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Commonwealth v. Parker

Superior Court of Pennsylvania

November 6, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
BRAHEIM PARKER, Appellant

 Submitted July 21, 2014

Page 18

Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County. Criminal Division No(s): CP-51-CR-0008056-2009. Before CARPENTER, J. and HUGHES, J.

Michael F. Giampietro, Philadelphia, for appellant.

Hugh J. Burns, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: OLSON, OTT and STABILE, JJ.

OPINION

Page 19

OLSON, J.

Appellant, Braheim Parker, appeals from the judgment of sentence entered on March 4, 2011. In this appeal, we consider whether an out-of-court question can be hearsay. We hold that an out-of-court question can be hearsay if it includes an assertion. We conclude, however, that the hearsay statement in this case was properly admitted into evidence. As we also conclude that Appellant is not entitled to relief with respect to his remaining claims of error, we affirm.

The trial court[1] accurately set forth the factual background of this case as follows:

On August 5, 2008, shortly after midnight, Dorothy Miller [(" Grandmother" )] observed her grandson, Chauncy Miller [(" Victim" )], go out onto the porch of her house, located on 29th Street between Jefferson Street and Master Street in the City of Philadelphia. Approximately one hour later, [Victim] called [G]randmother and, with a frustrated voice, asked her to " tell Bey that he had been in the house all day" and to tell Bey that " he didn't take anything from anybody and doesn't have anything." [Grandmother] instructed [Victim] to put Bey on the phone, but moments later the phone went dead. Approximately[] ten minutes later, [G]randmother received another call in which the caller said " Grandmom,

Page 20

Chauncy just been shot on 28th Street outside right where the church is." [Grandmother] immediately went to the location on 28th Street, but could not see [Victim] because the police had already placed a sheet over his body and were securing the crime scene.
Anthony Hyman [(" Hyman" )] had been sitting out on the porch of a friend's house located near 1400 North 28th Street when he heard a gunshot. He looked toward Jefferson Street and observed a male weaving in and out of parked cars being chased by another male who continued shooting at him. Hyman ran into the lot on the corner and laid in the grass. He heard another shot and then saw the male being shot at run past the lot. After the gunshots had stopped, Hyman exited the lot and saw a male named Dante Jones [(" Jones" )] and a female walking from Master Street onto 28th Street. Hyman then saw the body of the man who was shot lying in the street. Hyman told Jones that he had not seen the shooter, even though he had, because he did not want his knowledge of the shooting being spread to the [community]. Jones told Hyman that the male who had been shot was named Chauncy.
Officer [Lynda] Smith was the first officer to respond to the radio call for a shooting in the vicinity of 28th Street and Master Street and, upon arrival, observed [Victim] lying on the ground with Hyman and Jones standing next to him. [Victim] was not conscious, was bleeding from the head, and was pronounced dead at 1:40 a.m. by [a paramedic].

Trial Court Opinion, 2/24/14, at 4-5 (internal alterations, footnotes, and honorifics omitted).

The procedural history of this case is as follows. On September 23, 2008, a criminal complaint was filed charging Appellant with first-degree murder,[2] possession of a firearm by a prohibited person,[3] carrying a firearm without a license,[4] carrying a firearm on the streets of Philadelphia, [5] and possession of an instrument of crime.[6] On June 19, 2009, a criminal information was filed charging those same offenses.[7] On February 28, 2011, a jury was seated and trial began on March 1, 2011. On March 4, 2011, Appellant was found guilty of all charges and was immediately sentenced to an aggregate term of life imprisonment without the possibility of parole.

Appellant filed a timely notice of appeal. On April 6, 2011, the trial court issued an order pursuant to Pennsylvania Rule of Appellate Procedure 1925 requiring Appellant to file a concise statement of errors complained of on appeal (" concise statement" ). See Pa.R.A.P. 1925(b). Appellant failed to timely comply with that order. On November 6, 2013, Appellant filed an application with this Court requesting that the case be remanded for the filing of a concise statement and the issuance of a Rule 1925(a) opinion. On November 26, 2013, this Court granted Appellant's request and remanded this matter to the trial court. On December 16, 2013, Appellant filed his concise statement, which included all issues raised on appeal. On

Page 21

February 24, 2014, the trial court issued its Rule 1925(a) opinion.

Appellant presents five issues for our review:

1. Did the trial court err when it denied [the] defense motion in limine to not allow hearsay testimony of a conversation between [Victim] and [G]randmother?
2. Did the trial court err when it permitted the jury to be provided the statement and photo array [presented to the] main Commonwealth witness?
3. Did the trial court err when it denied [the] defense motion for [a] mistrial when a police detective testified a photo array was generated from a police [database]?
4. Did the trial court err when it denied [the] defense motion to prevent [a] detective from testifying about double hearsay concerning [the C]ommonwealth witness' motivation to testify less than truthfully?
5. Did the trial court err in charging the jury on flight when the record failed to establish evidence of flight?

Appellant's Brief at 1.[8]

Appellant first challenges the trial court's denial of his motion in limine to prohibit introduction of the utterances by Victim to Grandmother. Appellant contends that such utterances were inadmissible hearsay. " When reviewing a ruling on a motion in limine, we apply an evidentiary abuse of discretion standard of review. The admission of evidence is committed to the sound discretion of the trial court and our review is for an abuse of discretion." Commonwealth v. Orie, 2014 PA Super 44, ...


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