Com. v. Barnes

• Decision Date: 18 February 1983
• Citation: 310 Pa.Super. 480,456 A.2d 1037
• Parties: , 38 A.L.R.4th 1227, 38 A.L.R.4th 1228 COMMONWEALTH of Pennsylvania v. Rudolph BARNES, Appellant.
• Court: Pennsylvania Superior Court

Page 1037

456 A.2d 1037

310 Pa.Super. 480, 38 A.L.R.4th 1227,

38 A.L.R.4th 1228

COMMONWEALTH of Pennsylvania v. Rudolph BARNES, Appellant.

Superior Court of Pennsylvania.

Submitted March 31, 1982.

Filed Feb. 18, 1983.

Elaine DeMasse, Asst. Public Defender, Philadelphia, for appellant.

Deborah Fox, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before WIEAND, McEWEN and POPOVICH, JJ.

WIEAND, Judge:

Rudolph Barnes was tried by a judge sitting without a jury and found guilty of robbery, ¹ theft by unlawful taking ² and simple assault. ³ Motions in arrest of judgment and for a new trial were denied, and Barnes was sentenced to a two year term of probation. On direct appeal, appellant challenges (1) the sufficiency of the evidence to sustain the convictions and (2) an evidentiary ruling admitting an extra-judicial statement under the res gestae or excited utterance exception to the hearsay rule. Our review discloses sufficient evidence to sustain the conviction. However, the evidentiary ruling was erroneous; and the conviction, therefore, is reversed and the case remanded for new trial.

The test to be applied in determining the sufficiency of evidence to sustain a conviction is whether, accepting as true all the evidence and all reasonable inferences arising therefrom upon which, if believed, the trier of fact could properly have based its verdict, it is sufficient to prove beyond a reasonable doubt that the accused is guilty of the crime or crimes with which he has been charged. As with all challenges to the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the verdict winner, in this case the Commonwealth. Commonwealth v. Waller, 498 Pa. 33, ---, 444 A.2d 653, 658 (1982); Commonwealth v. Bellis, 497 Pa. 323, 330 n. 9, 440 A.2d 1179, 1182 n. 9 (1981); Commonwealth v. Payne, 299 Pa.Super. 378, 379, 445 A.2d 804, 804 (1982); Commonwealth v. Johnson, 273 Pa.Super. 14, 17, 416 A.2d 1065, 1067 (1979). Moreover, the entire trial record must be evaluated, and all evidence actually received must be considered, whether or not the trial court's rulings thereon were correct. Commonwealth v. Waldman, 484 Pa. 217, 222-23, 398 A.2d 1022, 1025 (1979); Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965); Commonwealth v. Plusquellic, --- Pa.Super. ---, ---, 449 A.2d 47, 49 (1982); Commonwealth v. Bentley, 276 Pa.Super. 41, 44, 419 A.2d 85, 86 (1980); Commonwealth v. Williams, 273 Pa.Super. 578, 582, 417 A.2d 1200, 1201 (1980).

So viewed, the evidence in this case establishes that appellant entered the apartment of Lemuel Rock in Philadelphia during the early morning hours of June 24, 1980. There, he struck Rock, pushed him to the floor, and threw a sheet over his head before removing $300 from a bureau drawer in Rock's bedroom. Rock died of unrelated causes prior to appellant's trial; and, therefore, the only evidence of these facts was received in the form of an extra-judicial statement made by Rock to Officer Thomas Palmer of the Philadelphia Police Department. On June 24, 1980, pursuant to a call on his police radio, Palmer had proceeded to Rock's apartment at 1926 North 18th Street, where a somewhat agitated Rock told him that appellant had entered his apartment, attacked him and stolen $300.

This evidence was sufficient to sustain a finding that appellant had committed the crimes of robbery, theft by unlawful taking and simple assault. Appellant's motion in arrest of judgment, therefore, was properly denied.

The evidentiary ruling by the trial judge that Rock's extra-judicial statement, although hearsay, was admissible under the res gestae exception to the hearsay exclusion presents a more difficult question and requires a closer examination of the res gestae exception and the evidence received in the instant case.

The res gestae exception to the hearsay exclusion has been said to be a dangerous rule which ought not be extended beyond the limits of reasonably immediate spontaneous declarations made in connection with a startling event by one laboring under the stress of nervous excitement caused by it. Commonwealth v. Noble, 371 Pa. 138, 144-45, 88 A.2d 760, 763 (1952), citing Athas v. Fort Pitt Brewing Co., 324 Pa. 313, 318, 188 A. 113, 115 (1936) and Commonwealth v. Gardner, 282 Pa. 458, 465, 128 A. 87, 90 (1925). Actually, "res gestae" is "a generic term encompassing four discrete exceptions to the hearsay rule: (1) declarations as to present bodily conditions; (2) declarations of present mental states and emotions; (3) excited utterances; and (4) declarations of present sense impressions." Commonwealth v. Pronkoskie, 477 Pa. 132, 136-37, 383 A.2d 858, 860 (1978). The statement made by Rock in the instant case was alleged to be an excited utterance.

To come within the excited utterance exception, a 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 in both time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.' "

Commonwealth v. Penn, 497 Pa. 232, 241, 439 A.2d 1154, 1159, cert. denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982), quoting Commonwealth v. Pronkoskie, supra 477 Pa. at 137-38, 383 A.2d at 860 and Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942). See also: Commonwealth v. Little, 469 Pa. 83, 87, 364 A.2d 915, 916-17 (1976); Commonwealth v. Robinson, 273 Pa.Super. 337, 341, 417 A.2d 677, 679 (1979); Commonwealth v. Hess, 270 Pa.Super. 501, 507, 411 A.2d 830, 833 (1979); Commonwealth v. Summers, 269 Pa.Super. 437, 442, 410 A.2d 336, 338 (1979); Commonwealth v. Gore, 262 Pa.Super. 540, 546-47, 396 A.2d 1302, 1305 (1978).

In the instant case, the only evidence that a startling event had in fact occurred was contained in the statement sought to be admitted as a spontaneous reaction thereto. The extra-judicial statement was the only evidence in the case that Rock had been beaten or that any crime had been committed. There was no independent evidence that a forced entry of Rock's apartment had been made, no independent evidence that Rock had been physically bruised or otherwise injured, no independent evidence that he had $300 in his possession prior to the alleged robbery, and no independent evidence that money in any amount had been stolen. Finally, a search of appellant's apartment, conducted within twenty minutes of the alleged robbery, failed to produce any part of the money alleged to have been stolen.

We are thus presented with the troublesome situation in which the excited utterance itself is being used to prove that an exciting event did, in fact, occur. This circuitous reasoning is unacceptable. Where there is no independent evidence that a startling event has occurred, an alleged excited utterance cannot be admitted as an exception to the hearsay rule.

This approach has been adopted by appellate courts in other jurisdictions. In People v. Leonard, 83 Ill.2d 411, 47 Ill.Dec. 353, 415 N.E.2d 358, aff'g. 80 Ill.App.3d 741, 36 Ill.Dec. 148, 400 N.E.2d 568 (1980), the defendant in a murder case challenged admissibility under the excited utterance exception to the hearsay exclusion of a telephone conversation in which the decedent stated "He's [the defendant] got a gun." It was contended by the defendant that there was absolutely no evidence to corroborate the existence of an event sufficiently startling to prompt the statement. The Supreme Court of Illinois agreed that "absent some evidence of the existence of an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, the testimony relating the out-of-court statement should be excluded." Id. at 418, 47 Ill.Dec. at 357, 415 N.E.2d at 362. However, the Court found that there had been evidence of a contemporaneous struggle which rendered the statement spontaneous.

A similar principle was announced and followed in Truck Insurance Exchange v. Michling, 364 S.W.2d 172 (Tex.1963), an action to recover workmen's compensation death benefits. The only evidence there offered in support of the claim that the deceased had sustained an accidental injury during employment was an extra-judicial statement made by the decedent to his wife. She testified that her husband had told her that he hit his head on a bulldozer. In discussing the general rules governing the admissibility of hearsay statements as res gestae, the Texas Supreme Court stated:

The very unusual circumstance in this case is that the hearsay statement of Mrs. Michling is the only evidence of the event which gives rise to the statement. A hearsay statement, as res gestae, is admitted as an exception to the hearsay rule because it is made under circumstances which raise a reasonable presumption that it is the spontaneous utterance of thought created by or springing out of the occurrence itself and, so to speak, becomes a part of the occurrence. But in this case the only evidence of the occurrence is the hearsay statement. Thus the [lower court] is conceding credit to a narrative to prove the very circumstances from which it is said to derive its credit. Its trustworthiness, as to the happening of an accident, is presumed from the influence of the accident which its trustworthiness is taken to prove. Thus, this proof, to use a trite expression, is attempting to lift itself by its own bootstraps. There is not any independent proof that Hugo Michling suffered any injury at approximately the time and place alleged.

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For declarations to be admissible in evidence as part of the res gestae they must be made in connection with an act proven. In other words there must be evidence of an...