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filed: December 21, 1979.


No. 301 Special Transfer Docket, Appeal from Judgment of Sentence, Philadelphia Common Pleas Court, Criminal Section, Trial Division, January Term, 1977, No. 1048.


Benjamin Paul, Philadelphia, for appellant.

Carolyn Temin, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hoffman, Eagen and Hess, JJ.*fn*

Author: Per Curiam

[ 273 Pa. Super. Page 339]

Appellant contends, inter alia,*fn1 that the lower court erred in admitting into evidence at her homicide trial: (1) hearsay statements made by appellant's daughter; and (2) an enlarged black and white photograph of the deceased. We agree and, accordingly, reverse and remand for a new trial.

Three-year-old Robert Darnell Robinson died on December 21, 1976, of malnutrition and dehydration. On December 27, 1976, appellant, Robert's mother, was arrested and charged

[ 273 Pa. Super. Page 340]

    with murder, voluntary manslaughter, and involuntary manslaughter. At trial, over appellant's objection, the Commonwealth offered into evidence the testimony of Rebecca Robinson, the deceased child's paternal grandmother, regarding the contents of a phone call she made to the appellant's home in October 1976. Rebecca Robinson stated that her five-year-old granddaughter, Catrena, answered the phone, crying. Upon being asked what was wrong, Catrena said that she was crying because her "mommy had gone out." Rebecca Robinson testified that in response to her efforts to calm the child by telling her that her mother would soon return, Catrena replied: "No, my mommy won't be back. She always leave [sic] me and my brother." The trial court admitted this testimony into evidence on the theory of res gestae. The trial judge also admitted into evidence a 2' by 4' black and white photograph of the body of Robert Robinson in the emaciated condition in which the body was found by the police. Although the photograph did not go out with the jury, the judge permitted it to be passed among the jurors, limiting each juror to a view of no more than two seconds.

Appellant was convicted of third degree murder. The trial court denied appellant's post-verdict motions*fn2 and sentenced her to five to eighteen years imprisonment. This appeal followed.

Appellant first contends that the trial court erred in admitting into evidence as part of the res gestae the hearsay statements made by her daughter, Catrena. "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;

[ 273 Pa. Super. Page 341]

    and (4) declarations of present sense impressions." Commonwealth v. Pronkoskie, 477 Pa. 132, 136-37, 383 A.2d 858, 860 (1978). The rationale underlying each of these exceptions "is the recognition of spontaneity as the source of special trustworthiness. This quality of spontaneity characterizes to some degree nearly all the types of declarations which have been labelled res gestae." McCormick, Handbook of the Law of Evidence 687 (2d ed. 1972). Thus, in order for a statement to come within the excited utterance exception to the hearsay rule, it must be shown first that the declarant "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." Pronkoskie, supra, 477 Pa. at 138, 383 A.2d at 860. Similarly, the present sense impression exception applies only to "declarations concerning conditions or non-exciting events which the declarant is observing at the time of his declaration." Commonwealth v. Coleman, 458 Pa. 112, 117, 326 A.2d 387, 389 (1974) (emphasis added). In the case at bar, the lower court held that Rebecca Robinson's hearsay testimony was admissible because Catrena's statement was either a declaration of present mental state, an excited utterance, or a declaration of a present sense impression. While we agree that these statements approach each of the three exceptions, the statements do not actually fit squarely within any one of them. Catrena's statements do not describe her present mental state or an event which she was witnessing as she spoke; rather, they describe past actions of her mother. Moreover, we cannot determine the time ...

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