Commonwealth v. Keys

CAVANAUGH, J.

¶ 1 Appellant Sean Keys (“Keys”), appeals from the order entered on September 12, 2001, denying his writ of certiorari by the Philadelphia Common Pleas Court after he was convicted of making terroristic threats. See 18 Pa.C.S.A. § 2706. We reverse.

¶2 On July 12, 2000, Keys, while at home, reportedly held a three-foot long sword to his wife’s neck, threatening to cut her throat. Keys then was said to have dragged his wife by her hair and prevented her from leaving the home. Keys’ wife, allegedly held overnight against her will, escaped the next day, ran at least eight to ten blocks and contacted the police.

¶ 3 Officer Marcus Dingle arrived and observed that Keys’ wife was visibly upset and angry. In response to the officer’s query, she recounted the incident. The officer noted that her voice and behavior were distraught and erratic. The officer subsequently arrested Keys and recovered the sword from Keys’ bedroom.

¶ 4 A municipal court bench trial took place on May 11, 2001. The wife did not testify at trial and the record does not reflect the reason for her absence. The officer recounted the wife’s statements and described the retrieved sword.

¶ 5 Keys’ trial counsel objected to the officer’s testimony as to what she said, arguing that it was inadmissible hearsay. The trial court overruled the objection, determining that the wife’s statements were admissible as an excited utterance. The trial court found Keys guilty of making terroristic threats and sentenced him to eighteen months of reporting probation. It is undisputed that the hearsay statements were the sole evidence offered against Keys.

¶ 6 On June 11, 2001, Keys filed a petition for a writ of certiorari, challenging his conviction on the basis that the trial court erred in admitting the wife’s hearsay statements. See Pa.R.CRIM.P. 1006(l)(a). The court denied Keys’ petition on September 12, 2001. On September 20, 2001, Keys filed a notice of appeal with this court.

¶ 7 Keys presents the following issues for our consideration:

[I.] Did not the lower court err in denying Mr. Keys’ Writ of Certiorari challenging his conviction in the Municipal Court as the evidence offered was insufficient to establish guilt beyond a reasonable doubt, and, even if sufficient, the only evidence offered against Mr. Keys at his Municipal Court trial was inadmissible hearsay.

[II.] More specifically, was not the sole testimony offered at trial, a police officer’s claim that defendant’s wife had told him that her husband had assaulted her, in the absence of testimony from the wife herself or any evidence establishing that an assault had taken place, both inadmissible and, even if admissible, insufficient to estabhsh guilt beyond a reasonable doubt?

¶ 8 It is weh-settled that “[a] trial court’s rulings on evidentiary questions ... ’are controlled by the discretion of the trial court and this Court will reverse only for clear abuse of that discretion.” ’ Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639, 644 (1982) (quoting Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140, 146 (1976)). “Discretion is abused when the course pursued represents not merely an error of judgement, but where the judgement is manifestly unreasonable or where the law is not apphed or where the record shows that the action is a result of partiality, prejudice, bias or ill will.” Coker v. S.M. Flickinger Co., 533 Pa. 441, 625 A.2d 1181, 1185 (1993) (citation omitted).

¶ 9 Our supreme court has consistently defined “excited utterance” as:

[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.

Allen v. Mack, 345 Pa. 407, 28 A.2d 783, 784 (1942); accord Commonwealth v. Stallworth, 566 Pa. 349, 781 A.2d 110, 119-20 (2001); Pa.R.E. 803(2); see also Commonwealth v. Zukauskas, 501 Pa. 500, 462 A.2d 236, 237 (1983) (describing an excited utterance as “the event speaking and not the speaker.”). In determining whether a statement is an excited utterance, we have considered the following:

1) whether the declarant, in fact, witnessed the startling event; 2) the time that elapsed between the startling event and the declaration; 3) whether the statement was in narrative form (inadmissible); and, 4) whether the declarant spoke to others before making the statement, or had the opportunity to do so. Commonwealth v. Blackwell, 343 Pa.Super. 201, 211, 494 A.2d 426, 431 (1985). (Citations omitted) These considerations provide the guarantees of trustworthiness which permit the admission of a hearsay statement under the excited utterance exception. “It is important to note that none of these factors, except the requirement that the declarant have witnessed the startling event, is in itself dispositive. Rather, the factors are to be considered in all the surrounding circumstances to determine whether a statement is an excited utterance.” Id. See also, [Idaho v. Wright, 497 U.S. 805, 820-21, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)] (particularized guarantees of trustworthiness must be shown from the totality of the circumstances.)

Commonwealth v. Sanford, 397 Pa.Super. 581, 580 A.2d 784, 788 (1990) (alternation in original) (emphasis supplied).

[T]he crucial question, regardless of the time lapse, is whether, at the time the statement is made, the nervous excitement continues to dominate while the reflective processes remain in abeyance.

Commonwealth v. Carmody, 799 A.2d 143, 147 (Pa.Super.2002) (quoting Commonwealth v. Gore, 262 Pa.Super. 540, 396 A.2d 1302, 1305 (1978)).

¶ 10 Upon consideration of the aforementioned factors in light of the surrounding circumstances, we find that the statements of Keys’ wife do not qualify as an excited utterance and the trial court abused its discretion by ruling otherwise. First, thirty minutes elapsed between the end of the startling event and the statements of Keys’ wife. Second, the statement was elicited eight to ten blocks away from the scene of the startling event. Third, the utterance was in response to the officer’s query.¹ Finally, the utterance is a narrative of overnight events, not a single reaction to a single startling episode. Most importantly, the admission of the hearsay served to deny the accused the right of confronting and cross-examining the sole eyewitness against him.

¶ 11 It is true that our courts have previously, on occasion, liberally accepted statements as an excited utterance despite the passage of substantial time between the startling event and the utterance. We note, however, that such holdings were based upon a consideration of all the surrounding circumstances. See Sanford, supra (three judge panel, Cavanaugh, J., dissenting). Compare Commonwealth v. Noble, 371 Pa. 138, 88 A.2d 760, 763 (1952) (determining, given the circumstances, that a statement elicited at least a half-hour after the incident was not an excited utterance), with Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154, 1159 (1982) (finding that “[under] the circumstances, the suppression court could reasonably conclude that the statement” made within half-hour of incident qualified as an excited utterance).

¶ 12 Moreover, no independent evidence was presented substantiating the alleged incident. See Commonwealth v. Barnes, 310 Pa.Super. 480, 456 A.2d 1087 (1983); see also Commonwealth v. Upshur, 764 A.2d 69 (Pa.Super.2000) (en bane) (plurality), appeal dismissed as improvidently granted, 566 Pa. 589, 782 A.2d 538 (2001). The Barnes court noted, “[w]e are... presented with the troublesome situation in which the excited utterance itself is being used to prove that an exciting event did, in fact, occur. This circuitous reasoning is unacceptable. Where there is no independent evidence that a startling event has occurred, an alleged excited utterance cannot be admitted as an exception to the hearsay rule.” Barnes, supra at 1040.

¶ 13 Assuming the continued efficacy of Barnes, supra, we similarly will not conclude that the wife’s excited utterance, absent independent proof, demonstrates that the startling event occurred. We do not find that the officer’s observations of her agitated state independently establishes the startling event. No testimony was presented that she did not “engage in a reflective thought process” prior to her contact with the police officer.

¶ 14 We will not speculate as to why Mrs. Keys did not appear to testify against her husband. As to the court’s ruling, it may be that emergent policies in the campaign against spousal abuse militate in favor of relaxation of harsh evidentiary rules. We believe, however, that the exception to the hearsay rule as confirmed by the trial court, is inappropriate since it is unlimited in its scope. If followed, it would invalidate the sound reasoning of Barnes, supra, and serve to dramatically relax the rules of evidence so as to permit proof of a crime whenever the prosecutor had available a witness who has heard an excited recitation of facts constituting criminal misconduct. This is surely a matter of policy. If such a radical change in the law is to be accomplished, it must be by an act of the legislature, or by approval of the supreme court, as the case may be.

¶ 15 We find that the court erred in denying Keys’ writ of certiorari. The trial court abused its discretion in admitting the statements. We therefore grant a new trial.

¶ 16 Order reversed. New trial ordered. Jurisdiction relinquished.

¶ 17 HUDOCK, J., files a dissenting statement.

1 . We recognize that statements in response to queries may be categorized as excited utter-anees.