Commonwealth v. Channell , 335 Pa. Super. 438 ( 1984 )

SPAETH, President Judge,

concurring:

I agree with the majority that appellant was entitled to have the jury charged on simple assault because it is a lesser included offense of both aggravated assault and reckless endangerment. I also agree that the sentences for aggravated assault and reckless endangerment must therefore be vacated and the case remanded for a new trial on all charges. I write separately because I believe that we should address appellant’s argument regarding the victim’s testimony as to why appellant attacked him. The victim testified, after being asked whether he had done anything to provoke the attack, “[I]t was said that I interferred [sic ] from him killing another guy. The guy that he was standing there talking to.” (Emphasis added.) Appellant argues that the trial court erred in admitting this testimony into evidence with a cautionary instruction. This issue will almost surely arise again at the new trial that we have ordered, and in my opinion we should offer the trial court some guidance regarding it.

I cannot agree with the majority that the challenged testimony should be analyzed as a reference to prior criminal activity. Majority op. at —,¹ It was a reference to appellant’s activity at the time of the attack and was relevant to establish appellant’s intent. As such, its admissibility at the new trial will depend upon who, if anyone, said that the witness interfered with appellant killing a third person. If it is established that a bystander made the statement to the victim, then the trial court will have to consider whether the testimony is inadmissible hearsay. In this regard, if appellant made it to the witness, it would be hearsay but admissible under the admissions exception to the hearsay rule. It may prove that no one may actually have said anything to the witness, and that the witness’s rather abstract phrasing may be only his opinion regarding why appellant attacked him. If this proves to be the case, the statement will have to be analyzed as an opinion by a lay witness, based upon first-hand observation, but with great potential for prejudicial effect.

1 . Nor do I believe appellant so contends. He argues that the testimony was “either irrelevant or so highly prejudicial that a mistrial should have been granted.” Appellant’s Brief at 4. He elaborates on this by arguing that the testimony was inadmissible as a statement referring to an “independent” and unrelated crime, and also, that the statement should be analyzed by applying to it "a similar balancing test [to that] involving the introduction of prior crimes.” Appellant’s brief at 8-9.