Com. v. Rhedrick, A.

• Court: Superior Court of Pennsylvania
• Decided: January 18, 2023
• Docket: 2463 EDA 2021
• Status: Unpublished

Opinion

J-S22026-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ARMANI RHEDRICK : : Appellant : No. 2463 EDA 2021

Appeal from the Judgment of Sentence Entered October 13, 2021 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0000079-2020

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 18, 2023

Armani Rhedrick (Appellant) appeals from the judgment of sentence

entered in the Montgomery County Court of Common Pleas, following his jury

conviction of first degree murder1 and related offenses. Appellant raises three

evidentiary claims, averring the trial court erred in admitting: (1) the

testimony of a child witness, where her competency examination was allegedly

deficient; (2) prior inconsistent hearsay2 statements contained in a 911 call,

where the 911 caller had testified earlier at trial but was not confronted with

those statements; and (3) a witness’ prior consistent statements,3 as testified

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1 18 Pa.C.S. § 2502(a).

2 See Pa.R.E. 803.1(1) (Prior Inconsistent Statement of Declarant-Witness).

3 See Pa.R.E. 613(c) (Witness’s Prior Consistent Statement to Rehabilitate). J-S22026-22

to by another witness at trial. We agree with the trial court the first two claims

are waived and no relief is due on the third. Accordingly, we affirm.

I. Facts & Procedural History

We glean the following facts from the trial court’s opinion and the trial

notes of testimony. The victim Otis Harris (Victim), his sister Tahisha McKay

(Sister), and his nephew Rayshown McKay (Nephew), lived in Pottstown,

Montgomery County, across the street from Appellant. The Victim’s girlfriend,

Grace Kennon (Girlfriend), lived two doors away from Appellant. N.T. Trial by

Jury Day 2, 10/12/21, at 211. In September of 2019, Nephew “heard

Appellant say something bad about him, and decided he would fight him the

following day.” Trial Ct. Op., 1/12/22, at 2, citing N.T. Jury Day 1, 10/11/21,

at 104-05.

The next day, September 23, 2019, around 8:00 a.m., Nephew went to

Appellant’s house, “alone and with no weapons.” Trial Ct. Op. at 2, citing N.T.,

10/11/21, at 105-06, 117.

When Appellant answered the door, [Nephew] “started swinging” and punching Appellant. The fight continued in Appellant’s living room. [Nephew] heard Appellant say, “[G]o get the gun.” At that point, [Nephew] took off and ran back to his house [to retrieve his own gun].

Trial Ct. Op. at 2, citing N.T., 10/11/21, at 106-08.

Nephew told his uncle, the Victim, what happened, then went upstairs

to clean the blood on his face. Trial Ct. Op. at 2. Meanwhile, the Victim went

outside. Id. Nephew then heard gunshots in front of the house. Id. at 2-3

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The Victim’s girlfriend, who was at her home across the street, also heard

gunshots and immediately ran to the Victim outside. N.T. Trial by Jury Day

2, 10/12/21, at 213-14. She did not see any weapons on the ground next to

him. Id. at 214. The Victim died at the scene and Appellant was arrested the

following day. Appellant was charged with, inter alia, first degree murder and

weapons offenses.

A three-day jury trial commenced on October 11, 2021. The trial court

noted Nephew had tried “to limit his involvement in the ensuing investigation”

and “was a reluctant witness[.]” Trial Ct. Op. at 26. For example, Nephew

was interviewed by Detective John Wittenberger, of the Montgomery County

District Attorney Office’s homicide unit, but refused to give a written

statement. Id. Nevertheless, at trial, Nephew testified consistently with the

above summation of facts. See N.T., 10/11/21, at 105-10. The

Commonwealth presented the testimony of, inter alia, Girlfriend, Sister,

investigating detectives, and a child witness, I.S. The Commonwealth also

read aloud the statement Appellant made to Detective Wittenberger. N.T.,

10/12/21, at 135-46.

Appellant claimed self-defense4 and testified to the following. He was

at home with his girlfriend and their three-week old daughter. See N.T.,

4 See N.T. 10/11/21, at 33 (Appellant’s opening argument). The trial court instructed the jury on self defense. N.T. Trial by Jury Day 3, 10/13/21, at 128-31.

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10/13/21, at 50, 52. Both the Victim and Nephew were at his door, and

Nephew had a gun in his hand. Id. at 52. The two men forced their way in

and both started attacking him and said they were going to kill him.5 Id. at

53. Appellant retrieved his shotgun from the closet, while Nephew pointed his

gun and “started to pull the trigger,” but “it wasn’t working.” Id. When they

saw Appellant’s gun, however, the two men said, “Fuck it, we gonna get him

next time,” and Appellant “chased them out[side.]” Id. Nephew got away,

but Appellant told the Victim to stop and turn around. Id. Appellant told the

Victim he would call the police, but as he was retrieving his phone from his

pocket, the Victim pointed a gun at Appellant. Id. Appellant thus fired his

shotgun at the Victim. Id. Appellant believed that Nephew would be “getting

more people with guns” and thus Appellant, his girlfriend, and their infant fled.

Id. at 53-54. Appellant was arrested the following day.

The jury found Appellant guilty of first degree murder, possession of an

instrument of crime, possession of a weapon, and tampering with evidence. 6

5 The statement Appellant gave to Detective Wittenberger — which was read aloud at trial — stated that only the Victim punched him, while Nephew, who had “the outline of a gun [visible] on his waist,” held the screen door open. N.T., 10/12/21, at 138.

6 18 Pa.C.S. §§ 907(a)-(b), 4910(1).

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With Appellant’s agreement, the trial court proceeded immediately to

sentencing and imposed an aggregate term of life imprisonment.7

Appellant filed a timely post-sentence motion, which was denied. He

then timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.

II. Questions Presented & Relevant Standard of Review

Appellant presents three issues for our review:

I. Did the [trial] court err in permitting Commonwealth witness [I.S.] to testify where the competency examination of the witness failed to explore whether the witness understood the nature of her oath and the conscious duty to speak the truth that it imposed?

II. Did the [trial] court err in permitting, during the testimony of Det. John Wittenberger, the admission of hearsay statements of [Nephew] contained in a 911 call when [Nephew] had not been confronted with the statements while he was testifying?

III. Did the [trial] court err in permitting, during the testimony of [Girlfriend], the admission of hearsay statements of [Nephew] describing the events preceding the shooting and what occurred on the day of the shooting?

Appellant’s Brief at 3.

We first note the relevant standard of review:

“[Q]uestions concerning the admissibility of evidence lie within the sound discretion of the trial court, and [a reviewing court] will not

7 The certified electronic record transmitted on appeal does not include a written sentencing order. The October 13, 2021, notes of testimony indicate the trial court imposed the following sentences: a life sentence for first degree murder, and concurrent terms of two years’ probation for each of his remaining convictions. N.T., 10/13/21, at 255.

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reverse the court’s decision on such a question absent a clear abuse of discretion.”

Commonwealth v. Baker, 963 A.2d 495, 503-04 (Pa. Super. 2008) (citation

omitted).

III. Competency Hearing for Child Witness

Appellant’s first issue is a challenge to the competency examination of

eight-year old I.S., whom the Commonwealth called as an eyewitness.8 For

ease of review, we first summarize the following: this competency

examination was conducted on the second day of trial. N.T., 10/12/21, at 5-

9. The trial court asked I.S., inter alia, whether she knew the difference

between the truth and a lie, and I.S. replied she did, and furthermore that a

lie is “[a] bad thing.” Id. at 7. In response to the court’s questions, I.S.

stated she would not “make anything up” and would testify about what she

remembered, saw, and heard. Id. at 8. The court then asked the

Commonwealth and Appellant’s attorney if they had any questions for I.S.

“about telling the truth” and competency matters, but both responded in the

negative. Id. at 9. Additionally, Appellant did not raise any objection during

the competency examination. See id. at 5-9. The trial court found I.S. was

competent to testify. Id. at 9.

8 I.S. testified on direct examination that on the day of the shooting, she was six years old. N.T., 10/12/21, at 36. She was standing outside her house and saw a “grown up” “boy” holding a gun and then shooting someone. Id. at 37- 38. I.S. stated the person who was shot did not have a gun. Id. at 39.

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Appellant challenges the competency examination for the first time in

his Rule 1925(b) statement. On appeal, he avers the trial court erred in

allowing I.S. to testify because the court “failed to explore whether [she]

understood the nature of her oath and the conscious duty to speak the

truth[.]” Appellant’s Brief at 11. Appellant argues that in Commonwealth

v. Rimmel, 289 A.2d 116 (Pa. Super. 1972), the children “at least indicated

that they would be ‘beaten’ or ‘hollered at’ for violating an oath to tell the

truth,”9 but here, I.S.’s “examination completely failed to elicit any indicia that

[she] understood the solemnity of her oath to tell the truth or the

consequences of violating it.” Appellant’s Brief at 14.

Both the trial court and the Commonwealth suggest Appellant has

waived this issue for appellate review by failing to raise it before the trial court.

Trial Ct. Op. at 15; Commonwealth’s Brief at 15. We agree. Because no

challenge was preserved before the trial court, this issue is waived for appeal.

See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and

9 We note the context in which these facts were considered in Rimmel: one eight-year old child witness replied, “No,” to the trial court’s question, “Do you know it is wrong to tell a lie?” Rimmel, 289 at 117 n.2. However, the child then replied, “Yes,” to the question of whether she tried “to tell the truth all the time[.]” Id. On appeal, this Court: (1) first reasoned neither of the two eight-year old child witnesses was examined on whether they comprehended the difference between truth and falsehood; and thus (2) concluded the children’s statements, that they may be “beaten” “hollered at,” or “punished” if they tell a lie, were “not sufficient indication of a comprehension of the solemnity of the oath” to testify. Id. at 118.

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cannot be raised for the first time on appeal.”); Commonwealth v. Rosser,

135 A.3d 1077, 1086 (Pa. Super. 2016) (en banc) (“One must object to errors,

improprieties or irregularities at the earliest possible stage of the criminal . . .

adjudicatory process to afford the jurist hearing the case the first occasion to

remedy the wrong and possibly avoid an unnecessary appeal to complain of

the matter.”).

IV. Hearsay/Prior Inconsistent Statement:

Admission of Nephew’s 911 Call

In his second issue, Appellant raises a hearsay challenge to the

admission of Nephew’s alleged 911 call. Before reviewing his arguments, we

first set forth the following context. On the first day of trial, Nephew denied

that he or his aunt (the Victim’s sister) called 911. N.T., 10/11/21, at 111.

Sister, however, testified that Nephew did call 911. Id. at 151-52.

On the second day of trial, Detective Wittenberger testified he reviewed

several 911 calls that were made regarding the shooting. N.T., 10/12/21, at

99. When the Commonwealth asked the detective whether Nephew was the

voice of one 911 caller, Appellant objected, stating merely, “[b]est

evidence.”10 Id. at 100. The trial court overruled the objection. Id. The

10 The “best evidence rule,” codified at Pa.R.E. 1002, provides: “An original . . . recording . . . is required in order to prove its content unless these rules, other rules prescribed by the Supreme Court, or a statute provides otherwise.” Pa.R.E. 1002.

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Commonwealth then played a recording of a 911 call, allegedly made by

Nephew, with a jury instruction that the jury could consider whether the

caller’s voice belonged to Nephew, who had testified earlier. See id. at 101-

02.

On appeal, Appellant now raises a Pa.R.E. 803.1. prior inconsistent

statement-hearsay11 challenge to the 911 call recording. He points out the

Commonwealth had not confronted Nephew with the 911 call recording during

his earlier testimony, and thus Appellant asserts, he was unable to cross-

examine Nephew about his prior inconsistent statement, in contravention of

Rule 803.1. Appellant’s Brief at 17.

11 While Appellant refers to Pennsylvania Rule of Evidence “801.1,” the prior- inconsistent exception appears at Rule 803.1(1). See Appellant’s Brief at 15- 16. This rule provides, in pertinent part:

The following statements are not excluded by the rule against hearsay if the declarant testifies and is subject to cross- examination about the prior statement:

(1) . . . A prior statement by a declarant-witness that is inconsistent with the declarant-witness’s testimony and:

(A) was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition;

(B) is a writing signed and adopted by the declarant; or

(C) is a verbatim contemporaneous electronic recording of an oral statement.

Pa.R.E. 803.1(1)(A)-(C).

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We agree with the trial court that Appellant has likewise waived this

discrete evidentiary claim for failure to raise it during trial. See Pa.R.A.P.

302(a); Trial Ct. Op. at 19. In lodging his objection at trial, Appellant merely

stated, “[b]est evidence.”12 N.T., 10/12/21, at 100. On appeal he presents

a different theory — hearsay. Thus, this issue is waived for appellate review.

See Rosser, 135 A.3d at 1086 (“Where the trial court denies relief on one

theory, a defendant may not attain appellate relief on a new theory for that

same relief.”); Commonwealth v. Ryan, 909 A.2d 839, 845 (Pa. Super.

2006) (“A theory of error different from that presented to the trial jurist is

waived on appeal, even if both theories support the same basic allegation of

error which gives rise to the claim for relief.”) (citation omitted).

V. Prior Consistent Statement: Admission of

Girlfriend’s Testimony About Nephew’s Statements

In his final issue on appeal, Appellant argues the trial court erred in

admitting hearsay evidence, namely Girlfriend’s testimony about a prior

consistent statement — what Nephew told her in the days following the

shooting. Appellant’s Brief at 18. For ease of review, we first summarize a

portion of Nephew’s direct examination, where he stated all of the following:

12The Commonwealth also points out that following the trial court’s overruling of Appellant’s “best evidence” objection, the Commonwealth read into the record a stipulation between the parties, “that this particular 9-1-1 call . . . is authentic and it’s admissible.” Commonwealth Brief at 20 (emphasis added), citing N.T., 10/12/21, at 100-01.

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the day before the shooting, he overheard Appellant talking about him

negatively. N.T., 10/11/21, at 105. The next morning, Nephew went to

Appellant’s house, alone, with the intention “[t]o fight.” Id. at 104-05.

Nephew did not have any weapon on him. Id. at 106. When Appellant opened

the door, Nephew started punching him. Id. Nephew did not see anyone else

there, but when Appellant said, “Go get the gun,” Nephew ran back to his

house, in order to get his own gun. Id. at 107-08. Nephew told his uncle,

the Victim, what happened, and then went upstairs to clean his face. Id. at

109. Meanwhile, the Victim went outside, and Nephew heard gunshots. Id.

at 110.

Pertinently, the Commonwealth asked Nephew whether he talked to the

Victim’s girlfriend in the days following the shooting. N.T., 10/11/21, at 114.

Nephew replied, “Yes.” Id. The Commonwealth did not ask him specifically

what was said, but the following exchange immediately occurred:

[Commonwealth:] And did you tell [Girlfriend] what you just told us?

[Nephew:] Yes.

Id.

Next, we review Girlfriend’s direct examination trial testimony. The

Commonwealth asked Girlfriend what Nephew told her in the days following

the shooting. N.T., 10/12/21, at 215-16. The trial court sustained Appellant’s

objection, which had not cited any grounds. Id. The Commonwealth then

argued Girlfriend’s anticipated response would be admissible as Nephew’s

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prior consistent statement under Pa.R.E. 613. Id. Following a sidebar

discussion, which was not transcribed, the trial court agreed and permitted

the testimony. The court also instructed the jury that Nephew’s out-of-court

statement, as will be testified to by Girlfriend, could not be considered for the

truth of the matter asserted, but only for determining Nephew’s credibility.

Id. at 216-17.

Girlfriend then testified that Nephew told her all the following: on the

night before the shooting, he, the Victim, and Appellant were “hanging out on

the porch,” and Nephew and Appellant had a physical altercation. N.T.,

10/12/21, at 218. Appellant went home, but “over time, [Nephew] decided

he was going to go to his house.” Id. The next morning, Appellant opened

his door, Nephew hit him, and the two fought. Id. Nephew heard Appellant

tell his girlfriend to get his gun and Nephew left, went home, and woke up the

Victim. Id. The Victim went outside, and “that’s when [Nephew] heard the

shots.” Id.

On appeal, Appellant argues the trial court erred in permitting Girlfriend

to give the above testimony. Appellant points out: (1) in Nephew’s direct

examination, he was asked whether he spoke with Girlfriend after the

shooting; but (2) although Nephew responded in the affirmative, he was not

“confronted” with what he told Girlfriend specifically. Appellant’s Brief at 19.

Thus, Appellant alleges, in contravention of Rule 613(c), he was “deprived [of]

the opportunity to cross-examine [Nephew] regarding those statements.” Id.

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Finally, Appellant asserts he was prejudiced, as Girlfriend’s testimony strongly

corroborated “the version of events” testified to by Nephew at trial, which

alone would have been “tenuous since it contradicted his earlier statements

to police . . . and before a Grand Jury.” Id. at 20. We conclude no relief is

due.

As stated above, we review the trial court’s admission of evidence for

an abuse of discretion. Baker, 963 A.2d at 503-04. Rule 613(c) states:

Evidence of a witness’s prior consistent statement is admissible to rehabilitate the witness’s credibility if the opposing party is given an opportunity to cross-examine the witness about the statement and the statement is offered to rebut an express or implied charge of:

(1) fabrication, bias, improper influence or motive, or faulty memory and the statement was made before that which has been charged existed or arose; or

(2) having made a prior inconsistent statement, which the witness has denied or explained, and the consistent statement supports the witness’s denial or explanation.

Pa.R.E. 613(c)(1)-(2).

This Court has explained:

[Rule] 613(c) permits the admission of evidence of a prior consistent statement for rehabilitation purposes if the opposing party is given an opportunity to cross-examine the witness about the statement, the statement is offered to rebut an express or implied charge of fabrication, bias, improper influence or motive, or faulty memory, and the statement was made before the fabrication, bias, etc. Pa.R.E. 613(c)(1) [&] Comment.

Baker, 963 A.2d at 504 (some citations & footnote omitted). “As a general

rule, a prior consistent statement is hearsay, and its admissibility is dependent

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upon an allegation of corrupt motive or recent fabrication. Additionally, such

statements have been admitted in response to an allegation of faulty

memory.” Commonwealth v. Handfield, 34 A.3d 187, 208 (Pa. Super.

2011) (citation omitted).

In its opinion, the trial court found the evidence — Girlfriend’s testimony

about what Nephew told her — was admissible as Nephew’s prior consistent

statement under Rule 613(c). Trial Ct. Op. at 22. The trial court recounted

that Nephew was reluctant to cooperate with the investigating authorities and

gave “differing accounts of what happened that day,” as he “was worried about

getting in trouble[.]” Id. at 26-27. The court summarized: (1) “[s]hortly

after the murder, [Nephew] was interviewed by Detective Wittenberger, but

he refused to give a written statement[;]” (2) Nephew was served with a

subpoena to testify before a grand jury, but failed to appear; (3) law

enforcement in Rochester, New York, where Nephew “had been staying[,] had

to return him to Pennsylvania to testify[;]” (4) Nephew was subsequently

“given immunity” but omitted two facts from his grand jury testimony — that

he knocked on Appellant’s door and started a fight and that he had a gun at

his house; and (5) a few weeks before trial, Nephew sent Detective

Wittenberger a text message, which stated “he had not been truthful[.]” Id.

at 26-27.

The trial court also considered that on cross-examination, Appellant’s

counsel “vigorously questioned” Nephew in an “attempt to discredit his trial

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testimony.” Trial Ct. Op. at 27. In their questioning, counsel repeatedly asked

or stated that the Victim was with Nephew at Appellant’s house, and that the

Victim and Nephew were both armed. Id. at 27-29. Nephew, however,

repeatedly disagreed with these statements. Id.

The trial court concluded that Girlfriend’s testimony, about what Nephew

told her, was properly admitted under Rule 613(c)(1) as a prior consistent

statement in response to the above cross-examination of Nephew. Trial Ct.

Op. at 29. The court reasoned Girlfriend’s testimony “was used to rehabilitate

[Nephew’s] trial testimony” by showing that shortly after the shooting, he had

made consistent statements (consistent with his trial testimony) to Girlfriend.

On appeal, Appellant does not address, let alone dispute, any of this

extensive discussion by the trial court. Instead, Appellant’s argument, briefly

presented, is that because Nephew “was never confronted with his statements

to” Girlfriend, he was denied the opportunity to cross-examine Nephew about

those statements. Appellant’s Brief at 19. Appellant ignores, however, the

Commonwealth did explore particularly what Nephew told Girlfriend, albeit

briefly; the Commonwealth asked Nephew whether the trial testimony he just

gave was consistent with what he told Girlfriend shortly after the shooting.

See N.T., 10/11/21, at 114. Nephew responded in the affirmative. Id.

Furthermore, as noted above, Appellant does not dispute that he “vigorously”

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cross-examined Nephew in an effort to discredit his trial testimony. See Trial

Ct. Op. at 27.

Finally, to the extent Appellant argues he was prejudiced by the

evidence because it bolstered Nephew’s credibility, Appellant’s Brief at 20, we

remind Appellant:

Evidence will not be prohibited merely because it is harmful to the defendant. This Court has stated that it is not “required to sanitize the trial to eliminate all unpleasant facts from the jury’s consideration where those facts are relevant to the issues at hand and form part of the history and natural development of the events and offenses for which the defendant is charged.”

See Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007). (citation

omitted). We disagree with Appellant that relief is due and determine the trial

court did not abuse its discretion in permitting the testimony. See Baker,

963 A.2d at 503-04.

VI. Conclusion

In sum, we conclude Appellant’s first two issues are waived for failure

to preserve them before the trial court, and his third issue merits no relief.

Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 01/18/2023

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