COMMONWEALTH of Pennsylvania v. Cornell GALLOWAY, Appellant.
Superior Court of Pennsylvania.
Filed Nov. 23, 1984.
485 A.2d 776
Submitted March 19, 1984.
Joseph C. Madenspacher, Assistant District Attorney, Lancaster, for Commonwealth, appellee.
Before SPAETH, President Judge, and ROWLEY and BECK, JJ.
SPAETH, President Judge:
This is an appeal from judgment of sentence for second-degree murder. Appellant raises twenty issues on appeal. The trial court‘s opinion adequately addresses issues I-IV, VI, VIII-XIV, and XVI-XIX.1 Consequently, we address only the remaining issues. Of these, issues V and VII, which concern the admissibility of certain hearsay evidence,
On the morning of May 30, 1971, appellant went to his wife‘s apartment, where she gave him his .38 caliber pistol and six bullets, which she had taken with her when she and appellant separated. Later, about 4:00 p.m., appellant returned to the apartment with George Quinn, a friend. Appellant and his wife began arguing. When appellant asked his wife who had helped her move into the apartment, she named three persons, one of them Bobby Lee Jones. Appellant told her to telephone Jones. At first she would not, and they exchanged blows. At one point appellant‘s wife fell, and Quinn pulled appellant from her. According to the wife‘s statement to the police, appellant told her that he “was tired of these young punks trying to act like men. If they wanted to act like men he would treat them like men,” N.T. 114-15, and, further, that she was going to “get it after he took care of Bobby,” N.T. 121, but she “could get it first if [she] wanted it that way,” id. In the end, she called Jones at the apartment of his girlfriend Shirley Johnson, in the building next door, and asked him to come to her apartment because appellant wanted to speak with him. When Jones entered the apartment, appellant punched him, and they started fighting. Appellant‘s wife left the apartment through the bedroom window and ran to Shirley Johnson‘s apartment, where she asked Johnson to call the police. Various neighbors testified to hearing shots coming from appellant‘s wife‘s apartment, and identified appellant and Quinn as the two men leaving the apartment. Appellant was said to have covered his face with a raincoat. Jones was found minutes later on the floor of the apartment. He died of two .38 caliber bullet wounds to the head and chest. Quinn was taken into custody the same day;
Appellant‘s issue V concerns the following testimony by his wife on direct examination:
Q. You ran over to Shirley Ann‘s and what did you tell her?
A. I told her to call the cops because Cornell [appellant] and Bobby [Lee Jones] were fighting.
Q. Is that what you told Shirley—
* * * * * *
THE WITNESS: I ran up the steps. I don‘t know if I had to open the door or Shirley Ann opened the door, if I banged or whatever but anyway I told her to call the cops. I don‘t know what exactly I said. I told her to call the cops because they were fighting.
BY MR. RANCK [the District Attorney]:
Q. Have you looked at the statement to refresh your recollection?
A. I told her Cornell was going to shoot Bobby.
N.T. 123-124.
Defense counsel objected that this testimony was inadmissible as hearsay and an opinion, N.T. 125, and moved for a mistrial. The trial court ruled that the statement was admissible as an excited utterance, and denied the motion for a mistrial. N.T. 127.
When evidence is challenged as hearsay, the first inquiry should be whether in fact it is hearsay. If it is, the next inquiry is whether it is admissible as within an exception to the rule against hearsay evidence.
Here, appellant‘s wife testified that she remembered making a certain statement to Shirley Johnson. Arguably, this testimony was not hearsay: Appellant‘s wife was on the stand, under oath, and subject to cross-examination and the jury‘s observation of her demeanor. Her testimony that she remembered doing something—going to Johnson‘s apartment—was not hearsay. Why should her testimony that she remembered saying something be any different?
As indicated, the trial court ruled that the wife‘s statement was within the excited utterance exception. To come within this exception the statement must be
a spontaneous declaration by a person whose mind has been suddenly made subject to an over-powering 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.
And see Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978); Commonwealth v. Cooley, 465 Pa. 35, 348 A.2d 103 (1975). Appellant does not argue that his wife‘s statement was not “suddenly made subject to an over-pow-
It is of course fundamental that before a witness may testify to having perceived an event, it must appear that the witness had the opportunity to, and did in fact, perceive it. McCormick, supra at 23. And this principle is equally applicable to the declarant who is quoted by a witness testifying to hearsay. Id. Attention must be paid, however, to just what it is that the witness, or declarant, must have perceived. If the witness says, “I saw X,” and it appears that the witness could only have seen Y, then the witness is incompetent to testify to having seen X. But this abstract statement assumes that X and Y are different. Attention to the facts, that is, to the entire context of the witness‘s testimony as shown by all the evidence, may show that X and Y are related in such a way that one who perceived Y may be said to have been able to perceive X.
The necessity of considering the relationship between what the witness testifies to having seen (X) and what the witness could have seen (Y) is implicitly recognized in Allen v. Mack, supra. There, after stating that it must appear that “[the declarant] has just participated in or closely witnessed,” i.e., must have perceived, the exciting event, the Court goes on to say that the declarant‘s statement must “[have been] made in reference to some phase of that occurrence which he perceived.” 345 Pa. at 410, 28 A.2d at
Must the declarant meet the tests of competency for a witness? In a modified manner the requirement that a witness have had an opportunity to observe that to which he testifies is applied. Direct proof is not necessary; if the circumstances appear consistent with opportunity by the declarant, this is sufficient. If there is doubt the question is for the jury. Especially in cases where the declaration is of low probative value, however, it is usually held inadmissible if there is no reasonable suggestion that the declarant had an opportunity to observe.2
(Footnotes omitted.)
Various cases illustrate situations where the evidence was not sufficient to permit a finding that the declarant could have seen what the excited utterance referred to. In Carney v. Pennsylvania R.R. Co., 428 Pa. 489, 240 A.2d 71 (1968) (plurality opinion), it was held error to admit a statement by an unidentified bystander where it would be “mere speculation and surmise . . . whether or not the declarant . . . actually perceived the engine coming out fast with no lights on it.” Id., 428 Pa. at 495, 240 A.2d at 74. And where the defendant in a personal injury action did not make an offer of proof as to what the two declarants actually said to the police officer at the scene and did not establish that the declarants had seen the accident, the statements were not admissible. Williamson v. Philadelphia Transp. Co., 244 Pa.Super. 492, 368 A.2d 1292 (1976). In Commonwealth v. Noble, 371 Pa. 138, 88 A.2d 760 (1952), there was no evidence to show that the child declarant was awake during the attack on her father; the statement was also made after too much time had passed for it to be spontaneous.
This conclusion, however, depends upon an understanding of the wife‘s statement, which we should state explicitly. Suppose that the wife‘s statement to Shirley Johnson had been “Cornell and Bobby are fighting and Cornell says he‘s going to get Bobby.” Plainly, such a statement would be competent as based on the wife‘s perception. In terms of the abstract example supposed earlier, X (the statement) and Y (the perception) would be identical, the one mirroring the other. An inherent feature of an excited statement, however, is that precisely because it is excited, such exact identity, or mirroring, may not, and often if not usually will not, occur. It is in recognition of this fact that Allen countenances “reference to some phase” of the event perceived, and McCormick says that “the requirement that a witness have had an opportunity to observe that to which he
We have no hesitancy in so understanding the wife‘s statement. A full account would have been: “Cornell and Bobby are fighting. Cornell says he‘s going to get Bobby. Since I know he‘s got a gun, I understand him to mean he‘s going to shoot Bobby.” Under the pressure of her excitement, the wife simply omitted the preliminaries, proceeding directly to the conclusion, “Cornell is going to shoot Bobby.” Nevertheless, the fact that the wife did express herself in this manner implicates the opinion evidence rule, and therefore some further discussion is required.
The basis of the opinion evidence rule, broadly stated, is that opinion testimony by a lay witness, as distinguished from an expert witness, should be excluded because witnesses should give the facts—tell what they perceived—and not their opinions. However, as many courts and commentators have had occasion to point out, there is no clear line between a “fact” and an “opinion.” See Lewis v. Mellor, 259 Pa.Super. 509, 393 A.2d 941 (1978) (collecting authorities); and see McCormick, supra at 26-32. Accordingly, the trial court has considerable discretion in ruling upon whether testimony is “fact” or “opinion” testimony, and if “opinion,” whether it should be admitted or excluded. Lewis v. Mellor, supra, 259 Pa. Superior Ct. at 515, 393 A.2d at 944; McCormick, supra at 27. This latitude is particularly appropriate to a ruling on the admissibility of an excited utterance, for someone who is excited is especially likely to speak in conclusory terms. In such a case, therefore, the opinion rule “should be applied sparingly, if at all . . . .” McCormick, supra at 858.
In most of its aspects, the wife‘s statement was not an opinion, but rather, as just discussed, a shorthand de-
In these circumstances, the statement would be admissible in a federal court, see
This case is distinguishable from Commonwealth v. Fugmann, 330 Pa. 4, 198 A. 99 (1938). There, one of the victims opened a letter bomb, and after he had been seriously injured by the explosion, told his wife, “Fugmann done this.” Id., 330 Pa. at 6, 198 A. at 102. The statement was held inadmissible as mere conjecture since the basis for the declarant‘s opinion was not apparent:
Utterances relating to some distinct prior circumstance cannot be received. Maloney‘s exclamation must have
been a conclusion from something that had taken place between him and Fugmann some time before. As Wigmore says (Vol. 3, sec. 1750, page 751): “The [spontaneous] utterance must relate to the circumstances of the occurrence preceding it.” Maloney‘s utterance—so far as it involved Fugmann—did not relate to the circumstance of the occurrence (the explosion) which preceded it. It related to something which had preceded the explosion. (See Agassiz v. Tramway Co., 21 W.R. 199.) Id., 330 Pa. at 16, 198 A. at 106.
Here, in contrast, it is apparent that the wife‘s statement did rationally “‘relate to the circumstances of the occurrence preceding it.‘” From all that appeared, Maloney‘s statement blaming Fugmann may have been based on something (who knew what) that someone (unidentified) had told him. Appellant‘s wife‘s statement, however, was caused by, and related to, only what she herself had just seen.
Appellant‘s issue VII concerns testimony by Shirley Johnson that appellant‘s wife came running to her apartment and said:
A. Shirley Ann, call the cops, Bobby and Cornell are fighting and he is going to either shoot me or kill me, I don‘t remember exactly what words she used, and she left.
N.T. 167.
It should be apparent from the foregoing discussion, without more, that in admitting this testimony the trial court did not abuse its discretion.
Appellant‘s issue XV concerns the trial court‘s refusal to grant his requested point for charge that “[i]f you believe that the Defendant acted out of a fear for his life, even if that fear was totally unreasonable, then this would be voluntary manslaughter and not murder of the second degree.” The trial court held in its opinion that it had adequately charged the jury on this point when it discussed fear as one of the emotions included in “passion” as an element of “heat of passion” voluntary manslaughter. Slip op. at 15-16. We are not persuaded by this reasoning, for
Heat of passion voluntary manslaughter requires that the defendant acted as a result of serious provocation. Whether the provocation was sufficient to support the defense of voluntary manslaughter is determined by an objective standard—whether a reasonable man, confronted by the same series of events, would become impassioned to
Unreasonable belief voluntary manslaughter requires that the defendant have the subjective belief that the killing is justified. For a person to have justifiably used deadly force in defense of himself, three factors must be found to have existed:
First, the actor must have reasonably believed himself to be in imminent danger of death or serious bodily harm, and that it was necessary to use deadly force against the victim to prevent such harm. Second, the actor must have been free from fault in provoking or continuing the difficulty which resulted in the slaying. Third, the actor must have violated no duty to retreat.
Commonwealth v. Brown, 491 Pa. 507, 512, 421 A.2d 660, 662 (1980) (citations omitted).
If the justification of self-defense has not been found, a killing may be voluntary manslaughter if the defendant actually believed that the killing was necessary in self-defense and the killing was committed pursuant to that belief. Commonwealth v. Nau, 473 Pa. 1, 373 A.2d 449 (1977). When any one of the three requirements for the use of deadly force in self-defense is not made out, a conviction for
Unreasonable belief voluntary manslaughter, therefore, does not entail a finding that serious provocation caused sudden passion, with “passion” being interpreted as fear. A person who commits heat of passion voluntary manslaughter must not have been able to think clearly enough to control his actions as a result of an objectively serious provocation. A person who commits unreasonable belief voluntary manslaughter may hold his mistaken belief about the necessity for self-defense without being subject to the strong emotion of sudden passion, or may be mistaken because he was the aggressor or violated a duty to retreat. While it is possible to conceive of situations where both theories of voluntary manslaughter are applicable, they are not coextensive. The Pennsylvania Standard Jury Instructions contain separate instructions for heat of passion voluntary manslaughter and unreasonable belief voluntary manslaughter.4 The trial court‘s instruction was substantially the same as the proposed instruction on heat of passion voluntary manslaughter, N.T. 267-268, but the court gave no additional instruction on unreasonable belief voluntary manslaughter.
However, the trial court‘s refusal of appellant‘s point for charge on unreasonable belief voluntary manslaughter was not error unless appellant was entitled to
Carter was not decided until after this appeal was taken and the parties’ briefs had been filed, and consequently it is not addressed either by the trial court in its opinion or by the parties in their briefs. Nevertheless, we must apply Carter in deciding this appeal, for the opinion in Carter does not specify that the rule it announces is prospective only. Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983). Our difficulty is that we find ourselves unable to apply Carter for two reasons. First, we are unable to determine from the record whether unreasonable belief voluntary manslaughter was made an issue in this case. Appellant himself did not testify. Certain questions asked by appellant‘s counsel in examining appellant‘s wife suggest that counsel was laying a foundation for arguing unreasonable belief voluntary manslaughter, N.T. 136 (appellant shorter and physically smaller than both Jones and Quinn), and there was testimony that after appellant‘s initial punch, the victim and appellant were fighting, N.T. 120, and that the police found a large glass lamp and a glass ashtray on the floor and tables and chairs knocked over, N.T. 216. But whether counsel did argue unreasonable belief voluntary manslaughter is not apparent, for the summations were not transcribed—at least, a transcript is not included in the record transmitted to us. And second, we do not have the benefit of the trial court‘s opinion on whether the evidence could reasonably support a verdict finding unreasonable belief voluntary manslaughter.
In these circumstances we have concluded that we should vacate the judgment of sentence and remand so that the
Finally, by his issue XX appellant argues that his sentence was manifestly excessive and that the sentencing court did not comply with Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), because it did not make specific findings on the record with respect to the twelve factors to be considered for probation.
Judgment of sentence vacated and case remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.
ROWLEY, J., files a concurring statement.
ROWLEY, Judge, concurring:
I join in President Judge Spaeth‘s opinion and the decision to vacate the judgment of sentence and remand for further proceedings. However, I write separately to emphasize that appellant‘s requested point for charge, as written, (Majority opinion at p. 237), is not a correct statement of the law regarding voluntary manslaughter. Therefore, the trial court did not err in refusing the specific instruction presented by appellant. Nonetheless, since appellant‘s request may be read as an attempt to persuade the trial court to instruct the jury regarding “unreasonable belief” volun-