Commonwealth v. Hogan

270 A.3d 1125 (Table)

COMMONWEALTH of Pennsylvania, Appellee

v.Eric Romont HOGAN, Appellant

No. 1328 MDA 2020

Superior Court of Pennsylvania.

Filed: December 7, 2021

MEMORANDUM BY STABILE, J.:

Appellant, Eric Romont Hogan, appeals from his judgment of sentence of eleven to twenty-two years’ imprisonment for burglary and aggravated assault. We treat this appeal as a timely direct appeal for the reasons given in the procedural history below, and affirm Appellant's judgment of sentence.

The trial court summarized the factual history of this case as follows:

On the evening of November 1, 2010, at approximately 10:00 PM, Robert Deluca of Plymouth Pennsylvania heard someone pounding at his door. He answered the pounding by opening the door but no one was there. Instead, he saw a black male wearing a dark hoodie banging on the door of his neighbor, Donald Skiff. Skiff answered his door and he was met by the appellant who told him that he was being chased by a group of men and needed a phone to call 911. Skiff did not see anyone chasing the appellant and he did not see anything unusual on the street. Nonetheless, he allowed the appellant to come inside his residence and then he called 911 from his cell phone and handed the phone to the appellant.

The appellant told the 911 operator his name was Eric Hogan. The appellant continued, telling the 911 operator that four black males in a red Jeep were chasing him and shooting at him. He said that a bullet from a nine millimeter handgun grazed his leg. When the phone call ended, Skiff asked the appellant to leave his house. The appellant, at least initially complied and exited Skiff's residence. As Skiff attempted to lock the door, the appellant reentered the residence. The next thing Skiff could then recall was laying on his kitchen floor being ferociously assaulted. Skiff [regained] consciousness one week later in a hospital.

Officer Michael Derwin of the Plymouth Borough Police Department testified that he was the first officer to arrive on the scene. He spoke with Deluca and then proceeded to check the area for a red Jeep and four black males. He then responded to Skiff's residence. Upon arriving there he heard a door slam. He then went to the rear of Skiff's residence where he heard Skiff's cries for help. Skiff told Officer Derwin that he was assaulted by a bald black male wearing a blue hoodie. Officer Charles Benson of the Edwardsville Police Department encountered the appellant nearby and, suspecting at first that he was a victim of crime, secured him in his patrol car unhandcuffed.

The appellant was then returned to the scene of the assault where he spoke with Officer Derwin. Officer Derwin observed what appeared to be blood on the appellant's clothing. DNA analysis of the appellant's sweatshirt would later reveal that it was stained with Skiff's blood. Officer Derwin, like Officer Benson, also noted that the appellant's left hand appeared to be bloodied and swollen. Officer Derwin did not observe any injury to the appellant's legs. The police did not find any red vehicles or observe any other males fleeing in the area.

An expert witness, Dr. Frederick Toy, also testified at trial. Dr. Toy was on duty at the trauma unit when Skiff arrived for treatment. He testified that Skiff went into cardiac arrest twice as a result of his injuries. He also testified that his injuries were consistent with being choked and punched in the face repeatedly. Dr. Toy agreed that the persistent health and memory losses of Skiff were consistent with the injuries he suffered consequent to the assault upon him.

In addition to the statements that he made to the 911 operator, the appellant made multiple statements to police. When he was first encountered by law enforcement, he advised Officer Benson that three or four black males were chasing him and shooting at him. Later, when speaking with a Luzerne County Detective, he claimed that four white males were chasing him. He said that one of the white males followed him into Skiff's home where the pair fought while Skiff called 911. He denied that his hand was injured in the altercation. Instead, he claimed that he injured his hand in a fall. [Of note], his statement to the County Detective did not include any reference to the four black males or the red Jeep.

Trial Court Opinion, 3/12/21, at 1-4 (citations omitted).

On October 14, 2011, the jury found Appellant guilty of aggravated assault (graded as a first-degree felony), burglary and related offenses. On December 14, 2011, the court sentenced Appellant to 48-96 months’ imprisonment for burglary and to a consecutive sentence of 84-168 months’ imprisonment for aggravated assault. The remaining offenses merged for sentencing purposes. Appellant filed timely post-sentence motions seeking modification of sentence and a new trial, which the court denied on January 31, 2012.

Appellant filed a timely direct appeal, and this Court affirmed his judgment of sentence on February 4, 2013. Appellant did not appeal to our Supreme Court.

On September 10, 2014, Appellant filed a Post-Conviction Relief Act ("PCRA") petition. On February 20, 2015, the PCRA court denied his petition. Appellant appealed to this Court, and on October 4, 2016, we issued a memorandum vacating the order of dismissal and remanding for a hearing to determine whether appellate counsel on direct appeal was per se ineffective for failing to file a requested petition for allowance of appeal to the Supreme Court.

On remand, the PCRA court issued an order on April 5, 2017 granting Appellant leave to file a petition for allowance of appeal to the Supreme Court. The PCRA court did not address the other claims in Appellant's PCRA Petition. Appellant filed a petition for allowance of appeal, which the Supreme Court denied on September 11, 2017.

On March 25, 2019, Appellant filed a petition seeking a hearing to address the unresolved PCRA claims that were raised in Appellant's PCRA Petition but not addressed due to reinstatement of his right to seek allowance of appeal. The PCRA court denied Appellant's petition as untimely.

On August 5, 2019, Appellant filed another PCRA petition. On January 17, 2020, Appellant filed a praecipe to withdraw this Petition. Appellant then filed a habeas corpus petition in federal court. On September 25, 2020, a federal magistrate held that direct appeal counsel rendered ineffective assistance "at all stages of direct appeal" and granted Appellant leave to file another direct appeal within the next 120 days. Order, Hogan v. McGinley , No. 18-417 (M.D. Pa., Sep. 25, 2020). On October 21, 2020, Appellant filed a notice of direct appeal in the court of common pleas. Accordingly, we treat this appeal as a timely direct appeal.

Appellant raises the following issues in this appeal:

I. Did the lower court err in admitting the victim's out-of-court, testimonial, statements to police identifying Appellant, when the victim could not recall making the statements?

II. Did the lower court err in preventing Appellant from presenting medical records containing the victim's statements exculpating Appellant?

III. Was the jury's verdict against the weight of evidence?

IV. Is Appellant's sentence contrary to the Sentencing Code and fundamental norms of the sentencing process, violative of the legislative preference that the sentences for burglary and the target offense generally merge, beyond the statutory maximum he could have received for either count alone, and a virtual life sentence, and, as such, unreasonable?

V. Is Appellant's sentence grossly disproportionate as compared to similar cases, and so cruel and unusual?

Appellant's Brief at 2.

In his first argument, Appellant contends that the trial court erred by admitting Skiff's statement to Officer Derwin that he was assaulted by a bald black male wearing a blue hoodie. According to Appellant, Skiff's statement was hearsay. We conclude that Skiff's statement was admissible under the excited utterance exception to the hearsay rule.

The admission of evidence is solely within the discretion of the trial court, and its evidentiary rulings will be reversed on appeal only upon an abuse of that discretion. Commonwealth v. Manivannan , 186 A.3d 472, 479 (Pa. Super. 2018).

Officer Derwin was the first officer to speak to Skiff at the scene of the assault. On direct examination, Officer Derwin testified that he heard the rear door of Skiff's house slam as he was knocking on the front door. N.T., 10/13/11, at 176-77. Officer Derwin walked around to the rear of the house to investigate the sound, and there, he heard a male inside yelling "help me." Id. at 177. He proceeded to the back porch, where he found the screen door closed. Id. Peering inside, he observed Skiff "laying on the floor with severe head injuries." Id.

Officer Derwin called for an ambulance, entered the house and spoke with Skiff. The prosecutor asked what Officer Derwin said to Skiff, and Officer Derwin answered, "I asked him what had happened. He said he got beat up. I asked him if he knew who did it." Id. at 178. Defense counsel objected, and the prosecutor stated that Skiff's statement was admissible as an excited utterance. Id. The court sustained defense counsel's objection because no foundation had been laid for its admission as an excited utterance. Id.

Later in Officer Derwin's testimony, counsel discussed Officer Derwin's testimony about Skiff's statement at sidebar. Defense counsel argued that Skiff did not make an excited utterance because "it's not excited, he's not blurting something out, it's under interrogation." Id. at 194. The court responded that the prosecutor "can pursue the line of questioning and we'll address it as it comes up." Id.

Skiff was "laying there, you could plainly see that he was in pain. He was grabbing for his eyes. He was telling me I can't see." Id. at 195. "At that point," Officer Derwin continued, "we told him to just wait for the ambulance to get there. The reason he wasn't able to see me was because...