Com. v. Harris, C.

J-S18029-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CORWIN HARRIS :
:
Appellant : No. 3025 EDA 2019
Appeal from the Judgment of Sentence Entered September 23, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004435-2017
BEFORE: PANELLA, P.J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED JULY 16, 2021
Corwin Harris (Appellant) appeals from the judgment of sentence
entered on September 23, 2019, in the Court of Common Pleas of Philadelphia
County, after he was convicted, by a jury, of burglary and a violation of the
Uniforms Firearms Act, namely, persons not to possess firearms.1 Appellant
claims the evidence was insufficient to establish his conviction of VUFA § 6105
as a felony of the first degree, and the trial court erred or abused its discretion
in admitting two hearsay statements. We affirm.
Following a March 2017 assault, Appellant was arrested and charged
with burglary, VUFA § 6105, aggravated assault, terroristic threats, and
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3502; 6105(a) (hereinafter VUFA § 6105).
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possession of an instrument of a crime (PIC)2. He proceeded to a bifurcated
trial. The trial court recounted the testimony presented at trial as follows:
Samuel Hodge, Jr. (hereinafter referred to as
“[C]omplainant”) testified [that o]n March 17, 2017, he lived with
his girlfriend Erin Thomas and her son on the third floor of the
three-story house located at 1330 West Jerome Street,
Philadelphia, PA. On that date, [A]ppellant also lived in the house
although [C]omplainant could not state where in the house
[A]ppellant lived. [At trial,] [C]omplainant testified that he did not
remember giving a statement to the police following [an] assault
[that day]. Complainant was then shown his March 18, 2017,
statement taken by Detective [Jason] Tomon . . . in an effort to
refresh his recollection.
In [the] statement [C]omplainant stated that . . .
immediately following an argument he was having with his
girlfriend, Ms. Thomas, [A]ppellant, who had lived on the second
floor, front bedroom, for about eight (8) or nine (9) months, came
up to the third floor with a gun in his hand, broke down his door
and struck [C]omplainant eight (8) to twelve (12) times in the
back of his head with a gun while threatening to kill
[C]omplainant. The police captured [A]ppellant and brought him
back to the house and [C]omplainant identified [A]ppellant as the
man who had just assaulted him. In the statement, which was
signed and initialed by [C]omplainant, . . . he also stated that the
back of his head was cut and was bleeding from being struck by
the gun and that [A]ppellant did not have his permission to enter
his room. After reading the statement to the jury, [C]omplainant
was then asked if the statement helped refresh his recollection of
the assault and he responded “No.”
Complainant was then shown his testimony taken during
[A]ppellant’s May 22, 2017, preliminary hearing in a further
attempt to refresh his recollection. At [A]ppellant’s preliminary
hearing [C]omplainant identified [A]ppellant was living on the
second floor, front bedroom of the boarding house where he also
lived and as being the person who threatened to kill him while
pistol-whipping the back of his head after breaking down the door
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2 See 18 Pa.C.S. §§ 907(a), 2706(a)(1), 2702(a).
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to his third floor room[.] Complainant described the gun as black
with an[] extended magazine that fell off while [A]ppellant was .
. . striking him with the gun.
[A]fter being questioned about the above testimony,
[C]omplainant stated that he did not remember being at the
preliminary hearing. Complainant testified that he did not
remember being pistol-whipped by [A]ppellant or anything that
happened on March 17, 2017. However, when asked,
[C]omplainant testified that he was not saying that it didn’t
happen but only that he did not remember it happening.
* * *
Philadelphia Police Officer Michael Chichearo testified [that
he] and his partner . . . received a radio call at 10:15 p.m. of a
person with a gun and a shooting at 1330 West Jerome Street.
They arrived within minutes and at the entrance to the house he
saw [C]omplainant bleeding from his head. Officer Chichearo then
heard a female [Ms. Erin Thomas] screaming upstairs. As he
went up the steps inside the house he observed [A]ppellant in the
bathroom located on the second floor of the house. He observed
through the open door [A]ppellant go behind the bathroom door
near the bathtub while holding a black object in his hand. He then
heard the sound of the metal object hitting the ground. He
immediately told [A]ppellant to get out of the bathroom and after
handing [A]ppellant off to another officer, [he] observed
[A]ppellant “walk towards the front bedroom” on the second floor.
Officer Chichearo then looked behind the bathroom door and
didn’t see anything on the floor and thought it was “weird” that
nothing was there despite seeing the object in [A]ppellant’s hand
and hearing the loud sound of metal hitting the ground.
Officer Chichearo testified that when he got to the third floor
and had an opportunity to observe[] Ms. Thomas, she was crying
and screaming and having difficulty talking. Officer Chichearo
testified that he was attempting to calm her down. Ms. Thomas
began telling him what had happened and that during this time
she was “still upset,” and her voice was elevated and she was still
crying. . . .
[Officer Chichearo recounted that] Ms. Thomas told [him]
the male who lives on the second floor with the “crazy hair”
[Appellant] kicked in their third floor door and pistol-whipped her
boyfriend [Complainant]. Officer Chichearo then went back down
to the second floor bathroom to look for a gun [A]ppellant may
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have used to assault [C]omplainant. He then found a small door
on the wall behind the tub which contained a shelf and plumbing
pipes. This doorway was near where he had observed [A]ppellant
earlier. Officer Chichearo opened this door and found a black and
silver gun with an extended magazine and an assault rifle. . . .
Philadelphia Police Detective David Sherwood testified
[that] he interviewed Samuel Hodge, Sr., the owner of the
property where the assault occurred, and obtained his consent to
search the property, specifically the second floor front bedroom
where [A]ppellant resided. Detective Sherwood testified that Mr.
Hodge told him that he owned the entire property located at 1330
West Jerome Street and that he rented the second floor, front
bedroom to [A]ppellant. [The] search of [A]ppellant’s bedroom
[uncovered] a ballistic vest and live ammunition. . . .
Philadelphia Police Officer Daniel Martinez testified [that] he
and his partner . . . proceeded in their vehicle to search for
[A]ppellant [who had fled the scene]. They located [A]ppellant a
few minutes later about a block away[.] They brought [A]ppellant
back to the house and he was positively identified by
[C]omplainant as the assailant.
Officer Martinez further testified that following the arrest of
[A]ppellant he and his partner . . . completed both a “Pedestrian
Vehicle Investigation” form and a Biographical Form[. The
Biographical] form listed [A]ppellant’s address as “1330 West
Jerome Street, Second Floor, Front” and indicated that [A]ppellant
lived there alone. Officer Martinez testified that [A]ppellant’s
address would have come from either [A]ppellant himself in
responding to their question about where he lived or from
identification he would have produced or . . . both.
Philadelphia Police Detective Jason Tomon . . . conducted an
interview of [C]omplainant . . . on March 18, 2017, at 12:30 a.m.
which was only a few hours after the attack. He described
[C]omplainant as cooperative and acknowledged that he was
there of his own free will. . . .
Detective Tomon testified that [C]omplainant was given an
opportunity to read and change the statement and that he
observed him sign the statement.
* * *
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By way of stipulation, the Commonwealth played for the jury
a telephone call made by [A]ppellant to his sister on March 28,
2017[,] while he was incarcerated. During the call, [A]ppellant is
heard saying that he “beat the dog shit out of that pussy [victim]”.
[Appellant] presented no evidence in [his] case-in-chief.
Trial Ct. Op, 12/14/20, at 3-9 (record citations and headings omitted).
On June 21, 2019, the jury found Appellant guilty of burglary, but not
guilty of aggravated assault, terroristic threats, and PIC. Following the
verdict, Appellant proceeded immediately to a jury trial on the VUFA § 6105
offense, which was severed from the other charges at Appellant’s request.
The parties stipulated that Appellant had a prior felony conviction which
precluded him from possessing a firearm, and incorporated the testimony from
the burglary trial. See N.T., 6/21/19, at 27-28. After the trial court instructed
the jury on the elements of the offense, the jury found him guilty of VUFA §
6105.
On September 23, 2019, the trial court sentenced Appellant to 10 to 20
years’ imprisonment for burglary and a consecutive 10 to 20 years’
imprisonment for VUFA § 6105. New counsel, James Lloyd, Esquire, was
appointed, and filed a timely notice of appeal on October 22, 2019.3 Appellant
also complied with the court’s order to file Pa.R.A.P 1925(b) statement.
On appeal, Appellant raises the following issues for our review:
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3 On October 1 and 9, 2019, Appellant filed two pro se petitions for review
pursuant to the Post Conviction Relief Act. See 42 Pa.C.S. §§ 9541-9546. On
November 19th, the trial court dismissed the petitions as prematurely filed.
See Order, 11/19/19.
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I. Is the evidence sufficient as a matter of law to sustain
[A]ppellant’s conviction for the crime of violations of the
uniform firearms act, 18 Pa.C.S.A. § 6105 graded as a
felony of the first degree, where the evidence must establish
beyond a reasonable doubt that, “(A) at the time of the
commission of a violation of [§ 6105] subsection (a), the
person has previously been convicted of an offense under
subsection (a); or (B) at the time of the commission of a
violation of [§ 6105] subsection (a), the person was in
physical possession or control of a firearm, whether visible,
concealed about the person or within the person’s reach”,
but there was no evidence presented at trial that [Appellant]
was previously convicted of § 6105(a), and there was
insufficient evidence to establish that the firearms recovered
by police from inside a hidden panel behind a bathtub in a
rooming house were in the physical possession of
[Appellant] or within his reach at the time of his alleged
constructive possession of those firearms?
II. Did the trial court err and/or abuse its discretion when it
permitted the Commonwealth to present hearsay testimony
from Erin Thomas where: she did not appear at trial; the
challenged statement was made after she calmed down and
was not an excited utterance; and where admission of this
evidence was not harmless error as it was unduly prejudicial
to [Appellant] where the only eyewitness to testify
regarding an alleged burglary and assault gave inconsistent
testimony and stated that he did not remember the incident
at all during trial?
III. Did the trial court err and/or abuse its discretion when it
permitted the Commonwealth to present hearsay testimony
from Samuel Hodge, Sr., where: he did not appear at trial;
the challenged statement was that [Appellant] was the
lessee of an apartment where incriminating contraband was
found; this hearsay was offered for the truth of the matter
asserted and does not fall within any hearsay exception; and
where admission of his evidence was not harmless error as
it was unduly prejudicial to [Appellant] where [Appellant’s]
ownership interest, if any, of the room in question was
contested at trial by the defense?
Appellant’s Brief at 5-6.
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In his first issue, Appellant avers the evidence was insufficient to
establish a conviction of VUFA § 6105 as a felony of the first degree. Appellant
argues that the evidence established that he did not physically possess the
firearms recovered by police, as the weapons were discovered in “a hidden
area within the common bathroom in a rooming house.” Appellant’s Brief at
28.
Our review of a sufficiency challenge is well-settled:
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
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 finder 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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014) (citation
omitted).
To support a conviction of VUFA § 6105, the Commonwealth must
establish that Appellant was convicted of an offense enumerated in subsection
(b) of the statute, and possessed, used, controlled, sold, transferred, or
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manufactured or obtained a license to use, control, sell, transfer, or
manufacture a firearm. See 18 Pa.C.S. § 6105(a)(1). This Court has held:
When contraband is not found on the defendant’s person, the
Commonwealth must establish “constructive possession,” that is,
the power to control the contraband and the intent to exercise
that control. The fact that another person may also have control
and access does not eliminate the
defendant’s constructive possession. . . . As with any other
element of a crime, constructive possession may be proven by
circumstantial evidence. The requisite knowledge and intent may
be inferred from the totality of the circumstances.
Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. 2018) (citation
omitted).
Here, Appellant’s specific claim focuses on the grading of his conviction.
Pursuant to Section 6105(a.1):
(1) Except as provided under paragraph (1.1), a person convicted
of a felony enumerated under subsection (b) . . . who violates
subsection (a) commits a felony of the second degree.
(1.1) The following shall apply:
(i) A person convicted of a felony enumerated under
subsection (b) . . . who violates subsection (a) commits a
felony of the first degree if:
(A) at the time of the commission of a violation of
subsection (a), the person has previously been
convicted of an offense under subsection (a); or
(B) at the time of the commission of a violation of
subsection (a), the person was in physical possession
or control of a firearm, whether visible, concealed
about the person or within the person’s reach.
18 Pa.C.S. § 6105(a.1)(1)-(1.1)(i)(A)-(B) (emphasis added).
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In the present case, Appellant concedes that his prior criminal record
prohibited him from possessing a firearm pursuant to § 6105(a). N.T.,
6/21/19, at 28. However, he contends the evidence presented at trial was
insufficient to establish that he physically possessed the firearm recovered by
police to grade his offense as a first degree felony.4 Appellant’s Brief at 28.
He argues that the handgun recovered in the bathroom does not match the
one described by Complainant. Id. at 30. Appellant notes that, in his
statement to police, Complainant described the gun as a “black semi auto
handgun,” while the firearms expert testified the handgun recovered from the
bathroom was a “green and stainless steel finish with a four-and-a-half-inch
barrel” fitted with a brown grip sleeve. Id. at 29-30 (emphasis omitted).
Moreover, the detective who recovered the weapon chose to not process it for
the presence of DNA and/or fingerprint evidence. Id. at 28-29.
Furthermore, Appellant emphasizes that the trial court instructed the
jury on the difference between actual possession and constructive possession
with respect to VUFA § 6105, stating: “A person can be guilty of possessing
an item even when he or she is not holding it, touching it, or in the
same area of the item, that type of possession is what the law calls
constructive possession.” Id. at 31 (some emphasis omitted); N.T., 6/21/19
at 31. However, he notes that the jury was not required to make a specific
finding as to whether he physically possessed or constructively possessed
____________________________________________
4 The Commonwealth did not assert that Appellant had a prior VUFA § 6105
conviction. See 18 Pa.C.S. § 6105(a.1)(1.1)(i)(A).
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the gun in question. Id. at 31-32. Appellant avers that, while constructive
possession can support a conviction for VUFA § 6105 as a felony of the second
degree, it cannot support a conviction for VUFA § 6105 as a felony of the first
degree, which requires proof that, inter alia, “the person was in physical
possession or control of a firearm, whether visible, concealed about the person
or within the person’s reach.” Id. at 32-34; 18 Pa.C.S.A. §
6105(a.1)(1.1)(i)(B). Thus, Appellant argues the “default grading” for a §
6105 violation is a felony of the second degree, and “this would certainly apply
to a violation of § 6105 premised upon a theory of constructive possession.”
Id. at 33. Because the jury “did not make a finding that [he] was in physical
possession of a firearm,” Appellant insists the evidence was insufficient to
support his conviction of VUFA § 6105 as a first degree felony. Id. at 38.
Furthermore, since he was only charged with the crime as a first degree
felony, Appellant contends his conviction should be reversed and his sentence
on that count vacated. Id. at 39.
The trial court found that the Commonwealth proved Appellant was in
physical possession of the firearm he used to pistol-whip Complainant through
the testimony of the Complainant (via the admissible statements given to the
police) and statements given by his girlfriend, Ms. Thomas. Trial Ct. Op. at
13. Moreover, the trial court also found that the Commonwealth proved
Appellant constructively possessed the firearm recovered from the second
floor bathroom, following the assault. Id. The trial court specifically cited
Officer Chichearo’s testimony that “he observed a black object in [A]ppellant’s
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hand and then heard the sound of metal hitting the ground when [A]ppellant
dropped the object behind the bathtub where he was hiding.” Id. at 14.
Upon our review of the record, we agree the evidence was sufficient for
the jury to determine beyond a reasonable doubt that Appellant had actual
physical control over the handgun recovered from the bathroom. Both
Complainant and his girlfriend, Ms. Thomas, provided statements to the police
detailing how Appellant beat Complainant with the firearm, demonstrating his
physical possession of the weapon. N.T., 6/19/19, at 56-57, 83. Officer
Chichearo also testified that he observed a black object in the Appellant’s hand
while Appellant was in the bathroom, and, afterwards, heard the sound of
metal hitting the ground when Appellant dropped this object – once again,
demonstrating Appellant’s physical possession of the weapon. Id. at 108-09.
Indeed, the officer explained:
When I observed the gun in the false bottom -- which is this high
up, and it’s empty to the bottom. When I observed the handgun
and the other gun in the area of the pipes, if he would have
dropped it in there, it would have made that noise of the metal.
Id. at 109. Thus, when viewed in the light most favorable to the
Commonwealth, the evidence demonstrates that either Appellant “was in
physical possession” of the firearm or the firearm was “within [his] reach”. 18
Pa.C.S. § 6105(a.1)(1.1)(i)(B).
We also conclude Appellant’s concern regarding the court’s jury
instruction is of no moment. Although the court did instruct the jury it could
find Appellant guilty of “constructive possession” even if he was not “in the
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same area” as the weapon, the testimony established that Appellant was not
only “in the same area” as the weapon, but that he physically possessed the
handgun when he (1) beat Complainant with the gun and (2) hid it in the
bathroom, where it was recovered a short time later. See N.T., 6/21/19, at
31, 57, 83, 108-09.
In his second and third issues, Appellant argues that the trial court
abused its discretion by admitting two hearsay statements.5 “A trial court has
broad discretion to determine whether evidence is admissible and a trial
court’s ruling on an evidentiary issue will be reversed only if the court abused
its discretion.” Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super.
2013). An abuse of discretion occurs when “the law is overridden or
misapplied, or the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the
record.” Commonwealth v. McAleer, 748 A.2d 670, 673 (Pa. Super 2000)
(citation omitted). Even when the trial court improperly admits certain
evidence, this Court may find the error is 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.
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5 We note Appellant properly objected to the challenged statements at trial.
See N.T., 6/19/19, at 80-81, 126-128.
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Commonwealth v. Stallworth, 781 A.2d 110, 120 (Pa. 2001) (citation
omitted).
The Pennsylvania Rules of Evidence define hearsay as “a statement that
(1) the declarant does not make while testifying at the current trial or hearing;
and (2) the party offers in evidence to prove the truth of the matter asserted
in the statement.” Pa.R.E. 801. Rule 802 also provides that hearsay
statements are generally inadmissible. See Pa.R.E. 802. However, Rule 803
lists certain exceptions to the rule against hearsay, regardless of whether the
declarant is available as a witness. See Pa.R.E. 803. One of these exceptions
is the “excited utterance” exception. Pursuant to this exception, “[a]
statement relating to a startling event or condition, made while the declarant
was under the stress of excitement that it caused” is admissible. Pa.R.E.
803(2).
Appellant first avers the trial court abused its discretion in permitting
the Commonwealth to present hearsay testimony from Erin Thomas under the
“excited utterance” exception. Appellant’s Brief at 40-42. Appellant claims
that, because the officer testified Ms. Thomas had “calmed down,” her
statements were not a “spontaneous reaction” to a startling event. Id. at 44-
45 (emphasis omitted); N.T., 6/19/19, at 80. Appellant maintains that the
admission of the out-of-court statement from Ms. Thomas was “unduly
prejudicial” and “deprived [him] of a fair trial.” Appellant’s Brief at 46.
When considering the excited utterance exception, there is no bright line
rule regarding the amount of time that may elapse between the declarant’s
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experience and their statement. Commonwealth v. Gray, 867 A.2d 560,
570 (Pa. Super. 2005) (citations omitted). The 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.” Id. at 570-71. Furthermore, the spontaneity of the excited
utterance “is the source of reliability and the touchstone of admissibility.” Id.
at 571 (citation omitted).
Here, based on Officer Chichearo’s testimony, the trial court found that
Ms. Thomas was “still upset” when she related her account of the assault to
him. Trial Ct. Op., 12/14/20, at 11. The court explained that Ms. Thomas
“had just been confronted by something terribly shocking and startling” —
Appellant’s pistol-whipping of her boyfriend — and relayed the necessary
information to Officer Chichearo “while still under the stress of that
excitement.” Id.We agree that, when Ms. Thomas spoke to Officer Chichearo, she
remained under a “nervous excitement” from the startling event of witnessing
her boyfriend being physically assaulted just moments before. Although
Appellant argues that Ms. Thomas’ statements were made in response to the
officer’s direct questioning, as opposed to spontaneous remarks, we note that
a hearsay statement may be admissible as an excited utterance “even if it was
the product of questioning.” Commonwealth v. Sherwood, 982 A.2d 483,
496 (Pa. 2009). Thus, the trial court did not abuse its discretion when it
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admitted Ms. Thomas’ statement as an excited utterance pursuant to Pa.R.E.
803(2).
Appellant also argues the trial court abused its discretion in permitting
the Commonwealth to present a hearsay statement from Samuel Hodges, Sr.,
that he rented the second floor bedroom to Appellant. See N.T., 6/19/19, at
126-128. Appellant insists there is no hearsay exception that would permit
this out of court statement to be presented at trial. Appellant’s Brief at 47.
He notes that the officers testified there was “no proof of residence or other
evidence . . . found in [the second floor front] bedroom which indicated it was
[A]ppellant’s room.” Id. at 48-49; N.T., 6/19/19, at 131-132, 134-135.
Appellant emphasizes the only evidence establishing his residence at this
location came from the hearsay statement of Hodge, who “did not provide the
detective with a lease or any other documentation” to support his statement.
Appellant’s Brief at 49. Thus, Appellant maintains the admission of this out of
court statement was “unduly prejudicial” and “deprived [him] of a fair trial.”
Id.
The trial court opined that it “permitted this testimony as . . . part of
the police investigation into the burglary and assault.” Trial Ct. Op. at 12.
Moreover, the court emphasized that the information in Hodge’s statement,
as to where Appellant resided, was already before the jury, since Complainant
told police Appellant lived on the second floor, and Officer Martinez testified
that Appellant’s Biographical Form listed Appellant’s address as the second
floor front bedroom of the rooming house. N.T., 6/19/21, at 43, 55, 150-53.
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We agree that, in the present case, the hearsay statement of Samuel
Hodges, Sr. was “merely cumulative of other untainted evidence” that was
“substantially similar.” Commonwealth v. Stallworth, 781 A.2d 110, 120
(Pa. 2001). Thus, even if the statement was improperly admitted, Appellant
was not prejudiced. Accordingly, Appellant’s objection to the admission of this
hearsay testimony is lacking in merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/2021
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