Commonwealth v. Green

76 A.3d 575

2013 PA Super 249

COMMONWEALTH of Pennsylvania, Appellee

v.Harry GREEN, Appellant.

Superior Court of Pennsylvania.

Submitted May 13, 2013.

Filed Sept. 4, 2013.

Suzanne M. Swan, Public Defender, Pittsburgh, for appellant.

Michael W. Streily, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BENDER, J., LAZARUS, J., and STRASSBURGER, J.^*

OPINION BY BENDER, J.

Appellant, Harry Green, appeals from the judgment of sentence of an aggregate term of 21 1/2—43 years' incarceration following his conviction for third-degree murder and a violation of the Uniform Firearms Act. Appellant claims the trial court erred in its resolution of several evidentiary issues. After careful review, we affirm.

The events that gave rise to Appellant's trial for murder were recounted by the trial court as follows:

On the afternoon of August 9, 2010, [the Victim] was shot by her boyfriend, [Appellant], in her apartment on Deraud Street in the Hill District section of Pittsburgh. [The Victim] died of a gunshot wound to the head, with a single bullet having entered her head below her right eye. The bullet was recovered [from the] inside [of her] skull. Mr. Terrence Lee, a friend of the [V]ictim and acquaintance of [Appellant], was at the apartment at the time of the shooting and identified [Appellant] as the shooter.²

² Terrence Lee's trial testimony recanted his earlier statements to police. However, this court found the earlier statements to the police to be credible and compelling, as well as consistent with other evidence in the case. Mr. Lee had explained to the [V]ictim's mother that he was anxious about being threatened for his statements to police.

According to the testimony at trial, in the time leading up to the shooting, [Appellant] and [the Victim] had been arguing. [The Victim] had expressed, to a friend and family members, her intentions to break off her relationship with [Appellant]. She was discussing with her friends and family her plans to move from the Hill District to the East Hills. The move was going to be financed by an old boyfriend. Several hours prior to the shooting, [Appellant] overheard one such heated discussion between [the Victim] and her sister, Kahlia. Within minutes of overhearing that conversation, [Appellant] and [the Victim] had an argument, during which [Appellant] took [the Victim]'s cell phone. As [Appellant] left [the Victim]'s apartment, [the Victim]'s sister, Kahlia, was able to see a gun on the right side of his hip. After visiting a friend following her argument with [Appellant], [the Victim] returned to her apartment to wait for [Appellant] to return her cell phone.

The fact that [Appellant] had taken [the Victim]'s cell phone was confirmed by several witnesses. The [V]ictim's sister saw the cell phone in [Appellant]' s hand. The [V]ictim's mother, Barbara Robinson, testified that she was at the [V]ictim's apartment several times in the late morning/early afternoon to pick up her daughter, but stated that [the Victim] would not go with her until [Appellant] returned her phone. Additionally, the [V]ictim indicated to her friend, Janai Curry, that [Appellant] had her cell phone and she was waiting for him to return it to her.

According to the recorded statement that Mr. Lee gave to the police on the night of the shooting, [Appellant] was at [the Victim]'s apartment, engaged in an argument with her, upon Mr. Lee's arrival at the apartment, which was approximately fifteen (15) minutes prior to the shooting. Mr. Lee told the police that, after some period of argument, [Appellant] got up to leave the apartment. As he was walking out the door, the [V]ictim said something to [Appellant], at which point [Appellant] turned toward her, pulled his gun, and shot her in the face. [The Victim] immediately fell to the floor. Mr. Lee initially grabbed [the Victim], then ran outside, looking upstairs of [the Victim]'s apartment, and yelled to the upstairs neighbor, Floorine Turner, to call an ambulance.

Ms. Turner's daughter-in-law, who was also in the upstairs apartment, called the police, and Ms. Turner proceeded downstairs, first to [the Victim]'s sister's apartment and then to the [V]ictim's apartment. As she was descending the stairs, she saw [Appellant] going in and out of the front door. [Appellant] was saying that he was sorry and to [take] care of “my baby.” Ms. Turner also overheard Mr. Lee telling [Appellant] that he needed to get out of there. Ms. Turner positively identified [Appellant], Harry Green, as the [V]ictim's boyfriend and as the person going in and out of the apartment door.

Ms. Janai Curry, who had spent time with [the Victim] that afternoon in the hours before the shooting and whom [the Victim] had told that she wanted to leave [Appellant], also saw [Appellant] after the shooting. As she was walking down the street, returning to her home, she received a frantic telephone call from Mr. Lee using the [V]ictim's phone. The fact that [the Victim]'s cell phone was back at her apartment confirm[ed] [Appellant]'s presence at the scene. The telephone call informed her of the shooting that had just occurred. Ms. Curry then immediately saw [Appellant] leaving the area of the [V]ictim's apartment and walking down the nearby city steps. Ms. Curry testified credibly that she observed that he was wearing a white shirt with blood on the front of it.

Both Mr. Lee and Ms. Turner positively identified [Appellant] via photo array when questioned by police. Mr. Lee also relayed what he had witnessed to the [V]ictim's mother and described the events leading up to the shooting to her. Ms. Turner, an unbiased witness with no real connection to anyone involved in this incident, was the most credible and convincing witness at trial.

Trial Court Opinion (TCO), 12/21/12, at 2–5.

At CP–02–CR–0013983–2010, the Commonwealth charged Appellant with murder, 18 Pa.C.S. § 2502, for the death of the Victim. At CP–02–CR–0001065–2011, the Commonwealth charged Appellant with carrying a firearm without a license, 18 Pa.C.S. § 6106. These cases were consolidated and tried non-jury before the Honorable Beth. A. Lazzara in the Court of Common Pleas of Allegheny County, Criminal Division. On September 20, 2011, the trial court returned a verdict finding Appellant guilty of carrying a firearm without a license and third-degree murder, 18 Pa.C.S. § 2502(c). On December 16, 2011, the trial court sentenced Appellant to a term of 20–40 years' incarceration for third-degree murder, and a consecutive term of 18–36 months' incarceration for the firearm offense.

Appellant filed timely post-sentence motions which were denied by order dated February 28, 2012. Appellant then filed a timely appeal with this Court on March 29, 2012. Appellant submitted a timely Pa.R.A.P. 1925(b) concise statement to the trial court on May 11, 2011, and the trial court filed its 1925(a) opinion on December 21, 2012.

Appellant raises the following questions for our review:

1. Did the lower court err in admitting hearsay evidence under the “state of mind” exception to the hearsay rule when the state of mind of the victim was not at issue?

2. Did the lower court err by admitting hearsay statements which conveyed mixed messages, were mere commentary on the state of a relationship and did not contain threats?

3. Was it improper for the lower court to allow evidence of prior acts under the “history of the case” exception to the ban on prior bad acts evidence when that evidence lacks probative value and only serves to cast the Appellant in a bad light and unfairly prejudice the fact-finder?

4. Was it improper for the lower court to allow testimony given by the mother of the decedent when she could not testify to any material facts concerning the case?

Appellant's Brief, at 4.

We begin by addressing Appellant's first two claims of error as they both concern the admission of the same hearsay statements. Appellant's first claim posits that the trial court erred when it admitted the hearsay testimony of two witnesses under the “state of mind” exception to the hearsay rule. Tiffeny Saunders, one of the Victim's friends, was permitted to testify that the Victim told her “that she just needed to get away from” Appellant in the months prior to the shooting. N.T., 9/19–20/11, at 94. Kahlia Trowery, the Victim's sister, was permitted to testify that on August 4, 2010, the Victim told her that she was afraid of Appellant and that she did not want “to go with him” anymore. Id. at 82–83.

The statements of the Victim, as conveyed by Saunders and Trowery, certainly concerned the Victim's state of mind in the weeks and months that preceded the shooting. However, Appellant complains:

None of the statements concern the state of mind of the accused ... and are therefore not at issue. As the Court stated in [ Commonwealth v.] Thornton [494 Pa. 260, 431 A.2d 248 (1981) ], such statements of the victim are only relevant when taken for the truth of the matter that [the Victim] wanted to get away and that she was scared of him. However, when considered for their truth, they are not within in the hearsay exception.

Appellant's Brief, at 19. In Appellant's second issue, he asserts these same hearsay statements were inadmissible under Commonwealth v. Levanduski, 907 A.2d 3 (Pa.Super.2006) ( en banc ).

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.” Pa.R.E. 801(c). Hearsay “is not admissible except as provided by other rules prescribed by the Pennsylvania Supreme Court, or by statute.” Pa.R.E. 802. One of the more well-established exceptions to the inadmissibility of hearsay evidence, commonly referred to as the ‘state of mind’ exception, is set forth among other hearsay exceptions in Pa.R.E. 803. Specifically, Rule 803(3) provides an exception to the hearsay rule for:

(3) Then–Existing Mental, Emotional, or Physical...