*1 Because neither of aspects of such a transaction are scope within the II Code, Article it is unnecessary to determine which aspect predominates. case, either it is clear that the use of public pay telephone is not a in goods” “transaction under Article II Code, that the upon warranties which appellant has predicated her complaint do not apply. upon reasons,
Based the foregoing the order of the learned trial court is affirmed.10
Argued June 1986.
Filed March
10. We note that we do not
general
decide here whether the
law of
negligence
provisions
(Second)
or the
of Restatement
of Torts
§§
(business
(strict
liability)
liability
or 402A
product)
for defective
apply
alleged
to the facts
complaint.
e.g.
the instant
See
Co.,
Realty
Leichter v.
Eastern
Daniel Philadel- Attorney, District Assistant Eisenberg, Ronald Com., appellee. phia, CIRILLO, and Judge, President
Before OLSZEWSKI, McEWEN, WICKERSHAM, BROSKY, JOHNSON, JJ. BECK, and MONTEMURO, KELLY WICKERSHAM, Judge: entered appeal judgment
This is an from the sentence N. the Honorable Thomas Shio- on November Philadelphia Pleas of County. mos of Court Common assault, expo- of indecent indecent Appellant was convicted sure, morals of a minor. affirm. corrupting and We Stohr, Edward is the natural father of the
Appellant, victim, four a half at the time of age who was Appellant incident. and the victim’s mother have been March 1979. Pursuant to the divorced since divorce decree, appellant granted privileges. visitation On 27, 1982, the her February visiting victim was father for the in Northeast appellant’s duplex weekend Philadel- produced at trial indicated that phia. Testimony while bathing daughter evening, appellant exposed his his erect into her penis ejaculated mouth onto *3 thereafter, vaginal Immediately area. the victim attempted to her telephone mother but was unable to remember her phone evening, appellant number. Later that when and the go asleep, appellant again victim were about to ejaculated daughter’s over his .this time his semen on vagina, rubbing body her and into her mouth.
Appellant following returned the victim to her mother the day, girl 1982. Her mother found the little to February uncharacteristically quiet behaving an unusual bath, manner. As her mother undressed the child for a she “crusty observed a clear and irritation substance” around pelvic region. her The child revealed to her promptly night mother the events that had occurred the before. She explained great put detail her had “magic how father soap” on her her and her mouth “hiney”, belly, get to clean. Her reported mother the incident to the Sex Crimes Unit at Jefferson Hospital.
Appellant charged was thereafter arrested and with inde- assault, cent indecent exposure, corrupting the morals of a minor, intercourse, involuntary deviate sexual and attempt- ed rape. Appellant not pleaded guilty charges. to all A held, trial jury was but a granted motion for mistrial was when the was to return a unanimous unable verdict. jury Appellant right by jury, then waived his to another trial and, 9, 1983, proceeded by Judge on June bench trial before Appellant adjudged of indecent as- guilty Shiomos. sault, of a exposure, corrupting indecent morals not Appellant guilty involuntary minor. was found devi- and attempted rape. ate sexual intercourse Post-verdict denied, three being appellant motions was sentenced to (1) probation with two conditions: he was years psychiatric legal without daughter authority to see his an outpatient program. he was attend guardian, timely appeal. appeal appellant filed a his Appellant for our following two issues review: raises finding complain- err in that the 1. Did the trial court the time ant, alleged old at ], who was [ 4V2 testify at trial competent incident was said event? the out of court ruling trial court err
2. Did the
her mother
[],
by
Complainant,
made
admissible,
as evidence of a fresh
although hearsay,
were
prompt complaint?
court,
order dated June
at 3. This
Appellant
Brief for
the court en banc.
argument
the case for
before
listed
improper
the trial court
first contends that
Appellant
The averment
the victim.
testimony by
admitted
ly
testify
the child victim to
allowing
erred by
lower court
A
is presumed
the record.
witness
trial
unsupported
otherwise. Common
proven
unless
competent
testify
(1974). When a
390,
We next address in appellant’s allegation error admit- ting of the victim’s mother.1 The lower court opinion reveals that the court admitted the mother’s testi- mony gestae as res under the excited utterance exception to rule. To qualify a statement as an excited utterance the statement must be: spontaneous
‘a
declaration by
person
whose mind has
suddenly
subject
been
made
to an overpowering emotion
caused
some
unexpected
shocking occurrence,
person
which that
had just participated in or closely
witnessed, and made in reference
phase
to some
of that
occurrence
perceived,
which he
and this declaration must
be made so near the
place
occurrence both
time and
as
to exclude the likelihood of its
having emanated whole
in part
Mack,
from his reflective faculties.’ Allen v.
(1942).
Pa.
Pronkoskie,
132, 137-38,
Commonwealth v.
(1978).
See also Commonwealth v. Gallo-
way,
While accept we that a lapse time between an assault and the victim’s statements does not negate the indicia of relia bility which gestae rule, underlies the res Commonwealth v. Bailey, 353 A.2d 367 (plurality), it is certainly great significance. The requirement of is spontaneity question which turns on the particular circumstances of each case. Additionally, the requirement that the statement sufficiently contemporaneous is re laxed where the child declarant is the victim of a sexual Id., assault. Pa.Superior Ct. at 368. “Such a recognizes relaxation of the rule both the likelihood of a young child’s inability comprehend ... assault and the possibility of child’s hesitancy discuss the matter for incurring punishment.” fear of Pronkoskie, n. 383 A.2d at n. however,
Instantly, the victim was assaulted on Saturday night reported the assault to her mother on Sunday night, some 24 span hours later. The time between assault and the accusatory parent statements to her greater Nowalk, than that supra Commonwealth v. (approximately delay), a six hour and casts on the doubt spontaneous nature of the statement as res As this gestae. McIntosh, court stated (1978): did create a rule gestae allowing Nowalk new res admission of a child declarant’s out of court statement of when and under what conditions it was regardless made so to the long parent it was made child’s at the opportunity parent. child’s first to be alone with the To the res misapply a rule Nowalk apply such gestae exception. for admission gestae” "res basis
An excited utterance
*6
circum-
although
particular
case
be tenuous
this
an admission. See
establish such
conceivably
could
stances
(plurality) (fifty-five-hour
supra
v. Bailey,
Commonwealth
(Miss.
State,
100
v.
427 So.2d
Williams
delay). See also
to
opportunity
first
1983) (twelve-hour delay and
reasonable
(R.I.1983)
Evidence
evidence,
to establish that a
admitted when limited
properly
identify
also to
occurrence
complaint
made and
charged.”
the offense
Commonwealth
complained of with
475, 441 A.2d
1331
Freeman,
Pa.Super.
v.
Green, (1982).
v.
See also Commonwealth
supra;
v.
Com-
(1979);
Bailey,
A.2d 371
Commonwealth
466,
A.2d instant testified her daughter’s corroborate concern- ing the assault and the identity of the defendant. courts
Our
have disallowed “prompt complaint” testimo-
ny
exception’s
which exceeds the
See,
limits.
permissible
Green,
(all
e.g., Commonwealth
supra
encompassing
statement
detective
as it goes
inadmissible
iden-
beyond
tifying complaint
nature);
and its
Commonwealth v. Petti-
(detailed
ford, supra
testimony recounting victim’s rape
was inadmissible
proof
complaint”).
“prompt
Instant-
ly, the challenged testimony
was,
of the victim’s mother
however,
limited to
“properly
establishing
complaint
that a
was made and to identifying the
complained
occurrence
charged.”
Commonwealth v. Bailey,
offense
(Hoffman,
J.
added).
concurring) (emphasis
Clearly the mother’s corro-
*7
permitted
borative
was
to include
much
“so
of
the
as
complaint
identify
will
the occurrence
of
complained
Krick,
with the crime charged.”
supra,
Commonwealth v.
522,
Pa.Super.
67 A.2d at
of
(admitting testimony
rape
describing
father in
case
from
statutory
statements
defendant).
of
daughter
intercourse with the
Additionally, an averment that
of identification
evidence
is
the
of
beyond
scope
“prompt complaint”
defendant
In
Freeman,
is meritless.
Commonwealth v.
panel
a
stated in dictum that identification evidence
rule; however,
the
of this
beyond
scope
special
was
Supreme
is
the
the
statement
to
state of
law. Our
contrary
Green, supra,
noted that there
Court Commonwealth
complaint,
of
authority
admitting
particulars
is
the
a
328,
id.,
487 Pa. at
identity.
such as
assailant’s
See
A.2d at 374.
Commonwealth v. Bailey,
See also
slip op.
n.
KELLY, J., files a concurring opinion joined by McEWEN, J.
OLSZEWSKI, Judge, concurring: IWhile agree with the result reached the majority on issues, both I differ the Court’s rationale for admitting the testimony of the victim’s mother.
Today this Court is asked to determine whether the statements of a abuse child victim made to a trusted adult regarding the assault are admissible as hearsay. Although the Court’s decision to admit the statements of the victim to commendable, mother is I believe majority the errs in resting that determination on prompt the complaint excep- tion to the rule.
As the majority correctly states, supra, at the prompt complaint exception permits the use of hearsay statements to corroborate the fact “that a complaint was made and also to identify complained occurrence of with charged.” offense Freeman, (citations 441 A.2d (1982) omitted). Indeed, our “(t)here Supreme Court stated that some for authority” the admission of testimony regarding assault, occurrence of the place, its time and and the identity alleged attackers. Commonwealth v. Green, (citations Pa. omitted). However, though even the Court in ex- Green pressly declined to define the of the scope prompt complaint exception, any noted that Court which went beyond identifying complaint and its nature was inad- legislative evidentiary inadequacies We note do awareness serving present public law in sex welfare child abuse Assembly Pennsylvania cases. The Commonwealth of General recent- houses, ly passed governor signed Senate Bill No. both and the February the bill into law Act on No. 1986-14 amends Title (Judiciary Procedure) provides admissibility and Judicial of certain victims acts and witnesses criminal (relat- dependency proceedings Chapter initiated under 63 of Title enacted). matters). (as ing juvenile § See Pa.C.S. legislation beginning; This is a much more is needed. *9 Green, 409 A.2d 374. supra, 487 Pa. missible. complaint, it, the fact any testimony beyond I see As com- the nature of the complainant, name of the the exception. prompt complaint the by is not covered plaint hearsay a dimension to this has added new Today, the Court exception. bath- appellant testified that abused while
The victim evening. the victim’s mother ing that Further, the the details of that incident. corroborated victim, mother, she had been not the related what victim’s appel- incident which occurred while told second view, evening. my lant and the victim were bed far more than the of the mother established the and the nature of that was made complaint fact that complaint. is, however, determining means of acceptable
There sacri- statements without admissibility hearsay such to the tender rule. Pursuant ficing hearsay are admissi- of the victim exception, the statements court is satisfied that provided ble trial or, if reliable, testifies and the either sufficiently are of the act testify, corroborative evidence unavailable 42 Pa.Cons. Bill 1361 have amended presented. S. would Chap. Bailey, Stat.Ann. See n. 1 (plurality n. Haber, opinion); J., dissenting). (1986) (Olszewski, A.2d 273 power develop our As it is well within the of this Court method, I the time the case believe rules evidence law years excep- need for tender recognize has come exception. this accept in child abuse cases and tion I Accordingly, Bailey, for the reasons set forth Haber, I affirm the order of court below.
KELLY, Judge, concurring: in the but not majority, concur result reached significant legal rationale. social and its Because *10 issues raised this I appeal, write to separately explain my reasoning express and to my concerns regarding the approaches in taken majority the and concurring opinions.
I. appellant first contends that the trial court abused its in discretion permitting the child testify. victim to Appel- lant argues that she competent was not testify to because 1) she failed to demonstrate: that she had an appreciation of the moral responsibility truth; 2) to speak and that she had sufficient capacity perceive, remember, to recount the incidents about which she I testified. agree with the majority that the trial court did not abuse its discretion, flagrantly or' otherwise. would add to its as analysis follows.
In witnesses, Pennsylvania, including witnesses, are presumed competent, and it is upon incumbent the party challenging testimony to establish incompetency. Com- Short, 586, v. 694, monwealth 278 Pa.Super. 420 A.2d (1980), 696 v. citing McCoy, 615, 619-20, Rosche 397 Pa. 156 (1959); A.2d 309 also see Riley, v. 458 390, 393, Pa. (1974); Commonwealth v. Fox, A.2d McCoy, supra, Supreme Rosche v. our held Court while a trial has judge broad discretion regarding deter- mination of the competency of witnesses to testify, absolute, discretion is rather than legal cases where old, the witness is under fourteen years there must be a inquiry careful as to the capacity mental 310; Id., 621-622, witness. Pa. at A.2d see also Gaerttner, Commonwealth v. (1984); Short, 586-587, However,
Pa.Superior Ct.
The mere
finding
compe
of testimonial
preclude
narration does
child has suffi
Rather, the
question is whether
tency.
hear the
to make it worthwhile to
capacity
mental
cient
stated, the question is whether
testimony;
child’s
otherwise
observe, remember, and recount was
capacity
the child’s
knowl
additional
probably bring
the child could
such that
McCormick,
the fact
of the facts before
finder.
edge
Cf.
*11
Moreover,
1984).
we
Evidence,
(E.
Rev.
Cleary
62
156
§
that,
judge
the trial
“[bjecause
consistently recognized
have
superior
a much
ruling has
competency
makes the
who
witness,
of the child
competency
to assess the
opportunity
ruling,
never reverse the
virtually
court should
appellate
face
on its
being
accept
to
practice
the better
finder.”
the fact
credibility
of
to
and leave the matter
249, 260, 469 A.2d
Pa.Super.
322
v. Bailey,
Commonwealth
Short,
604,
v.
(1983);
610
587,
(1980); Commonwealth
Appellant
comprehend concepts
or
appreciate
she did
that
It is true
responsibility”
“moral
“divine retribution.”
was not familiar
not understand the oath and
that she did
However,
it
upon
be sworn.
with
which was
Bible
not,
incompetent
declared
constitutionally, be
person may
(or lack
religious
his or her
beliefs
testify on the basis of
him
unless,
thereof),
religious
impel
her
beliefs would
his or
Chuck,
tell the truth.
Commonwealth v.
or her not to
See
(1974). Thus, the child
A.2d 123
Pa.Super.
concept
the Bible or
familiarity
victim’s lack of
“divine retribution” presents no bar to
testimony.
Nor
is an
understanding
abstract concepts such as an “oath”
or “moral
responsibility”
prerequisite to a finding of a
sufficient
“consciousness
a duty to speak the truth.”
See
Gaerttner,
Commonwealth v.
supra, 335 Pa.Superior
atCt.
98;
A.2d at
Commonwealth v. Payton, 258
(1978).
To the extent
that
Rimmel,
Commonwealth v.
ability
lies,
to distinguish truth from
and testified that she
knew
she
would be punished if she told lies. Although
she could not say how she would be punished, she stated
that she did not
punished
want to be
and that she would tell
judge
the truth. We have found such affirmations
sufficient evidence of a “consciousness of a duty
speak
the truth” in
past.
See
Short,
588-589,
Pa.Superior Ct.
Appellant also claims child victim was incompe- to testify tent because she did not have sufficient mental capacity at the time of the trial to remember and recount *12 the incident which about she was It is true testifying. that testimony her weakened in by perception, was some defects However, memory, and narration. the record also reveals cooperative that she an and intelligent was witness. She question when candidly admitted she did not understand a or when she did not remember a fact. Appellant’s know her, permitted fully counsel was to cross-examine and was testimony. to reveal her In effectively able weaknesses weaknesses, her clearly of those was rele- spite testimony I that mental vant and material. would find sufficient (See the of the trial in the capacity appears time record. 26-49). N.T. 6/9/83 like that, the child witness appellant argues
Finally, case lacked in the instant Rosche, the child victim remember the mental to observe capacity sufficient is, however, factually it occurred. Rosche event at the time Rosche, seven-year-old a witness was distinguishable. acci- pedestrian/vehicle upon testify regarding to called three she had witnessed involving strangers which dent had not four old. She years she was earlier when witnessing the since anyone discussed matter occasions, trying with counsel occurrence, except on two 623-624, 156 397 Pa. at McCoy, Rosche v. case. case, one-half the five and 311-12. In the instant A.2d at upon testify regarding victim called year old was her her father upon of sexual abuse committed incident detailed state- she made Significantly, one earlier. year twenty-four her incident to mother regarding the ments capacity observe after the incident. Sufficient hours incident was established. the time of the remember at II. court erred trial appellant next contends testify mother to the child victim’s
permitting (24) hours twenty-four victim made child below, I find For set forth the incident. the reasons after or as gestae, admissible as res was not assault; a sexual addi- prompt complaint evidence adoption proposed I am convinced that tionally, unnecessary inappropriate. years exception tender admissible as Instead, would hold that the to corrob- statements offered prior evidence consistent testimony. in-court orate the victim’s A. Res Gestae
Although declines admit the majority gestae mother the res testimony of the child victim’s under that, under the majority particular does state exception, by the case, the statements made circumstances this after the twenty-four mother hours child victim *13 308
incident could “conceivably” be admitted as excited utter- ances under the gestae exception. res Majority Opinion at 299. I cannot agree. Under particular circumstances case, of this I application find gestae res exception manifestly inappropriate.
A true gestae res statement is a spontaneous utterance by an individual mind whose has suddenly been made sub- ject to an overpowering emotion caused some by unex- pected shocking act. See Cody v. Industries, S.K.F. Inc., 558, 447 563-65, Pa. 772, (1972) 291 A.2d 775 (citing cases); see also Pronkoskie, Commonwealth v. 132, 137-38, 858, 383 (1978) A.2d 860 (overpowering emo- tion); Clark, 200, 204, Commonwealth Pa.Super. v. 355 512 1282, (1986) A.2d 1284 (overpowering trauma, emotional hysterical mind). short, state of “In they [the declarations] be, must not narration or attempted explanation past of a occurrence, emotional, but in the nature of an impulsive spell outburst made under the of excitement or shock by caused occurrence which relate and they uttered before the processes intellect the opportunity have had Kasnot, into play.” 580, 583-84, come Haas 371 v. Pa. 171, (1952); Kasko, A.2d see also Commonwealth v. 62, 70-71, 322 Pa.Super. 469 A.2d Ordinarily, where there opportunity reflection the statements design, may not be admitted as excited utterances under the exception. res See Common- gestae wealth v. 510 A.2d Bailey, (48 interim, delay, 371-72 play during question- hour mother); ing Haber, Commonwealth v.
79, 82-83,
(1986) (unknown
but substan-
children);
delay,
tial
mothers
questioned
Kasko,
809 finding that were alone, the statements preclude does not of emotion. overpowering product and the spontaneous with strictly contemporaneous must be “That utterances cause, rule, fallacy, they the is a to be exciting the within is not time it, there subsequent providing be may sway dissipated.... its and exciting influence to lose be the time. Furthermore, and limit of there is no definite fixed Pitts- its own facts.” Powe v. depend Each case must on (1931), Co., 796 burgh Rys. A. 303 Pa. see also (2nd Ed.); Evidence Wigmore, III citing § Gladden, Cambell Gore, Commonwealth v.
(1955) (citing cases);
547-548,
I also
Pa.Superior Ct.
While the record indicates that the child victim may have been confused or disturbed by unpleasant incident, it does not support finding that the child victim experienced shock, revulsion, the kind of or overpowering emotion which naturally accompanies a similar assault on an older more
Exclamation,
Utterance,
(1977
Or Excited
Supp.
The holds that the statements majority assault under of a of a sexual prompt complaint as evidence First, in agree. I cannot complaint rape exception. this, inappli- exception analytically I find the cases such Second, applicable, if were exception even cable. exceeded the find that the detail of the statements exception. of the scope cogently explained by rule was prompt complaint Freeman, 295 Pa. Cavanaugh in Commonwealth v.
Judge
(1982),
467,
Evidence admissible at common Hue and long has been law. rape rape to follow like smoke fire. thought follows cry is circumstantial former evidence of the Proof lack Conversely, unexplained evidence hue latter. to ensue might expect rape casts one cry *16 from rape existence on the doubts itself.
Fresh,
undetailed, are
rape,
particular
a
complaints
significant
provides
circumstan-
cry
hue and
form of
subsequent
alleged
victim’s
for the
support
tial
complaints are classi-
Such
raped.
that she was
fresh
consistent statements.
prior
as
evidentially
fied
involving
years,
children of tender
cases
abuse
sexual
In non-violent
figures,
is common
authority
it
for the child
parents,
or
relatives
incident,
part
to relate the incident
as
for the
report
to not
that it was a traumatic or
any indication
day’s activities without
episode
a sexual
view
do
children
unusual event. ”[M]ost
Comment, Compre
A
See
shocking
particularly unusual.”
or even as
Cases,
Sexual Abuse
Hearsay Statements
Approach
hensive
to Child
(1983); cited in Com
1745,
92-105
& nn.
83 Colum.L.Rev.
1756-57
89,
505 A.2d at
Haber,
Ct.
Pa.Superior
supra,
monwealth v.
(Olszewski,
Pronkoskie,
dissenting);
J.
see also
9,
n. 9.
supra,
In Commonwealth v. Rodriguez,
343 491-
(1985),
571-72
this Court extended the
prompt complaint exception to include prompt complaints of
sodomy.
In Commonwealth v. Bailey, supra,
excep-
tion
applied
to a
involving
case
charges of indecent
assault and involuntary deviate sexual
intercourse.
Pa.Superior
Ct. at
(Hoffman, J.,
that absence of
following
sexual assault is
(because
circumstantial evidence that no assault occurred
cry”
“hue and
follows such assaults “like smoke follows
fire”).
Freeman,
See Commonwealth v.
295 Pa.Su-
perior
However,
Ct. at
can be
that the Com-
To the extent
reasonably apply.
tion cannot
nonetheless,
this
draw
may,
jury
that a
feels
monwealth
that an
request
may
inference, the Commonwealth
improper
included
this issue be
regarding
instruction
appropriate
hold that evidence
I would
Consequently,
charge.
jury
the
if it
admissible
only
in such cases
complaint
prompt
aof
exception
specific hearsay
under a
admissible
is otherwise
for the admis-
the
rules
general
or under
res
(e.g.
gestae)
statements.
consistent
prior
sion
rule
prompt complaint
the
Assuming, arguendo,
case, I
find that the detail
would still
in the instant
applied
the
construction
exceeded even
broadest
statements
of the
Supreme
that our
Court Common-
rule.
It is true
of the
(1979), acknowl-
Green,
Contrary mother of the victim’s majority, the inci- after hours daughter’s twenty-four fact of establishing beyond merely dent went far of the assailant. complaint identity and the complaint, to the fact victim’s mother testified assailant, assault, identity time and date of *18 314
and in detail as to her daughter’s statements events before, during,
(N.T.
the incident.
after
56-70).
at
6/9/83
Because the testimony
beyond
went
of a complaint and the facts
necessary
identify
fact
complaint
charged,
the offense
and included details of
find
complaint, would
that
the testimony was not
admissible under the prompt complaint exception. See
Green,
328,
supra,
Commonwealth v.
C. Consistent Statements While I do not find the admissible under the rule, I would hold that the testi- special prompt complaint prior was admissible as evidence a consistent mony of the child victim’s statement offered corroboration impeached testimony. of witnesses are prior consistent statements
“Generally, or corroborative evi- not admissible as either substantive Gore, Pa.Superior 262 supra, dence.” v. Commonwealth cases); 549, (citing generally, A.2d at 1306 see IV Ct. at 396 However, at 254-297. seq. 1122 et. Wigmore, supra, § a witness such statements are admissible corroborate having faulty memory, impeached has been who Common- testimony. fabricated the See having recently at 512 Clark, Pa.Superior 355 Ct. wealth v. Ravenall, 448 Pa. 1284; v. A.2d at see also Commonwealth Pa. 159 (1972); 398 Byers, v. Keefer Handbook, Binder, (1960); Hearsay generally see A.2d 49-51, (1983 Cum.Supp.1986). & 2.14 at § is a matter consistent prior
The admission in light trial to be decided judge, the discretion of the left to impeachment. Common- degree character (1968); A.2d 868 Marino, v. wealth Pa.Superior Gore, supra, 262 v. see Commonwealth also necessary It is 550, Ct. at on attack serious enough it is explicit, allegation infer such fact-finder to enables cross-examination Cain, v. allegation. Clark, (1986); Commonwealth
202, 516 A.2d 1284; A.2d at Com- Pa.Superior Ct. *19 atCt. Pa.Superior Bailey, supra, v. monwealth Gore, 613; v. 469 A.2d transcript 1307. The 550, 396 A.2d at Ct. at Pa.Superior cross-examined extensively was victim reveals that juror a reasonable from this cross-examination and that she was implying infer that defendant could not remember “coached,” accurately that she could 31-48). testimony Her was also (N.T. 6/9/83 at incident. the incidents al- appellant’s testimony by impeached occur, of presentation testimony did leged morning mother and brother that on the appellant’s from occurred, the child appel- incidents visited with after the played acted her cousin. family, normally lant’s 94-112). Cain, (N.T. 6/9/83 See Commonwealth 202, 516 Pa.Superior Ct. at A.2d at 1254. witnesses, Moreover, the credibility unlike adult of wit ques are children of tender might nesses who be age on the alone. by jurors tioned basis witnesses’ is a delay When there substantial between the event trial, there is an question and increased likelihood that young discredit a witness’s as the jurors may product decaying distorted or memory. Common Wilson, 588, 603-04, 394 Pa. wealth v.
(1959), denied 361 U.S. 80 S.Ct. cert. L.Ed.2d (1959), Howser, and Commonwealth v.
(1865), Supreme held that a par our Court or a prisoner could doned convict’s be with corroborated even having impeached, been out as the witness’s status alone that, question raised the find credibility. would sound to the discretion of the subject trial a child of judge, tender years testifying as a complainant or may witness entitled to have corroborative evidence similarly admitted.
As noted supra, the child victim’s mother testified in detail as to her daughter’s statements regarding the events (See before, during, and after the incident. N.T. 6/9/83 at 56-70). Appellant argues that the mother’s testimony not only daughter’s corroborated her testimony, but went on to provide additional details and to expand upon it. Specifical- ly, appellant contends that the mother “testified concerning an alleged assault which took place when the defendant and the complainant went to bed” even though, “the complain- ant never even mentioned the incident in her testimony.” (See 20). Brief of Appellant at The majority states that the child victim “graphically testified being molested in the bath her father and a second time falling before Opinion added). at 301. asleep.” Majority (Emphasis record, however, any is devoid of reference by the child (See victim to the second incident. N.T. 26-49). 6/9/83 at Nonetheless, I find that the mother’s testimony was corroborating admissible as evidence.
“Substantive evidence” is adduced for the purpose “[t]hat issue, proving opposed a fact in given evidence *20 purpose discrediting (i.e., a witness that he showing belief), corroborating is or of his unworthy testimony.” (rev. 1979). Black’s Law 5th ed. Dictionary, “Corrob- evidence,” hand, other orating on the is defined as “[e]vi- dence supplementary already given tending to that or confirm it.” Law strengthen Dictionary, supra, Black’s at 311. case, testimony supplied the instant the child victim’s every to establish each and element of
sufficient evidence (N.T. 26-49). The fact of charged. the offenses 6/9/83 at the second incident was not offered as substantive evidence rather, it charged; an element of an offense to establish testimony regarding offered to reconcile the child’s her moth- activities after the first incident the bath and evidence discovered testimony concerning physical er’s returned home hours later. daughter twenty-four when her (See 64). When, here, 36-37 prior N.T. 6/9/83 at & as as consistent statement offered rather than corroborative evidence, substantive it is not See hearsay. Common Freeman, v. Ct. Pa.Superior wealth additionally, A.2d at 1332. I that the child victim—the note declarant of prior previously consistent statement —had testified and on was available to be called rebuttal if appellant he desired testi challenge had her mother’s mony prior consistent regarding the statement. Com Cf. Sanders, monwealth v. Ct. at Pa.Superior 594-95, 394 A.2d at quoting Dugan, J., (Spaeth, concurring).
Consequently, I would find that were properly admitted as of prior evidence consistent state- ments offered to the child impeached corroborate victim’s testimony.
D. Tender Exception Years
Because I find the testimony regarding the child victim’s out of prior court consist- statements admissible statements, ent agree I we not decide here need whether the years exception adopted tender should be stands, Pennsylvania. exception As it now has not been adopted. Haber, note, See I supra.7 however, my majority’s dissent from the to the admonition legislature to “expeditiously propound legislation provide appropriate extraordinary problem remedies proof in such cases.” Majority Opinion n. 2. agree legislative that continued review of the serious prob- years exception unquestionable I note that while the tender has appeal, emotional it lacks the uniform well-defined indicia of reliabili- ty qua existing exceptions. which are the sine non of the Neither being being a child of tender nor the victim of sexual assault inherently makes one’s out-of-court statements more less reliable. *21 Moreover, years exception, the proposed, single tender is not a exception, but an authorization for excep- the creation of innumerable tions the Myers, trial courts on an ad supra hoc basis. See at note 215-216, 228-229; Note, at Testimony Child Victims in of Prosecutions, Sexual Abuse 96 Harv.L.Rev. & 821-22 nn. 96-107.
lems of child sexual is physical and abuse needed. How- ever, I feel is for manifestly inappropriate it the to to the as to judiciary attempt legislature instruct which public of several “reforms” best the proposed will serve majority interest.8 what the has done precisely This years Although Pennsylvania statutorily adopted the almost tender (see Haber, exception Pa.Superi in 280-281), legislature or Ct.at 505A.2dat the adopted has since many comprehensive respects approach to and more the different in problem. legislature enacted a bill which: the legislature to invest child victims and announced the intent rights protections of crimes with additional and child witnesses during (42 system justice the criminal Pa.C. their involvement with 5981); S.A. § persons qualified act behalf of designation of to on authorized the the her by explaining proceedings child victim and his or to the child regarding ability family, by advising the court child's by assisting proceedings, or cooperate court and and in understand family coping securing child’s for the child and the assistance subsequent proceedings impact and with the of crime emotional (42 authorized, 5983); Pa.C.S.A.§ shown, videotaped depositions good the use of cause for preliminary use hear- witness for of the child victim or child (42 5984); ings, § Pa.C.S.A. of for use trial and the child victim shown, authorized, good the use of closed-circuit testimo- cause 5985); (42 ny § child witness Pa.C.S.A. the child victim or authorized, proceedings under Title the use dependency in civil describing by a victim witness statements made involving the child or another member acts of sexual abuse child’s content, time, and circum- family, court finds that if the reliability (42 provide indicia of sufficient stances of the statement added); 5986) (emphasis Pa.C.S.A.§ anatomically a child correct dolls to assist use of authorized the 5987); (42 testifying § abuse cases Pa.C.S.A. in sexual victim in employees to disclose the officers and a a court made it crime for abuse, unless the court physical or sexual victim name of child otherwise orders, provided court records contain- further public open to the unless ing a victim will not name of such 5988). (42 § Pa.C.S.A. otherwise orders the court Act, 1986-14, 1986; published Act No. Victim and Witnesses See Child (to seq.). et at 42 Pa.C.S.A. 5981 Pa.Leg.Serv. be codified prob- approach comprehensive legislature's In addition lem, specifically the tender legislature restricted note that authorizing the than dependency proceedings, rather exception to civil Apparently, the judicial proceedings. hearsay in all use such modify its earlier to reconsider legislature found reason has Thus, date, the years exception. tender position judicially statutorily nor years exception has been neither tender Pennsylvania. proceedings in adopted for use criminal *22 to its admonition citations appending general to statutes supported articles enacted or single and law review which exception. “reform” —the tender proposed years Majority Opinion 301, n. 2.
CONCLUSION changes I in court rules and agree While that some that the need or procedures may required, agree cannot desire for convictions in child sexual abuse cases warrants or relaxation of the established rules of wholesale revision rules contain the of hundreds of evidence. These wisdom experience inquiry. They have jurisprudential refined, tested, proven been to be effective tools for of the truth and the of the accused protection divination relaxa- from unfair trial and conviction. While the unjust existing evidentiary tion or elimination of rules result in a dramatic increase undoubtedly rates, conviction the innocent as the guilty as well would be swept up the tide of such reform. Such trade-off Haber, unacceptable. See Commonwealth v. 81-88, 275-278.
Pa.Superior Ct. at 505 A.2d at Moreover, legislature while the has a crucial role perform process, powers the reform its revise circumscribed the need to strictly rules of evidence are af- rights invariably the constitutional which are preserve Ultimately, responsibility fected by proposed changes. proposed evidentiary for final approval rejection courts, governmental in the inter- changes resides where ests, interests, rights of the accused the victim’s considered, must be and a delicate balance achieved. McEWEN, J., joins.