Com. v. Harper

• Decision Date: 22 September 1992
• Parties: COMMONWEALTH of Pennsylvania v. Samuel HARPER, Appellant.
• Court: Pennsylvania Superior Court

Page 1180

614 A.2d 1180

419 Pa.Super. 1

COMMONWEALTH of Pennsylvania v. Samuel HARPER, Appellant.

Superior Court of Pennsylvania.

Argued May 12, 1992.

Filed Sept. 22, 1992.

Bernard L. Siegel, Philadelphia, for appellant.

Laurie Magid, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before WIEAND, OLSZEWSKI and KELLY, JJ.

WIEAND, Judge.

Samuel Harper was tried by jury and was found guilty of burglary, rape, corruption of a minor and making terroristic threats. Following the filing of post-trial motions, Harper's trial counsel was replaced by new counsel, who filed supplemental post-trial motions alleging that trial counsel had rendered ineffective assistance. An evidentiary hearing was held, but thereafter the trial court denied post-trial relief and sentenced Harper to serve an aggregate term of imprisonment of not less than ten (10) years nor more than twenty-two (22) years. A direct appeal was dismissed when counsel failed to file an appellate brief. Pursuant to a petition under the Post Conviction Relief Act, however, Harper was later granted the right to file a direct appeal nunc pro tunc. It is this appeal which is now before the Court. Harper argues that the trial court erred by permitting a police officer to give inadmissible hearsay testimony and by instructing the jury that the evidence was "self-explanatory" as to his identity as the rapist. Harper also contends that his trial counsel and/or sentencing counsel were constitutionally ineffective in the following respects: (1) failing to call a witness who would have impeached the victim's testimony on the issue of identification; (2) not calling appellant to testify on his own behalf at trial; and (3) allowing appellant to be denied his right of allocution at sentencing. ¹ We will address these claims seriatim.

The evidence established that, on September 26, 1986, at or about 5:30 a.m., appellant entered a house at 5739 West Knox Street in Philadelphia by cutting a window screen. Once inside the house, appellant entered the bedroom of ten year old Sakenna Walker, who was home alone at the time. The child was awakened when she felt someone touching her vagina. When she got out of bed and turned on a light, she recognized appellant, whom she knew from seeing him in the neighborhood. Appellant grabbed the child and pulled her back into bed and shut off the light. He ordered the child to remove her clothing, telling her that he had a knife. When the victim removed her clothing, appellant got on top of her and put his penis into her vagina.

After appellant left, the victim called her mother, and the police were summoned. The victim told police that it had been appellant who had raped her. She said that she knew him by the nickname "Ir-Ir" and that she had recognized his voice during the incident. A subsequent medical examination of the victim revealed redness and irritation at the opening of the victim's vagina and cuts, bleeding and other signs of acute trauma in the internal portion thereof. There was also a small amount of discharge found at the opening of the victim's vaginal area.

As a result of information supplied by the victim, it was announced by police radio that appellant was a suspect. When he was spotted by police, appellant fled on foot and ran into the rear entrance of a house located at 224 West Rittenhouse Street, where he was subsequently found hiding in a closet. Appellant was arrested and, after being identified by the victim, was charged with the offenses for which he was subsequently convicted. At trial, he was positively identified by the victim.

On the first day of trial, prior to calling Police Officer Leroy Wilson as a witness, the Commonwealth made the following offer of proof:

MS. BARATZ [Assistant District Attorney]: The Commonwealth's next witness is Officer Leroy Wilson, who will testify that Ruth Holley, the defendant's girlfriend, was on the crime scene that morning and was looking in the windows and in the doors of the crime scene and saw a sock on the bed and said, that's the defendant's sock. He will lay a foundation that she was excited in doing that.

Counsel is objecting that it is not an ex[c]ited utterance, and therefore, not admissable [sic] to one of those two exceptions to the hearsay rule.

One, the Commonwealth insists it was an excited utterance, that she was excited. There had been a rape that occurred there and she saw that and knew it was his sock and was excited about it.

Number two, even if it is not an excited utterance, it's a present sense impression with an exception under Commonwealth versus Coleman....

MR. GROSS [Defense Counsel]: I would object. It was not an excited utterance. It's an identification of an article of clothing.

THE COURT: It is a present sense impression.

MR. GROSS: That is not a [present] sense impression.

The objection was overruled, and the officer testified as follows:

Q. Officer, did you have occasion to go to 5739 Knox Street on the morning of September 26th 1986?

A. Yes, I did.

Q. What time did you arrive there?

A. About eight o'clock, eight something, like that, in the morning.

Q. While you are there, did you have occasion to see somebody named Ruth Holley?

A. Yes, I did.

Q. How do you know her?

A. I know Ruth. I be knowing her for a long time because I work that district.

Q. Now, is this the mother, Ruth Holley, or the daughter?

A. The daughter.

Q. Now, where was it that you saw the daughter, Ruth Holley?

A. I was going to the crime scene at that address when Ruth came up to the crime scene where I was.

Q. What happened when she came up there?

A. She came up to the crime scene and she was talking to me and she asked me what were we doing, and I was telling her we were guarding the scene on account of a rape. She was peeping through the window, trying to look through the door.

Q. What window was it that she was trying to peep into?

A. I believe it was the front window.

Q. What door was she looking into?

A. It was like a hallway with a vestibule and this was to the right as you enter the apartment.

Q. So, was she looking into the room where the crime allegedly occurred?

A. Yes.

Q. What happened as she was looking into the window or the door?

A. She told me that they are her boyfriend's socks, that it was her boyfriend's socks that was on the bed in the room of the window she was looking into.

Q. How did she say that?

A. She said, "I think these are Irving's. Those are my boyfriend's socks laying on that bed."

Q. I am going to show you what was marked Commonwealth Exhibit Six.

Is this one of the socks laying on the bed?

A. That seems to be the sock.

Q. Now, do you know who her boyfriend is?

A. No, I don't recall him.

Q. You don't know?

A. No.

Q. But, she said, she did say, "my boyfriend, Irving"?

A. Yes.

Q. Did she use any other word?

A. Not that I can recall. ²

The present sense impression exception to the hearsay rule permits testimony of "declarations concerning conditions or non-exciting events which the declarant is observing at the time of his declaration." Commonwealth v. Coleman, 458 Pa. 112, 117, 326 A.2d 387, 389 (1974) (plurality opinion). The present sense impression exception has been characterized as follows:

This exception requires that the declarant see the event and make an observation about it to another person also present at the scene; the observation must be made at the time of the event, or so shortly thereafter that it is unlikely that the declarant had the opportunity to form the purpose of misstating his observation. McCormick, supra at 860-62. Commentators have generally characterized the occurrence giving rise to the declaration as an unexciting event. See Thayer, supra at 83; Morgan, Res Gestae, 12 Wash.L.Rev. 91, 98; but see Wigmore Evidence § 1747 (Chadbourn rev. 1976). Reliability is considered assured by the contemporaneousness of the statement, and by the fact that the observation is made to another person. McCormick,supra.

Commonwealth v. Blackwell, 343 Pa.Super. 201, 212, 494 A.2d 426, 431 (1985). The Supreme Court has observed further that:

[u]nder this exception the necessity for the presence of a startling occurrence or accident to serve as a source of reliability is not required. The truthfulness of the utterance is dependent upon its spontaneity. It must be certain from the circumstances that the utterance is a reflex product of immediate sensual impressions, unaided by retrospective mental processes. Restated, the utterance must be "instinctive, rather than deliberate." Commonwealth v. Coleman, 458 Pa. 112, 117, 326 A.2d 387, 389 (1974).

Commonwealth v. Farquharson, 467 Pa. 50, 68, 354 A.2d 545, 554 (1976).

Ruth Holley's statement that the sock which she observed on the victim's bed belonged to her boyfriend, as related to the jury by Officer Wilson, was within the present sense impression exception to the hearsay rule. Holley's statement was a contemporaneous verbalization of her having observed the sock on the bed when she looked into the window of the victim's house. The evidence is that there was no opportunity for retrospective thought on Holley's part prior to relating her impression to Officer Wilson. Therefore, the trial court did not err when it allowed Officer Wilson to relate Holley's observation to the jury.

Immediately after defining the crime of rape in its charge to the jury, the trial court made the following comments:

After considering the evidence in this case, in order to find rape, are you convinced beyond a reasonable doubt, one, that the young lady was raped and, two, that the defendant did the raping--well that is self-explanatory from the evidence--that the defendant had sexual intercourse as I have defined it for you with the complainant, you then consider, was he the complainant's spouse, was the intercourse accompanied by force or by threat of force that would prevent a person of reasonable resolution, using the conditions of this young lady, from resisting, and...