Commonwealth v. Haber

505 A.2d 273, 351 Pa. Super. 79, 1986 Pa. Super. LEXIS 9472

• Court: Supreme Court of Pennsylvania
• Decided: February 11, 1986
• Docket: 2337
• Status: Published

Opinions

CAVANAUGH, Judge:

Edward Haber appeals from a judgment of sentence entered against him by the Court of Common Pleas of Monroe County. Appellant was convicted by a jury of one count each of corruption of a minor and indecent assault. He alleges, inter alia, that the trial court committed reversible error in admitting the hearsay testimony of the mothers of the two alleged victims. We agree.

In the late spring or early summer of 1982 one of the alleged victims, Darrell Leigh-Manuel, then four and one-half years old, told his mother that he and Jaclyn Predmore, a five year old neighbor, had been sexually abused by appellant. Darrell’s mother contacted Jaclyn’s mother. The two mothers then interviewed their children and contacted the police. Through information obtained from the children and their mothers, the police eventually arrested and charged appellant with the above-stated crimes.

Appellant was tried twice. The first trial ended in a hung jury. The second trial ended in his conviction.

Prior to the first trial, the trial judge held a competency hearing, as a result of which he ruled that Darrell was competent to testify as to all matters, but that Jaclyn could not be questioned concerning the identity of the person whom she alleged had molested her. She was allowed to testify about the molestation itself.

At trial Mrs. Leigh-Manuel and Mrs. Predmore testified at length as to the stories told them by their children. Their testimony included statements about what was physically done to the children, and as to the identity of the alleged molester. This testimony was crucial to the Commonwealth’s case because the testimony of the children themselves consisted mostly of monosyllabic answers to leading questions, and both children repeatedly stated that they were unable to remember details about what happened. There were no other eyewitnesses to the events that the children reported to their mothers.

It is clear that the testimony of Mrs. Leigh-Manuel and Mrs. Predmore as to what their children told them was hearsay, since it related out-of-court assertions that were offered to prove their truth. Thus it was inadmissible unless it fit within an exception to the hearsay rule. The exception most commonly used by the courts to allow the admission of a child’s statements regarding sexual abuse is the spontaneous declaration, or excited utterance exception. But in order to fall under this exception, the statement must have been made so spontaneously as to be under the excitement caused by the event, so as to preclude the possibility of fabrication.

There is no evidence that the statements of the children were made under the stress of excitement caused by an exciting event or condition, as is required. On the contrary, the first relevant assertion was.a comment made by Darrell during a conversation between Darrell’s older brother and his mother. The other assertions were made during interviews conducted by the mothers with their children. Also, the record does not disclose the length of delay between the alleged criminal acts and the childrens’ assertions to their mothers. Clearly the excited utterance exception cannot be used to qualify the hearsay testimony of Mrs. Leigh-Manuel and Mrs. Predmore. See Commonwealth v. Kasko, 322 Pa.Super. 62, 469 A.2d 181 (1983).

The testimony of Mrs. Leigh-Manuel and Mrs. Predmore does not come within any exception to the hearsay rule that is recognized in Pennsylvania. The Commonwealth, however, asks us now to create a new exception to the hearsay rule for the out-of-court assertions of children pertaining to sexual abuse.

When considering the adoption of a new rule of evidence, it is often enlightening to review what other jurisdictions have done and to see how legal scholars view the matter.

In the last 22 years, the federal courts and 33 states have conducted studies of their rules of evidence culminating in their codification. Each of these 34 codifications includes the hearsay rule. Each of them delineates 25 to 35 exceptions to the hearsay rule. None of them includes an exception for the out-of-court assertions of children, whether relating to sexual activity or anything else.

In the other 16 states (Pennsylvania is the 17th) the hearsay rule is applied as a matter of common law development by the courts. None of the courts in these 16 states has created an exception to the hearsay rule for the out-of-court assertions of children.¹

The National Conference of Commissioners on Uniform State Laws has adopted what it calls the “Uniform Rules of Evidence.” The current version, which was adopted in 1974, contains the hearsay rule, 30 exceptions thereto, and two exceptions to the definition of hearsay. It does not include an exception for the out-of-court assertions of children.

In the twelve volumes of Wigmore on Evidence there is no recognition of an exception to the hearsay rule for the out-of-court assertions of children. Such an exception is not recognized in Jones on Evidence, or in McCormick on Evidence, or in Binder’s Hearsay Handbook.

The rationale for the hearsay rule is that hearsay is too untrustworthy to be considered by the trier of fact. Exceptions to the hearsay rule have been fashioned to accommodate certain classes of hearsay that are substantially more trustworthy than hearsay in general, and thus merit exception to the hearsay rule. See Binder, The Hearsay Handbook (Second Edition), Chapter Three and Introduction to Part II.

We do not believe that the out-of-court assertions of children, particularly four and five year old children, are substantially more trustworthy than the out-of-court assertions of adults. Life experience furnishes no basis upon which we can fairly conclude that children have any special qualities which render them as being dependably accurate historical reporters. Therefore, such assertions of children do not merit exception to the hearsay rule.

Evidentiary rules, including the hearsay rule, have a raison d’etre. Experience has taught us that trials conducted in accordance with such rules increase the likelihood of a fair and just resolution of the issues by the trier of fact. Otherwise, we would jettison the lot of them.

It is true, of course, that permitting the Commonwealth to introduce the out-of-court assertions of children against the defendant in a child abuse case would make it easier to convict the guilty. Unfortunately, it would also make it easier to convict the innocent. If such a trade-off is acceptable, why not suspend the hearsay rule entirely when the Commonwealth introduces evidence in a criminal case? More defendants, guilty and innocent alike, would undoubtedly be convicted. The same result would obtain if we allowed the Commonwealth to introduce coerced confessions.

However, such a trade-off is not acceptable. It is a fundamental precept of law in Pennsylvania that one charged with crime, be it murder, child abuse, or keeping a public nuisance, comes to trial clothed in the presumption of innocence. If we bear this in mind, we will be less tempted to distort the law of evidence in favor of the Commonwealth in order to increase the conviction rate. The Commonwealth should be bound by the same rules of evidence, including the hearsay rule, as other litigants.

In this case the trial court compounded its error in admitting the hearsay testimony of Mrs. Leigh-Manuel and Mrs. Predmore when it ruled that Jaclyn Predmore could not be questioned concerning her accusation identifying defendant as her molester. This violated defendant’s right to confront the witnesses against him as guaranteed by the Sixth Amendment to the United States Constitution.

If Jaclyn Predmore, while on the stand, had accused defendant in front of the jury of molesting her, defendant’s constitutional right fully and adequately to cross-examine her would be apparent. See Davis v. Alaska, 415 U.S. 308, 315-316, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974), in which the Supreme Court explained:

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him.” This right is secured for defendants in state as well as federal criminal proceedings under Pointer v Texas, 380 US 400, 13 L Ed 2d 923, 85 S Ct 1065 (1965). Confrontation means more than being allowed to confront the witness physically. “Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.” Douglas v Alabama, 380 US 415, 418, 13 L Ed 2d 934, 85 S Ct 1074 (1965). ...

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.

Appellant did not forfeit his constitutional right of cross-examination merely because Jaclyn’s accusation against him was presented to the jury indirectly by means of the hearsay testimony of her mother. Appellant’s need to cross-examine Jaclyn concerning her accusation against him was greater than if she had made it from the witness stand, because she made it without benefit of oath, not subject to the penalty of perjury, and without the presence of the trier of fact.

Appellant did not receive a fair trial in the instant matter. The case against him was established by the admission of excludable hearsay in contravention of well-established Pennsylvania evidentiary law.

Appellant also makes four additional allegations of error. The first point raised involves the out-of-court identification of appellant by Darrell Leigh-Manuel. Appellant argues that the lower court erred in admitting testimony given by a police officer regarding the out-of-court identification, as this testimony was inadmissible hearsay. We find that, since the testimony was corroborative, it was properly within the discretion of the trial court to allow its admission. See, Commonwealth v. Dean, 300 Pa.Super. 86, 445 A.2d 1311, 1313 (1982).

The relevant testimony was elicited as follows. Initially, on direct examination of Officer Olsen, the Commonwealth did not bring out testimony as to the photo array identification made by the victim. Next, Darrell Leigh-Manuel testified, both making an in-court identification of the appellant, and confirming the previous photo array identification. Subsequently, on redirect, Officer Olsen was questioned and testified as to Darrell’s out-of-court identification. Therefore, this testimony was clearly corroborative evidence. Defense counsel previously had the opportunity to cross-examine the declarant regarding the out-of-court identification, therefore appellant was not prejudiced. The trial court did not abuse its discretion in admitting the testimony. See also, Commonwealth v. Sanders, 260 Pa.Super. 358, 394 A.2d 591 (1978).

Moreover, this reasoning does not run afoul of the recent supreme court decision of Commonwealth v. Floyd, 508 Pa. 393, 498 A.2d 816 (1985) which deals with the admissibility of a prior identification through the testimony of a third party. In Floyd, unlike here, the witness who made the out-of-court identification did not make an in-court identification, therefore, the prior identification was not corroborative evidence.

The second alleged error concerns the competency of the victims to testify at trial. Appellant contends that the lower court erred in admitting the testimony of the children without adequate inquiry into their competence at the time of the second trial. We find that the lower court’s first inquiry was adequate and, consequently, no error was committed.

The lower court properly reasoned that a second competency hearing was not necessary since it had already determined the competency of the children to testify. During the competency hearing, the court correctly complied with the standard set forth in Rosche v. McCoy, 397 Pa. 615, 156 (1959) which lists the factors to be considered. To be competent, a youthful witness must have a capacity to communicate, including an ability to understand questions and to frame and express intelligent answers; mental capacity to observe and remember the occurrence; and a consciousness of the duty to speak the truth. Rosche, Id., 397 Pa. at 620-621, 156 A.2d at 310. It was properly within the lower court’s discretion to decide on the competency of the children. A thorough examination was made, and the trial court found Darrell Leigh-Manuel competent to testify as to all matters, and Jaclyn Predmore competent to testify only as to matters relating to the actual physical attack upon her.

The lower court did not err in its refusal to conduct a second hearing, rather its decision was well within the proper discretion of the trial court. Furthermore, appellant had a safeguard against inaccurate testimony in his right to impeach the children’s later testimony through the record of their statements at the first trial. See Zank v. West Penn Power Co., 169 Pa.Super. 164, 82 A.2d 554 (1951).

Appellant next argues that the trial court erred in refusing to declare a mistrial, strike the testimony of Officer Olsen, or give the jury precautionary instructions when it was determined that the officer had disposed of his investigatory notes. Appellant contends that the officer’s actions prevented effective cross-examination, denying him a fair and impartial trial. However, we find that under Commonwealth v. York, 319 Pa.Super. 13, 465 A.2d 1028 (1983), the lower court did not err. York sets forth the requirements which determine whether testimony should be suppressed because of the destruction of evidence related thereto. Under York, which cites Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2567-68, 33 L.Ed.2d 706, rehearing denied, 409 U.S. 897, 93 S.Ct. 87, 34 L.Ed.2d 87 (1972), in order for the destruction of the notes to be a violation meriting a mistrial, proof is required of the following: suppression of evidence by the prosecution after a request by the defense; the favorable character of the evidence for the defense; and the materiality of the evidence. York, Id. 319 Pa.Super. at 18, 465 A.2d at 1029. Clearly, in the present case, the first and third requirements were not met by appellant. There was no evidence proving that the prosecution was responsible for destroying the notes after a request by the defense, and furthermore, appellant could not prove the materiality of the notes. This is because, as was reasoned by the lower court, the substance of the original notes was incorporated into the officer’s arrest warrant affidavit prior to their destruction. Thus, the notes were only cumulative evidence. Furthermore, the officer testified for the Commonwealth and was cross-examined by the defense; therefore, proper procedural safeguards were met.

Lastly, we do not reach the issue of merger as to the two crimes since appellant's conviction is reversed.

Judgment of sentence reversed. Remanded for a new trial. Jurisdiction relinquished.

OLSZEWSKI, J., dissents.

1 . We are not impressed by the fact that the legislatures in a handful of states have enacted statutes that permit the state to introduce the out-of-court assertions of children in child abuse cases. It is hard for a legislator, who must periodially run for reelection, to vote against a proposed statute that makes it easier to convict persons accused of child abuse, because of the danger that an opportunistic opponent and an unsophisticated electorate may interpret such a vote as being soft on crime in general, or soft on child-abusers in particular. Politically, the safest thing for a legislator to do is to vote in favor of such a statute, regardless of its merits, and leave it to the courts to deal with the ramifications of its enactment.