Commonwealth v. Keys
814 A.2d 1256
Pa. Super. Ct.
2003
Check Treatment

*1 Sustrik; case constitutes a final order.

Triffin; Pleas Riggio. Courts of Common jurisdiction petitions

retain to consider fee days period

filed within a of 30 after

entry Henninger; final order. § 5505.

Pa.C.S.A.

¶ Here, of the our review record Appellee

reflects that did not file the fee days voluntary

petition within 30 April of the case. On

discontinuance Appellant praecipe filed to discon praecipe

tinue the action. This to discon equivalent judg

tinue was the of a final May days

ment. Sustrik. On

later, petition Appellee filed for award

counsel fees. The court entered an order January 2002.

awarding counsel fees on petition beyond

Since the fee was filed

30-day period which the court re jurisdiction, trial court lacked

tained late

any authority petition to act on the for Thus, subsequent

counsel fees. its order Ac nullity. Henninger;

was a Kluko. are to vacate the

cordingly, we constrained

order.

¶ 12 vacated. re- Judgment Jurisdiction

linquished. Pennsylvania,

COMMONWEALTH of

Appellee, KEYS, Appellant.

Sean Pennsylvania.

Superior Court of 7, May 2002.

Submitted

Filed Jan.

¶ municipal A court bench trial took not May 2001. The wife did place on and does testify at trial the record The reason for her absence. reflect the and officer recounted wife’s statements retrieved sword. described ¶ objected to Keys’ counsel said, testimony as what she officer’s hearsay. it was inadmissible arguing objection, The trial court overruled statements wife’s as an utterance. were admissible excited Baker, Defender, Public Karl Philadel- found of mak- Keys guilty The trial court appellant. for phia, him terroristic threats and sentenced Marshall, L. Dis- Catherine Assistant eighteen reporting probation. months of Attorney, Philadelphia, trict for Common- hearsay state- undisputed It is wealth, appellee. the sole offered ments were evidence Keys. against HUDOCK, BOWES, Before ¶ 11, 2001, CAVANAUGH, peti- Keys 6 On June filed JJ. certiorari, his challenging tion for writ CAVANAUGH, J. the basis trial court conviction on that the admitting the wife’s erred ¶ 1 Appellant Keys (“Keys”), ap- Sean 1006(l)(a). See Pa.R.CRIM.P. statements. from the order peals Septem- entered on Keys’ Sep- petition The court denied 12, 2001, denying ber writ of certiorari his 20, 2001, 12, 2001. On September tember Philadelphia Common Pleas Court this appeal filed a notice of with Keys after he was convicted making terroris- court. § tic threats. See 18 Pa.C.S.A. We

reverse. following issues Keys presents

¶2 for our consideration: July at Keys, On while home, reportedly long held a three-foot not the err de- Did lower court [I.] neck, cut threatening sword to his wife’s Keys’ Mr. of Certiorari nying Writ Keys her throat. then was said to have challenging his conviction wife dragged prevent- his her hair and Municipal the evidence Court as wife, leaving Keys’ her from ed home. establish offered was insufficient to will, overnight allegedly against held doubt, beyond a guilt reasonable escaped day, the next ran at least and, sufficient, only even if evi- police. ten blocks and contacted the Keys at against offered Mr. dence Municipal was inad- his Court trial Dingle 3 Officer Marcus arrived and hearsay. missible Keys’ visibly upset observed that wife was the sole specifically, More was not angry. to the officer’s [II.] trial, a testimony at recounted incident. The offered query, she claim defendant’s that her officer’s officer noted voice and behavior hus- told him that her distraught and The officer wife had were erratic. her, in the had arrested recovered band assaulted subsequently Keys and testimony Keys’ absence the sword from bedroom. utterance, any wife herself or evidence es- statement is an excited we have tablishing that assault had tak- following: considered the and, place, en both inadmissible 1) declarant, fact, whether the wit- admissible, if even insufficient to 2) event; nessed time *3 beyond guilt estabhsh a reason- elapsed startling between the event able doubt? 3) declaration; and the whether ¶ It8 is weh-settled that trial “[a] (inad- in statement was narrative form rulings evidentiary ques- court’s 4) missible); and, whether the declarant by tions ... ’are controlled the discretion of spoke making to others before the state- the trial court and this Court will reverse ment, opportunity or had the to do so. ’ only for clear abuse of that discretion.” Blackwell, 343 Pa.Su- 5, Cargo, 498 Pa. 444 426, (1985). per. 494 A.2d 431 639, (1982) (quoting A.2d 644 Common- (Citations omitted) These considerations Scott, 258, 140, wealth v. 469 Pa. 365 A.2d provide guarantees of trustworthi- (1976)). 146 “Discretion is abused when permit ness which a admission of pursued the course represents merely ut- statement under the excited an judgement, error of but where the exception. terance “It is important judgement manifestly is unreasonable or factors, note that none except of these apphed where the law is not or where the requirement that the have declarant record shows that action a is result of event, startling witnessed the is itself partiality, prejudice, bias or ill will.” Cok- Rather, dispositive. are to be factors Co., 441, er v. Flickinger S.M. 533 Pa. 625 surrounding considered in all the cir- 1181, (1993) (citation omitted). A.2d 1185 determine a cumstances whether statement is an excited utterance.” Id. supreme 9 Our court has con also, 805, Wright, v. 497 [Idaho See U.S. sistently defined “excited utterance” as: 820-21, 3139, 110 S.Ct. 111 L.Ed.2d 638 spontaneous by per [A] declaration (1990)] (particularized guarantees of suddenly son whose mind been made has must trustworthiness be shown from the subject an overpowering emotion circumstances.) totality unexpected caused some and shock occurrence, person which that has v. Sanford, Pa.Super. Commonwealth 397 just witnessed, participated closely in or (1990) (alternation 581, 784, 580 A.2d 788 phase and made reference to some original) (emphasis supplied). that occurrence which he perceived, question, crucial regardless [T]he this declaration must be made so near whether, time lapse, is at the time the place the occurrence both in time and as made, statement is excite- nervous having to exclude the likelihood of its ment continues to dominate while the part- emanated in whole or in from his processes abeyance. reflective remain in reflective faculties. 143, Carmody, v. 799 A.2d Mack, 407, 783, Allen v. 345 Pa. (Pa.Super.2002) (quoting 147 Common (1942); 784 accord Commonwealth Gore, 540, wealth v. Stallworth, 566 Pa. 119- (1978)). 1302, 1305 A.2d (2001); 803(2); Pa.R.E. see also Com- Zukauskas, monwealth v. 501 Pa. 10 Upon consideration of the (1983) (describing light A.2d an excited aforementioned factors in of the sur circumstances, rounding utterance speaking as “the event and not we find speaker.”). Keys’ qualify whether statements of wife do not as 589, 782 A.2d 538 granted, court 566 Pa. an excited utterance and ruling noted, abused its discretion otherwise. pre- are... “[w]e The Barnes court First, minutes thirty elapsed between with the troublesome situation sented startling end of the event the state- being utterance itself is which the excited Second, of Keys’ ments wife. the state- did, in exciting an event prove used to away to ten ment was elicited blocks fact, reasoning This circuitous occur. startling scene of the event. indepen- is no unacceptable. Where there Third, in response the utterance was to the event has evidence that dent is a query.1 Finally, officer’s the utterance occurred, can- alleged an excited utterance events, overnight single narrative of not a exception admitted as not be single startling episode. reaction to a *4 at 1040. hearsay supra rule.” Most admission the importantly, the of efficacy of hearsay Assuming to 13 the continued deny served the accused the Barnes, right confronting cross-examining of supra, similarly we will not con- the sole him. eyewitness against utterance, clude that wife’s excited ab- independent proof, that sent demonstrates

¶ 11 It true that pre- is our courts have startling event occurred. We do not viously, occasion, liberally accepted find that the officer’s observations of her despite statements as an excited utterance agitated independently state establishes passage of substantial time between testimony event. No was startling event and the utterance. We note, however, “engage did in a holdings presented such were that she not upon based all consideration of the sur- process” prior to thought reflective rounding su- Sanford, circumstances. See with contact officer. (three J.,

pra judge panel, Cavanaugh, to speculate why 14 not as We will Compare dissenting). Commonwealth v. testify Keys appear against to Mrs. did not (1952) Noble, 138, 760, 371 Pa. A.2d 88 763 it ruling, her husband. As the court’s circumstances, (determining, given the in the may emergent policies cam- be that a statement elicited at a half- least against militate in fa- paign spousal abuse hour after the incident was an excited evidentiary of vor of relaxation harsh Penn, utterance), with Commonwealth v. believe, however, that ex- We rules. 232, 1154, (1982) Pa. 497 439 A.2d 1159 rule as confirmed ception circumstances, (finding that “[under] court, is since it inappropriate the trial reasonably the suppression court could followed, it scope. unlimited in its If is conclude statement” made within reasoning the sound qualified half-hour of incident as an excit- would invalidate utterance). Barnes, dramatically ed supra, and serve to permit the rules of evidence so as relax ¶ Moreover, 12 no independent evidence prosecutor of a crime whenever the proof presented substantiating alleged was has heard an had available a witness who incident. See Commonwealth v. constituting recitation facts excited (1983); 480, 310 456 A.2d 1087 surely is a mat- misconduct. This criminal Upshur, also see (en change If such a radical bane) policy. ter of (Pa.Super.2000) A.2d 69 (plurali- it accomplished, must be improvidently law is to ty), appeal as be dismissed recognize We anees. statements queries may categorized be as excited utter- by an act of the legislature, by approval or excited utterance. Commonwealth v. Car court, 434, 457-58, penter, Pa. supreme may as the case 725 A.2d be. question, 165-66 The crucial re ¶ 15 We find that court erred whether, gardless lapse, of time is at the denying Keys’ writ of certiorari. The trial made, time the statement nervous court abused its discretion in admitting the excitement continues to dominate while the statements. We grant therefore a new process abeyance. reflective remains trial. Carmody, ¶ 16 Order reversed. New trial ordered. (Pa.Super.2002). As this Court has Jurisdiction relinquished. stated, while there is no fixed time limit within which declarations must be made to ¶ HUDOCK, J., files a dissenting utterances, properly be considered excited statement. “we are that a thirty peri satisfied minute od is not so preclude extreme as to admis HUDOCK, J., Dissenting. ... sion of declarations under the excited ¶ 1 Respectfully, I majori- dissent. The exception.” utterance ty maintains that the victim’s statement Hess, 270 Pa.Super. qualify did not as excited utterance *5 (1979). In Sanford, because of the in separation time and (1990), Pa.Super. 580 A.2d 784 we space event, between it and the exciting statement, held that a in response to an and also because it was made in response inquiry evening made in the about police questioning. ongo- This was an event that most in likely occurred incident which Appellant held a residence, morning and in a separate quali neck, sword to the victim’s threatened to fied as an Responses excited utterance. throat, hair, cut her dragged by questions per are not se excluded from prisoner held her in her own home utterances, consideration as excited even against her overnight. appeal, Ap- will On though might one conclude that such re pellant in question concedes that the event sponses require the kind of reflection that did not until escaped end the victim from precludes statements from qualifying as Appellant’s the house. at Brief Sanford, excited utterances. 580 A.2d at ¶ 2 The majority cites the fact that the 789. The statement victim’s was not the victim’s statement was made to ten any result question pro detailed or blocks from the scene the event. How- longed interrogation. According to the re ever, only this was because the victim fled officer, sponding police the victim immedi in order to escape from her husband. She ately “blurted out” her story while still a traveled the entire distance while running. state of agitation and excitement in re She then immediately police. called the his sponse inquiry about what was arrived, a police When officer re- she wrong. Barnyak, upset angry. mained Her voice and (1994), Pa.Super. behavior were distraught and erratic. Her by we held that excited utterances shoot statement to the officer was made while admissible, ing victim and her son were visibly experiencing she was still the emo- though they even were made a half hour tion of the events less than half an hour shooting after the and in escape because, after her terrifying epi- this questioning, the situation as was sode. The fact case, that statement was not with the victim the present immediately made after a startling event is visibly experiencing declarants were still dispositive of its as an admissibility the emotion of the event. notes, majority As this Court has “[wjhere previously held there no

independent evidence that occurred, had an alleged

event excited ut

terance as an excep cannot be admitted rule.”

tion to case,

1037, 1040 In the present agitat victim’s

police officer observed the

ed emotional state at location to which immediately upon escaping.

she fled The him to

victim went with the scene

crime, they found Appellant. where The

officer used Appel recovered sword victim,

lant to threaten located

place the victim had described.

These circumstances all corroborated the story.

victim’s reasons, 4 For I these would conclude its trial court did not abuse discre-

tion the victim’s state-

ment was admissible as an excited utter-

ance.

TRIBUNE-REVIEW PUBLISHING WPXI,

COMPANY

Petitioners

DEPARTMENT OF COMMUNITY

AND ECONOMIC DEVELOP-

MENT, Respondent. Pennsylvania.

Commonwealth Court of

Argued Oct. 2002.

Decided Jan.