*1
It is
futurе conduct
only
effective date.
to its
subsequent
imposed
past
conduct are
Sentences
punished.
is
which
(30)
thirty
new statute. The mandatory
affected
under
for recidivists
the statute
sentence
prison
day
the later crime which is considered
penalty for
stiffened
repetitive
it is a
one. See
offense because
aggravated
anbe
1256,
Burke,
728, 68 S.Ct.
Appellee argues that
offense
charging
with the
the information
because
ly
However, the Com
prior
conviction.
to set forth
failed
required
allege prior
convictions
is not
monwealth
Driving
under the Drunk
Act because
information
criminal
not constitute
driving
for drunken
does
conviction
prior
the influence
driving
crime of
while under
element
an
Ct.
Pa.Superior
Reagan,
of alcohol. Commonwealth
held that such notice
Reagan
Before OLSZEWSKI, Judge: from the of sentence of Bailey appeals judgment
Robert incarceration conviction years’ by jury to two one of indecent assault. one count from his com- appellant separated The facts show that 1976, leaving her with of their custody mon-law wife two rights. retainеd visitation On weekend Appellant sons. February appellant picked up two sons for a County. Appellant’s nine-year- to his house in Centre visit son, G.B., evening. Sometime Friday went bed old *3 bed, disrobed, thereafter, came to and told G.B. to appellant Appellant off his removed G.B.’s underwear pajamas. take into anus. penis and inserted his G.B.’s home at 10:30 Sunday G.B. returned to his mother’s bath, and When his mother evening, took a went bed. she found Monday morning, at 7:00 on bloodstains arose origin. and about their questioned G.B.’s underwear and told his mother what upset, began cry, became G.B. A rectum and physician had examined G.B.’s happened. a fresh he testified was consistent found abrasion which story. with G.B.’s of each of indecent charged with one count
Appellant was Appel- sexual intercourse. involuntary assault and deviate only of indecent assault. Follow- by jury lant was cоnvicted motions, this is before us. ing post-trial appeal First, for review: questions raises four our Appellant in admitting hearsay court erred argues he lower responses as to boy’s statements mother G.B.’s by in his origins her about the the bloodstains questions ad properly hold that the statement was underwear. We to the exception declaration spontaneous mitted under the Pronkoskie, 477 Pa. rule.1 Commonwealth requires that the state- The A.2d 858 must be: ment a whose mind by person declaration
...
subject
overpowering
made
to an
suddenly
has been
unexpected
shocking
some
and
occur-
emotion caused
in or close-
rence,
just participated
had
person
which that
in
to some
of that
witnessed,
phase
and made
reference
ly
this declaration must
perceived,
he
and
occurrence which
in
place
time and
as to
near thе occurrence both
be so
or
having
of its
emanated whole
the likelihood
exclude
faculties.
from his reflective
part
137-138,
(citation omitted).
Appellant
to the
contrary
the verdict was
evidence
finding that
not
After a
review
weight
thorough
of the evidence.
and to the
record,
support
a verdict of
ample
we find
evidence
of the
The victim testified that
a reasonable doubt.
guilt beyond
began
and
“rock
penis
inserted his
his “butt”
appellant
Dr. Troyer
forth.” Notes of trial at 38-42.
back and
ing
examination of the victim revealed an
testified that his
rectum,
injury
that the
was consistent
of his
abrasion
as true all of the evidence
complaint. Accepting
with
Commonwealth, together
to the
most favorable
light
therefrom, we hold that the
inferences
with all reasonable
to the evidence. Commonwealth
contrary
verdict was
Macolino, 503 Pa.
Although
trial, the
conflicting evidence at
some
appellant presentеd
of the credibil
on its determination
jury’s verdict was based
Murray,
of the witnesses. See Commonwealth
ity
no
(1975). Appellant
presented
has
Pa.
Finally, appellant
Appellant
case.
con
the circumstances of this
sive under
statutory
is within
imposed
cedes that
the sentence
court did not abuse
limit.
hold that the lower
maximum
We
of sentence. Common
imposition
its discretion
Valentin,
496,
395 HOFFMAN, J., concurring opinion. files CAVANAUGH, J., dissenting opinion. files HOFFMAN, Judge, concurring: testimony I with the dissent that the of the agree While his statements the sexual concerning mother about victim’s were not admissible under the by appellant abuse utterances, I rule for excited believe that as evidence of a com- testimony prompt was admissible plaint. assault1 complaint “compe-
Evidenсe of a sexual evidence, properly admitted where limited to establish tent and also to complaint identify that a was made the occur- Common- complained charged.” rence of with the offense Freeman, 467, 475, wealth v. Pa.Superior 295 Ct. 441 A.2d Green, 1327, (1982). See also Commonwealth v. 1331 487 328, 371, (1979); Commonwealth v. 322, A.2d 374 Pa. Krick, 516, 522, 746, 67 A.2d Pa.Superior Ct. 749-50 case, In the instant the victim’s mother testified concerning about her son’s statements the assault as fol- lows: I’ll Attorney:] repeat my question. Directing
[District 2, 1981, morning, attention to March your Monday you your regard had a conversation with son ... with to blood state underpants. you please as best as Would jury can recollect for the members of the the sub- you stance of that conversation? me He told that his dad made
[Victim’s mother:] things. penis do He said his dad stuck his his bum. bad 14, that this N.T. October at believe establishing limited to that a properly complаined made and to the occurrence of with identifying Krick, See, Commonwealth v. e.g., charged. the offense traditionally prompt complaint 1. While evidence of a has been an women, involving against issue in cases sexual assaults this Court has concept prompt complaint applicable held that the is also to sexual against Pennsylvania’s provisions assaults sexual offense men because gender Rodriguez, Pa.Superior are neutral. See Commonwealth v. Ct. 492 n. 572 n. 2 statutory rape prose- father’s (admitting supra *6 told him that she daughter had intercourse that his cution defendant).2 with the however, find that dissent, complaint would the was
The
not made promptly enough.
it was
inadmissible because
disagree.
op. at 4-5.
slip
See
weight
too that the
to a
attaching
observed
It should be
promptness
the
which it is
upon
with
complaint depends
explanation given
any delay.
nature and
for
and the
made
unexplained delay may,
or
in the
an unreasonable
Indeed
against the
circumstances,
sincerity
an inference
justify
of
weight
testimony
the
is
...
complainant.
of the
carefully
the
should
instruct it as to
the
court
jury
for
but
delayed
of
com-
prompt
value
probative
relative
the
in which
are made or
they
the circumstances
plaints,
withheld,
possible
may
legit-
inferences which
be
and the
from them.
imately drawn
Krick,
at
supra,
Pa.Superior
v.
Ct.
Commonwealth
Here,
the
750.
the trial court admitted
522, 67 A.2d at
specifically instruct-
complaint
of
evidence
the victim’s
the
of his
weigh
complaint:
how
evidence
jury
ed the
here,
there
a
the
consider that
determining
facts
[I]n
Saturday morning
early
of
from apparently
time
period
his father committed the act
said that
when [the victim]
dictum,
Freeman, supra,
v.
this Court stated
Commonwеalth
In
beyond
scope
of the defendant
is
the
"evidence of identification
that
Id.,
Pa.Superior
admitting
complaints."
special
fresh
the
rule
of
however,
statement,
is
n. 3. This
at 476 n.
Now, lapse that there was that time thе fact does not occur. It the incident didn’t doesn’t mean mean that that It doesn’t mean up made this. that he’s not victim] [the However, consider, you can as telling just the truth. one determining credibility given elements in to be of the here, the testimony lapse here and that to the evidence time. during lapse
You consider of time that might part for the most of his company victim] [the *7 in father, or at least his father’s home. These are the in things you weighing kinds of that should consider the point, testimony on that the of testimony [the victim]. in delayed making The evidence that his [the victim] words, case, in in other the time complaint this between mother, his his does the incident and conversation with unreliable, but necessarily testimony may make his that would reliability remove from it the assurance of or the which a accompany prompt complaint outcry expect- be ordinarily victim of a сrime such as this would Therefore, in delay making the com- ed to make. evaluating testimony in of plaint should be considered all, in the act occurred at or deciding whether [the victim] all, in—in to at because consent this case it would have be age. child’s is not an issue due to the making in delay You not consider must [the victim’s] the act did not as conclusive that complaint evidence to is a factor prompt occur. The failure make or the of bearing believability credibility on the [the in by you and must be considered victim’s] light evidence in this case. all the Thus, I find N.T. 1981 at 146-47. would October testimony of the properly that the trial court admitted the prompt complaint victim’s mother evidence of a as weight to determine the to be accorded jury instructed evidence.3 to opinion insofar he finds the Olszewski’s as Judge
I join arguments meritless. appellant’s remainder CAVANAUGH,Judgе, dissenting: because, my opinion, dissent facts respectfully not a declaration that there was establish rule. The an to fall would within separated from his Bailey, Lewis Robert appellant, wife, custody retained of their two sons. who law common rights and on a weekend had visitation appellant his took his two home Centre he sons February, son, G.B., year nine old went to bed His County a visit. later, according to evening. Sometime G.B.’s Friday late sexually into bed with him and testimony, got his father him. abused until remained with their father and his brother
G.B. home 10:30 they returned at about evening when Sunday morning according the next G.B. bed. On P.M. and went mother, there she noticed that A.M. Her at about 7:00 on her son’s underwear blood as follows: testimony was Directing my question. your I’ll
Q. Bailey, repeat Ms. 2, 1981, you March had a morning, Monday attention to *8 to on son with blood your regard with ... conversation you as best you please his state underpants. Would delay in instant case was less than that would note that the the I also a has been held admissi- where evidence of in other cases Krick, supra, upheld a we the admission of In ble. Commonwealth daughter testimony him of defendant's sexual that his told the father’s and month after the after the first attack one assaults five months Rodriguez, the supra, upheld admis- In we second. Commonwealth her her a sexual assault a son told of of mother’s sion that Here, days victim his mother of had occurred. the told two after it days and nine hours of after it occurred within sexual abuse two the delay returning is even house. This nine-hour home from his father’s nine-year-old significant victim one that the was when considers less immediately upon put return from his boy bed his who had been to upon of the assault that he told his mother sexual father’s home and morning. awakening the the for members of thе the jury can recollect substance that conversation? things. me his dad made him do A. He told bad He said penis his in I if his dad stuck his bum. asked him he truth; telling yes. the he said I asked him if he police; to tell to the he willing yes. it and said I Immediately They called the hotline for child abuse. arrangements me the hospital; they’d told to call make examined, me down and which I did. go to have I police.1 And notified the then admitted the of the hearsay The court below concerning mother her son her alleged victim’s what told incident, exception under excited to utterance about requires that a statement rule.2 by person declaration whose must be: "... suddenly subject overpowering has made to an mind been shocking some and occur- by unexpected caused emotion rence, closely in or person just participated which that had witnessed, phase to of that mаde reference some and this must perceived, he and declaration be occurrence which as to exclude place near the both time and so occurrence or in part emanated in whole having the likelihood of its respect questioning also with to her 1. The victim’s mother testified as her son follows: Q. any you him at time? Did have further conversation with that Yes, well, thing, why he A. I asked him first I did. said— bath, got pajamas I he I his for him and found blood when took his happened and asked him what he said stains on his underwear. I said, things do?” And he said did to 'What did he dad bad him. penis he stuck in his butt. his long lapse of time between the 2. The trial court was troubled responses early Saturday morning his alleged G.B.’s to incident questions morning. re- Monday The court stated with mother’s on hearsay: spect his to decision to admit the Now, pains opposed as taking put this the record some I’m just making my apрear does to the Court that decision because it record, say this is a close decision this is—I would so on the lapse But the wants the record to because of 36 hours. Court of the making important Court is its if later reflect it becomes year boy upon opportunity a 9 old decision based first speak than his father to his or to someone other this case mother with father. about incident that occurred or father’s friends *9 400 v. Pronko-
from his reflective faculties.” Commonwealth 858, 137-8, (1978). See skie, 132, Pa. 860 also 477 145, 448 Pa.Super. 302 A.2d Galloway, v. Commonwealth 568 48 G.B. to his mother more than hours by
The statement
9
he
hours after
re-
incident
some
alleged
after the
not a
utter-
his mother’s home was
turned to
played
after the incident G.B.
Saturday
ance. On
who was about
and watched TV with his brother
trucks
in response to
Part of G.B.’s statement was
old.
years
mother,
time for
clearly
and there was
by his
questions
mоre
days
as the act occurred
than
reflection
Kasko,
v.
322 Pa.Super.
See Commonwealth
previously.3
is no clear cut rule as
A.2d 181
“...
[TJhere
delay
the actual
between the
sequence;
to the time
whether
‘spontaneity’
to negate
is sufficient
event and
statement
case.”
particular
facts
each
must
be resolved
3. concerning statements his mother: tor Q. your told Yоu mom? A. Yeah. you Sunday night, so had you Q. or was it late Did tell her that go to bed? go to A. It was so late I had to bed. day? Q. you the next Did have school added) (Emphasis A. Yeah. Haber, supra, the court held that In Commonwealth the testi- case because to the Commonwealth's crucial monosyllabic mostly answers to mony consisted children they repeatedly were leading questions, stated that and the children happened. In the instant what unаble to remember details about *10 401 It is that clear 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 prove offered to their truth. Thus it was inadmissible unless it fit within exception an to hearsay rule. The exception most commonly used by the courts to allow the of a admission child’s regarding statements sexual abuse is the spontaneous declaration, оr excited ex- utterance ception. But in to order under this exception, fall must statement have been made spontaneously so as to be event, under the excitement caused so as to preclude the possibility of fabrication. 274-75)
(Emphasis added—505 A.2d The reason for carving exception out an to rule based anon excited utterance is the element of reliabili- ty that is present spontaneous such declarations. The requirement of spontaneity is not diminished because the declarant ais child.
The Commonwealth contends that
if the testimony
even
of the alleged victim’s mother was
under the
inadmissible
rule,
declaration
the hearsay
to
it
could be admitted
prompt
to show that G.B. made a
com-
plaint
offense,
about
citing Commonwealth v. Free-
man,
295
441
Pa.Super. 467,
A.2d
This argu-
1327
ment lacks merit as
was not
and of
prompt
equal impоrtance,
pointed
Freeman,
it was
out
supra,
challenged
of the victim and
“[t]he
sister-in-law,
introduced
Ms.
solely
establish that
[was]
Eachus immediately reported
raped,
that she was
[and]
neither
detailed nor
441
protracted.”
Pa.Super.
A.2d 1332. See also Commonwealth v.
Rodriguez,
Pa.Super.
As noted in
Common-
Freeman,
475-76,
wealth v.
Pa.Super.
at
house to render his statements prompt complaint. trial. remand for new would *11 McNally, Appellants, Eugene & Kathleen McNALLY Cases). (Two & Lucille Cavallero DAGNEY James Pennsylvania. Superior Court of Dec. 1985. Submitted April Filed 1986. Reargument June Denied