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[U] Commonwealth v. Rosser

Superior Court of Pennsylvania

February 7, 2014



Appeal from the Judgment of Sentence entered June 15, 2012, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No: CP-51-CR-0015049-2010




Quincey Rosser, ("Appellant"), appeals from the judgment of sentence entered after a jury convicted him of unlawful restraint and indecent assault.[1]

The pertinent facts and procedural history may be summarized as follows: On November 11, 2010, Cynthia Lopez was walking to her mother's house when she noticed two men walking behind her, who attempted to talk to her. N.T., 10/26/11, at 7-11. Ms. Lopez ignored them. Id. at 15-16. However, one of the men behind her then grabbed her and pulled her into an alleyway. Id. The men then displayed a knife, threatened to kill her, and began to remove her clothes. Id. at 17-20. Ms. Lopez struggled with her assailants, began to scream, and managed to escape, fleeing to her mother's home where she called the police. Id.

Officers William Giulian and Brian Smith of the Philadelphia Police responded to the radio dispatch and spoke with Ms. Lopez, who, although "in an emotional state" and "distraught and crying", was able to provide a description of her assailants. N.T., 10/25/11, at 36-45. Officer Giulian then communicated the description over the police radio and asked for other police units to search the area for anybody matching the description. Id. Ms. Lopez, along with Officer Giulian, then proceeded to drive through the neighborhood to see if they could find the assailants, when another police unit reported that they had detained some suspects and requested Ms. Lopez to be brought to determine if they were the perpetrators. Id. at 49-52. Ms. Lopez immediately identified one of the suspects, Derrick McLaughlin, as one of her assailants, but denied that the second person detained had been involved. Id. at 52-55. While Mr. McLaughlin was being taken to a patrol car, he called out to Appellant, who was standing on the street, and who began to run away. Id. at 55-58. The police officers pursued Appellant, and after they apprehended him, Ms. Lopez identified him as the second assailant. Id. at 59-60. Appellant was arrested and charged with the aforementioned crimes.

A three-day jury trial commenced on October 25, 2011, at the conclusion of which, on October 27, 2011, the jury found Appellant guilty of unlawful restraint and indecent assault.

For reasons that are not clear from the record, Appellant was not sentenced until June 15, 2012, when the trial court sentenced him to 2½ -5 years for unlawful restraint, and a consecutive 2½ - 5 years for indecent assault.

Appellant filed a timely appeal on July 5, 2012. The next day, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement of matters complained of on appeal. On July 16, 2012, Appellant filed a request for extension of time to file his statement pending receipt of all notes of testimony. See Pa.R.A.P. 1925(b)(2). The trial court did not rule on Appellant's request for extension of time, and on July 26, 2012, Appellant filed a Pa.R.A.P. 1925(b) statement. The notes of testimony from the jury trial and sentencing hearing became available in September of 2012. On November 6, 2012, the trial court filed a Pa.R.A.P. 1925(a) opinion.

On appeal before this Court, Appellant requested a remand for the completion of the record, the filing of a supplemental Pa.R.A.P. 1925(b) statement of errors complained of on appeal, and a responsive trial court opinion due to Appellant's counsel not having the trial transcripts at the time the original Pa.R.A.P. 1925(a) statement was prepared. On July 26, 2013, this Court remanded the case for Appellant to file a supplemental Pa.R.A.P. 1925(b) statement, and for the trial court to file an amended Pa.R.A.P. 1925(a) opinion. Commonwealth v. Rosser, 1948 EDA 2012, Slip. Op. at 1-4 (Pa.Super. 2013) (unpublished).

Appellant filed a supplemental concise statement raising a claim that the trial court erred in permitting the introduction of inadmissible hearsay testimony at trial. The trial court filed a supplemental Pa.R.A.P. 1925(a) opinion on January 16, 2014. Appellant now presents a single issue for our review:

1. Did not the trial court err in allowing inadmissible hearsay statements into evidence?

Appellant's Brief at 3.

Appellant argues that the trial court erred in permitting the hearsay testimony of Officer Giulian, who testified to several out-of-court statements made to him by Ms. Lopez. In reviewing such claims, we are guided by the following principles:

The admission or exclusion of evidence is within the sound discretion of the trial court, and in reviewing a challenge to the admissibility of evidence, we will only reverse a ruling by the trial court upon a showing that it abused its discretion or committed an error of law. Thus, our standard of review is very narrow. To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super. 2012) quoting McManamon v. Washko, 906 A.2d 1259, 1268–1269 (Pa.Super. 2006).

In its supplemental Pa.R.A.P. 1925(a) opinion, the trial court found the testimony of Officer Giulian admissible pursuant to Commonwealth v. Brady, 507 A.2d 66 (Pa. 1986) and Pa.R.E. 803.1.[2] Trial Court Opinion, 1/16/14, at 2-7. However, after reviewing the record, we find Officer Giulian's testimony admissible under the "excited utterance" exception to the hearsay rule. See Commonwealth v. Charleston, 16 A.3d 505, 528-529 (Pa.Super. 2011) (affirming the trial court's decision regarding admissibility of evidence even though the trial court's reasoning was unpersuasive since this Court may affirm the decision of the trial court on any basis) citing Commonwealth v. Lauro, 819 A.2d 100, 105 n. 8 (Pa.Super. 2003); see also Commonwealth v. O'Drain, 829 A.2d 316, 322, n.7 (Pa.Super. 2003) ("this court may affirm the decision of the trial court if there is any basis on the record to support the trial court's action; this is so even if we rely on a different basis in our decision to affirm"). Furthermore, even if Officer Giulian's testimony was improperly admitted, any error was harmless.

Appellant challenges the following testimony by Officer Giulian, regarding his conversation with Ms. Lopez upon arriving at her mother's home shortly after the incident:

Assistant District Attorney: When you first saw the complainant, she was identified as Cynthia Lopez, what's the next step you take?
Officer Giulian: [S]he was still in an emotional state. Seemed distraught and crying. Some of her clothing was out of place. We asked her to sit just to calm herself so that she could get herself together to give us whatever information we needed in reference to the assignment.
Assistant District Attorney: Describe what you mean by she was distraught.
Officer Giulian: She was very emotional and she was crying. And she just – I don't want to say like a frantic state, but she wasn't very calm. She wasn't at first able to really communicate that well with us.
We get her calmed down and get her to explain what the situation is ... and what took place.
Assistant District Attorney: Does she tell you anything, officer?
Officer Giulian: Yes, she does.
Assistant District Attorney: What does she tell you?
Appellant's Counsel: Objection.
Trial Court: Well, I'm not even going to say anything because they are going to say hearsay.
Keep in mind what I told you earlier. Until Cynthia Lopez actually testifies to it, it's not evidence. It's not admissible. It's not something you can consider. But so we don't have to bring him back after she testifies, I'm going to overrule the objection.
One of the issues in this case, it's clear from opening arguments, is whether the complainant was consistent in what she said or inconsistent in what she said, did she tell different stories at different times. So it's certainly relevant to what she said to the police at the inception. ...
Assistant District Attorney: What did she tell you after she was able to calm down and she was sitting down?
Officer Giulian: She described that she was walking northbound on the east side of 4400 Lawrence Street, and as she was either approaching or getting ready to walk by the driveway that's on the east side of the block there, two males came out from inside the driveway and grabbed her and forced her into the driveway.
Assistant District Attorney: Did she say anything else after they dragged her into the alleyway what they did?
Officer Giulian: Basically we asked her what happened after she was dragged into the driveway and she said that they got her down on the ground and were trying to get her – pull her shirt off or take her shirt off, and they had unbuttoned her pants.
At this time as this was all going on she said she was hitting and screaming trying to get away from them. And she was eventually able to get back to her feet and get away from the males. And at that point, she proceeded up to 419 Cortland Street.
Assistant District Attorney: When she's describing these things to when, when she's telling you these things, how was she acting? What's her appearance? What's her demeanor?
Officer Giulian: She was still able to stay calm enough to give us the information that we felt was necessary to proceed on with the assignment.
Assistant District Attorney: Did she say anything about the alleged individuals who did this to her.
Officer Giulian: We asked her if she could describe them at all to us. And the information that she had given to us in the house was that it was two individuals, both younger black males, the one wearing a black hoodie, and ... another one was wearing a black hoodie and a dark wool winter hat.

N.T., 10/25/11, at 39-45.

We conclude that Ms. Lopez's statements to Officer Giulian fell within the excited utterance exception to the hearsay rule. Our Supreme Court recently explained:

As is well-settled, excited utterances fall under the common law concept of res gestae. Res gestae statements, such as excited utterances, present sense impressions, and expressions of present bodily conditions are normally excepted out of the hearsay rule, because the reliability of such statements are established by the statement being made contemporaneous with a provoking event. While the excited utterance exception has been codified as part of our rules of evidence since 1998, see Pa.R.E. 803(2)[3], the common law definition of an excited utterance remains applicable, and has been often cited by this Court:
[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 has 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. ... Thus, 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.
The circumstances surrounding the statements may be sufficient to establish the existence of a sufficiently startling event.

Commonwealth v. Murray, __ A.3d __, 2013 WL 6831852 at 14-16 (Pa. 2013) (citations omitted).

Here, Officer Giulian testified that after he and Officer Smith received the radio call at 10:28 p.m., they arrived at Ms. Lopez's home approximately one minute later. N.T., 10/25/11, at 39. Upon arriving, they observed a visibly "distraught" Ms. Lopez, whose clothes were in disarray. Id. at 39-42. Ms. Lopez was so highly emotional that she was unintelligible and the officers had to calm her down simply to understand her. Id. The record indicates that Ms. Lopez was clearly suffering from the shock and excitement of being attacked at knifepoint, dragged into an alleyway, having her clothes removed, and being threatened with death. Ms. Lopez testified that "less than a half hour" elapsed between the attack and her conversation with Officer Giulian. N.T., 10/26/11, at 30. The record shows that at the time the police officers arrived, Ms. Lopez was highly emotional, ie., excited. We thus conclude that given Officer Giulian's description of Ms. Lopez's emotional state at the time of her statements, together with the circumstances surrounding the statements (the "startling event"), Ms. Lopez's statements constituted an excited utterance and were properly admitted into evidence. Murray, supra.

Moreover, even if the admission of Ms. Lopez's hearsay statements was erroneous, such error was harmless because the statements were merely cumulative of other evidence adduced at trial. Admissibility of evidence is subject to a harmless error analysis. In Commonwealth v. Hardy, 918 A.2d 766, 777 (Pa.Super. 2007) we explained:

Even if a court does wrongly admit hearsay, this Court will not disturb a verdict on that basis alone if the admission constitutes harmless error. Error is harmless if: (1) the prejudice to the appellant was nonexistent or de minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted, substantially similar and properly admitted evidence; or (3) the properly admitted and uncontradicted evidence was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Id. (admission of officer's hearsay testimony was harmless error, where declarant himself later testified at trial and the officer's testimony was merely cumulative of untainted, properly admitted and substantially similar testimony which declarant provided).

Following Officer Giulian's testimony, Ms. Lopez testified, and recounted the circumstances of her attack, providing descriptions of what her assailants were wearing, and detailing her subsequent interaction with Officers Giulian and Smith when they arrived at her mother's house. N.T., 10/26/11, at 9-33. Accordingly, Officer Giulian's testimony was merely cumulative of the untainted, properly admitted and substantially similar testimony that Ms. Lopez provided, and its admission was therefore harmless. For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

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