Com. v. Booth, N.

J-S21037-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NATHANIEL MENCY BOOTH :
:
Appellant : No. 1291 MDA 2021
Appeal from the Judgment of Sentence Entered September 8, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004835-2020
BEFORE: DUBOW, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: JULY 26, 2022
Nathaniel Mency Booth (Booth) appeals from the judgment of sentence
entered in the Court of Common Pleas of Dauphin County (trial court) following
his bench conviction of strangulation for his choking of his wife, Crystal
Bethea-Booth (Bethea-Booth).1 Booth challenges the sufficiency of the
evidence supporting his conviction and the trial court’s reliance on two
documents Bethea-Booth signed at the time of the incident that he claims
constitute inadmissible hearsay. We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2718(a)(1).
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I.
This case arises from an October 2020 domestic dispute in which
Bethea-Booth called 911 and screamed without words into the telephone. At
the May 13, 2021 bench trial, the Commonwealth called Officer Jonathan
Pirkle of the Harrisburg Bureau of Police and Bethea-Booth as witnesses.
Officer Pirkle testified that on October 6, 2020, at 10:45 a.m., he
responded to the 911 call from the Booth residence. When he arrived at the
home, Bethea-Booth was visibly distraught and was “breathing very heavily,
yelling, just a general look of being very distressed.” (N.T. Trial, 5/13/21, at
8). Bethea-Booth was initially resistant to Officer Pirkle entering the home,
but she eventually permitted him access. She explained that a verbal
argument between the couple became physical when: “the aggression from
Mr. Booth increased and this turned into him placing both his hands around
her neck and pushing her down into a piece of furniture. At one point during
this, Ms. Booth stated that the pressure was enough that she could not breathe
at all. After that, she was thrown to the floor and Mr. Booth’s hands were
placed around her neck a second time, at which time he stated, and I’ll quote,
I’ll kill you bitch.” (Id. at 10). Booth fled from the residence before police
arrived.
Although Officer Pirkle did not observe visible injuries to Bethea-Booth’s
person, he noted that she periodically had difficulty breathing and her voice
was raspy. Bethea-Booth reported a lasting pain in her neck, but she
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repeatedly declined the officer’s offer to arrange for medical treatment.
Bethea-Booth provided Officer Pirkle with a signed written statement detailing
the altercation and she answered the questions he read to her from a
strangulation questionnaire routinely used in domestic disputes. Officer Pirkle
gave Bethea-Booth information as to how to secure a protection from abuse
(PFA) order, which she indicated she would seek.
On cross-examination, Officer Pirkle testified that he did not know if
Bethea-Booth obtained a PFA and that he never spoke to Booth about the
incident. The officer explained that his attempts to follow up with Booth were
unsuccessful because he did not have accurate contact information for him.
Bethea-Booth recounted that she resides with her husband and on the
day of the incident she: “was off my medication. I’m bipolar, schizophrenia.
Like, I’m on my medication now. I get real paranoid. I think things are
happening to me. Like we argue, but when I get emotional, I think something
is happening to me. My head’s telling me it is.” (Id. at 17). Bethea-Booth
testified that she called 911 during the episode and that it was her voice on
the phone call recording, but that she does not remember making this call.
Bethea-Booth did remember that during the incident, “[Booth] was trying to
leave, and I didn’t want him to leave. So he was trying to pull away and I
didn’t want him to.” (Id. at 18).
Bethea-Booth further testified that she does not recall telling Officer
Pirkle that she had an argument with her husband or that he used his two
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hands to choke her, nor does she remember providing a written statement or
answering the questions on the strangulation questionnaire. When the
Commonwealth showed her the written statement, Bethea-Booth reiterated
that she did not recall writing it and said: “when I’m off my medication I don’t
remember[.]” (Id. at 20). However, she did acknowledge that the statement
was written in her handwriting and that her signature is on both the written
statement and on the bottom of the questionnaire. Bethea-Booth elaborated
on her memory lapses by advising that she suppresses nightmares by drinking
alcohol and smoking marijuana.
On cross-examination by defense counsel, Bethea-Booth advised that
she is 54 years old and that she has been on medication all of her life for
bipolar schizophrenia. When she does not take her medication as indicated,
she sometimes experiences hallucinations “where [she] believes something is
occurring but it is not occurring.” (Id. at 25). During these episodes, she
does not remember what is happening at the time. Bethea-Booth averred
that she does not remember talking to the police on the day of the incident,
that the information contained in the written statement and strangulation
questionnaire is not true, and that “[Booth] wouldn’t do that to me. He never
does that to me. He never hit me.” (Id. at 26). She testified that there is
no abuse in her marital relationship and that Booth takes care of her with
respect to her mental health issues. Bethea-Booth refused medical attention
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on the day of the incident because she had no injuries and she did not
subsequently seek a PFA order.
When the Commonwealth moved for admission of Bethea-Booth’s
written statement as Exhibit 2 and the strangulation questionnaire as Exhibit
3, defense counsel objected because Bethea-Booth was not able to identify or
remember these documents. (See id. at 21-22, 31). The trial court admitted
the documents over objection and explained:
We’re satisfied that the appropriate foundation under the
rule has been established. It has been testified by the officer that
they were filled out in close temporal timetable with the event in
question. He said they were signed. She acknowledged her
signature, as well as the writing on the actual statement. So
despite her alleged inability to recall today, I think they are
admittable, and therefore will admit them.
(Id. at 31-32).
At the conclusion of trial, the court convicted Booth of strangulation. In
doing so, the court found that Bethea-Booth “appears to be selective about
what she remembers and what she doesn’t remember. She conveniently
remembers supposedly her husband leaving and her not wanting him to leave
but doesn’t seem to remember anything that occurred where she initially said
there was a problem.” (Id. at 34). The court also noted that the questions
included in the strangulation questionnaire were very specific and Officer
Pirkle testified that he wrote Bethea-Booth’s responses down verbatim, after
which she reviewed and signed it.
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The trial court deferred sentencing for preparation of a pre-sentence
investigation report. On September 8, 2021, it sentenced Booth to a term of
1½ to 5 years of incarceration. Booth timely appealed and he and the trial
court complied with Pa.R.A.P. 1925. See Pa.R.A.P. 1925(a)-(b). In its Rule
1925(a) opinion, the trial court explained that it admitted Bethea-Booth’s
written statement and the strangulation questionnaire pursuant to
Pennsylvania Rule of Evidence 803.1(4) as Prior Statements by a Declarant-
Witness Who Claims an Inability to Remember the Subject Matter of the
Statements2 and specifically found “Ms. Bethea-Booth’s claimed inability to
remember not credible.” (Trial Court Opinion, 12/09/21, at 8; see also id.
at 7-9).
II.
On appeal, Booth contends the evidence was insufficient to support his
conviction of strangulation.3 He points to Bethea-Booth’s written statement
____________________________________________
2 Rule 803.1(4) allows for the admission of a prior statement by a declarant-
witness who claims an inability to remember the subject matter of her
statement under circumstances where the court finds her claimed inability to
remember not credible. See Pa.R.E. 803.1(4), infra.
3
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
(Footnote Continued Next Page)
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and the strangulation questionnaire as unfairly bolstering the
Commonwealth’s case because these documents constituted inadmissible
hearsay. Booth contests the trial court’s application of Rule 803.1(4) as
grounds for admission of these exhibits where there is no evidence that
Bethea-Booth feigned her inability to recall the documents, and the evidence
instead reflects that her memory lapse was consistent with psychosis. (See
Booth’s Brief, at 12-13, 19-20).
The Crimes Code provides that “a person commits the offense of
strangulation if the person knowingly or intentionally impedes the breathing
or circulation of the blood of another person by: (1) applying pressure to the
throat or neck[.]” 18 Pa.C.S. § 2718(a)(1). Notably, infliction of physical
injury to a victim is not an element of the offense, nor is lack of injury a
defense to a strangulation charge. See id. at § 2718(b).
____________________________________________
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law, no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the trier of fact, while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Fitzpatrick,159 A.3d 562, 567 (Pa. Super. 2017), appeal
denied, 173 A.3d 255 (Pa. 2017) (citation omitted).
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With regard to Booth’s claim that the Commonwealth’s case was unfairly
bolstered by its use of inadmissible hearsay, Rule 802 provides that, “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. “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.
See Pa.R.E. 801(c). A “statement” is an oral or written assertion. See Pa.R.E.
801(a).
As previously noted, Rule 803.1 serves as an exception to the general
rule against hearsay. Under this Rule, a prior statement offered to impeach a
witness may also be admitted as substantive evidence if it meets additional
requirements of reliability. See Commonwealth v. Enix, 192 A.3d 78, 81
(Pa. Super. 2018). Subsection 4 of this Rule directly addresses the
circumstances present in the instant case, where the declarant-witness claims
an inability to remember the content of the prior statements at all. It
provides:
The following statements are not excluded by the rule against
hearsay if the declarant testifies and is subject to cross-
examination about the prior statement:
* * *
(4) Prior Statement by a Declarant-Witness Who Claims an
Inability to Remember the Subject Matter of the Statement.
A prior statement by a declarant-witness who testifies to an
inability to remember the subject matter of the statement, unless
the court finds the claimed inability to remember to be credible,
and the statement:
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* * *
(B) is a writing signed and adopted by the declarant[.]
Pa.R.E. 803.1(4)(B) (effective April 1, 2017).
Under this Rule, the trial court must, as an initial matter, make a
credibility determination concerning a witness’s claimed inability to remember
the content of a written statement in determining its admissibility. The
Comment to the Rule explains: “The purpose of this hearsay exception is to
protect against the ‘turncoat witness’ who once provided a statement, but now
seeks to deprive the use of this evidence at trial. It is intended to permit the
admission of a prior statement given under demonstrably reliable and
trustworthy circumstances, when the declarant-witness feigns memory loss
about the subject matter of the statement.” Id., Comment (case citation
omitted).
Instantly, the trial court rejected Booth’s claim, stating:
The testimony and evidence adduced at trial, together with
all reasonable inferences derived therefrom, is sufficient to sustain
the conviction of strangulation. Officer Pirkle testified that Ms.
Bethea-Booth had told him on the day of the incident that she and
Appellant had got into a verbal argument that escalated. He
further testified that Ms. Bethea-Booth informed him that
Appellant put both of his hands around her neck at least two (2)
times to the point she was unable to breathe and threw her to the
ground.
* * *
As the fact-finder, this Court had the benefit of hearing the
testimony from Officer Pirkle and Ms. Bethea-Booth, as well as the
ability to observe the demeanors of all interested parties. As
previously stated, this Court did not find Ms. Bethea-Booth’s
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attempt at recantation to be credible. Additionally, this Court
finds that the written statement was written under reliable
circumstances, and Ms. Bethea-Booth was cross-examined on her
prior inconsistent statements at the bench trial. Since the prior
inconsistent statement meets the additional requirements of
reliability, it was offered as substantive evidence. Accordingly,
the evidence presented at trial, along with all reasonable
inferences derived therefrom, is sufficient beyond a reasonable
doubt to sustain the conviction of strangulation.
(Trial Ct. Op., at 6, 8).
After review of the record, we agree with the trial court’s finding that
the documents at issue were prepared under demonstrably reliable
circumstances and that they were signed and adopted by Bethea-Booth.
Although Bethea-Booth testified that she did not remember making the
written statement or answering the strangulation questionnaire, she verified
that her signature was at the bottom of each document. See Enix, supra at
82 (finding that statement to police that had been reduced to writing and
signed by witness is reliable and trustworthy). Booth was free to contest the
reliability of the written statement and questionnaire, which defense counsel
did through extensive cross-examination of Bethea-Booth highlighting her
mental health and memory issues she attributed to lack of compliance with
her medication regimen, coupled with her pattern of self-medication. The
record also supports the trial court’s credibility determination that Bethea-
Booth was feigning her memory loss concerning the exhibits at trial, which it
made as fact-finder after listening to her testimony, coupled with that of
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Officer Pirkle and observing their demeanors, as it was free to believe “all,
part or none of the evidence” presented. See Fitzpatrick, supra at 567.4
In sum, the record reflects that Bethea-Booth’s written statement and
responses to the strangulation questionnaire fell squarely within the ambit of
Rule 803.1(4) and were properly admitted into evidence by the trial court.
Further, the evidence, when viewed in the light most favorable to the
Commonwealth as verdict-winner, provides ample support for Booth’s
conviction of strangulation despite his wife’s purported inability to recall the
incident.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/26/2022
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4 We acknowledge Booth’s argument contesting application of Rule 803.1
because Bethea-Booth’s inability to remember the documents “does not
automatically make the statement[s] inconsistent.” (Booth’s Brief, at 14;
emphasis original) (citing Rule 803.1(1), which governs Prior Inconsistent
Statements of Declarant-Witness). However, the trial court did not apply this
subsection in admitting the documents and instead relied on subsection (4),
which specifically covers a declarant-witness’s claimed memory loss.
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