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decided: September 27, 1966.


Appeal from judgment of Court of Oyer and Terminer, General Jail Delivery and Quarter Sessions of the Peace of Philadelphia County, Dec. T., 1963, No. 723, in case of Commonwealth of Pennsylvania v. Bernard Cheeks.


Edward K. Nichols, Jr., with him Alexander Brodsky, for appellant.

Joseph M. Smith, Assistant District Attorney, with him Benjamin H. Levintow and Vincent Veldorale, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Cohen.

Author: Eagen

[ 423 Pa. Page 69]

On May 22, 1964, after a nine-day trial, the appellant, Bernard Cheeks, was convicted by a jury of murder in the first degree and punishment was fixed at life imprisonment. Post trial motions were overruled and sentence imposed in accordance with the jury's verdict. From the judgment of sentence, this appeal was filed.

The crime involved the robbery and stabbing on October 11, 1963, of Joe Henry Howell by four young males on a public street in Philadelphia. Following the occurrence, Howell, 57 years of age and slow of gait as the result of a stroke, walked directly to his sister's home about five blocks distant. When he arrived, his appearance was described "like he had been beat" and "crying." Very shortly after his arrival, he told his sister that four unknown boys had assaulted and robbed him, and that one of the boys was wearing a patch over one eye.*fn1 Because he urinated in his clothes, it was insisted that he go to the upstairs bathroom and change into pajamas. Upon emerging from

[ 423 Pa. Page 70]

    the bathroom, he called to his sister and said, "those boys did cut me." She then noticed he was bleeding slightly from the abdomen in the area of the navel. His statements to his sister, as above described, were admitted in evidence over objection at trial as part of the res gestae. This is assigned as error.

The rule permitting res gestae declarations to be introduced in evidence is an exception to the hearsay rule. The principle is based upon the rationale that a spontaneous declaration of an individual who has recently suffered an overpowering emotional and shocking experience is likely to be truthful. See, 1 Henry, Penna. Evidence, § 466 (1953). Such evidence is limited to declarations supporting the conclusion that the statements were spontaneous utterances of thought created by, or emanating from, the litigated act, and so near in time thereto as to exclude the possibility that they were the product of premeditation or design. See, Commonwealth v. Noble, 371 Pa. 138, 88 A.2d 760 (1952); Commonwealth v. Rumage, 359 Pa. 483, 59 A.2d 65 (1948); and, Commonwealth v. Cupps, 157 Pa. Superior Ct. 341, 43 A.2d 545 (1945). No definite time limit, or distance from the site of the crime, has been fixed by the courts in determining what spontaneous utterances are admissible as part of the res gestae. Each case has been judged on its own facts and circumstances: Commonwealth v. Stokes, 409 Pa. 268, 186 A.2d 5 (1962), and cases cited therein. The length of time which has elapsed between when the declarations were uttered and when the occurrence took place is only one element to be considered in determining their spontaneity. See Commonwealth v. Noble, supra, and Commonwealth v. Harris, 351 Pa. 325, 41 A.2d 688 (1945).

In the instant case, the precise time sequence of events is not ascertainable from the record. However, it is clear that the entire series of events took place

[ 423 Pa. Page 71]

    within forty-five minutes or, at the most, one hour. The attack occurred after eleven p.m. o'clock. The decedent arrived at his sister's home no later than 11:30 p.m. o'clock. Reconstructing the picture, as disclosed by the testimony, the conclusion is inevitable that the statements were spontaneously uttered, were directly related to the event and were not the result of reflection or design. Under these circumstances, their admission in evidence was not error. The fact that the statements were not made immediately after the assault is not, in itself, controlling. See, Commonwealth v. Stokes, supra, and Commonwealth v. Harris, supra. This Court has previously approved the admission in evidence of such declarations when the time period involved was as long or longer than that herein. See, Commonwealth v. Soudani, 190 Pa. Superior Ct. 628, 155 A.2d 227 (1959), aff'd 398 Pa. 546, 159 A.2d 687 (1960), ...

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