J-S34041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JEREMY S. HOSTETTER

Appellant No. 1844 MDA 2014

Appeal from the Judgment of Sentence entered October 2, 2014

In the Court of Common Pleas of Lancaster County

Criminal Division at No: CP-36-CR-0004778-2013

BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 25, 2015

Appellant Jeremy S. Hostetter appeals from the October 2, 2014 

judgment of sentence entered in the Court of Common Pleas of Lancaster 

County (“trial court”) following his jury conviction for attempted homicide, 

aggravated assault, and arson.1 Upon review, we affirm. 

The facts and procedural history underlying this appeal are 

undisputed.2 On September 22, 2013, Appellant and his friend, Marlin J. 

Dyer, were involved in a physical altercation in the area of North Decatur 

Street and Wasp Street in Marietta, East Donegal Township, Lancaster 

County. Appellant, who was carrying a container with ignitable fluid, then 

____________________________________________

1 18 Pa.C.S. §§ 901 and 2501, 2702(a)(1), and 3301(a)(1)(i). 

2 Unless another source is cited, the facts are taken from the trial court’s 

Pa.R.A.P. 1925(a) Opinion, 12/1/14, at 1-3. 
J-S34041-15

- 2 -

intentionally doused Dyer’s clothing and person with the accelerant and set 

Dyer on fire. As a result, Dyer suffered life-threatening injuries. 

On September 23, 2013, Appellant was charged with attempted 

murder, aggravated assault, and arson. The case proceeded to a jury trial. 

On the third day of trial, Appellant sought to present the testimony of his 

mother, Robin Leed. At side bar, the following exchange between the 

parties occurred: 

[Defense counsel:] Your Honor, the defense would be offering as 

a witness Ms. Robin Leed, who is the mother of [Appellant]. Ms. 

Reed [sic] would be called solely to testify that when [Appellant] 

was a young boy, he had a serious physical issue which required 

surgery and which affected his life and his ability to run, 

participate in sports, or essentially those two things or anything 

else she might say about that. Those two matters, I believe, are 

relevant and probative to [Appellant’s] ability to retreat with 

complete safety.

[Trial court:] Be more specific about the physical issue you are 

referring to.

[Defense counsel:] I’m trying to have her say where she’s not 

going to get into the specifics, but I think she actually could—

[Trial court:] I think she’s going to have to, because I suspect 

the Commonwealth is going to want to –

[Defense counsel:] That’s fine.

[Trial court:] What is it we’re talking about?

[Defense counsel:] He had two hip surgeries. He had surgery in 

one hip with a pin placed in the surgery and another hip with a 

pin placed in it. Then at least one pin broke, and then the other 

pin was removed. I think he actually still has the pin in him. 

And as a result of that, he has never been able to really run, 

engage in sports activity.

[Trial court:] Your objection?

[Commonwealth:] I’ve got a couple problems. One, based on 

what [defense counsel] said, these are childhood injuries. 

There’s nothing current. Furthermore, a lot of this is medical 

testimony, which I would think would require a medical doctor. I 
J-S34041-15

- 3 -

don’t think the mom is competent to testify to these issues to a 

degree that would, I think, be reliable to a jury.

[The trial court:] [Defense counsel], I have a problem with it 

from the medical standpoint. I think if you’re going to be 

arguing that he physically and medically cannot run, I think 

more than mom saying he had a childhood issue is appropriate.

[Defense counsel:] I would suggest to the [trial court] that the 

mother would be able to testify as to what she observed in him 

as a child.

[Trial court:] Well, what his condition was as a child is not 

relevant to what he is—how old is he now?

[Commonwealth:] He’s 37.

[Trial court:] He’s 37 years old.

[Defense counsel:] She would testify that as a child, she 

observed him going through these procedures. As a result of 

going through these procedures, he has not been able to do 

things that other people do.

[Trial court:] Is she going to testify about his ability to run when 

he was 36 years old?

[Defense counsel:] She’ll testify that she’s never seen him run

after these operations.

[Commonwealth:] Your Honor, I’m not sure when a mother 

would see a 37-year-old man run. I think I have real concerns 

about this.

[Trial court:] Counsel, I’m not going to allow it. I think this 

requires medical testimony about his ability to run and the 

Commonwealth’s ability to respond to it. A mother’s testimony 

regarding a childhood injury which may or may not have 

resolved and his ability to run when he’s 36 years old, I’m not 

going to permit it.

[Defense counsel:] For the record, I just want it to be clear that 

I believe it’s probative for his ability to retreat with complete 

safety, and the mother would testify that since this 

happened she has not been able to observe him do any of 

that from the time that he was 13 or whatever until he 

was 37.

N.T. Trial, 7/28/14-7/30/14, at 431-34 (emphasis added). Appellant sought 

to introduce Ms. Leed’s testimony to establish he lacked the ability to retreat 
J-S34041-15

- 4 -

and, therefore, acted in self-defense when he doused the victim with the 

accelerant and set the victim on fire. Ultimately, the jury found Appellant 

guilty of all charged offenses. On October 2, 2014, the trial court sentenced 

Appellant to 10 to 20 years’ imprisonment for attempted homicide. The 

court also imposed a concurrent sentence of 4 to 8 years’ imprisonment for 

arson. Appellant timely appealed to this Court.3 

In his Pa.R.A.P. 1925(b) statement of errors complained of on appeal, 

Appellant asserted, inter alia, that the trial court abused its discretion in 

disallowing Ms. Leed “to testify that after having several hip surgeries as a 

child, [Appellant] was no longer able to run, and that this physical disability 

continued to the present day” because Ms. Leed was not a medical expert. 

Rule 1925(b) Statement, 11/24/14, at ¶ 2. In response, the trial court 

issued a Pa.R.A.P. 1925(a) opinion, concluding that it did not err in 

disallowing Ms. Leed to testify about Appellant’s ability to run following the 

surgeries. Specifically, the trial court concluded Ms. Leed was not 

competent to offer a medical opinion about Appellant’s disability. Trial Court 

Opinion, 12/1/14, at 6-7. 

____________________________________________

3 We note Appellant’s pre-sentence investigation report is part of the original 

record. It should be noted that pursuant to Pa.R.Crim.P. 703 a pre-sentence 

investigation report is “confidential, and not of public record,” which is 

available only to the authorities or the individuals listed therein. See 

Pa.R.Crim.P. 703. Accordingly, the Lancaster County Clerk of Courts should 

take all necessary steps to preserve the confidential nature of the presentence investigation report by sealing it.
J-S34041-15

- 5 -

On appeal, Appellant challenges only the trial court’s decision to 

disallow Ms. Leed’s testimony. 

Traditionally, in reviewing a trial court’s decision regarding the 

admissibility of lay testimony, we determine whether the trial court has 

abused its discretion. See Commonwealth v. Huggins, 68 A.3d 962, 966 

(Pa. Super. 2013), appeal denied, 80 A.3d 775 (Pa. 2013). Thus, a ruling 

disallowing evidence “‘will not be disturbed on appeal unless that ruling 

reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, 

or such lack of support to be clearly erroneous.’” Id. (citation omitted). 

Although Appellant couches his argument under Pennsylvania Rule of 

Evidence 701, which governs opinion testimony by lay witnesses, we 

construe it to implicate Rule 602, which provides in part that “[a] witness 

may testify to a matter only if evidence is introduced sufficient to support a 

finding that the witness has personal knowledge of the matter.” Pa.R.E. 

602 (emphasis added). “Firsthand or personal knowledge is a universal 

requirement of the law of evidence.” Pa.R.E. 602, Comment, citing 

Johnson v. Peoples Cab Co., 126 A.2d 720, 721 (Pa. 1956).

Instantly, based on our review of the record, we conclude the trial 

court abused its discretion in disallowing Appellant’s mother, Ms. Leed, to 

testify about Appellant’s ability to run following childhood hip surgeries. As 

the transcript indicates, Ms. Leed was competent to testify that she had not 

seen Appellant run from the time Appellant was thirteen-years old to the 

present. This proposed testimony is fact-based, not opinion testimony under 
J-S34041-15

- 6 -

Rule 701. Being Appellant’s mother, Ms. Leed had first-hand knowledge 

about whether Appellant could run after the surgeries. Ms. Leed’s proffered 

testimony also would have been relevant to establish an element of selfdefense, i.e., whether Appellant could retreat with complete safety. See 18 

Pa.C.S.A. 505(b)(2)(ii). 

To the extent the Commonwealth argues that Ms. Leed’s testimony 

would have amounted to an impermissible expert opinion, we disagree. 

Here, Ms. Leed’s testimony was not proffered to establish that Appellant’s 

inability to run was caused by the hip surgeries. Rather, the testimony was 

proffered only to establish that Ms. Leed had not seen her son, Appellant, be 

able to run since he had the surgeries. Based on the foregoing, the trial 

court abused its discretion in excluding Ms. Leed’s testimony. 

Our inquiry, however, does not terminate here. In determining 

whether the trial court’s error requires the grant of a new trial, we must 

consider whether the error was harmless.4 

In Commonwealth v. Cooley, __ A.3d __, 2015 WL 4068720 (Pa. 

2015), our Supreme Court explained that “[a]n error is harmless if it could 

not have contributed to the verdict. In other words, an error cannot be 

harmless if there is a reasonable possibility the error might have contributed 

____________________________________________

4

“The harmless error doctrine, as adopted in Pennsylvania, reflects the 

reality that the accused is entitled to a fair trial, not a perfect trial.” 

Commonwealth v. Reese, 31 A.3d 708, 719 (Pa. Super. 2011) (en banc) 

(citation omitted). 
J-S34041-15

- 7 -

to the conviction.” Cooley, 2015 WL 4068720, at *8 (citation omitted); see 

also Commonwealth v. Mitchell, 839 A.2d 202, 214-15 (Pa. 2003) (“An 

error will be deemed harmless where the appellate court concludes beyond a 

reasonable doubt that the error could not have contributed to the verdict.”). 

Harmless error exists 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.

Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002) (citation 

omitted).

As noted above, Appellant here sought to introduce his mother’s (Ms. 

Leed) testimony to establish that he set the victim ablaze in self-defense 

because he could not retreat with complete safety given his inability to run. 

It is settled that to invoke a claim of self-defense, the following three 

conditions, as provided by statute and as interpreted by our case law, must 

be satisfied:

a) the slayer was free from fault in provoking or continuing the 

difficulty which resulted in the slaying; b) that the slayer must 

have reasonably believed that he was in imminent danger of 

death or great bodily harm, and that there was a necessity to 

use such force in order to save himself therefrom; and c) the 

slayer did not violate any duty to retreat or to avoid the danger.

Commonwealth v. Hansley, 24 A.3d 410, 421 (Pa. Super. 2011) (citing 

Commonwealth v. Mayfield, 585 A.2d 1069, 1070-71 (Pa. Super. 1991) 

(en banc)); 18 Pa.C.S.A. § 505. 
J-S34041-15

- 8 -

Here, Appellant’s claim that he could not retreat with complete safety 

is belied by the record. The victim, Marlin J. Dyer, testified that he had been 

friends with Appellant for “seven to ten years” and that Appellant worked for 

the victim’s son’s automotive business. N.T. Trial, 7/28/14, at 82. The 

victim testified that, on September 22, 2013, he treated Appellant to 

breakfast because Appellant had put a windshield wiper motor in the victim’s 

car the day before. Id. at 83. The victim testified that after breakfast, 

Appellant stopped by the victim’s house between noon and 1 p.m., because 

the victim had invited Appellant for a cookout. Id. at 85. When Appellant 

arrived, the victim, Debra, Kelly, and Jay were at the residence. Id. The 

victim identified Jay as his best friend and Kelly as his roommate with whom 

he had been involved romantically. Id. at 82. The victim identified Debra 

as his friend whom he had been seeing for seven years and with whom he 

was romantically involved at the time. Id. at 86-87. The victim testified 

that while everyone was watching TV, Kelly complained that “her back was 

killing her.” Id. at 87. In response, Appellant “put his hand down her 

blouse and was rubbing her back. And then he put her blouse up around her 

shoulders and opened her bra and was massaging her back. And she was 

sitting there half naked.” Id. at 87-88. The victim testified that Kelly did 

not have a problem with Appellant’s actions, because she “did not say 

anything.” Id. at 88. 

Problems, however, ensued. The victim testified:

And then [Appellant] got up and walked over to Debbie for some 

reason and staggered over to her and put his hand down her 
J-S34041-15

- 9 -

back and started rubbing her back and tried to put his hands 

down her front. She says knock it off, Jeremy. She says, 

Marlin, she says, get him off of me.

 . . . .

And I didn’t even get out of my chair. Alls I said was, Jeremy, 

look, get your hands off my girlfriend. And then [Appellant] was 

upset and, yes, sir. And you know, more or less, you know, got 

out, left. He was all pissed off because I wouldn’t let him 

manhandle her. It didn’t make any sense to me.

Id. at 88. The victim testified that several hours later, between 6:30 p.m. 

and 7 p.m., Appellant returned to his house. Id. at 89. The victim testified 

that Kelly told him Appellant was on the porch with two gas cans, threating 

to burn down the house. Id. at 90-91. The victim testified that when he 

found out about Appellant’s threat, he was in a pair of silk shorts performing 

work in his bathroom. Id. at 92. He changed into jeans and put on a Tshirt and went out to the porch to confront Appellant. Id. Appellant, 

however, was no longer there. Id. 

Fearing Appellant would return to torch his house, the victim asked 

Kelly to give him a ride to Appellant’s house. Id. at 96. The victim testified 

that, on the way to Appellant’s house, they spotted Appellant “in the 

distance walking with two cans of gas in each hand.” Id. The victim 

testified that he told Kelly to pull over. Id. at 98. “I jumped out and started 

like kind of jogging a little bit towards [Appellant] yelling, Jeremy, 

Jeremy[,]” the victim testified. Id. Describing Appellant’s reaction, the 

victim testified: 

[Appellant] just kept walking. He looked back at me and kept 

walking. So I walked up. I said, we got to talk. I says, we got 

to talk. I says, what’s wrong, what’s going through your head? 
J-S34041-15

- 10 -

And [Appellant] just said, stay back, just get away. Get away, 

get away.

Id. at 98. The victim testified that “when I finally got up to [Appellant], he 

still wouldn’t talk to me or nothing. He just kept, you know, walking. Then 

[Appellant] spun around at one point, and I guess I tapped him in his—hit 

him in his forehead, I guess, one time.” Id. at 99. The victim then clarified 

that he had “punched [Appellant] in the forehead, but [he] didn’t knock 

[Appellant] down or nothing.” Id. at 100. The victim explained that he was 

friends with Appellant and that, by punching the Appellant, he had 

attempted to get Appellant’s attention to inquire about what was happening. 

Id. 

Describing what occurred following the punch, the victim testified:

[Appellant] spun around. He dropped the one can and spun 

around, turned his back. I see [Appellant] going like this. And I 

didn’t know what he was going to do. I had no idea. So he 

threw the cap down and went like this, like he was going to 

squeeze it on me. So I ran as fast as I could, which ain’t real 

fast. [Appellant] caught up with me. I was up to the edge of 

the road. And he squeezed it all over me and said, there, you 

sick fuck, and took a pack of matches and lit the whole pack up. 

Alls I was thinking, when I get in my vehicle, it’s going to smell 

like gas the rest of its life. I’m going to have to get rid of it. 

That’s all I thought it was, you know. I’m already doused with 

gas. When I see that pack of matches got—him whip a couple 

out of the pack and strike it, throw it on my chest, I went up in 

14-foot flames.

Id. at 100-01. The victim emphasized that after Appellant had doused him, 

he “was trying to get away from [Appellant],” running towards his truck. Id.

at 102-03. Appellant, however, chased him and lit him on fire. Id. at 104-

05. 
J-S34041-15

- 11 -

Peter Elser, a young landscaper who was acquainted with Appellant, 

testified that on the evening of the incident, he encountered Appellant at the 

corner of Wasp Street and Decatur Street. Id. at 158. Appellant was 

walking while holding a black, quart-size bottle. Id. at 158-59. Elser 

testified that as he was walking with Appellant, “a truck pulled up and 

somebody got out of the truck.” Id. at 161. “[W]hoever was in the truck 

was yelling something out of the truck. And when it stopped, a large white 

male got out and approached us.” Id. at 163. Elser testified that the male 

yelled something about “you’re going to burn down my trailer or something 

like that.” Id. at 163-64. Elser testified that the large while male, later 

identified as the victim, walked briskly towards Elser and Appellant, who 

were stopped. Id. at 165-66. According to Elser’s testimony, Appellant 

rejected the victim’s accusation that Appellant was going to burn down the 

trailer. Id. at 167. Following the verbal exchange, Elser testified that the 

victim pushed Appellant in the head from a distance of two to three feet. 

Id. at 168-69. The push caused Appellant “to [move to] the side a little bit, 

there wasn’t enough force to knock him down.” Id. at 169-70. Appellant 

retaliated. Id. at 169. Elser testified that the victim and Appellant “had a 

brief scuffle,” but no “punches” were thrown. Id. “They were just like 

pushing each other. And there might have been a few—like they threw their 

arms, but no punches.” Id. at 170. Elser testified that during the scuffle, 

Appellant held the bottle in his hand. Id. at 171. The scuffle lasted fifteen 

to twenty seconds. Id. After the scuffle ended, Appellant and the victim 
J-S34041-15

- 12 -

stood further apart—three to four feet. Id. at 173. Elser testified that, at 

this point, he observed Appellant make “an underhanded throwing type of 

motion.” Id. at 172-73. Upon observing the motion, Elser testified that 

“liquid went on [the victim’s] chest and face[.]” Id. at 174. “[The victim] 

kind of looked like he had something in his eyes and he stepped back like 

this and kind of went like this.” Id. Specifically, Elser testified that the 

victim “took several steps backwards.” Id. When the victim was hit with 

the liquid, he was approximately six feet away from Appellant. Id. at 175. 

Appellant then went “up to [the victim.]” Id. Elser testified that he 

observed Appellant make a motion with his hand and “saw [the victim] go 

up in flames instantly.” Id. at 176. 

On cross-examination, Elser acknowledged that barely three to four 

seconds lapsed between the time the victim was doused and set ablaze. Id.

at 193. Elser also acknowledged that he did not know whether Appellant or 

the victim backed up following the scuffle, prior to the dousing. Id. at 201. 

Audrey Flanagan, an eyewitness to the incident in question, testified 

that she was a passenger in a car, heading back to her parents’ house. Id.

at 222-23. As she saw two young men walking on the shoulder of the road, 

she observed something unusual. Id. at 223. Flanagan testified that she 

observed “a black pickup truck that was coming toward us . . . . [a]nd the 

door, passenger door, of said black truck flew open before the truck had 

time to park or stop.” Id. Flanagan testified that she saw “an older 

gentleman,” later identified as the victim, exit the truck, hurriedly going in 
J-S34041-15

- 13 -

the direction of the young men, one of whom was identified as Appellant.5 

Id. at 225-26. Flanagan testified that when the truck stopped, the 

pedestrians kept on walking. Id. at 228. She testified that the victim 

caught up to the pedestrians. Id. at 229. The victim took [Appellant’s] 

head and shoved it.” Id. at 230. Flanagan testified that she observed 

Appellant “shove[] the [the victim] back.” Id. at 231. The victim then 

“tried to go back across toward the truck again, and [Appellant] followed 

him. There was some shoving going on there, as well[,]” Flanagan testified. 

According to her testimony, the next thing she observed was a sudden 

“explosion of flame.” Id. at 233. Flanagan testified that “I had hoped at 

first that it was the truck, but when I saw the ball of fire come back across 

the road, then I knew it was a person.” Id. 

Based on the evidence, we conclude that Appellant could not have 

established self-defense. Specifically, Appellant fails to establish that he 

reasonably believed that he was in imminent danger of death or great bodily 

harm, and that there was a necessity to use such force to save himself 

therefrom. See Hansley, supra. Similarly, Appellant fails to establish that 

he did not violate any duty to retreat or to avoid the danger. Id. 

____________________________________________

5 The transcript indicates that Flanagan observed much of the incident from 

the “rearview window” of the moving car in which she was a passenger. 

N.T. Trial, 7/28/14, at 225-33.
J-S34041-15

- 14 -

The undisputed facts here do not reveal that Appellant was in 

imminent danger of death or great bodily injury. Rather, the facts indicate 

only that Appellant and the victim engaged in a brief scuffle, following which 

Appellant doused the victim with ignitable fluid. Moreover, the undisputed 

facts indicate that after Appellant doused the victim with the fluid, the victim 

moved away from Appellant toward his truck. At this point, it was Appellant 

who followed the victim to set the victim on fire. Based on these facts, it is 

of no moment whether Appellant had the ability to run for purposes of 

retreating when it was Appellant who pursued the victim after the victim 

moved away from Appellant. Thus, the uncontradicted evidence against 

Appellant’s claim of self-defense mitigates against any prejudicial effect of 

the trial court’s error, i.e., the disallowance Ms. Leed’s testimony, so that the 

error beyond a reasonable doubt could not have contributed to the verdict. 

See Hutchinson, supra. Accordingly, we consider the trial court’s error in 

excluding Ms. Leed’s testimony to be harmless. See Commonwealth v. 

Allshouse, 36 A.3d 163, 182 (Pa. 2012) (Appellate courts may affirm a 

judgment based on harmless error even if such an argument is not raised by 

the parties); see also Commonwealth v. Johnson, 941 A.2d 1286, 1290 

n.2 (Pa. Super. 2008) (reiterating appellate court can uphold trial court’s

decision if there is any proper basis for result reached; appellate court is not 

constrained to affirm on grounds relied upon by trial court) (citation 

omitted).

Judgment of sentence affirmed.
J-S34041-15

- 15 -

Judge Ott joins the memorandum.

Judge Bowes concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/25/2015