Com. v. Weeden, A.

2021 Pa. Super. 108

• Court: Superior Court of Pennsylvania
• Decided: May 26, 2021
• Docket: 582 WDA 2020
• Status: Published

Opinion

J-A09032-21

2021 PA Super 108

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANGELO WEEDEN : : Appellant : No. 582 WDA 2020

Appeal from the Judgment of Sentence Entered February 24, 2020 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000513-2019

BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

OPINION BY PELLEGRINI, J.: FILED: MAY 26, 2021

Angelo Weeden (Weeden) appeals from the judgment of sentence

imposed following his jury conviction in the Court of Common Pleas of

Allegheny County (trial court) of one count each of aggravated assault, person

not to possess a firearm, carrying a firearm without a license, propulsion of

missiles into an occupied vehicle and three counts of recklessly endangering

another person.1 We affirm.

I.

This case arises from Weeden’s assault on his former girlfriend, Alyssa

Houston (Houston), with whom he had a six-year relationship that ended in

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2702(a)(1), 6105(a)(1), 6106(a)(1), 2707(a) and 2705. J-A09032-21

October 2018. At the time of the incident, Houston was living with her friend,

Heather Lamb (Lamb), who had an eight-year-old daughter (Child). We

recount the relevant factual and procedural background below.

A.

At Weeden’s December 2019 jury trial, Houston testified that she and

Weeden remained friends after they ended their romantic relationship.

However, Houston ended the friendship on the afternoon of December 15,

2018, because of Weeden’s intrusiveness into her life and her new romantic

relationship. Later that day, at about 5:30 p.m., Houston, Lamb and Child

left Lamb’s house and got into Lamb’s vehicle to go shopping. Houston noticed

Weeden’s Volkswagen Jetta parked nearby and Weeden began to drive directly

behind them down a narrow street. When Lamb left the main road to enter a

residential area, Weeden pulled up around the drivers’ side of her car and

blocked it, preventing her from moving forward.

Weeden exited his vehicle and approached the passenger side of Lamb’s

car where Houston was sitting. Houston locked her car door and Weeden

aggressively attempted to pull it open. Lamb quickly put her car in reverse

and backed around Weeden’s vehicle. As Lamb drove away, Houston heard

four gunshots, two of which struck their vehicle on the rear passenger side.

They drove to the police station and reported the incident.

On cross-examination, Houston testified that Weeden supported her

financially during their relationship, that she was unemployed in December

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2018 and that her mother, boyfriend and Lamb were assisting her financially

at that time. She further testified:

Q.: Is it true you were selling drugs at that point in time?

A.: No.

[The Commonwealth]: Objection. Improper character evidence.

The Court: Sustained.

* * *

Q. During the course of your relationship with Mr. Weeden had you ever threatened to kill him?

A. No.

Q. Never during a fight or hostile interaction, you never made a threat to him?

(Id. at 49-50, 53).

Lamb testified consistently with Houston as to the details of the incident,

including that she heard multiple gunshots as she drove away. Lamb

additionally recounted that her daughter screamed “Gun!” as Weeden

attempted to pry open Houston’s passenger side door. (Id. at 67).

B.

City of Pittsburgh Police Department Detective Richard Baumgart

testified regarding the department’s use of a gun detection program called

ShotSpotter technology in its investigations. Detective Baumgart explained

that this program uses scientific algorithms and sensors to pinpoint the

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location of possible gunshots. The system detects gunfire within a 30-foot

radius and automatically generates a report that gives the date, time and

location of the shots. Once the report is generated, trained operators

immediately listen to the audio recordings to verify the report before sending

it to the police department. Police officers are typically dispatched to the area

very quickly after a gunshot is detected, within one to two minutes. All officers

in the department, including Baumgart who trained colleagues, are taught to

understand how the ShotSpotter system operates and how to use it as a

resource when shots are fired. The operators and police have also been

trained to differentiate between the sound of gunshots and other similarly loud

sounds, such as a firecracker pattern.

The Commonwealth marked the ShotSpotter report generated in the

instant case, titled “ShotSpotter Investigative Lead Summary” as Exhibit 4.

(See id. at 104-05). This document was generated by the ShotSpotter

computer system and was not amended by any individual.

On cross-examination, Detective Baumgart testified that he had not

been certified by ShotSpotter nor did he prepare the report in this case. He

further testified:

Q: You stated that ShotSpotter data is sent to ShotSpotter for human review, is that accurate?

A: Yes.

Q: And you’re not the person who does that human review, correct?

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A: I am not.

Q: And at no point in time have you ever done that?

A: No.

Q: Do you know who did with respect to this particular data compilation?

A: I do not know.

Q: Do you know what the role of a ShotSpotter forensic engineer is?

Q: Okay. What do they do?

A: A forensic engineer would─ they would look into all the science and algorithms that go into the shot detection of a particular incident.

Q: You’re not trained as a ShotSpotter forensic engineer?

A: I am not, no.

Q: Do you know whether a ShotSpotter forensic engineer ever reviewed this particular report?

Q: Do you know whether this dataset was reviewed by an incident reviewer?

A: I would believe so. Everything that comes back to us as being gunshots has been reviewed by a human reviewer.

Q: But you don’t know for a fact as you sit here today that actually occurred at any point, correct?

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A: I don’t know for a fact. But through our training, every incident that goes to─ that is determined to be a gunshot, is reviewed by a human upon human review on ShotSpotter.

Q: But I’m interested in this specific dataset. You don’t know for a fact that this was ever reviewed by an incident reviewer?

A: I do not know. I don’t know.

Q: And you can’t tell me who the incident reviewer would have been, correct? Because you don’t know if it was ever reviewed.

(Id. at 106-08).

The trial court admitted the ShotSpotter report over objection by

defense counsel on grounds of hearsay and Confrontation Clause errors on re-

direct examination. Detective Baumgart testified to the substance of the

report, specifically, that two shots were detected by the ShotSpotter system

on December 15, 2018, at 7:43 p.m. in the area of 3400 Shadeland Avenue.

The detective opined that although the system was not 100 percent precise in

detecting the presence of gunfire, it was, in his experience, “very accurate.”

(Id. at 118).

Police Officer Jacob Botzenhart testified that officers were sent to

investigate a ShotSpotter report that shots had been fired at 7:43 p.m. and

that Lamb and Houston arrived at the police station to report the incident at

7:45 p.m. He described the women’s demeanors as “visibly shaken up and

afraid.” (Id. at 123).

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C.

Counsel for Weeden called four witnesses to testify of his behalf,

including his long-time friends Kathy Horne Williams (Horne) and Lynn

Williams (Williams). These witnesses testified that Houston relied on Weeden

for financial support during their relationship and that he cut her off financially

when their relationship deteriorated.

Prior to their testimony, defense counsel proffered that Horne would also

testify that “she heard Houston make threats to [Weeden] on various

occasions.” (Id. at 161). Although counsel argued that this testimony would

be used to challenge the credibility of Houston’s earlier testimony to the

contrary and not for the truth of the matter asserted, the court disallowed it

as hearsay.

The remaining two defense witnesses, Weeden’s girlfriend Carolyn

Williams and her son Marquis Williams provided an alibi for Weeden. They

testified that Weeden arrived at their residence at approximately 5:00 p.m.

on the night of the shooting, that they ate dinner together and played video

games for several hours, and that Weeden did not leave their house until the

next morning.

D.

The jury found Weeden guilty of the above-listed offenses and the trial

court sentenced him to an aggregate term of not less than ten nor more than

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twenty years’ incarceration. Weeden timely appealed2 and he and the trial

court complied with Rule 1925. See Pa.R.A.P. 1925(a)-(b). On appeal,

Weeden’s contentions center on evidentiary errors that he argues that the trial

court made in admitting and excluding certain evidence.

II.

Weeden first challenges the trial court’s admission of the ShotSpotter

report (Commonwealth’s Exhibit 4) for two reasons.3 First, he claims that the

report constitutes unreliable, inadmissible hearsay evidence. Second, Weeden

maintains that admission of the report was a Confrontation Clause violation.4

Weeden first claims the trial court erred in admitting the ShotSpotter

report because it was hearsay offered to support the Commonwealth’s position

that gunshots were fired at a specific time and location. He further maintains

2 The filing deadline was extended due to the COVID-19 pandemic.

3We address the issues concerning the report as framed by the parties and do not decide if it may have been subject to other evidentiary objections.

4 An appellate court’s standard of review of a trial court’s evidentiary rulings, including decisions on the admission of hearsay, is an abuse of discretion. See Commonwealth v. Rivera, 238 A.3d 482, 492 (Pa. Super. 2020). Whether a defendant has been denied his right to confront a witness under the Confrontation Clause is a question of law, for which our standard of review is de novo and our scope of review is plenary. See id.

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that the report fails to meet the business records exception to the hearsay

rule.5

Hearsay is a statement, other than one made by the declarant while

testifying at trial or a hearing, offered in evidence “to prove the truth of the

matter asserted in the statement.” Pa.R.E. 801(c). The Pennsylvania Rules

of Evidence define the term “statement” as “a person’s oral [or] written

assertion, or nonverbal conduct, if the person intended it as an assertion.”

Pa.R.E. 801(a) (emphasis added). Generally, hearsay is not admissible

because it lacks guarantees of trustworthiness, as the declarant cannot be

challenged regarding the accuracy of the statement. See Commonwealth

v. Kuder, 62 A.3d 1038, 1055 (Pa. Super. 2013), appeal denied, 114 A.3d

416 (Pa. 2015).

In Commonwealth v. Wallace, 244 A.3d 1261 (Pa. Super. 2021), this

Court considered whether data recovered from a Global Positioning System

(GPS) monitoring device constituted hearsay. We held that GPS records are

not hearsay, reasoning: “the Pennsylvania Rules of Evidence expressly define

a ‘statement’ for purposes of hearsay as the written or oral assertion of a

person.” Id. at 1272 (quoting Pa.R.E. 801) (emphasis original). Ascribing

the plain and ordinary meaning to the words in the Rule, we concluded that

5 See Pa.R.E. 803(6) (providing exception to general rule against hearsay where a record is made in the course of a regularly conducted business activity).

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GPS data automatically generated by a computer does not constitute a

statement asserted by a person and, therefore, cannot qualify as hearsay.

See id. Because of this conclusion, we expressly declined to address whether

the records fell within an exception to the general exclusionary rule against

hearsay. See id. at n.7.

Similarly, the ShotSpotter report here was automatically generated by

the ShotSpotter system and was not an assertion made by a person. (See

Commonwealth’s Exhibit 4, at 3 (Disclaimer stating “Lead Summary is

produced using data automatically generated by the ShotSpotter system.”)).

Although the report was subject to human review, the document in this case

was not amended by anyone. Like the GPS data in Wallace, the ShotSpotter

document is not hearsay.6

Weeden next challenges the trial court’s admission of the ShotSpotter

report on Confrontation Clause grounds. Weeden contends that this document

was testimonial in nature because it was offered to prove the precise time and

location of the gunshots, and that he should have been afforded the

opportunity to cross-examine the declarant of the document. Weeden

6Because it is not hearsay, we need not consider whether it falls under the business records exception.

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maintains that Detective Baumgart’s testimony was lacking in this regard

because he had no role in creating the report.

The Sixth Amendment to the United States Constitution provides a

criminal defendant with the right “to be confronted with the witnesses against

him.” U.S. Const. Amend. VI. The Confrontation Clause protects a criminal

defendant’s right to confront witnesses testifying against him. See Crawford

v. Washington, 541 U.S. 36, 51 (2004). The Pennsylvania Constitution

provides the same protection as the United States Constitution. See Pa.

Const. Article I, § 9. Testimonial statements of a witness absent from trial

can be admitted “only where the declarant is unavailable, and only where

the defendant has had a prior opportunity to cross-examine.” Crawford,

supra at 59 (emphasis added). However, the Confrontation Clause right does

not apply to ShotSpotter reports for several reasons.

First, it is not possible to cross-examine the declarant of the ShotSpotter

report because it was automatically generated by a computer system and was

not prepared by a person. The disclaimer to the report specifically advises

that it “has not been independently reviewed by our Forensic Engineers” and

that the data provided should be corroborated with other evidentiary sources

such as witness statements. (Commonwealth’s Exhibit 4, at 3, Disclaimer).

The report was not altered or amended by any person and no one individual

can be considered its author.

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Second, a statement is covered by the Confrontation Clause only if it is

testimonial in nature. See Commonwealth v. Cheng Jie Lu, 223 A.3d 260,

264-65 (Pa. Super. 2019). “Statements to police are testimonial and thus

subject to Confrontation Clause restraints when their primary purpose is to

establish or prove past events for purposes of proof at a criminal trial.”

Commonwealth v. Brown, 185 A.3d 316, 325 (Pa. 2018) (citation omitted).

Generally, statements are nontestimonial when made under circumstances

objectively indicating that the primary purpose of the statement is to enable

police to meet an ongoing emergency. See id. In contrast, statements are

testimonial when the circumstances objectively indicate that there is no such

ongoing emergency and that the primary purpose of the document is to

establish or prove past events potentially relevant to later criminal

prosecution. See id.

In this case, the primary purpose for production of the ShotSpotter

report was not to establish or prove past events relevant to a later criminal

prosecution. Instead, the computer-generated report was sent to the police

department within one to two minutes of the ShotSpotter system’s detection

of gunshots. It was provided during the unfolding of an ongoing emergency

or what was likely an emergency situation. The report of gunfire signaled an

immediate crisis involving potential serious injury. It was, therefore, not

testimonial in nature and does not raise Confrontation Clause concerns.

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III.

Weeden next argues the trial court erred in excluding as hearsay the

proffered testimony of Horne regarding threats Houston allegedly made to

Weeden during their relationship.7 Weeden maintains this testimony was not

hearsay because it was not offered for its truth, but rather to challenge

Houston’s credibility where she testified on cross-examination that she never

threatened to kill him. He contends that testimony undermining Houston’s

credibility was critical to this case, given the dearth of evidence linking him to

the shooting.

As discussed above, hearsay is a statement, other than one made by

the declarant while testifying at the relevant proceeding, offered to prove the

truth of the matter asserted. See Pa.R.E. 801(c). “An out-of-court statement

is not hearsay when it has a purpose other than to convince the fact finder of

the truth of the statement.” Commonwealth v. Busanet, 54 A.3d 35, 68

(Pa. 2012) (citation omitted).

Here, the testimony concerning alleged threats Houston made to

Weeden was proffered to contradict her testimony to the contrary and to

undermine her credibility. Because it was not offered for the truth of the

7 In his brief, Weeden states that the defense also sought to elicit this same evidence from Lynn Williams. However, as Williams was not specifically referenced in the sidebar discussion, we frame this issue as relating to Horne only. (See Trial Court Opinion, 8/13/20, at 10 n.2).

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matter asserted, i.e., that Houston actually made these threats, it was not

hearsay.

This finding does not end our inquiry, however, as we must consider the

Commonwealth’s position that any error the trial court made in this regard

was harmless. An appellate court will find harmless error where:

(1) the error did not prejudice the defendant or the prejudice was de minimis;

(2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or

(3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Brown, supra at 330 (citation omitted). The Commonwealth has the burden

of establishing harmlessness beyond a reasonable doubt. See id.

Here, Lamb and Houston testified consistently with one another

regarding the incident and identified Weeden as the perpetrator. Lamb

additionally detailed that she heard her daughter scream “Gun!” as Weeden

pried at Houston’s car door. The women arrived at the police station to report

the encounter and damage to the vehicle within minutes of the ShotSpotter

system’s detection of gunshots in the vicinity. Both Lamb and Houston

appeared frightened and unnerved upon their arrival at the police station.

Given the strength of the Commonwealth’s evidence against Weeden at trial,

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any error on the part of the court in disallowing evidence of the vaguely-

identified threats Houston allegedly made was harmless.

IV.

Finally, Weeden claims the trial court erred in precluding defense

counsel from questioning Houston about her alleged involvement in drug

activity. Weeden maintains that this testimony was not offered as character

evidence, but as an alternative explanation for the shooting.

Character evidence is governed by Pennsylvania Rule of Evidence 404,

which provides in pertinent part:

Rule 404. Character Evidence; Crimes or Other Acts

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to limitations imposed by statute a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait;

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Pa.R.E. 404(a)(1),(2)(A), (B), (i)-(ii) (emphasis added).

“Specific instances of a victim’s prior conduct are admissible to show a

victim’s character trait only if the trait in question is probative of an element

of a crime or a defense.” Commonwealth v. Minich, 4 A.3d 1063, 1071 (Pa.

Super. 2010) (citation omitted). Thus, under Rule 404, evidence of the

victim’s “pertinent trait” is limited in scope and must be relevant to the

offense.

In this case, the trial court found that the allegations concerning

Houston’s drug activity amounted to mere speculation and had no discernable

tie to the crime in this case. The court further determined that defense

counsel’s line of questioning in this regard was an improper attack on

Houston’s character. After review of the record, we conclude that the court

acted within its discretion in ruling on this matter.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/26/2021

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