Com. v. Schenck, R.

J-S19034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RICHARD SCHENCK, :
:
Appellant : No. 3523 EDA 2014
Appeal from the Judgment of Sentence November 6, 2014
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0011513-2012
BEFORE: BENDER, P.J.E., STABILE and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 25, 2016
Richard Schenck (“Schenck”) appeals from the judgment of sentence
imposed following his conviction of simple assault, recklessly endangering
another person (“REAP”) and possessing an instrument of crime (“PIC”).1
We affirm.
The trial court summarized the history underlying the instant appeal as
follows:
On the afternoon of September 6, 2012, [James]
Iyekekpolor [“Iyekekpolor”] was at the Frederick Douglas
School, where his five[-]year[-]old daughter is a student. The
child’s mother is Shakera Pritchett [“Pritchett”]. [] Pritchett is
the girlfriend of Complainant, Theodore Long [“Long”]. []
Iyekekpolor had full custody of the child.
Pritchett and Long arrived at the school to pick up the
child. Pritchett noticed [] Iyekekpolor’s vehicle outside. She
entered the school[,] where she encountered [] Iyekekpolor.
When [Iyekekpolor] saw Pritchett, he said[,] “Bitch, you’re next”
1
18 Pa.C.S.A. §§ 2702, 2705, 907(a).
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and started walking toward her. Pritchett left the school and
walked toward Long, as [] Iyekekpolor followed. Long stepped
between them and a “tussle” ensu[ed]. [] Iyekekpolor pulled
out a knife and cut Long in the face, near his left eye.
[] Schenck[, Iyekekpolor’s uncle,] then approached with
an object that appeared to be a stick, but which proved to be a
crowbar, which he swung, striking Long on the arm and Pritchett
on the leg. Pritchett tried to pull Iyekekpolor off of Long, but
she got hit in the head and recalls nothing after that. At some
point[,] the knife was grabbed by Long, who used it against
Iyekekpolor, before it was taken away from him. Long suffered
cuts to his face, fractures to his skull, a fractured arm requiring
surgical insertion of a rod, injury to his leg, a broken nose,
fractured jaw, and multiple other cuts, contusions and abrasions.
[] Iyekekpolor suffered multiple stab wounds to his left chest,
left arm, left hand, right hand and left leg.
* * *
[] Pritchett identified [Iyekekpolor and Schenck] to the
[police] officers as having attacked her boyfriend, [] Long….
Trial Court Opinion, 3/17/15, at 2-4 (unnumbered).
Following a jury trial, Schenck was convicted of the above-described
charges. The trial court subsequently sentenced Schenck to a prison term of
2½-5 years for his conviction of PIC. For his conviction of simple assault,
the trial court imposed a consecutive sentence of 1-2 years in prison. For
his conviction of REAP, the trial court imposed a consecutive sentence of 1-2
years in prison. Thus, Schenck received an aggregate sentence of 4½-9
years in prison. Schenck filed a timely Notice of Appeal, followed by a court-
ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on
appeal.
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Schenck presents the following claims for our review:
1. Did the Commonwealth fail to disprove beyond a reasonable
doubt that [Schenck] was not justified in using force to protect
himself or another person?
2. Did the [trial court] err in holding that Track 3 of the 911
tape was admissible as a present sense impression or an excited
utterance?
3. Did the [trial court] err in holding that Track 3 of the 911
tape was admissible because its prejudicial effect outweighed its
probative value?
4. Did the Commonwealth fail to prove beyond a reasonable
doubt that the admission of Track 3 of the 911 [tape] was not
harmless error?
Brief for Appellant at 4.
Schenck claims that through the testimony of the Commonwealth
witnesses, during direct and cross-examination, he established the defenses
of self-defense and defense of another. Id. at 15. Schenck asserts that the
Commonwealth failed to disprove these defenses and, therefore, the
evidence was insufficient to sustain his convictions. Id. According to
Schenck, he was not party to the underlying dispute between Iyekekpolor
and Pritchett. Id. at 17. Schenck directs our attention to Prichett’s
testimony that Schenck exited a vehicle after his nephew, Iyekekpolor,
began fighting with Long. Id. at 18. According to Schenck, he interceded to
protect Iyekekpolor. Id. Therefore, Schenck argues, he established the
defense of justification by use of force pursuant to 18 Pa.C.S.A. § 506. Brief
for Appellant at 18.
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Schenck further argues that, “[o]nce engaged in the fight to protect
Iyekekpolor, [Schenck] acted in self-protection and in defense of
Iyekekpolor.” Id. According to Schenck, he also established the defense of
justification by use of force in self-protection pursuant to 18 Pa.C.S.A.
§ 505. Brief for Appellant at 18. Schenck acknowledges the testimony of
Regina Anderson (“Anderson”), who gave a different account of the
altercation. Id. However, Schenck asserts that Anderson was not present
at the school when the incident began. Id. Therefore, Schenck argues, the
Commonwealth failed to controvert Schenck’s claim that he was absent
when the altercation began. Id. at 19. On this basis, Schenck contends
that the defense of justification was established. Id.
In reviewing a challenge to the sufficiency of the evidence, we
evaluate the record “in the light most favorable to the verdict winner giving
the prosecution the benefit of all reasonable inferences to be drawn from the
evidence.” Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa. Super.
2009) (citation omitted).
Evidence will be deemed sufficient to support the verdict when it
established each element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty, and may sustain its burden by means of
wholly circumstantial evidence. Significantly, [we] may not
substitute [our] judgment for that of the factfinder; if the record
contains support for the convictions they may not be disturbed.
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Id. (citation and quotation marks omitted). The jury, as fact finder, is free
to believe all, part or none of the evidence. Commonwealth v. Toland,
995 A.2d 1242, 1245 (Pa. Super. 2010).
Regarding self-defense, the Pennsylvania Crimes Code provides, in
relevant part, as follows:
§ 505. Use of force in self-protection
(a) Use of force justifiable for protection of the person.—
The use of force upon or toward another person is justifiable
when the actor believes that such force is immediately necessary
for the purpose of protecting himself against the use of unlawful
force by such other person on the present occasion.
18 Pa.C.S.A. § 505(a).
To prevail on a justification defense,
the defendant must show (1) he reasonably believed he was in
imminent danger of death or serious bodily injury and that it was
necessary to use deadly force against the victim to prevent such
harm; (2) he was free from fault in provoking the difficulty; and
(3) he did not violate any duty to retreat.
Commonwealth v. Spotz, 84 A.3d 294, 317 n.16 (Pa. 2014) (citation
omitted).
If the defendant properly raises self-defense, under section 505 of the
Crimes Code, “the burden is on the Commonwealth to prove beyond a
reasonable doubt that the defendant’s act was not justifiable self-defense.”
Commonwealth v. McClendon, 874 A.2d 1223, 1229-30 (Pa. Super.
2005). The Commonwealth sustains this burden if it establishes at least one
of the following: “1) the accused did not reasonably believe that he was in
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danger of death or serious bodily injury; or 2) the accused provoked or
continued the use of force; or 3) the accused had a duty to retreat and the
retreat was possible with complete safety.” Commonwealth v. Williams,
91 A.3d 240, 251 (Pa. Super. 2014) (citations omitted). The Commonwealth
must establish only one of these three elements beyond a reasonable doubt
to insulate its case from a self-defense challenge to the evidence.
Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa. Super. 2000).
At trial, Pritchett testified that on September 6, 2012, at 3:45 p.m.,
she and her boyfriend, Long, drove to Frederick Douglas School to pick up
her daughter. N.T., 5/13/14, at 49, 54. Pritchett described the altercation
as follows:
We pulled up. I noticed [Iyekekpolor’s] truck was there. I
went into the school. I seen him in the office talking to a
[teaching assistant]. He had some type of paper in his hand,
and he turned around and seen me, and he was like, “Bitch,
you’re next.”
So he started walking towards me, so I started walking out
of the school as fast as I could, got out [of] the school and I
seen [] Long, you know, I started walking faster. [] Long came
in between me and [Iyekekpolor], and that’s when [] Long and
[Iyekekpolor] started to tussle back and forth. [Iyekekpolor]
pulled out a knife, [] Long was stabbed on his face.
The tussle went on. I tried to, you know, break it up. And
[Iyekekpolor] started beatin’ me. My shirt got cut. You know,
two big guys trying to break it up. They go around the vehicle,
[and] started fighting.
The next thing you know, [Long] was on the ground. I
seen [Schenck] come out and he was swinging
something, and that’s when [] Long was on the ground. I
was on top of [Long] We were all like bunched up. I felt
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something hit me in my leg, and I seen something hit [] Long on
his shoulder ….
Id. at 55-56 (emphasis added).
Long testified that on September 6, 2012, he and Pritchett parked
outside of Frederick Douglas School in order to pick up Pritchett’s daughter.
N.T., 5/14/14, at 54-55. Long stated that as Pritchett exited the school and
walked toward the car, he saw Iyekekpolor approach Pritchett. Id. at 58.
Long explained that he stepped between Pritchett and Iyekekpolor, at which
time Iyekekpolor attacked him with his fists and a knife. Id. at 59-60.
According to Long, Schenck approached the two fighting men and struck
Long with a crowbar. Id. at 63.
Anderson testified that while waiting to pick up her daughters, she
observed Iyekekpolor and Schenck jump out of their vehicle and begin
beating Long. N.T., 5/14/14, at 26, 31. Anderson testified that the two
men continued to beat Long after Long was on the ground. Id. at 33.
Viewed in a light most favorable to the Commonwealth, the evidence is
sufficient to disprove Schenck’s claims of self-defense and justification
beyond a reasonable doubt. Specifically, the evidence is sufficient to
establish that, while Long was on the ground, Schenck did not reasonably
believe that Iyekekpolor was in danger of death or serious bodily injury; that
Schenk had a duty to retreat; and, with Long on the ground, retreat was
possible with complete safety. See Williams, 91 A.3d at 251. While some
of the evidence conflicted, the jury was free to believe all, part or none of
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the evidence. See Toland, 995 A.2d at 1245. Accordingly, we cannot grant
Schenck relief on this claim.
Schenck next claims that the trial court improperly admitted the 911
recording of a female caller relaying information from a third person, under
the present sense impression exception to the rule against hearsay. Brief
for Appellant at 19. Schenck points out that in a recording identified as
Track 3, the female caller is unidentified and not subject to cross-
examination. Id. at 21. Schenck argues that the Commonwealth failed to
establish
(1) how much of her report was based on what she saw and how
much was the result of what other unidentified people told her;
(2) how far she was from the action; (3) how clearly she could
see the action; (4) whether her view was obstructed or
unobstructed; (5) whether or not she had a prescription for
glasses; (6) whether she wore her glasses; and (6) what eye
condition, if any, she had.
Id. at 20-21.
Schenck further argues that Track 3 is not admissible as an excited
utterance, as the Commonwealth failed to prove that the caller was startled.
Id. at 22. Schenk contends that the caller was not at the crime scene, but
some distance away. Id. at 24. In addition, Schenck asserts that the
Commonwealth failed to establish that the caller had firsthand knowledge of
the events. Id. at 25.
In his third claim, Schenck argues that the trial court erred in
admitting Track 3 of the 911 call because its prejudicial effect outweighed its
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probative value. Id. at 26. In his fourth claim, Schenck argues that any
error in the admission of Track 3 was not harmless. Id. at 27.
“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. Glass, 50 A.3d 720, 724-
25 (Pa. Super. 2012) (citation and internal quotation marks omitted).
As this Court has explained,
[h]earsay is an out-of-court statement offered to prove the truth
of the matter asserted in the statement. As a general rule,
hearsay is inadmissible, because such evidence lacks guarantees
of trustworthiness fundamental to our system of jurisprudence.
The rule against admitting hearsay evidence stems from its
presumed unreliability, because the declarant cannot be
challenged regarding the accuracy of the statement. However,
certain exceptions have been fashioned to accommodate certain
classes of hearsay that are substantially more trustworthy than
hearsay in general, and thus merit exception to the hearsay rule.
Commonwealth v. Kuder, 62 A.3d 1038, 1055 (Pa. Super. 2013).
The excited utterance exception to the rule against hearsay 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 describes or
explains the startling event or condition, but it does have to relate to it.
Pa.R.E. 803(2), cmt. Applying Rule 803(2), our Pennsylvania Supreme
Court has stated that a statement, made under the following circumstances,
is considered an excited utterance:
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[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.
Commonwealth v. Sherwood, 982 A.2d 483, 495-96 (Pa. Super. 2009)
(emphasis added, citation omitted). “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.
Rule 803(1) permits the admissibility of a “present sense impression”
as an exception to the rule against hearsay. A 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.” Pa.R.E. 803(1) (emphasis added). The “declarant
need not be excited or otherwise emotionally affected by the event or
condition perceived.” Pa.R.E. 803(1), cmt.
At issue in this appeal is the trial court’s admission of the 911
telephone call identified at trial as “Track 3,” and designated as Trial Exhibit
C-8. The content of Track 3 is as follows:
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[Dispatcher]: Philadelphia Police.
[Caller]: Hi, um, I have a parent fight out at 22 nd and Norris
Streets. There are adults beating each other up outside.
[Dispatcher]: I’m sorry, what’s going on?
[Caller]: Uh, there are adults beating each other up on the
corner of 22nd and Norris. I’m calling from [inaudible] Frederick
Douglas Charter School.
[Dispatcher]: Alright, we’ll be out there as soon as possible.
[Caller]: There, the man is bleeding severely.
[Dispatcher]: Do you need an ambulance?
[Caller]: Yes, hopefully, yes.
[Dispatcher]: Hold on.
[Caller]: Three men, two men on one, and one female.
[Call is transferred to Fire Department Dispatcher]
[Dispatcher]: Philadelphia Fire Department [inaudible] what’s
the address?
[Caller]: Hi, uh, it’s 2118 West Norris Street. There’s a man
severely beaten in the street, bleeding from the head.
[Dispatcher]: … West Norris Ma’am, or East Norris?
[Caller]: Yes. West Norris.
[Dispatcher]: He’s outside?
[Caller]: Yes, he’s outside on the street.
[Dispatcher]: Are they still going after him?
[Caller]: Uh, they just left. They just [] threw the weapon in
the yard and left.
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[Dispatcher]: Ok was it a shooting or a stabbing?
[Caller]: I don’t know, it looked like um, I saw them throw a
metal rod in the field.
[Dispatcher]: Alright, does the man appear to be moving at all?
[Caller]: He is moving, he’s getting up, but his face is badly
beaten.
[Dispatcher]: Alright, is anybody over there with him?
[Caller]: There’s a female screaming. He’s, he’s disoriented,
he’s trying to stand up right now.
[Dispatcher]: Tell, tell her to keep him on the ground. Tell her
not to try to get up and move him.
[Caller]: OK[,] I’m actually, I don’t know that it’s safe for me to
go outside, um I’m looking through a window right now.
[Dispatcher]: Just tell her, tell her, tell the woman that is with
him to keep him on the ground, not to move him, tell him not to
try and get up. Somebody’s on the way over, the more he
moves the more likely he is to hurt himself.
[Caller is heard speaking to another person]
[Caller]: He stabbed her. He stabbed her, so there’s a
knife involved. Um, we’re going to lock down our building,
yeah, we’re going to lock down our building, I don’t think we
need to let our students out. Ok, um ….
[Dispatcher]: Did you say he’s armed with a knife?
[Caller]: Uh, there was a knife, I just got a report that
another observer saw a knife, so we need to lock down
the building [].
[Caller]: Um, I’m going to, do I need to stay on the phone with
you?
[Dispatcher]: Not unless you want to, ma’am.
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[Caller]: Ok, ok[,] I’m going to go take care of the kids. Thank
you.
Trial Exhibit C-8 (admitted at N.T., 5/15/14, at 59) (emphasis added).
Our review of the record discloses that, contrary to Schenck’s
contention, the caller relayed her present sense impression of what was
taking place outside of the window. Further, the events that were relayed
by the caller were “sufficiently startling and so close in point of time as to
render her reflective thought processes inoperable[,]” and that were “a
spontaneous reaction to that startling event.” Sherwood, 982 A.2d at 96.
In the above-quoted 911 telephone conversation, the caller made one
statement referring to information relayed by a third person. Specifically,
the caller referred to having received confirmation that a knife was involved
in the altercation. Trial Exhibit C-8. Upon our review, we conclude that any
error in the admission of this hearsay statement constituted harmless error.
As our Supreme Court has recognized,
[h]armless error exists if the record demonstrates either: (1) the
error did not prejudice the defendant or the prejudice was de
minimis; or (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.
Commonwealth v. Hairston, 84 A.3d 657, 671-72 (Pa. 2014) (citation
omitted).
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Here, the caller’s mention of a knife was cumulative to the testimony
of other, properly admitted evidence. See N.T., 5/14/14, at 28 (wherein
Anderson testified as to the use of a knife during the altercation); see also
N.T., 5/15/14, at 24 (wherein Detective Sean McCaffery testified that he
found a knife in a vehicle at the scene), 29 (wherein Officer John Monahan
(“Officer Monahan”) testified that he observed cuts on Iyekekpolor), 34
(wherein Officer Monahan testified that a person at the scene directed him to
the knife located in Iyekekpolor’s vehicle). Further, the caller, herself,
stated that a person had been “stabbed.” Trial Exhibit C-8. Because the
caller’s relay of information regarding a knife was cumulative to other,
properly admitted evidence, we conclude that any error in its admission was
harmless. See Hairston, 84 A.3d at 671-72. Accordingly, we cannot grant
Schenck relief on this claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/25/2016
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