Frаnk R. HEDDINGS and Sandra J. Heddings, v. John STEELE and Edith Steele and Mack Gatz (Two Cases). Appeal of John STEELE and Edith Steele. Appeal of John and Edith STEELE, Guardian Heidi and Jason Gatz, Betty and Joseph Gatz.
Supreme Court of Pennsylvania.
Decided May 29, 1987.
526 A.2d 349 | 514 Pa. 569
Submitted Dec. 2, 1986.
Brett O. Feese, Montoursville, for Mack Gatz.
W. David Marcello, Williamsport, for Betty and Joseph Gatz.
Before NIX, C.J., and LARSEN, FLAHERTY, MCDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
HUTCHINSON, Justice.
Appellants, John and Edith Steele, appeal by allowance a Superior Court order which affirmed the Court of Common
On October 12, 1982, Janet Gatz, mother of two minor children, Heidi M. Gatz and Jason J. Gatz, died as a result of stab wounds inflicted by her husband, Mack C. Gatz. Mack Gatz pleaded guilty to the homicide and is currently serving a sentence of incarceration. Aftеr the arrest of Mack Gatz, the children were taken to the home of Janet‘s parents, John and Edith Steele, appellants herein. Numerous members of the paternal and maternal families filed petitions for custody in Lycoming County Common Pleas. Following the withdrawal of two parties to the action, the remaining litigants were appellants John and Edith Steele and Mack Gatz‘s sister and brother-in-law, Frank and Sandra Heddings. A hearing was held in March and April of 1983. On May 12, 1983, Common Pleas awarded primary custody of the children to the Heddings with limited visitation rights accorded the Steeles.
On September 28, 1983, a motion to change custody from the Heddings family to the Steele family was filed after the Heddings experienced substantial difficulty in meeting their obligations with respect to the custody of the children. The paternal grandparents, Joseph and Betty Gatz, appellees herein, appeared at the November 7, 1983 hearing and expressed an interest in the custody proceedings. The trial court indicated that, upon the filing of appropriate petitions, he would reconsider the custody issue. Appellees filed a petition to adopt the children on December 14, 1983. At
At the Common Pleas hearings, seven witnesses testified to statements allegedly made by Janet Gatz regarding incestuous contact with her father, John Steele. Asserting that the statements were so contrаry to Janet Gatz‘s “social interest” that the statements would not have been made if not true, Common Pleas accepted the hearsay testimony into evidence. The trial judge found the appellants generally fit and proper parties to seek custody “except for the Court‘s concerns regarding sexual immorality stated later herein.” Common Pleas slip op., May 24, 1984, at 10. The court then found that apрellant John Steele engaged in sexual intercourse with his daughter on several occasions while Janet was in her minority. Although there was no evidence that John Steele ever accosted his granddaughter Heidi Gatz, the Common Pleas court considered this “evidence” of her father‘s incest with the children‘s mother, Janet Gatz, as a factor weighing in favor of precluding appellants from enjoying permanent сustody of the children. Id. at 12. Indeed, it is plain the court relied on it and ignored the other evidence on this issue which could have justified the same result. Superior Court, citing a number of guarantees of trustworthiness surrounding the damning hearsay statements of Janet Gatz, adopted the statement against social interest exception to the rule against hearsay and affirmed the judgment of Common Pleas. We granted allowance of appeal to examine this particular exception to
Hearsay is an out-of-court statement offered into evidenсe to prove the truth of the matter asserted. Carney v. Pennsylvania R.R. Co., 428 Pa. 489, 492-93, 240 A.2d 71, 73 (1968); Whitfield v. Reading Co., 380 Pa. 566, 570, 112 A.2d 113, 115 (1955). See also 5 Wigmore, Evidence § 1361 (Chadbourn rev. 1974); 8 Standard Pennsylvania Practice 2d § 49:19 (1982). A hearsay statement lacks guarantees of trustworthiness fundamental to the Anglo-American system of jurisprudence. Perhaps such a statement‘s most telling deficiency is it cannot be tested by cross-examination. According to Dean Wigmore, cross-examination is “beyond any doubt the greatest legal enginе ever invented for the discovery of truth.” 5 Wigmore, supra, § 1367. Nor is the declarant under oath when the out-of-court statement is uttered. This court has long recognized the oath requirement as a further assurance of reliability. Commonwealth v. Stewart, 1 Serg. & Rawle 342, 344 (1815); Longenecker v. Hyde, 6 Binn. 1, 2 (1813). Out-of-court declarations also deprive the trier of fact of an opportunity to examine the demeanor of the declarant. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 495-496, 71 S.Ct. 456, 468, 95 L.Ed. 456 (1951). Moreover, an in-court declarant may be impressed with thе solemnity of the proceeding and may be reluctant to lie in the face of the party against whom the statement is directed. Fed.R.Evid. Art. VIII, Hearsay, “Introductory Note: The Hearsay Problem,” advisory committee‘s note, reprinted in 56 F.R.D. 183, 288 (1973). The confrontation clauses of the federal and state constitutions,
The primary object of a trial in our American courts is to bring to the tribunal, which is passing on the dispute involved, those persons who know of their own knowledge the facts to which they testify. If it were not for this absolute sine qua non, trials could be conducted on paper without the presence of a single flesh and blood witness. However, with such a pen-and-ink procedure, there would be no opportunity to check on testimonial defects such as fallacious memory, limited observation, purposeful distortions, and outright fabrication. The great engine of cross-examination would lie unused while error and perjury would travel untrammeledly to an unreliable and often-tainted judgment.
Johnson v. Peoples Cab. Co., 386 Pa. 513, 514-15, 126 A.2d 720, 721 (1956). To insure a party the guarantees of trustworthiness resulting from a declarant‘s presence in court, a proponent of hearsay evidence must point to a reliable hearsay exception before such testimony will be admitted. Carney v. Pennsylvania R.R. Co., supra, 428 Pa. at 492-93, 240 A.2d at 73. See also Commonwealth v. Wright, 455 Pa. 480, 484-85, 317 A.2d 271, 273 (1974). With these principles in mind, we now turn to the statement against social interest advanced below as a new exception to the hearsay rule in Pennsylvania.
Under the law of this Commonwealth, declarations against pecuniary or proprietary interest are admissible as a hearsay exception. See e.g., Beardsley v. Weaver, 402 Pa. 130, 132, 166 A.2d 529, 530 (1961); Rudisill v. Cordes, 333 Pa. 544, 549-50, 5 A.2d 217, 219 (1939). Such statements are deemed reliable as “[p]eople are apt to speak freely and falsely in their own favor but are reluctant to speak falsely to their pecuniary or proprietary detriment.” Jefferson, Declarations Against Interest, An Exception to the Hearsay Rule, 58 Harv.L.Rev. 1, 8 (1944). This Court has recently abandoned the historical limitation to statements against one‘s pecuniary or proprietary interest to incorporate statements against one‘s penal interest. Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983); Commonwealth v. Colon, 461 Pa. 577, 337 A.2d 554 (1975) (Opinion Announcing the Judgment of the Court). Superior Court has now attempted to extend the against interest exception to also include statements against social interest.3
In Dovico, the Second Circuit approved exclusion of the hearsay statement of one Gangi, a federal prisoner, that he had acted alone in committing a drug offense for which both he and the defendant Dovico had been convicted. The Dovico court first noted that this statement was not against Gangi‘s penal interest as he had already been convicted. The court also rejected the argument that the statement should have beеn admitted as a statement against Gangi‘s social interest:
The case demonstrates the possibly unmanageable nature of a “social interest” exception. Appellant asserts that both the admission of guilt and the withholding of the information of Dovico‘s innocence were against Gangi‘s social interest. But this assertion leaves many questions unanswered. What is the relevant community: Gangi‘s group in prison; the whole prison; prison gener
ally; his friends outside prison; his community outside prison; the reasonable community, etc.? Because Dovico and Gangi had been friends, and also because Gangi might have been attempting to dispel the illusion that he was cooperating with the government, was the statement so clearly against his social interests as to make it reliable? Depending on the community selected and on the motivаtion of Dovico‘s discerned, the declaration could be both for and against social interest. Many difficulties would beset such a broadening of the exception. It would be difficult to define any reliable “against social interest” exception, and surely we could not recognize one so amorphous as that sought here, without a complete abandonment of the hearsay rule.
Dovico, supra, at 327 n. 4. The House Committee on the Judiciary relied upon the Dovico court‘s reasoning in rеjecting the proposed statement against social interest exception to the Federal Rules of Evidence. House Comm. on Judiciary, Fed.Rules of Evidence, H.R.Rep. No. 650, 93d Cong., 1st Sess., 16 (1973), reprinted in 1974 U.S.Code & Admin. News 7075, 7089.
The Dovico opinion aptly illustrates the slippery nature of the proposed exception for statements against social interest. Its use would require a trial judge to first determine the habits, customs and mores of the community within which the declarant lives. An utterance made by a member of a motorcycle gang while in the company of his peers does not tend to make the declarant an object of hatred, ridicule or disgrace in his community whereas the identical statement proffered by a member of this Court may subject him to social disapproval among his brethren. This difficulty does not arise when the statement against pеcuniary/proprietary interest and the statement against penal interest are employed. The statement “it was not your fault” by a tort victim is a fortiori against his pecuniary interest. See, e.g., Rudisill v. Cordes, supra, 333 Pa. at 546, 5 A.2d at 219 (statement by pedestrian victim that accident not automobile driver‘s fault). To determine what is against one‘s
In the present case, Common Pleas accepted and considered testimony which it felt had thе guarantees of trustworthiness necessary to obviate the hearsay rule in determining that appellants are ill-suited for custody of the minor children. That conclusion is not unreasonable on this record. However, it would not be limited to the peculiar facts of this case, but creates a new general principle which would materially impact the means by which the law seeks truth. This principle must therefore be judged as a universal. So judged, it fails.
Mindful of the fact that these proceedings have left the status of the children long unresolved, we have examined the record without regard to the objectionable hearsay. The scope of review of an appellate court in custody matters is of the broadest type. We are not free, however, to nullify the factfinding function of the hearing judge. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 236, 478 A.2d 800, 806 (1984). We are satisfied that thе trial court‘s award of custody of these children to appellees was and is in their best interest. That conclusion can stand without the necessity of considering the charge of incest levied from beyond the grave by the children‘s late mother against her father. This other evidence supports the hearing court‘s finding that the Steeles’ unstructured family arrangement and permissive attitudes would work a severe disservice to the children whereas the Gatzes’ more structured environment would create an atmosphere conducive to healthy development. Common Pleas slip op. supra at 10. The Steeles are both diabetic and overweight and would be less likely than the Gatzes to address and correct Heidi‘s weight problem. Id. at 11. The Gatzes are more apt to cooperate in facilitating the Steeles’ visitation rights than the Steeles would cooperate with the Gatzes. Id. at 13. Heidi is in need of remedial instruction with her schoolwork; only the Gatzes have shown an interest by contacting
The order of Superior Court is therefore affirmed.
NIX, C.J., and McDERMOTT, J., file concurring and dissenting opinions.
NIX, Chief Justice, concurring and dissenting.
I agree with the majority that the statement against interest exception to our hearsay doctrine should not be expanded to encompass declarations against social interest. I also understand the majority‘s concern for an expeditious resolution of this matter. In view of the fact that the trial court‘s award of custody was based in part on inadmissible evidence, however, I would remand the cause to that court for a reevaluation of the children‘s best interests. This decision will affect the entire course of these minors’ lives, as well as the lives of those who are interested in them. It is in my judgment unwise, regardless of how well meaning, for this Court to make that decision relying solely on a cold record. I am therefore constrained to dissent from the majority‘s mandate.
McDERMOTT, Justice, concurring and dissenting.
I join the majority, and write to emphasize that the determination of credibility by a trier of fact is the ultimate, pragmatic, epistemological canon of our law.
What can only be known through the senses and intellect of a person is a legally unacceptable premise, unless it is found credible, is believed and accepted by the trier of fact, under the different burdens of proof imposed in particular cases. The accepted credibility of a witness is the sole source of a fact derived through the senses of a person.
We have said, times out of mind, that what the trier of fact sees and hears is the basis of all judgment. He need not believe any or all of the witnesses. What testimony he accepts is the only foundation of a judgment. See generally, Morrissey v. Commonwealth Dept. of Highways, 424 Pa. 87, 225 A.2d 895 (1967).
The content of credible testimony is examined along with the human agency that presents it. Unless the content can be reconciled beyond love, hate, fear, hope, interest and all the human things that tend to cloud the senses, twist the memory, fire the imagination, or tempt to mendacity, the testimony is not accepted. Unless what was offered is accepted, however true it may be in any other context, it is not legally true. See Shearer v. Insurance Co. of North America, 397 Pa. 566, 156 A.2d 182 (1959).
The power to determine facts from human testimony is a terrible power. The more so because our tools are few. Those that we have are mostly exclusionary. Hearsay evidence is first in the list of excluded evidence. Hearsay not only eludes oath, cross examination, and the right to face accusers, it evades the single most important consideration in the truth determining process; the witness is not seen nor heard by the trier of fact. 5 Wigmore, Evidence §§ 1362, 1364 (Chadbourn rev. 1974).
All the trier of faсt hears is that an absent witness made a statement. He can believe that a statement was made. Whether he would have believed the witness, in this case the deceased, if she spoke in his presence, he cannot know. To substitute, not only for admissibility, but for its truth, the statement of an absent witness, because that statement
I would join with the Chief Justice in remanding this case back to be reheard absent the damning hearsay.*
Notes
Human nature being what it is, people are not likely to concede the existence of facts which would make them objects of social disapproval in their community unless the facts are true. . . . In other words, we find a declaration against interest to be an out-of-court statement that wаs made by a non-party who has since died or has become unavailable as a witness; that concerned facts of which declarant had personal knowledge; that involved an interest (whether pecuniary, proprietary, penal or social) of declarant that was so palpable that it would naturally have been present in the declarant‘s mind; and finally, that was against such interest.Heddings v. Steele, 344 Pa.Superior Ct. 399, 412-13, 496 A.2d 1166, 1173-74 (1985). Judge Wickersham‘s view is not without support by comment, case law and statute: Model Code of Evidence Rule 509(1) (1942); Unif. R. Evid. 804(b)(3) (1974), 13A U.L.A. 786-87 (1986). D. Binder, Hearsay Handbook §§ 29.04, 29.05 (2d ed. 1983); Jefferson, Declarations Against Interest, An Exception to the Hearsay Rule, 58 Harv.L.Rev. 1, 39 (1944); Morgan, Declarations Against Interest, 5 Vand.L.Rev. 451, 475 (1952). Ark., Ark.Stat.Ann. § 28-1001 (1979); Cal., Evid. Code § 1230 (West 1966); Kan., Kan.Stat.Ann. § 60-460(j) (Supp.1986); Me. M.R. Evid. 804(b)(3); Mont., Mont.R.Evid. 804(b)(3); Nev., Nev.Rev.Stat. § 51.-345 (1986); N.J., Rules of Evidence, N.J.S.A. 2A:84A, Rule 63(10); N.D., N.D. R. Evid. 804(b)(3); Tex., Tex. R. Evid. 803(24); Wis., Wis.Stat.Ann. § 908.045(4) (West 1975). State v. Alcorn, 7 Idaho 599, 64 P. 1014 (1901); State v. Parrish, 205 Kan. 178, 468 P.2d 143 (1970); Timber Access Ind. Co. v. U.S. Plywood-Champion, 263 Or. 509, 503 P.2d 482 (1972). The following decisions merely rely upon each particular state‘s codified rule оf evidence: Marriage of Sarsfield, 671 P.2d 595 (Mont.1983); First Natl. Bank v. Osborne, 28 Utah 2d 387, 503 P.2d 440 (1972); Muller v. State, 94 Wis.2d 450, 289 N.W.2d 570 (1980).