (Pa. 2009), cert. denied, 130 S.Ct. 2415 (U.S. 2010) (internal citation omitted).

Here, Branaugh testified that as the victim was crying and telling him that Appellant was "trying to kill" her, he could hear Appellant in the background "cussing and screaming at her, " saying "[y]ou bitch, mother f[]er and I'm going to kill you, bitch …." N.T., 3/15–19/04, at 102. Thus, the victim's statement to Branaugh was made at a time when she believed that Appellant was trying to hurt her, regardless of whether Appellant was actually trying to kill her. As such, we agree with the trial court that the victim's statement in the car qualifies as an "excited utterance, " and therefore, trial counsel was not ineffective for failing to object to the admissibility of this ...


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