Commonwealth v. Stephens

• Decision Date: 11 July 2013
• Citation: 74 A.3d 1034,2013 PA Super 181
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Robert Lee STEPHENS, Appellant.
• Court: Pennsylvania Superior Court

74 A.3d 1034

2013 PA Super 181

COMMONWEALTH of Pennsylvania, Appellee

v.Robert Lee STEPHENS, Appellant.

Superior Court of Pennsylvania.

Submitted May 20, 2013.

Filed July 11, 2013.

Robert C. Keller, Havertown, for appellant.

Nicholas J. Casenta, Jr., Assistant District Attorney, West Chester, for Commonwealth, appellee.

BEFORE: STEVENS, P.J., PANELLA, J., and COLVILLE, J.^*

OPINION BY STEVENS, P.J.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Chester County following Appellant's conviction on the charges of Aggravated Indecent Assault on a female child less than 13 years of age, 18 Pa.C.S.A. § 3125(a)(7), Endangering the Welfare of Children, 18 Pa.C.S.A. § 4304(a), five counts of Indecent Assault, 18 Pa.C.S.A. § 3126(a)(7), and Corruption of Minors, 18 Pa.C.S.A. § 6301(a)(1). Appellant challenges the trial court's ruling that a recorded phone conversation was inadmissible as hearsay and the trial court's determination that Appellant is a sexually violent predator (“SVP”) for purposes of Megan's Law.¹ We affirm.

The relevant facts and procedural history are as follows: Appellant was arrested and, on May 9, 2011, represented by counsel, he proceeded to a jury trial. At trial, the victim, L.M., testified that Appellant, who was her mother's paramour at the time, had engaged in multiple instances of inappropriate sexual conduct with her over a two-year period. N.T. 5/9/11 at 10–20. At the start of this two-year interval, the victim was either 8 or 9 years old. N.T. 5/9/11 at 11. The incidents concluded when she was 10. N.T. 5/9/11 at 24. These incidents included Appellant repeatedly fondling private areas of the victim's body, placing her hand on his penis, and in one instance digitally penetrating the victim. N.T. 5/9/11 at 10–20.

The victim did not come forward with information about her molestation for several years. In the summer of 2009, the victim confided in her then-boyfriend, Eric Lochman, that Appellant had abused her. N.T. 5/9/11 at 25. The victim swore Mr. Lochman to secrecy, and he complied until the current case was brought to light. N.T. 5/9/11 at 71. A few weeks after confiding in Mr. Lochman, the victim also informed her mother about the incidents that had taken place with Appellant. N.T. 5/9/11 at 26.

After learning about the incident with her daughter and Appellant (the mother's ex-boyfriend), the victim's mother immediately called and confronted Appellant with these accusations. N.T. 5/10/11 at 98. A few weeks later, the victim's mother contacted Children, Youth, and Families (“CYF”). Id. The matter eventually made it to the Pennsylvania State Police.

After the State Police received the case, Trooper Jones met with the victim. N.T. 5/10/11 at 128. Trooper Jones obtained consent to intercept and record a phone call between the victim and Appellant. N.T. 5/10/11 at 133. The purpose of the call was to try to elicit a confession from Appellant; he did not give one. Id. Charges were then filed against Appellant and the case was scheduled for a preliminary hearing in September of 2010. N.T. 5/10/11 at 128–129. After Appellant failed to appear at his hearing, the victim's mother called him again. N.T. 5/10/11 at 103–104. While speaking with Appellant, the victim's mother testified that Appellant said, “it's [the charges] all your fault. You wanted things to happen between me and L.M. You put her in bed with me. You basically forced things to happen.” N.T. 5/10/11 at 104.

At the conclusion of all testimony, Appellant was convicted on the charges indicated supra. Appellant was sentenced to an aggregate of two and a half to five years in prison, along with five years of supervised probation following his release. During the trial, the Honorable Senior Judge Ronald Nagle refused to allow into evidence the intercepted phone call in which Appellant denied the allegations against him ². Furthermore, in a later hearing, the trial court determined that Appellant is a sexually violent predator. Appellant filed a timely post-sentence Motion for New Trial in which he contended that the trial court erred as a matter of law by precluding from evidence the recording of the intercepted phone call between the victim and Appellant. The trial court denied this motion. This timely appeal followed, and all Pa.R.A.P. 1925 requirements have been met.

Admissibility of Intercepted Phone Call

Appellant's first contention is that the trial court erred as a matter of law when it precluded from trial an audio recording of the intercepted phone call between Appellant and the victim. Specifically, Appellant believes that the phone call is admissible since it falls into either the “present sense impression” exception to hearsay or the “excited utterance” exception. Appellant's Brief at 8–9.

“The admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error.” Commonwealth v. Kuder, 62 A.3d 1038, 1053 (Pa.Super.2013) (citations omitted). Abuse of discretion is not merely an error of judgment, but rather where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will. Commonwealth v. Glass, 50 A.3d 720, 725 (Pa.Super.2012) (citations and quotation omitted). Furthermore, “because the trial court indicated the reason for its decision ... our scope of review is limited to an examination of the stated reason.” Commonwealth v. O'Brien, 836 A.2d 966, 968 (Pa.Super.2003) (citations and quotation omitted).

Hearsay is 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.E. 801(c). Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Pennsylvania Supreme Court, or by statute. Pa.R.E. 802. However, certain statements are not excluded by the hearsay rule, even though the declarant is available as a witness. SeePa.R.E. 803.

One of the listed exceptions to the hearsay rule is present sense impression. Pa.R.E. 803(1). Present sense impression is defined as “a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” Id. Furthermore, the “declarant need not be excited or otherwise emotionally affected by the event or condition perceived.” Comment to Pa.R.E. 803(1). “The trustworthiness of the statement arises from its timing. The requirement of contemporaneousness, or near contemporaneousness, reduces the chance of premeditated prevarication or loss of memory.” Id.

In this case, Appellant knew of the accusations against him weeks before the intercepted phone call between him and the victim. N.T. 5/10/11 at 98. Immediately after learning about the molestation, the victim's mother called and confronted Appellant, who was a former paramour. Id. Therefore, when the victim called to elicit a confession, Appellant was well aware of the charges he may face. The weeks between phone calls gave Appellant an opportunity to create a false statement, which means Appellant was not contemporaneously perceiving the event at the time of the intercepted phone call. See Commonwealth v. Cunningham, 805 A.2d 566, 573 (Pa.Super.2002) (911 call by roofers witnessing a robbery in progress was found to be present sense impression exception to hearsay). Furthermore, Appellant's opportunity to fabricate a false statement also means that he was not receiving the phone call “immediately after” perceiving the event. Commonwealth v. Hood, 872 A.2d 175, 183 (Pa.Super.2005) (“The rationale for this exception is that the relative immediacy of the declaration insures that there will have been little opportunity for reflection or calculated misstatement.”). Therefore, the trial court did not abuse its discretion when it ruled that the evidence was not admissible under the present sense impression exception to hearsay.

Appellant further asserts that the intercepted phone call should fall under the “excited utterance” exception to hearsay. The excited utterance exception applies when there is a “statement relating to a startling event or condition, made while the declarant was under the stress of the excitement that it caused.” Pa.R.E. 803(2). There is no requirement that the statement describe or explain the startling event or condition but it does have to relate to it. Comment to Pa.R.E. 803(2). “The crucial question, regardless of time lapse, is whether, at the time the statement is made, the nervous excitement continues to dominate while the reflective processes remain in abeyance.” Id.

In the instant case, Appellant was not making excited utterances during the intercepted phone call because he had several weeks to calculate a false statement concerning the allegations against him. N.T. 5/10/11 at 98. Moreover, the trial court determined after listening to the recording that there was “neither stress nor excitement in defendant's voice at any time.” Order, dated 9/6/12 at 2. The trial court also concluded, “there was no argumentation or other indicia that Defendant was startled by victim's repeated requests that he admit he had molested her.” Id. Based on these conclusions, this Court believes the trial court did not abuse its discretion when ruling that the intercepted phone call was not admissible under the excited utterance exception to hearsay.

Appellant's Classification as Sexually Violent Predator

Appellant's second contention is that the Commonwealth failed to prove, by clear and convincing evidence, that Appellant is a sexually violent predator. “Questions of evidentiary sufficiency present questions of law; thus, ‘our standard of review is de novo and our scope of review is plenary.’ ” Commonwealth v. Bishop, 936 A.2d 1136, 1141 (Pa.Super.2007) (citations omitted)....