Com. v. Underwood

• Decision Date: 05 December 1985
• Citation: 347 Pa.Super. 256,500 A.2d 820
• Parties: COMMONWEALTH of Pennsylvania v. Walter UNDERWOOD, Appellant. 01919 Phila. 1984
• Court: Pennsylvania Superior Court

Page 820

500 A.2d 820

347 Pa.Super. 256

COMMONWEALTH of Pennsylvania v. Walter UNDERWOOD, Appellant.

01919 Phila. 1984

Superior Court of Pennsylvania.

Submitted May 21, 1985.

Filed Sept. 27, 1985.

Reargument Denied Dec. 5, 1985.

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

Jane C. Greenspan, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before CAVANAUGH, CIRILLO and HESTER, JJ.

CIRILLO, Judge:

Walter Underwood was convicted by a jury in the Court of Common Pleas of Philadelphia County on charges of robbery, simple assault, and conspiracy. He was sentenced by the Honorable Angelo A. Guarino to three to seven years in prison, and here appeals the judgment of sentence.

The evidence shows that on August 22, 1983, Charles Blow was walking down 24th Street in Philadelphia when he came upon four men standing on the sidewalk talking amongst themselves. Hoping to avoid the men, Blow circled into the middle of the street. Underwood followed Blow into the street and positioned himself in front of Blow, impeding his progress and restraining him with his arm. Underwood asked Blow for money, to which Blow responded he had none. As Blow tried to move away, Underwood told him he "wasn't going anywhere." At that point someone struck Blow in the head from behind with a bottle, dazing the man, and someone rifled Blow's pockets, retrieving keys and $3.85 in cash. Blow did not see who committed these latter acts. However, he testified that the four men he had first seen were the only people on the block, and that after the incident all four walked away together.

Underwood was arrested a short distance away by Officer Goldsmith, who testified at trial as to the circumstances of the arrest:

I was patrolling in my car and as I got to the corner of 23rd and Bainbridge Street, there was a group of [about seven or eight] young adults there.... They were hollering as I rode by that a fellow running up Grays Ferry Avenue had just robbed somebody.... [T]hey were indicating that the fellow running up Grays Ferry Avenue ... had just robbed an older man.

Goldsmith immediately apprehended Underwood, who was alone and running "at a track-type pace" on Grays Ferry Avenue. Blow then came up and identified Underwood as one of the robbers.

Underwood's defense at trial was that he had spent the day with his friends panhandling for money to buy wine, and that two men (not the aforementioned friends) had robbed Blow while Underwood was innocently asking him for money. Underwood said he left the scene with his friends when he feared he would be implicated in the robbery.

On appeal to this Court, Underwood asks for a new trial on two grounds: 1) the trial court's admission into evidence of the out-of-court declarations made to Officer Goldsmith by the young adults; and 2) the court's refusal to give a "missing witness" instruction to the jury based on the Commonwealth's failure to produce the young adults at trial.

I

Underwood argues that the statements of the young adults, to the effect that the man running had just robbed somebody, were hearsay statements prejudicial to his "mere presence" theory of defense, and that the statements were not admissible under any recognized exception to the hearsay rule.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Commonwealth v. Cassidy, 315 Pa.Super. 429, 462 A.2d 270 (1983); Commonwealth v. Darden, 311 Pa.Super. 170, 457 A.2d 549 (1983). Hearsay is generally inadmissible as evidence because the competency and veracity of the original speaker are not subject to examination. Commonwealth v. Lewis, 314 Pa.Super. 298, 460 A.2d 1149 (1983); Commonwealth v. Perry, 279 Pa.Super. 32, 420 A.2d 729 (1979). Therefore, unless the statements made to Officer Goldsmith fall under some exception to the hearsay rule, they were not admissible as substantive evidence that Underwood had robbed a man. It does not appear that a proper foundation was laid to admit the statements as "excited utterances," the only hearsay exception of arguable applicability to this case. See Commonwealth v. Galloway, 336 Pa.Super. 225, 485 A.2d 776 (1984) (it must appear hearsay declarant had opportunity to perceive event); Commonwealth v. Summers, 269 Pa.Super. 437, 410 A.2d 336 (1979) (foundation includes evidence of personal observation and showing that statement was spontaneous product of shock or injury); see generally Commonwealth v. Blackwell, 343 Pa.Super. 201, 494 A.2d 426 (1985). Therefore, these statements were not admissible for their truth. Cf. Summers.

However, evidence that would constitute inadmissible hearsay if offered for one purpose may be admitted for another purpose, subject to the duty of the trial court to give limiting instructions if requested. See Commonwealth v. Johnson, 457 Pa. 554, 327 A.2d 632 (1974). Here the honorable trial judge explicitly admitted the exclamations of the young adults not as proof that Underwood in fact had robbed a man, but as circumstantial evidence to explain why Goldsmith arrested Underwood. Underwood did not request cautionary instructions, nor did he interpose anything but general objections to Goldsmith's testimony at trial. Where only a general objection is made to the admission of evidence, its admission is not error if the evidence is competent for any purpose. Woldow v. Dever, 374 Pa. 370, 97 A.2d 777 (1953). Of course, we can affirm a trial court if for any reason its admission of evidence was proper. Commonwealth v. Pettiford, 265 Pa.Super. 466, 402 A.2d 532 (1979).

"It is well settled that an out-of-court statement offered to explain a course of conduct is not hearsay. Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980); Commonwealth v. Ryan, 253 Pa.Super. 92, 384 A.2d 1243 (1978)." Lewis, supra, 314 Pa.Super. at 305-06, 460 A.2d at 1152. This Court has repeatedly upheld the introduction of out-of-court statements for the purpose of showing that based on information contained in the statements, the police followed a certain course of conduct that led to the defendant's arrest. Commonwealth v. Matthews, 314 Pa.Super. 38, 460 A.2d 362 (1983) (out-of-court statement that contraband was in certain apartment and that Matthews had put it there); Commonwealth v. Stewart, 304 Pa.Super. 382, 450 A.2d 732 (1982) (contents of phone call to police from residence where victim's body discovered; defendant found leaving premises); Commonwealth v. Ryan, supra (plurality opinion) (police radio calls referring to unrelated holdups); Commonwealth v. Smith, 250 Pa.Super. 436, 378 A.2d 1015 (1977) (allocatur refused), cert. denied, 439 U.S. 835 (1978) (declarant told officer he could place bets by calling defendant's telephone number); Commonwealth v. Tselepis 198 Pa.Super. 449, 181 A.2d 710 (1962) (allocatur denied) (informant tip that defendant was conducting a lottery); see also Commonwealth v. Sampson, 454 Pa. 215, 311 A.2d 624 (1973) (alleged co-conspirator's denial of involvement offered to show why police did not arrest him); Lewis, supra (admission of out-of-court statement that set wheels in motion for defendant's capture); State v. McIntosh, 635 S.W.2d 370 (Mo.Ct.App.1982) (phone call identifying defendant admitted to show course of conduct leading to her apprehension); see generally 6 J. Wigmore,Evidence §§ 1788-89 (Chadbourn rev.1976) (declarations as circumstantial evidence).

Professor McCormick succinctly summarized the theory upon which out-of-court statements are admitted to explain a course of police conduct:

In criminal cases, an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct. His testimony that he acted "upon information received," or words to that effect, should be sufficient. Nevertheless, cases abound in which the officer is allowed to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports, on the ground that he was entitled to give the information upon which he acted. The need for the evidence is slight, the likelihood of misuse great.

C. McCormick, Evidence § 249, at 734 (Cleary 3rd ed. 1984) (footnotes omitted).

As Professor McCormick points out, there is a balance to be struck between the dangers of hearsay testimony and the need for circumstantial evidence to explain why the police acted as they did. In determining whether Judge Guarino properly struck that balance, we must not forget the general principles that govern an appellate court's review of evidentiary decisions taken in the trial court: the admission and exclusion of evidence are matters committed to the sound discretion of the trial judge, whose decision will not be reversed unless it amounts to an abuse of discretion. Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984); Commonwealth v. Lumpkins, 324 Pa.Super. 8, 471 A.2d 96 (1984); Commonwealth v. Krajci, 283 Pa.Super. 488, 424 A.2d 914 (1981). Not all relevant evidence is admissible, and the trial court may exercise its discretion to exclude evidence that, though relevant, may confuse, mislead, or prejudice the jury. Commonwealth v. Perry, 307 Pa.Super. 327, 453 A.2d 608 (1982); accord, Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982) (plurality opinion); Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973); see generally McCormick, supra, § 185. As Judge Hester said in Commonwealth v. Shain, 324 Pa.Super. 456, 462, 471 A.2d 1246, 1248-49 (1984) (allocatur denied), "An abuse of that discretion may be found if it appears that a trial judge admitted irrelevant evidence that was prejudicial to the accused or evidence the probative value of which was outweighed by its prejudicial impact or its tendency to suggest decision on an improper basis." However, an abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the...