No. 544 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Indictment No. 2353, August Session, 1976.
John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Deborah E. Glass, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
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Appellant was charged with simple assault, aggravated assault, and recklessly endangering another person after he allegedly hit eighteen month old Donita Everett in the mouth with a shoe. We reverse the judgment of sentence and grant appellant a new trial.
The only witness at appellant's trial was Betty Jean Everett, Donita's mother and appellant's girlfriend. She had no personal knowledge concerning Donita's injury and could testify only to what her other children had told her. Despite the fact that her two oldest children testified at appellant's preliminary hearing and despite the trial court's urging, the Commonwealth declined to call the children to testify at trial. At the end of Ms. Everett's testimony, the Commonwealth rested; appellant produced no evidence in his behalf. The trial court then entered a verdict of guilty to recklessly endangering another person and aggravated
[ 258 Pa. Super. Page 104]
assault and sentenced appellant to a term of imprisonment of from two to five years.
Appellant raises a number of issues on this appeal.*fn1 We agree with him that the trial court erred in ruling that Ms. Everett's testimony was admissible under the res gestae exception to the hearsay rule; therefore, we do not reach the other issues.
"A res gestae declaration may be defined as a spontaneous declaration by a person whose mind has been suddenly made subject to an over powering emotion caused by some unexpected and shocking occurrence, which that person has 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 or in part from his reflective faculties." Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942).
Commonwealth v. Coleman, 458 Pa. 112, 115-16, 326 A.2d 387, 388-89 (1974); see also Commonwealth v. Cooley, 465 Pa. 35, 40-41, 348 A.2d 103, 106 (1975). There are two elements essential to the res gestae exception: an occurrence or event "sufficiently startling to render normal reflective thought processes of an observer inoperative" and the declarant's statement rendered as a "spontaneous reaction to the occurrence or event and not [as] the result of reflective thought." McCormick, Evidence (2d ed., 1972), § 297, at 704. "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 ...