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decided: December 29, 1978.


No. 1055 October Term, 1977, Appeal from the Judgment of Sentence imposed on February 7, 1977, by the Court of Common Pleas-Criminal of Lycoming County, at No. 76-10,020.


George E. Lepley, Jr., Assistant Public Defender, Williamsport, for appellant.

Robert F. Banks, First Assistant District Attorney, Greenville, for Commonwealth, appellee.

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

Author: Price

[ 262 Pa. Super. Page 545]

Following a jury trial commenced on July 19, 1976, appellant was convicted of rape,*fn1 involuntary deviate sexual intercourse,*fn2 burglary,*fn3 robbery,*fn4 and theft.*fn5 Post-verdict motions were denied and appellant was sentenced to a prison term of from five to ten years. Appellant now contends that several reversible errors were made by the court below. We disagree and affirm the judgment of sentence.

Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, Commonwealth v. Burton, 450 Pa. 532, 301 A.2d 599 (1973), the following facts were adduced at trial. On December 10, 1975, appellant knocked on the door of Frances Hibbler's apartment and inquired whether "Frances" or "Fran" resided therein. After Miss Hibbler identified herself as Fran, appellant placed his hand around the victim's mouth and forced her into the apartment. The assailant announced that this was a hold-up and threatened to kill Miss Hibbler if she screamed. Ordering her to remain on the bedroom floor, appellant examined the apartment, after which he blindfolded and gagged the victim as well as tying her hands. Momentarily removing the gag, appellant forced the victim to engage in an act of oral sex, followed immediately by insertion of his penis into her vagina. Appellant then took an amount of money from Miss Hibbler's purse and threatened to kill her if she related the

[ 262 Pa. Super. Page 546]

    incident to anyone. Following his departure, Miss Hibbler spoke with two roommates, her sister, and an attorney, after which she decided to report the incident to the police.

Appellant first contends that Officer Staje's testimony relating to the victim's description of her assailant was hearsay, and its admission reversible error. Specifically, during direct examination, Miss Hibbler pointed to appellant and identified him as the assailant. On redirect examination, she was asked to repeat the description of the perpetrator that she had given to the police approximately three hours after the incident. An objection was sustained to this testimony on the grounds of improper redirect examination. Subsequently, Officer Staje testified over a hearsay objection to the description of the attacker given by Miss Hibbler.

Appellee and the court below have advanced different theories in support of the testimony's admissibility. The former argues strenuously that the description was a prior identification and thus admissible as substantive evidence, citing Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442 (1956), while the latter opined that the description constituted a prior consistent statement employable to rehabilitate Miss Hibbler, who had been impliedly accused of a recent fabrication, see, e. g., Commonwealth v. Wilson, 394 Pa. 588, 148 A.2d 234, cert. denied, 361 U.S. 844, 80 S.Ct. 97, 4 L.Ed.2d 82 (1959). We conclude that the testimony was properly admitted on the latter ground. In reaching this decision it is necessary to discuss certain recognized exceptions to the hearsay rule which might apply to the instant situation.

Initially, of course, Officer Staje's statement as to the victim's identification was hearsay under the generally accepted version of the rule, i. e. an out of court statement offered to prove the truth of the matter asserted. See, e. g., Commonwealth v. Wright, 455 Pa. 480, 317 A.2d 271 (1974); see generally V Wigmore, Evidence, § 1361 et seq. (Chadbourn rev. 1974). First, it is well established that a declaration, although hearsay, may be admissible if the declarant's statement was a spontaneous reaction to an occurrence

[ 262 Pa. Super. Page 547]

    which is sufficiently startling so as to render the normal reflective thought processes of the observer inoperative. Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978); Commonwealth v. Little, 469 Pa. 83, 364 A.2d 915 (1976); Commonwealth v. Cooley, 465 Pa. 35, 348 A.2d 103 (1975); Commonwealth v. McIntosh, 258 Pa. Super. 101, 392 A.2d 704 (1978); Commonwealth v. Dugan, 252 Pa. Super. 377, 381 A.2d 967 (1977); VI Wigmore, Evidence, §§ 1745-1764 (Chadbourn rev. 1976). Our supreme court has characterized this exception to the general hearsay exclusionary rule as

". . . 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 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." Commonwealth v. Coleman, 458 Pa. 112, 115-16, 326 A.2d 387, 388-89 (1974) quoting Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942).

[ 262 Pa. Super. Page 548]

The general principle is based on the experience that under certain circumstances of physical shock, the stress of nervous excitement stills the reflective facilities so that the utterance is a trustworthy statement, rather than one influenced by considerations of self-interest or extraneous pressure. Commonwealth v. Coleman, supra; Commonwealth v. Dugan, supra; VI Wigmore, supra at § 1747. The declaration need not be strictly contemporaneous with the existing cause, nor is there a definite and fixed time limit. Commonwealth v. Noble, 371 Pa. 138, 88 A.2d 760 (1952); VI Wigmore, supra at § 1750(b). Rather, each case must be judged on its own facts, and a lapse of time of several hours has not negated the characterization of a statement as an "excited utterance." See Commonwealth v. Cheeks, 423 Pa. 67, 223 A.2d 291 (1966) (forty-five minutes); Commonwealth v. Dugan, Page 548} supra (2 1/2-3 hours). The crucial question, regardless of the time lapse, is whether, at the time the statement is made, the nervous excitement continues to dominate while the reflective processes remain in abeyance. VI Wigmore, supra at § 1750(b).

In the case sub judice, approximately three hours elapsed between the departure of appellant from the victim's apartment to the latter's recitation of the description in question. In the interim, Miss Hibbler discussed the advisable course of action with several individuals. The court below, citing Commonwealth v. Little, supra, (six hour lapse, intervening discussion), held that the combined effect of this time lapse and conversation was to strip the description of any pretense of being an "excited utterance." We agree. Although similar to Commonwealth v. Dugan, supra, in which we found an excited utterance exception, the instant factual situation differs in one crucial respect. In Dugan, an eighteen year old student was beaten and raped by the defendant who had offered her a ride in the early morning hours. Two hours after the rape, the defendant drove the victim to her home, where she immediately telephoned an artist friend who arrived shortly thereafter at her apartment. Pursuant to her description, he drew a pictorial representation of the assailant. At trial, the pictorial representation was admitted as substantive evidence along with testimony of the artist and the victim that it was indeed an accurate presentation. In condoning the use of the picture, we noted:

"Testimony as to the elapsed time [2 1/2-3 hours] is not impugned, and the victim testified to having done nothing between the time she returned home and the time the sketch was drawn which might lead us to suspect that her statements of description of the appellant to [the artist] might be tainted by a lack of accuracy, specificity and spontaneity. We find that the victim's and [the artist's] evidence by way of the pictorial representation of appellant, bolstered by their oral testimony at trial, fulfills the requirements of the "res gestae" exception to what would

[ 262 Pa. Super. Page 549]

    otherwise be hearsay." Commonwealth v. Dugan, supra 252 Pa. Super. at 382, 381 ...

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