Commonwealth v. Colon

102 A.3d 1033

2014 PA Super 242

COMMONWEALTH of Pennsylvania, Appellee

v.Luis COLON, Appellant.

No. 3481 EDA 2012

Superior Court of Pennsylvania.

Submitted Sept. 15, 2014.

Filed Oct. 24, 2014.

Karl Baker, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Assistant District Attorney, and Jessica D. Khan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: ALLEN, OLSON, and OTT, JJ.

Opinion

OPINION BY ALLEN, J.:

Luis Colon (“Appellant”) appeals from the judgment of sentence imposed after the trial court determined he violated the conditions of his probation. We affirm.

The trial court summarized the pertinent facts and procedural history as follows:

On September 9, 2010, [Appellant] was found guilty of criminal trespass, graded as a felony of the second degree. On November 10, 2010, the trial court sentenced [Appellant] to nine to twenty months of incarceration followed by two years of probation. On August 17, 2011, [Appellant] pleaded guilty to possession with intent to deliver (“PWID”) and was sentenced to a negotiated sentence of eleven and a half to twenty-three months of incarceration followed by two years of probation. [Appellant's] plea to the PWID charge placed him in direct violation of his parole for the criminal trespass conviction. Also, on August 17, 2011, the trial court revoked [Appellant's] parole on the criminal trespass conviction and sentenced him to the balance of his back time followed by two years of probation.

On November 19, 2011, the trial court granted [Appellant's] early parole petition with the condition that [Appellant] receive mental health and drug/alcohol treatment at Eagleville Hospital. On December 12, 2011, [Appellant] was released from custody and transported to the Eagleville Hospital for inpatient treatment. On January 17, 2012, [Appellant] was released from Eagleville because he successfully completed inpatient treatment at that facility.

On January 18, 2012, just one day after being released from Eagleville Hospital, Philadelphia police officer Mark Brown responded to Third and Cambria Streets in Philadelphia where he observed the complainant, Lynette Santiago, crying, yelling and screaming. Officer Brown described her as “upset” and “frantic.” Santiago told Officer Brown that [Appellant] punched her in the face causing her lip to bleed. Officer Brown observed that Santiago was bleeding from her lower lip, had scratches on her face, and that her shirt was torn. On January 27, 2012, [Appellant] was charged with simple assault for the January 18, 2012 incident.

On September 5, 2012, the Commonwealth filed a Motion to Proceed with Probation Violation Hearing Pursuant to Commonwealth v. Daisey Kates , 305 A.2d 701 (Pa.1973). On September 19, 2012, the trial court conducted the Daisey Kates hearing. At the end of the hearing, the trial court found [Appellant] in violation of both his parole/probation matters, revoked [Appellant's] parole and probation on each case, and determined a new sentence of total confinement was warranted. On November 16, 2012, the trial court sentenced [Appellant] to new sentences of one and a half to five years of incarceration on the criminal trespass conviction and a consecutive two and a half to seven years of incarceration on the PWID conviction.

Trial Court Supplemental Opinion, 2/11/14, at 1–2 (citations to notes of testimony omitted).

Appellant filed a petition to vacate and reconsider sentence nunc pro tunc on November 29, 2012, and on November 30, 2012, the trial court entered an order approving the nunc pro tunc filing but denying the petition. Appellant filed a timely notice of appeal on December 17, 2012, and on December 20, 2012, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant did not file a timely Pa.R.A.P. 1925(b) statement; nonetheless, the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).

On July 26, 2013, Appellant filed a motion to vacate the briefing schedule and remand the certified record to the trial court for completion of the appellate record. On August 20, 2013, this Court granted Appellant's motion and remanded the record. Appellant subsequently filed a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and on February 11, 2014, the trial court filed a supplemental Pa.R.A.P. 1925(a) opinion.

Appellant presents the following issues for our review:

1. Did not the [trial] court err when it admitted hearsay statements that a non-testifying complainant made while under the influence of PCP, where such statements were not “excited utterances” and where the admission of such statements violated [Appellant's] right to confrontation?

2. Was not the evidence introduced at the probation revocation hearing insufficient as a matter of law to establish a technical violation of probation?

3. Did not the [trial court] abuse its discretion and violate the Sentencing Code by sentencing [A]ppellant to four to twelve years state incarceration, a manifestly excessive violation of probation sentence, for a technical violation of probation?

Appellant's Brief at 4.

In his first issue, Appellant argues that the trial court erred when it permitted Officer Brown to testify about out-of-court statements made to him by Ms. Santiago. Specifically, Appellant argues that the trial court erred in concluding that Ms. Santiago's statement to Officer Brown that Appellant had assaulted her fell within the excited utterance exception to the hearsay rule.

With regard to the excited utterance exception, our Supreme Court recently explained:

As is well-settled, excited utterances fall under the common law concept of res gestae. Res gestae statements, such as excited utterances, present sense impressions, and expressions of present bodily conditions are normally excepted out of the hearsay rule, because the reliability of such statements are established by the statement being made contemporaneous with a provoking event. While the excited utterance exception has been codified as part of our rules of evidence since 1998, see Pa.R.E. 803(2), the common law definition of an excited utterance remains applicable, and has been often cited by this Court:

[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.

The circumstances surrounding the statements may be sufficient to establish the existence of a sufficiently startling event.

Commonwealth v. Murray, ––– Pa. ––––, 83 A.3d 137, 157–158 (2013) (citations omitted).

At the September 19, 2012 revocation hearing, in concluding that Ms. Santiago's statement constituted an excited utterance, the trial court relied on the credible testimony of Officer Brown that on January 18, 2012, when he initially encountered Ms. Santiago, she was “crying ... doing a lot of yelling and screaming,” and “seemed very upset.” N.T., 9/19/12, at 7. Officer Brown further noticed that Ms. Santiago had scratches on her face and fresh blood on her lip and that her shirt was torn. Id. at 7–8, 11–12. Officer Brown asked Ms. Santiago what happened, to which she immediately responded that Appellant had struck her and punched her. Id. at 11. Officer Brown additionally testified that Ms. Santiago appeared to him to be under the influence of narcotics based on her having a blank stare and slurred speech. Id. at 15. Officer Brown also observed that Appellant was lying in the street nearby with “fresh blood” on him from injuries to his face and hands. Id. at 16. When Officer Brown attempted to question Appellant, Appellant became “very irate and stated ... that he did not want to discuss any matters with the police.” Id. at 12. Thereafter, Ms. Santiago also refused to answer any more questions or provide any more information to police. Id. at 12–13.

Based on Officer Brown's testimony, the trial court determined that Ms. Santiago's statement constituted an excited utterance, concluding that the statement was in response to a “startling event” and “was made under the stress [of] the excitement caused by that event.” N.T., 9/19/12, at 24. Moreover, the trial court reasoned that Appellant's presence in close proximity to Ms. Santiago, as well the fact that both of their injuries were fresh, corroborated Ms. Santiago's statement. As the trial court explained:

The trial court properly allowed Officer Brown's testimony about Santiago's statements into evidence under the excited utterance exception to the hearsay rule because: (1) Officer Brown's observations indicated that Santiago was under the stress and trauma of suffering the observed injuries, including her elevated voice, frantic and upset demeanor, immediate responses to questions without reflection, torn clothing, scratches on her face, and fresh blood from her lip, (2) Santiago spoke with Officer Brown shortly after sustaining her injuries, while [Appellant] was still laying on the ground and a crowd was still gathered, and (3) the similar injuries to [Appellant], who was “lying in the street,” with several injuries to his head and hands, fresh blood from those injuries, and [Appellant's] irate and uncooperative demeanor.

Trial Court Supplemental Opinion, 2/11/14, at 4 (citations omitted).

Upon review, we find no error in the trial court's decision to admit Officer Brown's hearsay testimony...