George J. Nagle, Public Defender, Frank E. Garrigan, Asst. Public Defender, for appellant.
James J. Rosini, Dist. Atty., Guy W. Schlesinger, Asst. Dist. Atty., for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the consideration or decision of this case.
Appellant, Norbert Pronkoskie, was convicted by a jury on November 29, 1974, of murder of the first degree in the shooting death of his wife, Ruby Mae Pronkoskie. Post-trial motions were denied and appellant was sentenced to life imprisonment. This appeal followed.*fn1
The record shows that Pronkoskie spent the evening of December 8, 1973, drinking with friends, at the conclusion of which he stopped at the home of his parents-in-law, Ivan and Sophie Boyer, to pick up his automobile. He then drove to his own trailer home, located about a quarter of a mile south of the Boyer residence. Within an hour appellant, accompanied by his three year old daughter, Tina, returned to the Boyer home. He awakened the Boyers by calling "Ivan, Ruby's been shot." The Boyers, Pronkoskie and his daughter returned to the Pronkoskie trailer where the body of Ruby Pronkoskie was found. She had been shot in the upper torso, and the wound caused thereby was, according to the Commonwealth's pathologist, the cause of death, which he placed at about midnight. Several other bullets had been shot in the home. The police were summoned.
Shortly thereafter, at approximately 1:00 A.M., Pronkoskie took Tina to the home of a neighbor, Mrs. Diane Klinger. While alone with Mrs. Klinger, Tina said to her: "Daddy had a gun. The gun is on the shelf in my bedroom," and "We were going to go to Mammy's [her grandmother, Mrs. Boyer's residence]. Mommy told me to get under the bed but I stayed on top." Later the same night Tina was alone with her eight-year-old cousin, Angela Boyer. During this period Tina stated to Angela: "Daddy didn't love us anymore"; "Daddy had a gun in his hand"; and, "Daddy shot mommy." These declarations were relayed to the police, who in due course charged appellant with the murder of his wife.
The trial judge determined that because of her tender years, Tina Pronkoskie was incompetent to testify. The Commonwealth then placed her statements to Angela Boyer and Diane Klinger into evidence by calling Boyer and Klinger as witnesses. Pronkoskie now asserts, as he did at trial, that the introduction of these statements was a violation of the hearsay rule and requires the grant of a new trial. We agree.*fn2
The Commonwealth defends the admission of Tina's out-of-court utterances on the theory that they qualify under the res gestae exception to the rule against hearsay. As we have recognized, " res gestae " is actually a generic term encompassing four discrete exceptions to the
hearsay rule: (1) declarations as to present bodily conditions; (2) declarations of present mental states and emotions; (3) excited utterances; and (4) declarations of present sense impressions.*fn3 See Commonwealth v. Cooley, 465 Pa. 35, 348 A.2d 103 (1975); McCormick, Evidence, § 286 (2nd Ed. 1972). That Tina's statements would not qualify under the first, second and fourth of the above exceptions is apparent.*fn4 Given the approximate one-hour delay between the shooting of Ruby Pronkoskie and the first ...