Com. v. Bell, M. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
MICHAEL DENNIS BELL
Appellant No. 913 MDA 2020
Appeal from the Judgment of Sentence March 4, 2020
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0004304-2018
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED MAY 12, 2021
Appellant, Michael Dennis Bell, appeals from his judgment of sentence
of five to ten years’ imprisonment for aggravated assault and related offenses.
We affirm.
On June 23, 2018, Nikki Maldonado was residing with her ex-boyfriend
and the father of two of her children, Keith Sutherland, in Harrisburg. They
got into an argument that evening that continued intermittently past midnight.
In the early morning hours of June 24, 2018, Maldonado left the residence
and called Appellant, whom she had been dating for about a month, and told
him about the argument with Sutherland. Appellant went to meet with her to
make sure that she was okay. Appellant claimed that he found a gun in an
alley en route to the meeting, and he put it in his pocket.
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* Former Justice specially assigned to the Superior Court.
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Appellant met Maldonado at a market, and Maldonado indicated that she
wanted to return to her residence to get some of her possessions, including
her wallet. Appellant accompanied her back to the residence and waited
outside while she entered and retrieved her items. She left the residence, and
they began walking down an alley.
At this point, Sutherland exited the residence and began running after
Maldonado. It is undisputed that Sutherland had a knife in his pocket,
although it is disputed as to whether it was visible to Appellant and Maldonado.
There also was disputed testimony as to whether Sutherland was holding a
bottle and why he was running after Maldonado.
Appellant shot Sutherland in the stomach during the altercation in the
alley. Appellant testified that he shot Sutherland in self-defense, and that he
was afraid Sutherland would hit him or Maldonado with the bottle Sutherland
was carrying. Sutherland claimed he was not holding a bottle, was not
advancing on Appellant, and had his hands up in the air when he was shot.
Following a three-day jury trial, the jury found Appellant guilty of
aggravated assault and carrying a firearm without a license. The jury
acquitted Appellant of attempted murder. On March 4, 2020, the court
imposed sentence. Appellant filed timely post-sentence motions, which the
court denied, and a timely appeal. Both Appellant and the court complied with
Pa.R.A.P. 1925.
Appellant raises three issues in this appeal:
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i. Did not the court err in precluding [Appellant] from introducing
evidence that the complainant made a statement to [M]aldonado’s
minor son that he was going to kill [M]aldonado where: (a) the
out-of-court statement of the minor son was admissible under two
exceptions to the hearsay rule; (b) the complainant’s out-of-court
statement was admissible under an exception to the hearsay rule
and was also admissible regardless of the truth of the matters set
forth therein; and (c) the totality of the evidence was relevant
under Pa.R.E. 404(a)(2)(b) and 405(b)(2) to prove that the
complainant was the initial aggressor?
ii. Did not the court err in precluding [Appellant] from introducing
evidence that the complainant was drunk and was aggressive
when drunk where the evidence was relevant under Pa.R.E.
404(a)(2)(b) and 405(b)(2) to prove that the complainant was the
initial aggressor?
iii. Did not the court abuse its discretion by failing to grant
[Appellant] a new trial on the basis that the guilty verdict was
against the weight of the evidence when the totality of the
evidence as to the issues of self-defense and defense of others
was unreliable, contradictory, and incredible?
Appellant’s Brief at 6-7.
Appellant first argues that the trial court erred by precluding Maldonado
from testifying about a statement that Maldonado’s minor son made to her
four hours after the shooting. The trial court ruled that this statement was
inadmissible hearsay. Appellant contends that it was admissible under the
excited utterance and present sense impression exceptions to the hearsay
rule. We review the trial court’s decision to preclude evidence for an abuse of
discretion, Commonwealth v. Rosen, 42 A.3d 988, 994 (Pa. 2012), and we
conclude that the trial court properly excluded this testimony.
Sutherland and Maldonado resided together with Maldonado’s minor
children. In the early morning hours of June 24, 2018, Sutherland left the
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residence and pursued Appellant and Maldonado down a nearby alley, where
Appellant shot Sutherland. When Maldonado returned to the residence four
hours after the shooting, Maldonado’s minor son1 stated to her, “Papa
[Sutherland] said he was going to kill you.”
Appellant argues that this statement was admissible under the excited
utterance exception to the hearsay rule. While this exception has been
codified in the Rules of Evidence since 1998, see Pa.R.E. 803(2), our Supreme
Court has held that the common law definition of an excited utterance remains
applicable. Commonwealth v. Murray, 83 A.3d 137, 157 (Pa. 2013). At
common law, an excited utterance is
[A] spontaneous declaration by a person whose mind has been
suddenly made subject to an overpowering emotion caused by
some unexpected and shocking occurrence, which that person has
just participated in or closely witnessed, and made in reference to
some phase of that occurrence which he perceived, and this
declaration must be made so near the occurrence both in time and
place as to exclude the likelihood of its having emanated in whole
or in part from his reflective faculties.... Thus, it must be shown
first, that [the declarant] had witnessed an event sufficiently
startling and so close in point of time as to render her reflective
thought processes inoperable and, second, that her declarations
were a spontaneous reaction to that startling event.
Id. at 157-58. A shooting or assault, for example, can constitute an
overwhelming or shocking occurrence under the excited utterance rule.
Commonwealth v. Jones, 912 A.2d 268, 282 (Pa. 2006) (shooting victim’s
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1 There is some discrepancy as to the age of Maldonado’s son. Defense
counsel stated that he was eleven or fourteen years old; the Commonwealth
stated that he was six years old.
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statement identifying defendant as one of the shooters, made less than ten
minutes after being shot, while victim was bleeding from his gunshot wound
and awaiting transport to the hospital, as well as second statement to police,
made approximately thirty minutes later, were admissible as excited
utterances); Commonwealth v. Lester, 722 A.2d 997, 1002-03 (Pa. 1998)
(statement of four-year-old girl to police that defendant punched and kicked
her and killed her mother was admissible as excited utterance). Conversely,
a “mere argument, [no matter] how intense,” is not an “overpowering
emotional and shocking experience sufficient to exclude the possibility that
the statements were the product of premeditation or design.”
Commonwealth v. Farquharson, 354 A.2d 545, 554 (Pa. 1976).
Maldonado’s son’s statement was not an excited utterance because he
did not experience some overwhelming or shocking occurrence. He did not
witness the confrontation between Sutherland and Appellant or the shooting.
Allegedly, he merely heard Sutherland state he was going to kill Maldonado,
an event similar to a heated argument, id., an incident that was unpleasant
but not overwhelming or shocking enough to render his thought processes
inoperable.
In addition, Maldonado’s son made his statement four hours after
Sutherland’s comment. Thus, it was not so near in time of Sutherland’s
statement “as to exclude the likelihood of its having emanated in whole or in
part from his reflective faculties.” Murray, 83 A.3d at 157. In several cases,
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courts have found statements by children to be excited utterances even when
the statement occurs hours after the startling event. In one such case, the
morning after the defendant beat a four-year-old child and murdered the
child’s mother, and the child saw the mother’s dead body in the bathtub, the
child told the police about the incident. Our Supreme Court held that the
child’s statement was an excited utterance. Lester, 722 A.2d at 1001, 1002-
03. In another murder case, the child heard his mother screaming and told
neighbors about it the following morning while eating breakfast. Our Supreme
Court held that the statement was an excited utterance because it was
unsolicited and because the child spent the lapse in time sleeping, making it
unlikely that his statement was affected by reflection or outside influences.
Commonwealth v. Boczkowski, 846 A.2d 75, 96 (Pa. 2004). Here, it is
possible that Maldonado’s son was close in age to the boy whose statement
was found admissible in Boczkowski. See n.1, supra. Nevertheless, unlike
Lester, Maldonado’s son was not himself the victim of a physical attack, and
unlike Boczkowski, there is no evidence that Maldonado’s son was asleep
during the four-hour interval between Sutherland’s statement and his
statement to Maldonado. Thus, under the circumstances of this case, we
cannot “exclude the likelihood of [Maldonado’s son’s statement] having
emanated in whole or in part from his reflective faculties.” Murray, 83 A.3d
at 157.
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We further conclude that Maldonado’s son’s statement was not
admissible as a present sense impression. Pa.R.E. 803(1) defines a present
sense impression as “a statement describing or explaining an event or
condition, made while or immediately after the declarant perceived it.” The
truthfulness of a present sense impression “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.” Farquharson, 354 A.2d at 554. In this case, Maldonado’s son’s
statement was not a “reflex product of immediate sensual impressions,
unaided by retrospective mental processes,” id., since four hours elapsed
between Sutherland’s statement and Maldonado’s son’s statement.
In his second argument, Appellant contends that the court erroneously
precluded Appellant from introducing evidence that Sutherland was drunk and
was aggressive when drunk, which Appellant maintains would have proved
that Sutherland was the initial aggressor and that Appellant acted in self-
defense. We disagree, because Appellant was able to present evidence and
argument concerning Sutherland’s drunkenness on the date in question or his
aggressiveness when drunk.
Maldonado testified as follows in response to questioning from defense
counsel:
Q. Now, while you’ve been with Keith over your years, you’ve seen
him when he was drunk, correct?
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A. Yes.
Q. You’ve experienced him when he was drunk?
A. Yes.
Q. You’ve come to experience when he’s sober versus being
drunk, right?
A. Yes.
Q. Now, the day of the argument with him, he was drunk, right?
A. Yes.
Q. And Keith had been aggressive with you before?
A. Yes.
Q. And he even gets more aggressive when he’s drinking or is
drunk, right?
A. Yes.
Q. And he does that to the point where you even told Detective
Licata that he scares you?
A. Yes.
N.T., 1/7/20, at 63-64. At this point, the Commonwealth asked the court to
preclude “any further questioning on this” on the ground that it was irrelevant.
Id. at 64. The court sustained the objection. Id. at 65. Importantly, the
Commonwealth did not ask the court to strike Maldonado’s testimony prior to
the objection; nor did the court strike this testimony.
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Moreover, during closing argument, defense counsel pointed out,
without objection, that after the shooting, Maldonado told a police detective
that Appellant shot Sutherland in self-defense:
[The detective] hears [Maldonado] explain about the aggression
of [Sutherland], about [Sutherland] being drunk, about going into
the alleyway, [Sutherland] coming out. At this time, we hear that
[Sutherland] has a bottle and [Sutherland] lunges, [Sutherland]
attacks, and he’s shot in self-defense.
N.T., 1/9/20, at 303.
Through the foregoing testimony that the court never struck, and
through counsel’s closing argument, Appellant was able to present his position
that Sutherland was aggressive when drunk, Sutherland was drunk and
aggressive at the time of the altercation, and that Sutherland’s aggressiveness
forced Appellant to shoot him in self-defense. Accordingly, Appellant’s
argument that he was precluded from presenting evidence on this issue does
not warrant relief.
Finally, Appellant argues that the verdict is against the weight of the
evidence. Our role
is not to consider the underlying question of whether the verdict
was against the weight of the evidence. Rather, we are to decide
if the trial court palpably abused its discretion when ruling on the
weight claim. When doing so, we keep in mind that the initial
determination regarding the weight of the evidence was for the
factfinder. The factfinder was free to believe all, some or none of
the evidence. Additionally, a court must not reverse a verdict
based on a weight claim unless that verdict was so contrary to the
evidence as to shock one’s sense of justice.
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Commonwealth v. Habay, 934 A.2d 732, 736-37 (Pa. Super. 2007). “[A]
trial court’s denial of a post-sentence motion based on a weight of the
evidence claim is the least assailable of its rulings.” Commonwealth v.
Sanders, 42 A.3d 325, 331 (Pa. Super. 2012).
Here, the trial court reasoned:
In the instant matter, there was a dispute as to whether or not
Sutherland was holding a bottle and whether or not he was
advancing on [Appellant] and Maldonado in a threatening way.
[Appellant] testified that Sutherland was coming towards him
holding a bottle. Sutherland testified that he was backing up and
had his empty hands raised. The jury judged the credibiiity of
both witnesses and determined that [Appellant] was guilty of
aggravated assault. We do not find this verdict to be so contrary
to the evidence as to shock one’s sense of justice . . . Nor do we
find Sutherland’s testimony to be so unreliable and/or
contradictory as to make the verdict pure conjecture . . .
Essentially, [Appellant] is arguing that his statement was more
truthful than Sutherland’s, but that determination is solely for the
jury to make. As such, the verdict was not against the weight of
the evidence.
Trial Court Opinion, 6/15/20, at 3 (incorporated by reference into Pa.R.A.P.
1925 opinion at 6). We find this reasoning persuasive, and we conclude that
the trial court acted within its discretion by denying Appellant’s challenge to
the weight of the evidence.
For these reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/12/2021
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