J. S69030/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : LANCE BRASWELL, : No. 398 EDA 2015 : Appellant :
Appeal from the Judgment of Sentence, January 7, 2015, in the Court of Common Pleas of Chester County Criminal Division at No. CP-15-CR-0000884-2014
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 16, 2016
Lance Braswell appeals from the judgment of sentence entered
January 7, 2015, by the Court of Common Pleas of Chester County, after a
jury convicted him of burglary,1 criminal trespass,2 simple assault,3 and
criminal conspiracy.4 We affirm.
The record reflects that appellant’s conviction resulted from an incident
that occurred on the evening of September 29, 2013. At that time, a group
of people entered the victim’s home and assaulted her. At appellant’s trial,
1 18 Pa.C.S.A. § 3502(a)(1). 2 18 Pa.C.S.A. § 3503(a)(1)(ii). 3 18 Pa.C.S.A. § 3701(a)(1). 4 18 Pa.C.S.A. § 903(C), § 2701(a)(1). J. S69030/15
the victim and one of the perpetrators testified that appellant and his uncle,
Jason Smith, were among the assailants. Smith had previously pled guilty
to criminal trespass, simple assault, conspiracy to commit criminal trespass,
and terroristic threats in connection with this incident.
At trial, appellant called Smith to testify on his behalf. On the advice
of counsel, Smith invoked his Fifth Amendment right against
self-incrimination. The trial court accepted Smith’s invocation and found him
unavailable as a witness. Subsequently, appellant took the stand and
testified that he did not participate in the crimes that the group committed
on September 29, 2013, which was his defense theory. He further testified
that he did not learn about the incident until about a week later when Smith
told him what had occurred. When defense counsel asked appellant what
Smith told him, the Commonwealth objected on hearsay grounds. The
following sidebar took place:
THE COURT: What’s your basis of your objection?
[THE COMMONWEALTH]: Well, A, it’s hearsay. I don’t know what he’s planning on offering it for, so maybe we ought to hear that now, see if it satisfies any of the exceptions.
THE COURT: What’s your offer of proof?
[DEFENSE COUNSEL]: He’s going to testify this is when he first heard about when this took place that he had a conversation and Jason told him that he went into [the victim’s] residence with [others] and assaulted [the victim].
-2- J. S69030/15
THE COURT: All right. Isn’t it also a statement of a co-defendant?
[DEFENSE COUNSEL]: Yeah. It would be.
[THE COMMONWEALTH]: It’s not in furtherance of the conspiracy.
THE COURT: Well, the statement occurs after the event.
[THE COMMONWEALTH]: That’s why it’s inherently unreliable, too much time for deliberation. If it’s anything it would be the statement against interest.
THE COURT: I am going to sustain the objection.
Notes of testimony, 11/13/14 at 319-320.
Appellant raises one issue on appeal:
Whether the Court erred by not permitting Appellant to testify at trial concerning a conversation he had with Jason Smith, a co-defendant, one week after the incident, wherein the Appellant claimed he first learned about the incident and the specific people involved in the incident?
Appellant’s brief at 3.
The admissibility of evidence lies within the sound discretion of the
trial court and will not be reversed absent a clear abuse of discretion.
Commonwealth v. Maloney, 876 A.2d 1002, 1006 (Pa.Super 2005). An
abuse of discretion is not merely an error of judgment, but occurs when a
court overrides or misapplies the law; exercises a manifestly unreasonable
judgment; or results from partiality, prejudice, bias, or ill-will, as
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demonstrated by the evidence or the record. Commonwealth v.
Cameron, 780 A.2d 688, 692 (Pa.Super. 2001).
Appellant complains that the trial court should have admitted Smith’s
out-of-court statement as an exception to the hearsay rule under
Pennsylvania Rule of Evidence 804(b)(3). Under that exception, when a
declarant is unavailable as a witness, an out-of-court statement against
penal interest is admissible as follows:
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
Pa.R.E. 804(b)(3).
Therefore, in order to fall within the statement against interest
exception to the hearsay rule, the statement must be (1) against the
declarant’s penal interest and (2) supported by corroborating circumstances
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that clearly indicates its reliability. Id.; e.g., Commonwealth v. Robins,
812 A.2d 514 (Pa. 2002).
With respect to the first element, a statement that exculpates a
declarant’s accomplice is not a statement against interest because it does
not subject the declarant to any additional crime or punishment.
Commonwealth v. Colon, 846 A.2d 747, 757 (Pa.Super. 2004), citing
Commonwealth v. Colon, 337 A.2d 554, 558 (Pa. 1975).
Here, because Smith’s alleged statement serves to exculpate
appellant, who was Smith’s accomplice, appellant cannot meet the first
element of the exception, and the statement, therefore, is inadmissible.
Even if appellant could satisfy the first element of the exception, he
could not satisfy the second because it lacks indicia of reliability. One of the
reasons that an appellant must demonstrate a statement’s reliability in order
for it to be admissible under this exception is the recognition that it is not
rare for friends, peers, and family members to go to extraordinary measures
to help an accused win an acquittal or avoid a jail sentence.
Commonwealth v. Bracero, 528 A.2d 936, 941 (Pa. 1987) (plurality). Our
supreme court has reminded us that criminal cases often involve “witnesses”
who themselves are actively engaged in a criminal lifestyle and that “telling
a story” to help a friend or relative “beat the rap” is not an extraordinary
occurrence. Id.
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When determining the reliability of a statement against interest, courts
evaluate any factors that bear upon the statement’s reliability, such as the
circumstances under which the declarant made the statements, including the
custodial/non-custodial nature of the setting and the listener’s identity; the
contents of the statement, including whether it minimizes the declarant’s
Free access — add to your briefcase to read the full text and ask questions with AI
J. S69030/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : LANCE BRASWELL, : No. 398 EDA 2015 : Appellant :
Appeal from the Judgment of Sentence, January 7, 2015, in the Court of Common Pleas of Chester County Criminal Division at No. CP-15-CR-0000884-2014
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 16, 2016
Lance Braswell appeals from the judgment of sentence entered
January 7, 2015, by the Court of Common Pleas of Chester County, after a
jury convicted him of burglary,1 criminal trespass,2 simple assault,3 and
criminal conspiracy.4 We affirm.
The record reflects that appellant’s conviction resulted from an incident
that occurred on the evening of September 29, 2013. At that time, a group
of people entered the victim’s home and assaulted her. At appellant’s trial,
1 18 Pa.C.S.A. § 3502(a)(1). 2 18 Pa.C.S.A. § 3503(a)(1)(ii). 3 18 Pa.C.S.A. § 3701(a)(1). 4 18 Pa.C.S.A. § 903(C), § 2701(a)(1). J. S69030/15
the victim and one of the perpetrators testified that appellant and his uncle,
Jason Smith, were among the assailants. Smith had previously pled guilty
to criminal trespass, simple assault, conspiracy to commit criminal trespass,
and terroristic threats in connection with this incident.
At trial, appellant called Smith to testify on his behalf. On the advice
of counsel, Smith invoked his Fifth Amendment right against
self-incrimination. The trial court accepted Smith’s invocation and found him
unavailable as a witness. Subsequently, appellant took the stand and
testified that he did not participate in the crimes that the group committed
on September 29, 2013, which was his defense theory. He further testified
that he did not learn about the incident until about a week later when Smith
told him what had occurred. When defense counsel asked appellant what
Smith told him, the Commonwealth objected on hearsay grounds. The
following sidebar took place:
THE COURT: What’s your basis of your objection?
[THE COMMONWEALTH]: Well, A, it’s hearsay. I don’t know what he’s planning on offering it for, so maybe we ought to hear that now, see if it satisfies any of the exceptions.
THE COURT: What’s your offer of proof?
[DEFENSE COUNSEL]: He’s going to testify this is when he first heard about when this took place that he had a conversation and Jason told him that he went into [the victim’s] residence with [others] and assaulted [the victim].
-2- J. S69030/15
THE COURT: All right. Isn’t it also a statement of a co-defendant?
[DEFENSE COUNSEL]: Yeah. It would be.
[THE COMMONWEALTH]: It’s not in furtherance of the conspiracy.
THE COURT: Well, the statement occurs after the event.
[THE COMMONWEALTH]: That’s why it’s inherently unreliable, too much time for deliberation. If it’s anything it would be the statement against interest.
THE COURT: I am going to sustain the objection.
Notes of testimony, 11/13/14 at 319-320.
Appellant raises one issue on appeal:
Whether the Court erred by not permitting Appellant to testify at trial concerning a conversation he had with Jason Smith, a co-defendant, one week after the incident, wherein the Appellant claimed he first learned about the incident and the specific people involved in the incident?
Appellant’s brief at 3.
The admissibility of evidence lies within the sound discretion of the
trial court and will not be reversed absent a clear abuse of discretion.
Commonwealth v. Maloney, 876 A.2d 1002, 1006 (Pa.Super 2005). An
abuse of discretion is not merely an error of judgment, but occurs when a
court overrides or misapplies the law; exercises a manifestly unreasonable
judgment; or results from partiality, prejudice, bias, or ill-will, as
-3- J. S69030/15
demonstrated by the evidence or the record. Commonwealth v.
Cameron, 780 A.2d 688, 692 (Pa.Super. 2001).
Appellant complains that the trial court should have admitted Smith’s
out-of-court statement as an exception to the hearsay rule under
Pennsylvania Rule of Evidence 804(b)(3). Under that exception, when a
declarant is unavailable as a witness, an out-of-court statement against
penal interest is admissible as follows:
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
Pa.R.E. 804(b)(3).
Therefore, in order to fall within the statement against interest
exception to the hearsay rule, the statement must be (1) against the
declarant’s penal interest and (2) supported by corroborating circumstances
-4- J. S69030/15
that clearly indicates its reliability. Id.; e.g., Commonwealth v. Robins,
812 A.2d 514 (Pa. 2002).
With respect to the first element, a statement that exculpates a
declarant’s accomplice is not a statement against interest because it does
not subject the declarant to any additional crime or punishment.
Commonwealth v. Colon, 846 A.2d 747, 757 (Pa.Super. 2004), citing
Commonwealth v. Colon, 337 A.2d 554, 558 (Pa. 1975).
Here, because Smith’s alleged statement serves to exculpate
appellant, who was Smith’s accomplice, appellant cannot meet the first
element of the exception, and the statement, therefore, is inadmissible.
Even if appellant could satisfy the first element of the exception, he
could not satisfy the second because it lacks indicia of reliability. One of the
reasons that an appellant must demonstrate a statement’s reliability in order
for it to be admissible under this exception is the recognition that it is not
rare for friends, peers, and family members to go to extraordinary measures
to help an accused win an acquittal or avoid a jail sentence.
Commonwealth v. Bracero, 528 A.2d 936, 941 (Pa. 1987) (plurality). Our
supreme court has reminded us that criminal cases often involve “witnesses”
who themselves are actively engaged in a criminal lifestyle and that “telling
a story” to help a friend or relative “beat the rap” is not an extraordinary
occurrence. Id.
-5- J. S69030/15
When determining the reliability of a statement against interest, courts
evaluate any factors that bear upon the statement’s reliability, such as the
circumstances under which the declarant made the statements, including the
custodial/non-custodial nature of the setting and the listener’s identity; the
contents of the statement, including whether it minimizes the declarant’s
responsibility or spreads or shifts the blame; other possible motivations of
the declarant, including improper motive to lie, gain favor, or distort the
truth; the degree and nature of the “against interest” aspect of the
statements, including the extent to which the declarant apprehends that the
making of the statement is likely to actually subject him to criminal liability;
the circumstances or events that prompted the statements, including
whether the listener encouraged or requested that they be made; the timing
of the statement as related to the events described; the declarant’s
relationship to the defendant; and any other factors bearing upon the
statement’s reliability. Robins, 812 A.2d at 525-526. A statement that
exculpates a declarant’s accomplice lacks the safeguards of trustworthiness
attributed to a statement truly against interest. Colon, 846 A.2d at 757.
Here, because the statement exculpates appellant, it lacks the
requisite indicia of reliability and would also be inadmissible for that reason.
Additionally, it is unreliable because it was allegedly made one week after
the commission of the crimes, which indicates that there was sufficient time
for reflection. Moreover, the statement was made by one co-defendant to
-6- J. S69030/15
another, and the two are also family members. The criminal and familial
relationship between appellant and Smith, therefore, indicate a motive to lie.
Finally, we note that appellant concedes that he was permitted to
introduce evidence that he first learned of the assault when Smith told him
about it approximately one week after it occurred. (Appellant’s brief at 7.)
He nevertheless contends that Smith’s out-of-court statement should have
been admissible “to further explain the circumstances of the statement made
by Jason Smith, as well as, the statement itself” and, without it, the jury
was only left with a “general statement.” (Id. at 7-8.) At sidebar and in his
brief, however, appellant not only failed to demonstrate how the statement
was against Smith’s penal interest, but he also failed to show any
corroborating circumstance to support its reliability. Our review of the
record reveals none.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/16/2016
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