Commonwealth v. Galloway

485 A.2d 776, 336 Pa. Super. 225, 1984 Pa. Super. LEXIS 7049
CourtSupreme Court of Pennsylvania
DecidedNovember 23, 1984
Docket3127
StatusPublished
Cited by21 cases

This text of 485 A.2d 776 (Commonwealth v. Galloway) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Galloway, 485 A.2d 776, 336 Pa. Super. 225, 1984 Pa. Super. LEXIS 7049 (Pa. 1984).

Opinions

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, [229]*229and issue XX, which concerns the propriety of appellant’s sentence, are without merit. Issue XV concerns appellant’s right to a charge on “unreasonable belief” voluntary manslaughter. The law on this issue has changed since appellant’s trial and the trial court’s opinion. Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983). We therefore remand for further consideration in light of Carter.

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; [230]*230appellant was finally arrested in Pittsburgh on July 14, 1971.

Appellant’s issue Y 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—
SÍ! J¡{ Jj< % S}S
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 héarsay 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? [231]*231Nevertheless, “the traditional view ha[s] been that a prior statement of a witness is hearsay if offered to prove the happening of matters asserted therein,” McCormick on Evidence 744 (3d ed. 1984), and while “[t]his position has increasingly come under attack in recent years on both logical and practical grounds,” id,., it appears to be the law in Pennsylvania. See Commonwealth v. Waller, 498 Pa. 33, 39 n. 2, 444 A.2d 653, 656 n. 2 (1982) (prior inconsistent statement of witness not admissible as substantive evidence); Reichman v. Wallach, 306 Pa.Super. 177, 452 A.2d 501 (1982) (plaintiffs testimony as to what physician said on telephone hearsay; not rendered admissible because physician testified). This case is not the occasion to re-examine that law, for the Commonwealth does not argue that the statement was not hearsay, but it is appropriate to note that the hearsay with which we are here concerned is by its nature subject to being tested for reliability with more confidence than are many other sorts of hearsay. With this in mind, we may turn to our next inquiry — whether, although hearsay, the wife’s prior statement was admissible as within an exception to the rule against hearsay evidence.

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.
Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942).

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[232]*232ering emotion caused by some unexpected and shocking occurrence.” His wife’s own testimony, and that of Shirley Johnson, Detective Simms and Captain Henry, established that she was bordering on hysteria, N.T. 80, very nervous and quite upset, N.T. 165, frightened and angry, N.T. 80, 135, 245. Nor does he argue that the statement was not made “so near the occurrence both in time and place” as to exclude the possibility of its being reflective rather than excited.

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Commonwealth v. Galloway
485 A.2d 776 (Supreme Court of Pennsylvania, 1984)

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Bluebook (online)
485 A.2d 776, 336 Pa. Super. 225, 1984 Pa. Super. LEXIS 7049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-galloway-pa-1984.