Commonwealth v. Bailey

510 A.2d 367, 353 Pa. Super. 390, 1986 Pa. Super. LEXIS 11088

• Court: Supreme Court of Pennsylvania
• Decided: June 2, 1986
• Docket: 2892
• Status: Published

Opinions

OLSZEWSKI, Judge:

Robert Bailey appeals from the judgment of sentence of one to two years’ incarceration following conviction by jury of one count of indecent assault.

The facts show that appellant separated from his common-law wife in 1976, leaving her with custody of their two sons. Appellant retained visitation rights. On a weekend in February 1981, appellant picked up his two sons for a visit to his house in Centre County. Appellant’s nine-year-old son, G.B., went to bed on Friday evening. Sometime thereafter, appellant came to bed, disrobed, and told G.B. to take off his pajamas. Appellant removed G.B.’s underwear and inserted his penis into G.B.’s anus.

G.B. returned to his mother’s home at 10:30 Sunday evening, took a bath, and went to bed. When his mother arose at 7:00 on Monday morning, she found bloodstains on G.B.’s underwear and questioned him about their origin. G.B. became upset, began to cry, and told his mother what had happened. A physician examined G.B.’s rectum and found a fresh abrasion which he testified was consistent with G.B.’s story.

Appellant was charged with one count of each of indecent assault and involuntary deviate sexual intercourse. Appellant was convicted by jury only of indecent assault. Following post-trial motions, this appeal is before us.

Appellant raises four questions for our review: First, he argues that the lower court erred in admitting hearsay statements by the boy’s mother as to G.B.’s responses to her questions about the origins of the bloodstains in his underwear. We hold that the statement was properly admitted under the spontaneous declaration exception to the hearsay rule.¹ Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978). The exception requires that the statement must be:

... 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 had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be 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.

477 Pa. at 137-138, 383 A.2d at 860 (citation omitted).

In the instant case the victim, a boy of tender years, was subjected to a devastating experience at the hands of his father. The boy was required to remain with appellant for two days following the event. When he returned home Sunday evening, he went immediately to bed. Confronted with the bloodstains, the boy became visibly upset and cried. His statement to his mother was not made in a calm and unemotional manner. We agree with the court below that Monday morning was the first available opportunity that the victim had to speak of the incident outside of the presence or influence of appellant.

The statement was properly admitted as the product of an overpowering emotion caused by a shocking, traumatic, and humiliating experience. The time lapse between the indecent assault and the statement did not negate the clear indicia of reliability which underlies the spontaneous declaration exception. The requirement of spontaneity is a question which turns on the particular circumstances of each case. Pronkoskie, supra. The definition of spontaneity is relaxed when the child declarant is the victim of sexual assault. Id. The statement was reliable and properly admitted into evidence.

Appellant next argues that the lower court erred in not finding that the verdict was contrary to the evidence and to the weight of the evidence. After a thorough review of the record, we find ample evidence to support a verdict of guilt beyond a reasonable doubt. The victim testified that appellant inserted his penis in his “butt” and began “rocking back and forth.” Notes of trial at 38-42. Dr. Troyer testified that his examination of the victim revealed an abrasion of his rectum, and that the injury was consistent with the complaint. Accepting as true all of the evidence in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, we hold that the verdict was not contrary to the evidence. Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983). Although appellant presented some conflicting evidence at trial, the jury’s verdict was based on its determination of the credibility of the witnesses. See Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975). Appellant has presented no argument to question whether the jury’s verdict was properly rendered.

Finally, appellant argues that the sentence is excessive under the circumstances of this case. Appellant concedes that the sentence imposed is within the statutory maximum limit. We hold that the lower court did not abuse its discretion in the imposition of sentence. Commonwealth v. Valentin, 259 Pa.Super. 496, 393 A.2d 935 (1978). The lower court considered that appellant’s prior criminal history includes a 1978 conviction for indecent assault and corruption of minors; appellant’s medical needs; and the serious nature of this offense, which appellant committed against his own son. The term of imprisonment and recommended treatment for alcohol abuse meets appellant’s rehabilitative needs.

The judgment of sentence is affirmed.

HOFFMAN, J., files concurring opinion. CAVANAUGH, J., files dissenting opinion.

1 . This issue of statements made by sexually abused children to a parent is not one of first impression before this Court. In Commonwealth v. Haber, 351 Pa.Super. 79, 505 A.2d 273 (1986) the majority refused to allow the statements of two children, as told to their mothers, concerning what was done to them. I would also use a judically created tender years exception as outlined in my Haber dissent to allow the statements of G.B. to be admitted into evidence.