EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, October 14, 2008

I Said , "M-I-S-T-R-I-A-L," Mistrial, Take 2: Pennsylvania Judge Makes Seemingly Erroneous Hearsay Ruling In Murder Retrial

I am surprised by a Pennsylvania judge's hearsay ruling during a defendant's retrial.  And that ruling will prevent the victim's daughter from being able to testify concerning what her mother stated on a voice mail message she left while the defendant was allegedly beating her.  I previously wrote about the initial (mis)trial of the defendant for the mother's death in a post in March, where I laid out the relevant facts of the case:

     "After Leslie Kerstetter's husband died of cancer, her alcohol and drug problems became severe enough to lead her to seek help through the Dauphin County Drug and Alcohol Services office.  There, Kerstetter met Christopher W. Shenk, a recovering alcoholic who worked as a counselor for the county.  The two started dating, and Leslie was subsequently found dead in the couple's home on March 28th after Shenk called for an ambulance.  Shenk was subsequently charged with Leslie's murder.

     This week, at Shenk's trial, the prosecution and defense counsel both agreed that on March 26th, the couple was arguing about Leslie's drinking, with Leslie repeatedly taking taxis to the liquor store after Shenk had dumped her bottles of liquor.  Both sides also agreed that the argument got physical, but defense counsel claimed that while Shenk shoved Leslie during the argument, he did nothing to intentionally harm her.  The prosecution countered that Shenk beat Leslie to death."

So, why was there a mistrial?  Well, as I noted back in March,

     "As part of its case, the prosecution called Leslie's adult daughter Ashley to testify concerning a voice mail message that her mother left on her phone on March 26th.  Both the prosecution and defense counsel expected that Ashley was only going to testify that the voice mail made her believe that Shenk was beating her mother, not that she was going to relay her mother's statements on the voice mail.  Instead, Ashley surprised both sides by testifying that on the voice mail, her mother said, 'Chris is beating me.  I'm scared, I'm scared.  Get off me, get off me.'  The judge agreed with defense counsel's argument that this testimony was barred as hearsay and thus granted a mistrial.  Deputy District Attorney Christopher Dreisbach said he plans to argue on appeal that the same testimony by Ashley should be allowed on re-trial because the mother's statements constituted a present sense impression."

I thought that the DA's plan to argue that the mother's statements constituted a present sense impression was smart because such an argument, as well as an argument that the statements constituted an excited utterance, was likely to be successful."  Specifically, I pointed out that:

     "First, as the DA noted (but did he do so at trial?), Leslie's statement was a present sense impression under Pennsylvania Rule of Evidence 803(1) because it was "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."  Here, Leslie's statement that Shenk was beating her, and her statement, "Get off, get off" clearly indicate that Leslie was relaying an event that was presently occurring, making the exception applicable.

     Second, Leslie's statement was an excited utterance under Pennsylvania Rule of Evidence 803(2) because it was "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."  Leslie's statement related to a startling event -- being beaten -- and her statement that she was "scared" indicated that she was under the stress of that event when she sent the voice mail. See, e.g., Commonwealth v. Watson, 627 A.2d 785, 788 (Pa. Super. 1993)."

I was thus surprised when I was combing through news stories today and found that the trial judge in Shenk's retrial agreed with defense counsel that Ashley Kerstetter's proposed testimony about the contents of her mother's message was inadmissible hearsay.  Unfortunately, the article on the retrial doesn't mention the judge's reasoning, but, barring any strange facts of which I am unaware, I don't see how this ruling could be proper.



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Hi. You wrote something about my mom's trial back on Oct 14, 2008 (long time ago, I know). Just wanted to update that it has since gone back to trial, I WAS allowed to say what she left in that voicemail, he WAS convicted and is now serving 17-35 years in the State Pen!

Posted by: Ashley | Mar 13, 2009 11:19:53 AM

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