Com. v. Rivers, G. ( 2021 )

J-S28042-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GUSSIPPIE RIVERS :
:
Appellant : No. 1703 EDA 2020
Appeal from the Judgment of Sentence Entered December 19, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000086-2018
BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 14, 2021
Gussippie Rivers (Rivers) appeals from the judgment of sentence
imposed in the Court of Common Pleas of Philadelphia County (trial court)
after his bench trial conviction of Endangering the Welfare of a Child (EWOC)
and Simple Assault.1 Rivers argues that the court erred in allowing the
Commonwealth to admit hearsay testimony and to supplement the record with
a medical record. We affirm.
We take the following factual and procedural background from our
independent review of the record and the trial court’s January 19, 2021
opinion.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 4304(a), 2701(a).
J-S28042-21
I.
Rivers was arrested and charged with EWOC, Simple Assault and related
charges2 on November 27, 2017, resulting from an incident involving one of
his two children, J.T. After a preliminary hearing, Rivers was held on third-
degree felony EWOC and misdemeanor Simple Assault. The trial court
conducted a bifurcated trial on May 8, 2018, and July 10, 2018.
A.
On May 8, 2018, Ana Gaul-Torres (Torres) testified that she has known
Rivers for nine years and they had two children (the Children) together, S.R.
was five-years-old and J.T., the victim in this case, was four-years old. She
stated that on Friday, October 13, 2017, she traveled with the Children from
Hartford, Connecticut to Philadelphia, Pennsylvania so they could visit their
Father, Rivers, for the weekend. When Torres dropped them off with Rivers,
she testified that the Children did not have any bruises. (See N.T. Trial,
5/08/18, at 12-15, 17).3
____________________________________________
2 The related charges included Aggravated Assault, Recklessly Endangering
Another Person and Strangulation-Applying Pressure to Throat or Neck. 18
Pa.C.S. §§ 2702(a), 2705, 2716(a)(1).
3 We note with disapproval that Rivers failed to ensure that the certified record
contained the transcript for May 8, 2017, although he cites it heavily and it is
necessary for our review. “It is black letter law in this jurisdiction that an
appellate court cannot consider anything which is not part of the record in the
case.” Commonwealth v. Martz, 926 A.2d 514, 524 (Pa. Super. 2007),
cert. denied, 940 A.2d 363 (Pa. 2008) (citation omitted). “It is the
responsibility of appellant, not this Court, to provide a complete record for
(Footnote Continued Next Page)
-2-
J-S28042-21
The next morning, Saturday, October 14, 2017, Torres spoke with the
Children without incident. Later that day, Jayson Colon (Colon), Torres’ ex-
boyfriend, called her and based on that phone call, she decided that she
needed to call the Children. When Rivers answered the phone, he began
cursing at Torres because he had heard them call Colon “dad” over the phone.
Torres could hear S.R. screaming and crying in the background during this
call, but when she asked why S.R. was upset, Rivers said “he had got with
them” about calling Colon “dad.” Similarly, when Torres asked to speak to
S.R. because she was crying, Rivers said, “no, I’m about to get with them,”
“f[]ck you, I’m done with you,” and hung up the phone. (Id. at 17, 43; see
id. at 16, 20-23).
Torres explained that during the nine years she had known Rivers, he
had stated that he was “about to get with” her more than four times, and this
phrase would be followed by him doing something physical to her. Based on
that history, Torres believed Rivers was going to get physical with the
____________________________________________
review, including ensuring that any necessary transcripts are included in the
official record.” Commonwealth v. Peifer, 730 A.2d 489, 493 n.3 (Pa.
Super. 1998), appeal denied, 743 A.2d 918 (Pa. 1999). (citations omitted) “A
failure by [A]ppellant to insure that the original record certified for appeal
contains sufficient information to conduct a proper review constitutes waiver
of the issue sought to be examined.” Martz, supra at 524 (citation omitted).
However, because this Court, with the cooperation of the trial court, was able
to obtain the missing certified transcripts to enable our review, we will not
waive this appeal. See Commonwealth v. Preston, 904 A.2d 1, 7-8 (Pa.
Super. 2006), appeal denied, 916 A.2d 632 (Pa. 2007).
-3-
J-S28042-21
Children. She texted Rivers that she wanted to come pick up the Children
that night, but he responded not to bother because they would not be at home.
She admitted she did not call the police about the incident. As far as Torres
was aware, the Children were in Rivers’ exclusive custody at his home the
entire weekend. (See id. at 17-19, 23, 43-44).
On Monday morning, October 16, 2017, Torres picked up the Children
when Rivers dropped them off at the courthouse. Torres and Rivers and their
Children and respective counsel had a scheduled contempt hearing involving
whether Rivers was allowed to see the Children as ordered. However, it had
been cancelled at the last minute. She testified that she did not see any marks
on J.T. at that time. She stated that usually, she and Rivers would converse
when he would drop the Children off, even when they were in “disagreement”
and he would then drop her off wherever she needed to go. However, on this
particular day, he gave her the Children’s belongings, appeared upset and did
not say anything to her before leaving. (See id. at 23-24, 66, 76, 80).
Immediately after Rivers left, Torres took the Children into the restroom
to make sure they did not have to use it before they left, as she usually did.
However, they did not have the opportunity “to use the bathroom because
[S.R.] was very excited and she wanted to tell [her] and show [her] what had
happened at [Rivers’] home.” (Id. at 25). S.R. pulled down J.T.’s shirt collar
and Torres observed gashes on his chest and bruises on his neck. Over
defense counsel’s hearsay objection, the trial court allowed Torres to testify
-4-
J-S28042-21
about what S.R. told her about the injuries pursuant to the excited utterance
exception.4 Torres testified that S.R. reported that Rivers grabbed J.T. by his
____________________________________________
4 The Commonwealth and A.G.-T. engaged in the following exchange about
what S.R. told her and her demeanor:
Q: So, you went to the bathroom. Tell us what happened and
describe [S.R.]’s demeanor.
A: They didn’t want to do anything but talk to me.
* * *
Q: So, describe their voice and their tone. Describe what, if
anything, you said to them and what they did next.
A: Well, they were excited. That’s when she showed me his
bruises, the gashes on his chest and the choke marks on his neck
….
* * *
Q: So, when you were in the bathroom, could you describe what
[S.R.]’s demeanor was and what she said as a result of that
demeanor?
A: She was very excited, and she said —
* * *
Q: And so could you please describe your daughter’s tone of voice
before you say anything about what someone said?
A: She was loud.
Q: And what is her voice typically? How is her octave usually?
A: She’s usually calm and very sweet. But this time she was loud
and wanted me to hear what she had to say.
(Footnote Continued Next Page)
-5-
J-S28042-21
shirt collar and was screaming and yelling and squeezing his neck on the bed.
S.R. also saw blood on the floor. Torres immediately advised her attorney
what S.R. had just told her and then took the Children to the Department of
Human Services where they gave statements and pictures were taken. She
____________________________________________
Q: And what about her behavior and demeanor? Were there any
hand gestures?
A: She was moving around to pull down [J.T.]’s shirt and his collar.
* * *
Q: When you went to the bathroom, did you ask your children any
questions?
A: No.
Q: When you went to the bathroom, did your children voluntarily
begin speaking to you?
A: Oh, yes. Yes.
Q: Were you able to initially calm your children down?
A: Not until after the DCF building.
Q: How long a time was that?
A: That was a good maybe two hours.
Q: And in that excited state[], what did [S.R.] say?
Defense counsel: Same [hearsay] objection.
The Court: Overruled. She’s laid a foundation now.
(Id. at 29-30, 37-40).
-6-
J-S28042-21
then took J.T. to St. Christopher’s Medical Hospital for Children where more
pictures were taken and she filed a police report, and then she and the
Children went to the Philadelphia Police Special Victim’s Unit (SVU) where the
three were interviewed and more photographs were taken. (See id. at 23-
25, 29-31, 37-41).
The Commonwealth marked the SVU photos taken of J.T.’s neck and
chest on October 16, 2017, as Exhibits C-1 and C-2. Torres testified that she
was present when the photographs were taken and that they were a fair and
accurate description of what her son looked like on the day in question. They
depicted deep gash marks on J.T.’s chest and what appeared to be choke
marks on his neck, which Torres testified were not there when she had
dropped them off to Rivers the previous Friday. (See id. at 32-33, 35-36).
The trial was continued until July 10, 2018. On that day, the
Commonwealth presented the testimony of Philadelphia Police Officer Vondel
Cook. Officer Cook was a 14-year police veteran who had worked in the SVU
for four years and was assigned to this matter. In addition to her experience
as a police officer, Officer Cook had 20 years of experience working with young
children in her roles as a social worker and teacher. On October 16, 2017,
she separately interviewed Torres, S.R. and J.T. She identified Exhibits C-1
and C-2 as the photographs she took on October 16, 2017, based on what J.T.
had reported, and she testified that they accurately showed bruising on the
left side of J.T.’s neck and slash marks going across his chest. She stated that
-7-
J-S28042-21
J.T. was nervous on the day she interviewed him but was able to discuss his
injuries and tell her what happened. Although she admitted that she did not
note in her report that he was nervous, Officer Cook explained that she would
not have put personal thoughts or opinions in a police report. She also
testified that the statements of both Children and Torres were consistent.
(See N.T. Trial, 7/10/18, at 8-11, 13, 15-19, 22-24, 37-39).
At the end of its case, the Commonwealth marked J.T.’s medical records
from St. Christopher’s Medical Hospital for Children as Exhibit C-5. Defense
counsel objected, arguing that although the documents contained a
certification that they were the official, confidential medical records of J.T.
sent in response to the Commonwealth’s subpoena, the Commonwealth failed
to have them properly certified pursuant to Rule 902 and that, therefore, they
were not self-authenticating pursuant to Rule 803(6). The trial court
overruled the objection and admitted the records from St. Christopher’s
because it found that the cover letter sent with the medical records, along
with the subpoena sent to St. Christopher’s requesting the documents,
satisfied Pennsylvania Rules of Evidence 803(6) and 902(11). Over defense
objection, the court also permitted the record to stay open, stating, “[i]f the
Commonwealth wishes to supplement its case with a certification … we can
leave the record open for you to submit it at a later date.” (Id. at 55). Exhibit
C-5 was then admitted into evidence and the Commonwealth rested. (See
-8-
J-S28042-21
id. at 40-42, 48-53, 55-56, 58-59). There is no indication in the record that
the Commonwealth provided such certification.
At the close of the Commonwealth’s case, Rivers moved for judgment
of acquittal on the felony EWOC charge, which the trial court granted,
changing the EWOC grading to a first-degree misdemeanor. (See id. at 59,
65).
B.
Gwendolyn McLean (McLean) then testified on behalf of Rivers. She
testified that at the time of the incident, she had been River’s companion for
approximately a year and that she was with him on the weekend in question.
She stated that she did not see any marks on J.T., but that she did not see
him with his shirt off. She stated that the Children appeared to be enjoying
themselves and neither child complained about Rivers beating J.T. and J.T.
did not say he was in pain. She testified that the police did not interview her
and her only contact with them was when they came to the house with a
warrant for River’s arrest. (See id. at 67-69, 72-73, 75-76, 81).
Rivers testified that at the time the Children came to his house for court-
ordered visitation on October 13, 2017, he was trying to get full custody of
them. He took the Children to buy sneakers for S.R. that night because S.R.
was wearing sandals. On Saturday morning, October 14, 2017, S.R. received
a phone call from a male who identified himself as her brother and she spoke
with him. The Children also called Torres that morning as they usually did.
-9-
J-S28042-21
Rivers then took them clothes shopping because Torres did not provide them
with clothing. Rivers testified that although McLean was present that
weekend, there were times when he was alone with the Children. He also
stated that while he would not want them to call another man daddy, he would
not become angry if it did happen. (See id. at 91, 97-98, 124).
He testified that he met Torres inside the courthouse with the Children
on the morning of Monday, October 16, 2017, because the entire family was
supposed to be in court for a contempt hearing since he was not seeing the
Children as ordered. Both he and Torres had counsel present. When he, his
counsel and the Children arrived, they waited in the hallway outside the
courtroom and Torres was in a conference room with her attorney. The
Children were acting normal and were excited to see their mother when she
came out of the conference room. They did not complain to her at that time
that J.T. had been struck. When shown the photographs of J.T. taken later
that day, Rivers stated that he did not cause the marks on him and neither
child had complained of any pain all weekend. He stated that after he provided
Torres with the Children’s belongings, he and his counsel left. (See id. at 91-
93, 100-04, 106).
C.
The court took the matter under advisement and on September 28,
2018, it found Rivers guilty of first-degree misdemeanor EWOC and Simple
Assault. On December 19, 2018, after receiving a Pre-Sentence Investigation
- 10 -
J-S28042-21
report (PSI) and mental health evaluation, the trial court sentenced Rivers to
not less than 30 nor more than 60 months’ incarceration on the charge of
EWOC and a consecutive five years’ probation on the Simple Assault charge,
with credit for time served. (See N.T. Sentencing, 12/19/18, at 27). Rivers
did not file a post-sentence motion. He timely appealed on January 14, 2019.
He and the trial court have complied with Rule 1925. See Pa.R.A.P. 1925.
Rivers presents two questions for this Court’s review: (1) Did the trial
court err in “allowing Commonwealth witness … [A.G.-T.] to offer
impermissible hearsay testimony[;]” and (2) Did the trial court err in “allowing
the Commonwealth to supplement the trial record with medical records as a
business record absent authentication and a hearsay exception?” (River’s
Brief, at 7).
II.
A.
In his first issue, Rivers argues that the trial court erred in allowing the
admission of Torres’ testimony5 regarding what S.R. told her because “the
____________________________________________
5 Our standard of review of this issue is well-settled.
Our standard of review for a trial court’s evidentiary ruling is
narrow, as the admissibility of evidence is within the discretion of
the trial court and will be reversed only if the trial court has abused
its discretion. An abuse of discretion is not merely an error of
judgment, but is rather the overriding or misapplication of the law,
the exercise of judgment that is manifestly unreasonable, or the
(Footnote Continued Next Page)
- 11 -
J-S28042-21
time lapse of two days between the startling event and the declaration is too
broad a chasm in time to permit admissibility of a declaration under the
excited utterance exception to the hearsay rule” and Torres’ testimony did not
establish that “S.R. was still lingering under the spell of a startling event.”
(Rivers’ Brief, at 12). Instead, the Commonwealth merely established that
S.R. was excited to report an event to her mother, her custodial parent. (See
id. at 12-13).
The Commonwealth counters that the trial court was proper in admitting
Torres’ testimony about what S.R. told her as an excited utterance. It posits
that it is not that S.R. remained excited over the entire time after the event,
“but that seeing her mother for the first time since the abuse was a
subsequent event relating back to the event in question and causing renewed
excitement sufficient to trigger an outburst lacking in calm reflection.”
(Commonwealth’s Brief, at 12) (citing 4 Jones on Evidence § 28:15 (7th ed.)).
The Commonwealth further argues that even if the court erred in permitting
the testimony, it was harmless error where it was merely cumulative of
properly admitted evidence of Rivers’ guilt. (See id. at 14-15).
____________________________________________
result of bias, prejudice, ill will or partiality, as shown by the
evidence of record.
Commonwealth v. Melvin, 103 A.3d 1, 35 (Pa. Super. 2014) (citations
omitted).
- 12 -
J-S28042-21
Hearsay is “a statement the declarant does not make while testifying at
the current trial … and … a party offers in evidence to prove the truth of the
matter asserted.” Pa.R.E. 801. Hearsay is inadmissible. See Pa.R.E. 802.
An excited utterance, defined as “[a] statement relating to a startling event
or condition, made while the declarant was under the stress of excitement
that it caused,” is an exception to the rule against hearsay. Pa.R.E. 803(2).
an excited utterance (1) need not describe or explain the startling
event or condition; it need only relate to it, and (2) need not be
made contemporaneously with, or immediately after, the startling
event. It is sufficient if the stress of excitement created by the
startling event or condition persists as a substantial factor in
provoking the utterance.
Pa.R.E. 803(2), Comment. In fact, “there is no clear cut rule as to the time
sequence required for a statement to qualify as an excited utterance, but
rather the fact-specific determination is to be made on a case-by-case basis.”
Commonwealth v. Boczowski, 846 A.2d 75, 95 (Pa. 2004) (citation
omitted). In deciding whether a statement is admissible as an excited
utterance, “the court must consider, among other things, whether the
statement was in narrative form, the elapsed time between the startling event
and the declaration, whether the declarant had an opportunity to speak with
others and whether, in fact, she did so.” Commonwealth v. Carmody, 799
A.2d 143, 147 (Pa. Super. 2002). Importantly, “in circumstances where time
has elapsed between an incident and the reporting of the incident by a child
to a trusted adult at first given opportunity, such passage of time does not
result in inadmissibility of [the] statement under the excited utterance
- 13 -
J-S28042-21
exception.” Commonwealth v. Toomey, 248 A.3d 462 (Pa. Super. filed Jan.
5, 2021) (unpublished memorandum)6 (citing Commonwealth v.
Sherwood, 982 A.2d 483 (Pa. 2009) (finding excited utterance applied to
statements made by child to mother about an incident of abuse that was made
after passage of time).
In this case, S.R. witnessed the startling event of Rivers physically
assaulting her four-year-old brother. Torres’ testimony evidenced that the
incident occurred on Saturday, October 14, 2017, when Rivers told Torres that
he “had got with” the Children and was “going to get with” them for calling
another man dad. Based on Torres’ nine-year experience with Rivers, she
knew the phrase, “going to get with” meant that Rivers intended to become
physical with an individual. (N.T. Trial, 5/08/18, at 16-17). Approximately
two days later, S.R. was first able to tell her mother about witnessing the
assault, which she immediately did when she got away from Rivers, acting
uncharacteristically excited and loud before showing her mother her brother’s
injuries and telling her what happened.
Based on the foregoing, we discern no abuse of discretion where the
trial court was not manifestly unreasonable in admitting Torres’ testimony
____________________________________________
6 Unpublished memoranda “filed after May 1, 2019, may be cited [by the Court
or a party) for their persuasive value, pursuant to Pa.R.A.P. 126(b).” Pa.
Super. Ct. I.O.P. § 65.37.
- 14 -
J-S28042-21
about S.R.’s statement under the excited utterance exception.7 See Melvin,
supra at 35.
Moreover, we agree with the Commonwealth that even assuming
arguendo the trial court did abuse its discretion in admitting the testimony, it
was harmless error.8 See Commonwealth v. Mitchell, 902 A.2d 430, 452
(Pa. 2006) (“[A]n erroneous ruling by a trial court on an evidentiary issue
does not require us to grant relief where the error is harmless.”).
An error will be deemed harmless if: (1) the error did not
prejudice the defendant or the prejudice was de minimis; (2) the
erroneously admitted evidence was merely cumulative of other
untainted evidence which was substantially similar to the
erroneously admitted evidence; or (3) the properly admitted and
uncontradicted evidence of guilt was so overwhelming and the
prejudicial effect of the error was so insignificant by comparison
that the error could not have contributed to the verdict.
____________________________________________
7 Rivers seems to argue that the Commonwealth should have presented the
Children’s testimony under the tender years exception, rather than by having
that evidence introduced through Torres, and that he was denied his
constitutional right of confrontation by its failure to do so. It is not clear if he
raised this issue at trial in response to the Commonwealth admitting S.R.’s
testimony as an excited utterance. In any event, he fails to argue that the
Commonwealth was required to proceed under the tender years exception and
that this somehow renders its course of action error that is dispositive of this
issue. (See Rivers’ Brief, at 14-15).
8 “The doctrine of harmless error is a technique of appellate review designed
to advance judicial economy by obviating the necessity for a retrial where the
appellate court is convinced that a trial error was harmless beyond a
reasonable doubt.” Commonwealth v. Thornton, 431 A.2d 248, 266 (Pa.
1981) (citation omitted). “Its purpose is premised on the well-settled
proposition that a defendant is entitled to a fair trial but not a perfect one.”
Id. (citation, quotation marks and brackets omitted).
- 15 -
J-S28042-21
Mitchell, supra at 457 (citation omitted).
Our review of the record confirms the Commonwealth’s observation that
S.R.’s statement was cumulative of other properly admitted evidence of
Rivers’ guilt. Torres properly testified to her own observations of J.T.’s
injuries. The Commonwealth introduced photographs taken on October 16,
2017, which both Torres and Officer Cook testified accurately showed the
injuries to J.T.’s neck and back. Torres testified that on Saturday, October
14, 2017, Rivers threatened to cause the Children physical violence while S.R.
screamed from the background. Both Rivers and McLean testified that the
Children were with Rivers the entire weekend, including times when he would
be alone with them, establishing that the injuries could not have been caused
by anyone else.
Even assuming arguendo that the court abused its discretion in allowing
Torres to testify about what S.R. told her about the incident, this testimony
was cumulative of other properly admitted evidence that established Rivers’
guilt and, therefore, its admission was harmless error. See Mitchell, supra
at 452, 457.
B.
In his next issue, Rivers argues that “the trial court erred in allowing the
Commonwealth to supplement the record in the form of [an] uncertified
medical record.” (Rivers’ Brief, at 16) (emphasis omitted). He argues that
the medical record was inadmissible because the Commonwealth did not
- 16 -
J-S28042-21
either have the custodian of records testify that it was a business record
pursuant to Pennsylvania Rule of Evidence 803(6)9 or provide the defense with
a certification that complies with Rule 902(11)10 in advance of trial. (See id.
at 17-18).
____________________________________________
9 Pennsylvania Rule of Evidence.803(6) provides:
Records of a Regularly Conducted Activity. A record (which
includes a memorandum, report, or data compilation in any form)
of an act, event or condition if:
(A) the record was made at or near the time by—or from
information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a ‘‘business’’, which term includes business,
institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification that
complies with Rule 902(11) or (12) or with a statute permitting
certification; and
(E) the opponent does not show that the source of
information or other circumstances indicate a lack of
trustworthiness.
Pa.R.E. 803(6).
10 Pursuant to Pennsylvania Rule of Evidence 902, certain items of evidence
are self-authenticating and require no extrinsic evidence of authenticity in
order to be admitted. Section (11) of that Rule provides:
Certified Domestic Records of a Regularly Conducted Activity. The
original or a copy of a domestic record that meets the
(Footnote Continued Next Page)
- 17 -
J-S28042-21
The Commonwealth responds that this issue is waived for Rivers’ failure
to raise the claim in his Rule 1925(b) statement of errors and for failing to
ensure the certified record contains the documents necessary for our review.
It also argues that even assuming arguendo that he had not waived this issue,
the claim would lack merit because the records had no effect on the case’s
disposition, and even if the court abused its discretion, the decision was
harmless where it did not impact the outcome of the case. (See
Commonwealth’s Brief, at 15-19).
1.
It is axiomatic that issues not raised in a Rule 1925(b) statement are
waived. See Commonwealth v. Bebout, 186 A.3d 462, 471 (Pa. Super.
2018) (waiving appellant’s argument that differed from that raised in Rule
1925(b) statement); Pa.R.A.P. 1925(b)(7)). In Rivers’ Rule 1925(b)
statement, he claimed, in pertinent part: “The Trial Court erred and denied
[him] the Due Process guaranteed him by State and Federal Constitutions, by
allowing the Commonwealth to supplment (sic) discovery after trial ended in
____________________________________________
requirements of Rule 803(6)(A)-(C), as shown by a certification of
the custodian or another qualified person that complies with
Pa.R.C.P. No. 76. Before the trial or hearing, the proponent must
give an adverse party reasonable written notice of the intent to
offer the record—and must make the record and certification
available for inspection—so that the party has a fair opportunity
to challenge them.
Pa.R.E. 902(11).
- 18 -
J-S28042-21
the form of a requisite medical record certification.” (Rivers’ Statement
of Errors Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b), 4/10/19, at
2) (emphasis added). However, in his brief, Rivers challenges the admission
of the medical record itself, claiming that it was inadmissible because it was
not certified as a business record and the Commonwealth failed to provide him
with a certification in advance of trial. (See Rivers’ Brief, at 16-18).
The issue of whether a trial court erred in keeping the record open to
allow a party to supplement it with a certification11 is a different claim than
whether evidence of the medical record itself was admissible in the first
place.12 Therefore, the claim that the medical records were improperly
____________________________________________
11 Rivers does not address the issue of whether the trial court erred in keeping
the record open to allow the Commonwealth to file the certification. We note
that, “trial courts have the inherent discretion to reopen the record on their
own and to grant the parties leave to supplement it with evidence regarding
a particular issue, as long as neither party is prejudiced.” Commonwealth.
v. Safka, 141 A.3d 1239, 1249–50 (Pa. 2016). Here, there is no evidence
that the court’s decision to allow the Commonwealth to supplement the record
with a certification prejudiced Rivers in any way. Trial in this matter had been
bifurcated between May 8, 2018, and July 10, 2018, and after that the court
then took the matter under advisement to review the record before issuing a
decision. In any event, given that the Commonwealth never supplemented
the record with the record, it is difficult to see how Rivers was prejudiced by
the court’s decision to leave the record open during this time for a certification.
12 The record reflects that the medical records themselves were admitted
before the Commonwealth rested, not after trial, so the Commonwealth did
not “supplement” the record with them. (See N.T. Trial, 7/10/19, at 58). The
record only remained open for the Commonwealth to supplement the case
with a certification at a later date if it wished to do so. (See id.).
- 19 -
J-S28042-21
admitted is waived because it was not preserved in his 1925(b) statement.
See Bebout, supra at 471.
2.
In claiming that the medical records should not have been admitted,
Rivers relies on Pennsylvania Rules of Evidence 803(6) and 902(11). It is
undisputed that the Commonwealth moved to admit J.T.’s medical records
from St. Christopher’s Hospital for Children at the end of its case in chief, and
that the custodian of records did not testify to their authenticity pursuant to
Rule 803(6)(D). Instead, the court found that the cover letter sent with the
medical records and the subpoena sent to St. Christopher’s satisfied the
requirements of Rules 803(6) and 902(11) because they were certified as
being the official medical records.
However, Rivers failed to provide this Court with a certified copy of those
documents for our review, so we are unable to determine whether either of
them satisfied Rule 902(11), thus rendering them a self-authenticating record.
Hence, this claim is waived on this basis as well. See Commonwealth v.
Muntz, 630 A.2d 51, 58 (Pa. Super. 1993) (claim waived where it is
dependent on materials not provided in the certified record).
3.
Finally, even had Rivers not waived this claim, our review of the record
confirms the Commonwealth’s observation that he was not prejudiced by the
admission of the medical records because the charges against him did not
- 20 -
J-S28042-21
require medical proof of specific harm and the parties did not dispute the
location of the injuries. Other than when they were moved into evidence,
neither the parties nor the court mentioned the records. In fact, the medical
records would have been cumulative of the pictures taken by Officer Cook,
and the testimony by both her and Torres that they accurately reflected J.T.’s
injuries. There was no dispute that J.T. had the injuries, only about whether
Rivers caused them, and there is no evidence that the court relied on the
records in any way in reaching its verdict. Hence, even if they were
erroneously admitted in violation of Rules 803(6) and 902(11), Rivers cannot
demonstrate that he was prejudiced by this error and, therefore, it was
harmless.13 See Mitchell, supra at 452, 457. For all of these reasons, this
issue does not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2021
____________________________________________
13 Similarly, any claim that he was harmed because the Commonwealth failed
to provide notice of its intent to offer written certification for the medical
records, (see Rivers’ Brief, at 17), fails because Rivers used more than
sufficient time during trial to address the certification and make any
arguments against it.
- 21 -