J-S61045-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT 

OF

PENNSYLVANIA

Appellee

v.

JAMES LEE COKER, JR.,

Appellant No. 665 EDA 2017

Appeal from the Judgment of Sentence January 13, 2017

in the Court of Common Pleas of Delaware County

Criminal Division at No.: CP-23-CR-0004079-2016

BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED MARCH 22, 2018

Appellant, James Lee Corker, Jr., appeals from the judgment of sentence 

imposed on January 13, 2017, following his non-jury trial conviction of simple 

assault.1 Specifically, he contends that the trial court erred when it admitted 

hearsay testimony from the investigating officer. We affirm.

We take the factual and procedural history in this matter from our 

review of the certified record and the trial court’s April 3, 2017 opinion. On 

April 25, 2016, Patrol Officer Roland Norman responded to a call at 120 

Chester Avenue in Yeadon, Delaware County, Pennsylvania. (See Trial Court 

Opinion, 4/03/17, at 3). Officer Norman spoke to Lavanna Murray, the victim, 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 2701(a)(1).
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who claimed that Appellant assaulted her after an argument. Officer Norman

observed that she was distraught and bleeding from cuts on her forehead, and 

that there was blood on the floor. (See id.). 

On January 13, 2017, the court conducted a non-jury trial. Officer 

Norman testified that upon arriving at the residence, he saw the victim had 

cuts on her head, and was bleeding from them. (See N.T. Trial, 1/13/17, at 

8). He further stated that he noticed blood on the floor of the apartment, and 

that the victim was distraught when he got there. (See id. at 8-9). The trial 

court overruled Appellant’s objection, and permitted Officer Norman to testify 

as to what the victim told him about how she injured her head, under the 

excited utterance exception to the hearsay rule. (See id. at 10). Officer 

Norman explained that the victim told him that, after Appellant knocked on 

the window, she let him into her apartment. Shortly thereafter, she received 

a text message from a male, which made Appellant upset. The victim and 

Appellant started arguing, and she tried to run upstairs. Appellant caught her 

on the stairs and started assaulting her. (See id. at 10-11). 

Appellant testified in his own defense. He stated that he went to the 

victim’s apartment to get his toothbrush and she attacked him. He claimed

that the cut on the victim’s forehead happened earlier when she was getting 

her hair done. (See id. at 34, 36-38). Appellant denied hitting the victim. 

(See id. at 38). At the conclusion of trial, the court found Appellant guilty of 

simple assault, and entered a sentence of no further punishment. The court 
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found Appellant not guilty of recklessly endangering another person.2 (See 

id. at 55). This timely appeal followed.3

Appellant presents one question on appeal.

I) [Whether] the court erred in allowing the hearsay testimony 

of the investigating officer to be admitted over objection 

where the statements were offered as substantive proof as 

to what transpired on the night in question between 

[Appellant] and the alleged victim, and where the alleged 

victim never appeared for the trial and the officer was not 

present to observe what actually took place[?]

(Appellant’s Brief, at 7) (unnecessary capitalization omitted).

In his issue, Appellant claims that the court abused its discretion and 

admitted hearsay evidence when it permitted Officer Norman to testify about 

what the victim told him. (See id. at 11-18). Specifically, he argues that, 

“the out-of-court statements did not amount to an excited utterance and, 

more importantly, they were of such broad scope that Appellant was entirely 

stripped of all confrontation rights afforded him by the United States 

Constitution and the Pennsylvania Constitution.” (Id. at 12). We disagree.

When reviewing a challenge to the admissibility of evidence, 

we note that [t]he admissibility of evidence rests within the sound 

discretion of the trial court, and such a decision will be reversed 

only upon a showing that the trial court abused its discretion. An 

abuse of discretion is not merely an error of judgment, but is 

rather the overriding or misapplication of the law, or the exercise 

____________________________________________

2 18 Pa.C.S.A. § 2705.

3 Pursuant to the court’s order, Appellant filed his concise statement of errors 

complained of on appeal on March 13, 2017. The trial court entered its opinion 

on April 3, 2017. See Pa.R.A.P. 1925.
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of judgment that is manifestly unreasonable, or the result of bias, 

prejudice, ill-will or partiality, as shown by the evidence of record. 

Hearsay is defined as a statement, other than one made by the 

declarant while testifying at trial or hearing, offered in evidence to 

prove the truth of the matter asserted. Hearsay testimony is per 

se inadmissible in this Commonwealth, except as provided in the 

Pennsylvania Rules of Evidence[,] by other rules prescribed by the 

Pennsylvania Supreme Court, or by statute.

Commonwealth v. Gray, 867 A.2d 560, 569-70 (Pa. Super. 2005), appeal 

denied, 879 A.2d 781 (Pa. 2005) (citations and quotation marks omitted).

Here, the trial court admitted Officer Norman’s testimony about the 

victim’s statement under the excited utterance exception to the hearsay rule.

In determining whether an out-of-court statement 

constitutes an excited utterance, we are mindful of the following 

principles:

Rule 803(2) of the Pennsylvania Rules of 

Evidence permits the admission of an excited 

utterance as an exception to the general rule that 

hearsay evidence is inadmissible. The Rule defines an 

excited utterance as: [a] statement relating to a 

startling event or condition made while the declarant 

was under the stress of excitement caused by the 

event. [Pa.R.E. 803(2).] . . . [F]or a statement to be 

considered an excited utterance, it must be made 

spontaneously and without opportunity for reflection:

[A] spontaneous declaration by a 

person whose mind has been suddenly 

made subject to an overpowering 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. . . . Thus, it must be 
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shown first, that [the declarant] had 

witnessed an event sufficiently startling 

and so close in point of time as to render 

her reflective though[t] processes 

inoperable and, second, that her 

declarations were a spontaneous reaction 

to that startling event. 

. . . [T]his Court further held that there is no 

clear-cut rule as to the time sequence required for a 

statement to qualify as an excited utterance, but 

rather that fact-specific determination is to be made 

on a case-by-case basis.

Additionally, [i]n assessing a statement offered as an 

excited utterance, the court must consider, among other things 

whether the statement was in narrative form, the elapsed time 

between the startling event and the declaration, whether the 

declarant had an opportunity to speak with others and whether, 

in fact, she did so. Our [c]ourts have not established a bright line 

rule regarding the amount of time that may elapse between the 

declarant’s experience and her statement. Rather, [t]he crucial 

question, regardless of time lapse, is whether, at the time the 

statement is made, the nervous excitement continues to dominate 

while the reflective processes remain in abeyance. It is the 

spontaneity of . . . an excited utterance [that] is the source of 

reliability and the touchstone of admissibility.

Id. at 570-71 (citations and quotation marks omitted).

In the instant case, the trial court explained that Appellant testified that 

he woke up at 2:00 a.m. and decided to go to 120 Chester Avenue. The victim 

called the police at 2:53 a.m., thus the trial court surmised that a “reasonable 

inference may be drawn that the incident did not occur earlier than 2:30 a.m.” 

(Trial Ct. Op., at 6-7). When Officer Norman arrived on scene, the victim was

“distraught, upset about what happened, and dabbing at her wounds.” (Id.

at 7). The court reasoned that although there was testimony that another 

woman arrived on scene after the incident and before Officer Norman, 
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nothing suggests that during the minutes between the incident 

and [the victim’s] statements there was an opportunity to 

fabricate a false version of events. [The victim] said that during 

the heat of the argument with [Appellant] she became upset and 

ran up the steps. [Appellant] caught her at the top of the steps 

where the assault occurred. It is submitted that sufficient indicia 

of reliability existed based on the totality of these circumstances 

and that the “excited utterances” of the victim were admissible.

(Id.).

Upon review, we conclude that the trial court did not abuse its discretion 

when it permitted Officer Norman to testify about the victim’s statements 

under the excited utterance hearsay exception. The record supports that the 

victim “witnessed an event sufficiently startling and so close in point of time 

as to render her reflective though processes inoperable and, second, that her 

declarations were a spontaneous reaction to that startling event.” See Gray, 

supra at 570 (citations omitted). Furthermore, based on our review of the 

record, we agree that, regardless of time lapse between the attack and the 

victim’s statement, her “nervous excitement continue[d] to dominate while 

[her] reflective processes remain[ed] in abeyance[,]” and her statements to 

Officer Norman were spontaneous. Id. at 571 (citation omitted). Therefore, 

we conclude that the trial court did not abuse its discretion. Appellant’s issue 

does not merit relief.

Judgment of sentence affirmed.

Judge Lazarus joins the Memorandum.

Judge Ransom concurs in the result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/22/18