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decided: July 12, 1978.


No. 901 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Northampton County, at No. 524 May Term, 1975.


Robert C. Brown, Jr., Easton, for appellant.

Michael E. Riskin, Assistant District Attorney, Bethlehem and John E. Gallagher, District Attorney, Easton, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., files a dissenting opinion. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Jacobs

[ 256 Pa. Super. Page 214]

This appeal arises from the judgment of sentence imposed upon appellant after conviction for neglect to support a bastard child. The issue for our consideration is whether the court below erred in refusing to permit appellant to testify about conversations with another man who allegedly stated that he, and not appellant, was father of the child. For the reasons that follow, we hold that this contention has been waived, and therefore affirm the judgment of the court below.

[ 256 Pa. Super. Page 215]

Linda White, the mother of the child, testified that after she and appellant became good friends, they had sexual intercourse from Memorial Day, 1974 until June 12, 1974, at which time appellant was incarcerated on an unrelated charge. The couple engaged in sexual relations on three or four occasions thereafter, while appellant was on furlough from prison, and in November 1974, a physician determined that the prosecutrix was pregnant. The child was born May 12, 1975.

Appellant testified that although he visited the prosecutrix while on furlough from prison, he did not recall having sexual relations with her because he had spent most of the day in question drinking in bars and smoking marijuana. He did not deny having sexual relations with Ms. White during the month of August, but only stated that he could not remember.

During trial, appellant sought to introduce evidence through his own testimony of conversations with one Louie Miller. In substance, the testimony would have related barroom conversations between the two men during which Miller stated that he, and not appellant, was father of the child. Appellant offered the statements as not being hearsay, and if hearsay, as exceptions to the hearsay rule as declarations against proprietary, pecuniary, and penal interests. The trial court denied admission of the statements, appellant was convicted and sentenced, and this appeal followed.

Appellant's initial assertion that the statements made by Miller were not hearsay is without merit. Hearsay is defined as "testimony in court or written evidence of a statement made out of court, such statement being offered as an assertion to show the truth of the matter asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." McCormick, Evidence ยง 246 (2d ed. 1972). In this case, the relevant matter asserted by Miller's statement was that Miller, not appellant, was father of the child. Accordingly, as to the issue of paternity, the statements were hearsay.

[ 256 Pa. Super. Page 216]

Appellant's assertion that the statements were admissible as declarations against the pecuniary and penal interests of Miller, is also unpersuasive. We need not determine which, if either, of these interests is at work in the present case, for regardless of the test utilized, the offeror of the evidence must demonstrate the unavailability of the out-of-court declarant Commonwealth v. Colon, 461 Pa. 577, 337 A.2d 554 (1975). Failure to demonstrate the unavailability of the declarant in this case compels us to hold that the offered conversations were not admissible on the issue of paternity as declarations against interest.

Finally, appellant contends that the conversations should have been admitted not to prove that Miller was father of the child, but to show the effect of the statements on appellant, and thereby negate the element of willful failure to support the child. We find this contention waived. Neither the lower court's opinion nor appellant's motion for a new trial raises or discusses this issue. By the rule of Commonwealth v. Mobley, 450 Pa. 431, 435, 301 A.2d 622 (1973), the offer in this case was deficient for failure to clearly state the legal purpose relied upon for the first time here. Nevertheless, under Mobley, the offer may still not be excluded if the relevancy of the evidence is readily apparent. As were the court below and appellant's own counsel, we are unable to say that the relevance of the conversations was readily apparent when offered below, and therefore find the offer insufficient.

For the foregoing reasons, the judgment of sentence is affirmed.

CERCONE, Judge, dissenting:

I dissent.

In November of 1975, a jury found appellant, Michael Strunk, guilty of violating Section 4323 of the Crimes Code,

[ 256 Pa. Super. Page 217]

"Neglect to Support Bastard."*fn1 After appellant's post-trial motions were denied, sentence was imposed and this appeal followed.

Appellant was accused by the prosecutrix of having fathered her child out of wedlock. At trial, the prosecutrix testified that she met appellant in February of 1973 and that on Memorial Day of 1974, they began having intercourse. She further testified that from that time until June 12, 1974, they had sexual intercourse every day. On June 12, 1974, appellant was incarcerated in the Northampton County Prison for the offense of operating a motor vehicle without a license. Both appellant and prosecutrix testified that on August 17, 1974, while on furlough from prison, appellant visited the prosecutrix. She testified they had sexual intercourse on that day and that at no time did she have sexual intercourse with anyone other than appellant. Appellant testified that he had been drinking in bars and smoking marihuana most of the day on August 17, and, ...

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