Com. v. Douglas

• Citation: 737 A.2d 1188,558 Pa. 412
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert DOUGLAS, Appellant.
• Decision Date: 27 July 1999
• Court: Pennsylvania Supreme Court

737 A.2d 1188

558 Pa. 412

COMMONWEALTH of Pennsylvania, Appellee, v. Robert DOUGLAS, Appellant.

Supreme Court of Pennsylvania.

Argued February 2, 1999.

Decided July 27, 1999.

Reargument Denied September 15, 1999.

John T. Drost, for Robert Douglas.

Catherine Marshall, Philadelphia, for the Com.

Anthony V. Pomeranz, Philadelphia, Robert A. Graci, Harrisburg, for Office of Atty. Gen.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

NEWMAN, Justice.

I. FACTUAL AND PROCEDURAL HISTORY

The evidence at trial established that on August 28, 1980, at approximately 3:00 a.m., Michael McLaurin (McLaurin) and Donald Knight (Knight) were sitting on a bench in the courtyard of the Raymond Rosen Housing Project in Philadelphia when Robert Douglas (Douglas) approached the two men and asked for money. The three men had been friends for ten years. McLaurin and Knight responded that they did not have any money, and Douglas departed. A short time after that Douglas returned with a small caliber semiautomatic pistol and shot Knight twice, killing him. He also shot McLaurin twice, in the upper and lower arm.

Officers Pressley and Jones were on patrol in the immediate vicinity. They heard shots and saw McLaurin running. When McLaurin flagged them down, he said he and Knight had been shot and told them about the shooting. McLaurin was seated in the back of the police wagon and they drove one block to where Knight lay dying. At about 3:07 a.m., Officer Riley arrived and took McLaurin to Temple University Hospital in a police car, and McLaurin described the shooting and named Douglas as the shooter. McLaurin also gave Officer Riley the address of Douglas. While still at the hospital, two hours later, McLaurin also identified a photograph of Douglas, from an array of photographs, and said he was the man who shot Knight and him.

Although the police had the address of Douglas, they could not find him there. They encountered Douglas on three occasions, and he managed to escape each time, because he threatened them with a weapon, once a sawed off shotgun or a small caliber semiautomatic handgun he carried in his back pocket. Finally the police apprehended and arrested Douglas approximately one year later, on July 26, 1981.

Knight's mother also identified Douglas. She testified that four days after Knight was buried, she saw Douglas on her way to the store. He told her, while he was laughing at her, that he had killed her son and she was going to be next.

The Commonwealth also presented testimony of Richard Pierce, who sent a letter to the District Attorney, which stated that he witnessed Douglas shoot Knight. On the witness stand, Pierce denied seeing the shooting.

A jury tried Douglas. Although McLaurin appeared and testified at the preliminary hearing of Douglas, he did not appear for trial. The Commonwealth made numerous attempts to locate McLaurin, but he could not be found. There are allegations that he was in fear from threats and that he was hiding. The trial court eventually held that McLaurin was "unavailable," and therefore allowed the Commonwealth to read his preliminary hearing testimony into the record. Besides this, the Commonwealth presented evidence that Douglas admitted to Knight's mother that he had killed her son and threatened to kill her. The Commonwealth also presented the photographic identification of Douglas on the morning of the crime and the repeated flights of Douglas from uniformed police officers. On January 20, 1983, the jury convicted Douglas of first degree murder,¹ aggravated assault,² and possessing an instrument of crime.³ In the penalty phase, on January 21, 1983, the jury found two aggravating circumstances, that Douglas had a significant history of violent felony convictions,⁴ and that in the commission of the murder Douglas knowingly created a grave risk of death to another person.⁵ The jury found no mitigating circumstances, and on January 23, 1983, the jury sentenced Douglas to death.

Douglas filed post-trial motions. His trial counsel was permitted to withdraw, and new counsel filed supplemental post-trial motions, including allegations of ineffective assistance of trial counsel. Following a hearing, the trial court granted Douglas' request for a new trial based on ineffective assistance of counsel; the court did not address other issues raised by Douglas. The grant of a new trial was based solely on a claim alleging that trial counsel was ineffective for extracting from a defense witness that Douglas had a prior criminal record. The Commonwealth appealed to the Superior Court, which reversed the grant of a new trial. Douglas then appealed that decision to this Court, which affirmed and remanded to the trial court for consideration of the issues raised but not decided in Douglas' post-trial motions. Commonwealth v. Douglas, 537 Pa. 588, 645 A.2d 226 (1994). The trial court held a hearing and denied the remainder of the post trial motions of Douglas, and this appeal followed.

II. ISSUES ON APPEAL

Douglas raises the following issues for our consideration:⁶

1. Whether the trial court erred in allowing the introduction of a statement given by McLaurin while on the way to the hospital.

2. Whether the trial court erred in permitting two detectives to testify that McLaurin identified a photograph of Douglas.

3. Whether the trial court erred in declaring McLaurin unavailable to testify at trial.

4. Whether the trial court erred in permitting the Commonwealth to introduce the testimony of McLaurin at the preliminary hearing.

5. Whether the trial court erred in failing to sustain objections to comments made by the prosecutor during the penalty hearing.

6. Whether Douglas is entitled to a new trial because of after discovered evidence.

7. Whether the trial court erred in allowing the Commonwealth to plead surprise and cross-examine a witness regarding a prior inconsistent statement.

8. Whether trial counsel was ineffective:

a. For calling Detective Permint as a witness.

b. For failing to request a cautionary instruction regarding Douglas' drug involvement.

c. For failing to object to several comments in the prosecutor's closing.

d. For failing to object to the charge to the jury regarding the Commonwealth's burden.

e. For failing to request a jury instruction with respect to the crimen falsi convictions of two witnesses.

f. For failing to object when the prosecutor elicited testimony that Douglas had myriad arrests.

g. For failing to object to several improper comments made by the prosecutor during the penalty hearing.

h. For not properly interviewing the expert witnesses who testified at the penalty hearing of Douglas.

I. For failing to object to testimony regarding the efforts made to find a witness who had already been declared unavailable.

III. DISCUSSION

A. Introduction of the Statement of McLaurin

Douglas first argues that the trial court should not have allowed the Commonwealth to introduce into evidence the statement given by McLaurin while he was being transported to the hospital after being shot. According to Douglas, that statement was hearsay and was not admissible under any exception to the hearsay rule, including the excited utterance exception. We disagree.

For a statement to be admissible as an excited utterance it 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 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.

Commonwealth v. Stokes, 532 Pa. 242, 615 A.2d 704, 712 (1992) (quoting Commonwealth v. Green, 487 Pa. 322, 326-27, 409 A.2d 371, 373-74 (1979)). Here, McLaurin gave his statement only eleven minutes after witnessing the shooting of Knight and being shot himself. This Court has often held that declarations made in similar circumstances are admissible as excited utterances. See, e.g., Commonwealth v. Washington, 547 Pa. 550, 692 A.2d 1018, 1022 (1997),

cert. denied, ___ U.S. ___, 118 S.Ct. 1806, 140 L.Ed.2d 945 (1998); Commonwealth v. Thompson, 538 Pa. 297, 648 A.2d 315, 324 (1994); Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154, 1159 (1982),

cert. denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982); Commonwealth v. Cooley, 465 Pa. 35, 348 A.2d 103, 107 (1975). We cannot conclude that the trial court abused its discretion in admitting the statement of McLaurin as an excited utterance; accordingly, no relief is due. See Commonwealth v. Lester, 554 Pa. 644, 722 A.2d 997, 1003 (1998) (citing Commonwealth v. Bronshtein, 547 Pa. 460, 480, 691 A.2d 907, 916 (1997)) ("The admissibility of evidence is a matter which lies within the discretion of the trial court, and, absent an abuse of discretion, the trial court's decision will not be disturbed.")

B. Introduction of McLaurin's Photo Identification

Douglas next argues that the trial court erred in allowing two police officers to testify that McLaurin identified Douglas from a photo array approximately two hours after the shooting because their testimony constituted hearsay that was not admissible under any exception to the hearsay rule. Douglas is mistaken. "It is well-established that certain out-of-court statements offered to explain the course of police conduct are admissible on the basis that they are offered not for the truth of the matter asserted, but...