Commonwealth v. Parker

• Decision Date: 06 November 2014
• Docket Number: No. 918 EDA 2011,918 EDA 2011
• Citation: 2014 PA Super 253,104 A.3d 17
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Braheim PARKER, Appellant.

104 A.3d 17

2014 PA Super 253

COMMONWEALTH of Pennsylvania, Appellee

v.Braheim PARKER, Appellant.

No. 918 EDA 2011

Superior Court of Pennsylvania.

Submitted July 21, 2014.

Filed Nov. 6, 2014.

Michael F. Giampietro, Philadelphia, for appellant.

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

BEFORE: OLSON, OTT and STABILE, JJ.

Opinion

OPINION BY 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 court¹ 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, 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 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, 88 A.3d 983, 1022 (Pa.Super.2014), appeal denied, 172 WAL 2014, ––– Pa. ––––, 99 A.3d 925 (2014) (internal alteration and citation omitted).

Appellant objects to the following questioning of Grandmother by the Commonwealth:

Q. Can you describe for the members of the jury what he said, what [Victim] said?

A. He said, Grandmom, he said, Can you tell Bey I didn't take anything from anybody and I don't have anything? He said, But can you tell him I didn't take anything from him or the house. And I said, Put Bey on the phone and I will tell him you been in the house all day and you just went out on the porch. And he said—I said, Where's Bey? I said put Bey on the phone.

He kept talking to someone in the background; I could hear that. And then somebody was saying no, no, uh-uh, and I said, Well Chauncy, is he going to get on the phone? And the phone went dead.

Q. When he said those things to you, can you describe his demeanor for the jury when he was speaking to you?

A. It was like he, you know, like he—I don't know how to put it. You know not his regular voice. It was like he was, you know, like sort of like frustrated or something.

Q. Did the name Bey mean anything to you?

A. No.

N.T., 3/1/11, at 65–66 (emphasis supplied).

Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Pa.R.Evid. 801(c).⁹ Statement is defined, in relevant part, as “an oral or written assertion[.]” Pa.R.Evid. 801(a). “Communications that are not assertions are not hearsay. These would include questions, greetings, expressions of gratitude, exclamations, offers, instructions, warnings, etc.” Pa.R.Evid. 801 cmt.

The trial court found that the utterances by Victim to Grandmother were not hearsay because they were questions and were not assertions offered for the truth of the matter asserted. N.T., 3/1/11, at 12. We disagree.

Although the issue raised by Appellant has been addressed by a multitude of courts throughout the country, neither this Court nor our Supreme Court has confronted the issue. As the Supreme Court of Kentucky has explained:

Whether a question can be an assertion and, thereby, hearsay has been extensively discussed by numerous courts and commentators, though no consensus has been reached. The courts that have considered the issue have reached one of three conclusions: (1) a question can be hearsay if it contains an assertion; (2) a question can be hearsay if the declarant intended to make an assertion; or (3) questions can never be hearsay because they are inherently non-assertive.

Harris v. Kentucky, 384 S.W.3d 117, 126 (Ky.2012).

The Kentucky Supreme Court adopted the first approach in Harris. It reasoned that there is “no logical reason why the grammatical form of an utterance—whether a declarative sentence, a command[,] or a question—should conclusively determine whether the utterance is an assertion.” Id. at 127. Other courts have reached similar conclusions. See, e.g. Ex parte Hunt, 744 So.2d 851, 857 (Ala.1999) ; Powell v. Indiana, 714 N.E.2d 624, 627–628 (Ind.1999) (“[V]erbal conduct intended to assert a fact but phrased as a question is equally capable of being a ‘statement.’ ”); Brown v. Virginia, 25 Va.App. 171, 487 S.E.2d 248, 251 (1997) (en banc ); Kolb v. Wyoming, 930 P.2d 1238, 1246 (Wyo.1996) ; Alaska v. McDonald, 872 P.2d 627, 645 (Alaska App.1994) ; Iowa v. Rawlings, 402 N.W.2d 406, 409 (Iowa 1987) (“In the present case, the utterance ... was couched as a question but it was phrased in such a manner as to make it an implicit assertion of the fact.”); Carlton v. Maryland, 111 Md.App. 436, 681 A.2d 1181 (Md.Ct.Spec.App.1996).

The District of Columbia Court of Appeals and several United States Courts of Appeals have adopted the second approach. See Harrison v. United States, 76 A.3d 826, 835 n. 7 (D.C.2013) ; United States v. Flores, 286 Fed.Appx. 206, 213 (5th Cir.2008) (per curiam ); United States v....