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decided: March 23, 1978.



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.

Author: Pomeroy

[ 477 Pa. Page 135]


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.

[ 477 Pa. Page 136]

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

[ 477 Pa. Page 137]

    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, ยง 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 statement made by Tina, it would appear that the only aspect of "res gestae" which might apply would be the excited utterance exception.

To come within the excited utterance exception to the hearsay rule, a statement must be:

". . . a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole

[ 477 Pa. Page 138]

    or in part from his reflective faculties." Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942).

See also Commonwealth v. Little, 469 Pa. 83, 364 A.2d 915 (1976); Commonwealth v. Cooley, supra. Thus, it must be shown first, that Tina Pronkoskie had witnessed an event sufficiently startling and so close in point of time as to render her reflective thought processes inoperable and, second, that her declarations were a spontaneous reaction to that startling event. See Commonwealth v. Little, supra; Commonwealth v. Cooley, supra. Tina's statements must be examined in light of these criteria.*fn5

[ 477 Pa. Page 139]

As to the first requirement, there can be no doubt that the occurrence here involved -- the shooting of one's mother by one's father -- would normally be a grievously shocking, indeed a catastrophic, event to a child of tender years. For a declaration about the event to be admissible, however, it must also appear that the declarant perceived the happening which he or she is talking about. See Carney v. Pennsylvania R.R. Co., 428 Pa. 489, 240 A.2d 71 (1968) (plurality opinion); Allen v. Mack, 345 Pa. 407, 28 A.2d 783 (1942).*fn6 While the Commonwealth has established Tina's presence in the trailer at the time of the shooting, there is nothing to indicate that Tina actually saw what occurred.*fn7 Indeed, her responses during the competency examination contain repeated indications that she did not actually see the shooting.*fn8 While generally the proponent of the evidence

[ 477 Pa. Page 140]

    need only establish that a declarant was in a position to view an incident, see n.6, supra, the present record raises serious enough doubts concerning Tina's presence at the event that

[ 477 Pa. Page 141]

    a verdict based upon her statements would border upon speculation or conjecture. Such a verdict, of course, is impermissible. See, e.g., Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976); Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973); Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1972); Commonwealth v. McFadden, 448 Pa. 146, 292 A.2d 358 (1972); Commonwealth v. Bennett, 224 Pa. Super. 238, 303 A.2d 220 (1973).

The second requirement of the excited utterance exception is that the declaration be a spontaneous reaction to the startling event. As we stated in Commonwealth v. Cooley, supra:

"The spontaneity of such statements is, of course, dependent on the peculiar facts and circumstances of each case. We have held that time lapses equal to and greater than that present here do not bar the admission of a statement where the spontaneity born of excitement is otherwise satisfactorily shown to exist. Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576 (1974) (15-20 minutes); Commonwealth v. Cheeks, 423 Pa. 67, 223 A.2d 291 (1966) (45 minutes). We have also held repeatedly that the mere fact that a statement is made in response to a question does not prevent its admission as a res gestae statement. Commonwealth v. Banks, supra; Commonwealth v. Edwards, 431 Pa. 44, 244 A.2d 683 (1968); Commonwealth v. Stokes, 409 Pa. 268, 186 A.2d 5 (1962); Commonwealth v. Rumage, 359 Pa. 483, 59 A.2d 65 (1948); Commonwealth v. Harris, 351 Pa. 325, 41 A.2d 688 (1945). It is true, of course, that in some instances the time lapse may be so long or the question and answer exchange so unhurried and reflective as to require a finding of nonspontaneity, but such was not the case here." 465 Pa. at 41-42, 348 A.2d at 107.

[ 477 Pa. Page 142]

Thus, there is no clear-cut rule as to the time sequence; whether the actual delay between the event and the statement is sufficient to negate "spontaneity" must be resolved in light of the particular facts of each case.*fn9 Commonwealth v. Banks, supra; Commonwealth v. Cheeks, supra; Commonwealth v. Stokes, 409 Pa. 268, 126 A.2d 5 (1962). In the instant case, we cannot find that the time lapse of approximately one hour between the shooting and the first declaration occurred under circumstances which nevertheless strongly indicated the spontaneity of the statements. The more incriminatory utterances by Tina were those made in the presence of Angela Boyer. These were even more remote in time. Thus it seems to us not unlikely that Tina's imagination might have distorted her perception of the incident. Furthermore, the "excited" nature of the utterance seems belied by the calm and unemotional manner in which they were made.*fn10 Such factors weigh against a

[ 477 Pa. Page 143]

    conclusion that Tina was still laboring under the shock of the events to such a degree as to negate the possibility of reflective thought on her part before making the statement. See Lininger v. Kromer, 238 Pa. Super. 259, 265-71, 358 A.2d 89, 93-95 (1976).

In sum, because of the time and manner in which Tina Pronkoskie's statements were made to the Commonwealth witnesses called to repeat them in court, we conclude that the declarations did not possess the indicia of reliability which are the hallmark of generally recognized exceptions to the hearsay rule. Accordingly, the statements should not have been admitted into evidence.

The judgment of sentence is vacated and appellant is granted a new trial.

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