Commonwealth v. Stohr

522 A.2d 589, 361 Pa. Super. 293, 1987 Pa. Super. LEXIS 7318

Opinions

WICKERSHAM, Judge:

This is an appeal from the judgment of sentence entered on November 17, 1983, by the Honorable Thomas N. Shio-mos of the Court of Common Pleas of Philadelphia County. Appellant was convicted of indecent assault, indecent exposure, and corrupting the morals of a minor. We affirm.

Appellant, Edward Stohr, is the natural father of the victim, who was age four and a half at the time of the incident. Appellant and the victim’s mother have been divorced since March 29, 1979. Pursuant to the divorce decree, appellant was granted visitation privileges. On February 27, 1982, the victim was visiting with her father for the weekend at appellant’s duplex in Northeast Philadelphia. Testimony produced at trial indicated that while bathing his daughter that evening, appellant exposed his erect penis and ejaculated into her mouth and onto her vaginal area. Immediately thereafter, the victim attempted to telephone her mother but was unable to remember her phone number. Later that evening, when appellant and the victim were about to go asleep, appellant again ejaculated over his daughter’s vagina, .this time rubbing his semen on her body and into her mouth.

Appellant returned the victim to her mother the following day, February 28, 1982. Her mother found the little girl to be uncharacteristically quiet and behaving in an unusual manner. As her mother undressed the child for a bath, she observed a clear “crusty substance” and irritation around her pelvic region. The child promptly revealed to her mother the events that had occurred the night before. She explained in great detail how her father had put “magic soap” on her “hiney”, her belly, and her mouth to get her clean. Her mother reported the incident to the Sex Crimes Unit at Jefferson Hospital.

Appellant was thereafter arrested and charged with indecent assault, indecent exposure, corrupting the morals of a minor, involuntary deviate sexual intercourse, and attempted rape. Appellant pleaded not guilty to all charges. A jury trial was held, but a motion for mistrial was granted when the jury was unable to return a unanimous verdict. Appellant then waived his right to another trial by jury, and, on June 9, 1983, proceeded by bench trial before Judge Shiomos. Appellant was adjudged guilty of indecent assault, indecent exposure, and corrupting the morals of a minor. Appellant was found not guilty of involuntary deviate sexual intercourse and attempted rape. Post-verdict motions being denied, appellant was sentenced to three years psychiatric probation with two conditions: (1) he was not to see his daughter without authority of the legal guardian, and (2) he was to attend an outpatient program. Appellant filed a timely appeal. In his appeal appellant raises the following two issues for our review:

1. Did the trial court err in finding that the complainant, [ ], who was 4V2 years old at the time of the alleged incident was competent to testify at trial regarding the said event?

2. Did the trial court err in ruling that the out of court statements made by the Complainant, [], to her mother were admissible, although hearsay, as evidence of a fresh or prompt complaint?

Brief for Appellant at 3. This court, by order dated June 2, 1986, listed the case for argument before the court en banc.

Appellant first contends that the trial court improperly admitted testimony by the victim. The averment that the lower court erred by allowing the child victim to testify at trial is unsupported by the record. A witness is presumed competent to testify unless proven otherwise. Commonwealth v. Riley, 458 Pa. 390, 326 A.2d 384 (1974). When a proposed witness is under fourteen years of age, however, there must be a searching judicial inquiry as to mental capacity. Commonwealth v. Short, 278 Pa.Super. 581, 420 A.2d 694 (1980). This inquiry will probe the capacity to communicate, observe and remember, and a consciousness of the duty to speak the truth in proportion to the witness’s chronological immaturity. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959). The record reflects that the trial judge did conduct such an inquiry to determine whether the child was competent to testify. As the judge holds the superior opportunity to evaluate the competency of a proposed child witness, once a determination is made, we will not disturb the court’s finding absent a flagrant abuse of discretion. Commonwealth v. Bailey, 322 Pa.Super. 249, 469 A.2d 604 (1983). We find no such abuse herein. See N.T. of June 9, 1983 at 13-21.

We next address appellant’s allegation of error in admitting testimony of the victim’s mother.¹ The lower court opinion reveals that the court admitted the mother’s testimony as res gestae under the excited utterance exception to the hearsay rule. To qualify a statement as an excited utterance 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 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.’ Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942).

Commonwealth v. Pronkoskie, 477 Pa. 132, 137-38, 383 A.2d 858, 860 (1978). See also Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982). In the instant case, the trial court cites Commonwealth v. Nowalk, 160 Pa.Super. 88, 50 A.2d 115 (1946), as authority for its decision to allow the mother’s testimony. In Nowalk, a three-year old girl told her baby-sitter she had been sexually assaulted by an adult neighbor. The baby-sitter told the child to tell her mother as soon as she arrived home. Finding the child’s timely statements to the mother upon her return to be part of the res gestae, the mother was permitted to testify to the same in court. The rationale therein was that the child victim had taken the first opportunity to relate the events of the assault to her mother.

While we accept that a time lapse between an assault and the victim’s statements does not negate the indicia of reliability which underlies the res gestae rule, Commonwealth v. Bailey, 353 Pa.Super. 390, 510 A.2d 367 (1986) (plurality), it is certainly of great significance. The requirement of spontaneity is a question which turns on the particular circumstances of each case. Additionally, the requirement that the statement be sufficiently contemporaneous is relaxed where the child declarant is the victim of a sexual assault. Id., 353 Pa.Superior Ct. at 393, 510 A.2d at 368. “Such a relaxation of the rule recognizes both the likelihood of a young child’s inability to comprehend ... the assault and the possibility of the child’s hesitancy to discuss the matter for fear of incurring punishment.” Commonwealth v. Pronkoskie, supra, 477 Pa. at 142 n. 9, 383 A.2d at 863 n. 9.

Instantly, however, the victim was assaulted on Saturday night and reported the assault to her mother on Sunday night, some 24 hours later. The time span between the assault and the accusatory statements to her parent was greater than that in Commonwealth v. Nowalk, supra (approximately a six hour delay), and casts doubt on the spontaneous nature of the statement as res gestae. As this court stated in Commonwealth v. McIntosh, 258 Pa.Super. 101, 105, 392 A.2d 704, 706 (1978):

Nowalk did not create a new res gestae rule allowing admission of a child declarant’s out of court statement regardless of when and under what conditions it was made so long as it was made to the child’s parent at the child’s first opportunity to be alone with the parent. To apply such a rule is to misapply Nowalk and the res gestae exception.

An excited utterance or "res gestae” basis for admission in this case would be tenuous although the particular circumstances could conceivably establish such an admission. See Commonwealth v. Bailey, supra (plurality) (fifty-five-hour delay). See also Williams v. State, 427 So.2d 100 (Miss. 1983) (twelve-hour delay and first reasonable opportunity to complain); State v. Creighton, 462 A.2d 980 (R.I.1983) (fourteen-hour delay); State v. Padilla, 110 Wis.2d 414, 329 N.W.2d 263 (1982) (three-day delay). But see Commonwealth v. McIntosh, supra, 258 Pa.Superior Ct. at 107, 392 A.2d at 706. (Spaeth, J. concurring) ("There is not, and should not be, an 'earliest opportunity exception’ to the hearsay rule.”).

[21 While we are not persuaded to admit the testimony of the mother as res gestae under the excited utterance exception to the hearsay rule, the testimony was clearly admissible as evidence of a “prompt complaint.” It is well established that an appellate court may affirm the action of the lower court on a different rationale than that advanced by the lower court in support of its judgment. Commonwealth v. Meischke, 273 Pa.Super. 134, 139 n. 3, 416 A.2d 1126, 1128 n. 3 (1979); Commonwealth v. Whitehouse, 222 Pa.Super. 127, 292 A.2d 469 (1972) (en banc). It is the judgment itself which is the subject of our review, not the reasons given in support thereof. Commonwealth v. Marks, 442 Pa. 208, 275 A.2d 81 (1971).

Evidence of a complaint of a sexual assault is “competent evidence, properly admitted when limited to establish that a complaint was made and also to identify the occurrence complained of with the offense charged.” Commonwealth v. Freeman, 295 Pa.Super. 467, 475, 441 A.2d 1327, 1331 (1982). See also Commonwealth v. Green, 487 Pa. 322, 409 A.2d 371 (1979); Commonwealth v. Bailey, supra; Commonwealth v. Pettiford, 265 Pa.Super. 466, 402 A.2d 532 (1979); Commonwealth v. Krick, 164 Pa.Super. 516, 67 A.2d 746 (1949). In the instant case, the victim’s mother testified to corroborate her daughter’s statements concerning the assault and the identity of the defendant.

Our courts have disallowed “prompt complaint” testimony which exceeds the exception’s permissible limits. See, e.g., Commonwealth v. Green, supra (all encompassing statement by detective inadmissible as it goes beyond identifying complaint and its nature); Commonwealth v. Petti-ford, supra (detailed testimony recounting victim’s rape was inadmissible as proof of “prompt complaint”). Instantly, the challenged testimony of the victim’s mother was, however, “properly limited to establishing that a complaint was made and to identifying the occurrence complained of with the offense charged.” Commonwealth v. Bailey, supra, 353 Pa.Super. at 395, 510 A.2d at 369 (Hoffman, J. concurring) (emphasis added). Clearly the mother’s corroborative testimony was permitted to include “so much of the complaint as will identify the occurrence complained of with the crime charged.” Commonwealth v. Krick, supra, 164 Pa.Super. at 522, 67 A.2d at 750 (admitting testimony of father in statutory rape case describing statements from daughter of intercourse with the defendant).

Additionally, an averment that evidence of identification of the defendant is beyond the scope of “prompt complaint” testimony is meritless. In Commonwealth v. Freeman, supra, a panel stated in dictum that identification evidence was beyond the scope of this special rule; however, that statement is contrary to the state of the law. Our Supreme Court in Commonwealth v. Green, supra, noted that there is authority for admitting the particulars of a complaint, such as the assailant’s identity. See id., 487 Pa. at 328, 409 A.2d at 374. See also Commonwealth v. Bailey, supra, 353 Pa.Super. at 396 n. 2, 510 A.2d at 369 n. 2, slip op. at 6 n. 2 (Hoffman, J. concurring); Commonwealth v. Krick, supra (identification of defendant admitted). Identification evidence was properly admitted herein as part of the collateral evidence which is admissible to identify the occurrence complained of with the offense charged.

In summary, the record reflects that the victim graphically testified to being molested in the bath by her father and a second time before falling asleep. See N.T. of June 9, 1983 at 26-49. In addition her mother corroborated that testimony by relaying statements made to her by the child victim. These statements were properly received under the “prompt complaint” exception to the hearsay rule.

Thus, while not agreeing with the trial court’s enscribed rationale for admission of the mother’s testimony, we approve of its admission as a “prompt complaint.” We therefore affirm the judgment of sentence entered below.²

Judgment of sentence affirmed.

OLSZEWSKI, J., files a concurring opinion. KELLY, J., files a concurring opinion joined by McEWEN, J.

1 . Appellant avers in his second issue that the lower court erred in admitting hearsay evidence as a “prompt complaint” of the incident charged. A review of the record does not establish with clarity what evidentiary theory of admissibility was accepted by the lower court. See N.T. of June 9, 1983 at 50-55. But see id. at 55 (court expresses “no ruling” on the evidence beyond the offer of proof). Further, the lower court opinion advocates admissibility of the challenged testimony as res gestae, see lower ct. op. at 7-10, in apparent conflict with appellant’s issue as phrased. We, therefore, will address the admissibility of the evidence on appeal under both a "prompt complaint” and res gestae analysis.

2 . The Commonwealth asks us today to determine whether a “tender years” exception to the hearsay rule should be adopted by the courts of Pennsylvania. Although encouraged to do so, see, e.g., Commonwealth v. Bailey, 353 Pa.Super. 390, 395 n. 1, 510 A.2d 367, 369 n. 1 (1986) (plurality); Commonwealth v. Haber, 351 Pa.Super. 79, 505 A.2d 273 (1986) (Olszewski, J., dissenting), we find that based upon the facts herein presented, we will not reach that determination as this appeal may be answered under existing caselaw.

While the instant appeal falls within the present state of Pennsylvania law, we recognize a critical need to protect the interests of victims in child sexual abuse cases. Such cases present the trial court with substantial hearsay evidence problems. The child is usually the only witness to the event. Unless they fall within one of the hearsay exceptions, statements made to a trusted adult relating the experiences of the assault are inadmissible as hearsay. Often a child is found incompetent to testify or is otherwise unavailable to give testimony. In those cases, to rule the hearsay statements inadmissible is to effectively terminate the prosecution.

As the present appeal is disposed of under existing law, we are constrained to pass by the opportunity to judicially create a “tender years” exception. We add that legislation in this area is surely needed and would urge the legislature to expeditiously propound legislation to provide appropriate remedies for the extraordinary problem of proof in this class of case. See, e.g. Colo.Rev.Stat. § 13-25-129 (Supp. 1984); Ind.Code Ann. § 35-37-4-6 (Burns Supp.1986); Minn.Stat.Ann. § 595.02(3) (Supp.1986); S.D.Codified Laws Ann. § 19-16-38 (Supp. 1986); Utah Code Ann. § 76-5-411 (Supp.1986); Wash.Rev.Code Ann. § 9A.44.120 (Supp.1986). See also Note, The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 Harv.L.Rev. 806 (1985); Comment, A Tender Years Doctrine for the Juvenile Courts: An Effective Way to Protect the Sexually Abused Child, 61 U.Det.J.Urb.L. 249 (1984); Comment, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Colum.L. Rev. 1745 (1983).

We do note the legislative awareness of the evidentiary inadequacies of the present law in serving the public welfare in child sex abuse cases. The Commonwealth of Pennsylvania General Assembly recently passed Senate Bill No. 176, by both houses, and the governor signed the bill into law on February 21, 1986. Act No. 1986-14 amends Title 42 (Judiciary and Judicial Procedure) and provides for admissibility of certain statements of child victims and witnesses of criminal acts in dependency proceedings initiated under Chapter 63 of Title 42 (relating to juvenile matters). See 42 Pa.C.S. § 5986 (as enacted).

This legislation is a beginning; much more is needed.