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filed: June 2, 1986.


No. 02892 PHL 82, Appeal from the Judgment of Sentence of September 13, 1982 in the Court of Common Pleas of Centre County, Criminal Division, at No. 1981-112.


Daniel McGee, State College, for appellant.

Robert A. Mix, District Attorney, State College, for Commonwealth, appellee.

Cavanaugh, Olszewski and Hoffman, JJ. Hoffman, J., files concurring opinion. Cavanaugh, J., files dissenting opinion.

Author: Olszewski

[ 353 Pa. Super. Page 392]

Robert Bailey appeals from the judgment of sentence of one to two years' incarceration following conviction by jury of one count of indecent assault.

The facts show that appellant separated from his common-law wife in 1976, leaving her with custody of their two sons. Appellant retained visitation rights. On a weekend in February 1981, appellant picked up his two sons for a visit to his house in Centre County. Appellant's nine-year-old son, G.B., went to bed on Friday evening. Sometime thereafter, appellant came to bed, disrobed, and told G.B. to take off his pajamas. Appellant removed G.B.'s underwear and inserted his penis into G.B.'s anus.

G.B. returned to his mother's home at 10:30 Sunday evening, took a bath, and went to bed. When his mother arose at 7:00 on Monday morning, she found bloodstains on G.B.'s underwear and questioned him about their origin. G.B. became upset, began to cry, and told his mother what had happened. A physician examined G.B.'s rectum and found a fresh abrasion which he testified was consistent with G.B.'s story.

Appellant was charged with one count of each of indecent assault and involuntary deviate sexual intercourse. Appellant was convicted by jury only of indecent assault. Following post-trial motions, this appeal is before us.

Appellant raises four questions for our review: First, he argues that the lower court erred in admitting hearsay statements by the boy's mother as to G.B.'s responses to her questions about the origins of the bloodstains in his underwear. We hold that the statement was properly admitted under the spontaneous declaration exception to the

[ 353 Pa. Super. Page 393]

    hearsay rule.*fn1 Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978). The exception requires that the statement must be:

477 Pa. at 137-138, 383 A.2d at 860 (citation omitted).

In the instant case the victim, a boy of tender years, was subjected to a devastating experience at the hands of his father. The boy was required to remain with appellant for two days following the event. When he returned home Sunday evening, he went immediately to bed. Confronted with the bloodstains, the boy became visibly upset and cried. His statement to his mother was not made in a calm and unemotional manner. We agree with the court below that Monday morning was the first available opportunity that the victim had to speak of the incident outside of the presence or influence of appellant.

The statement was properly admitted as the product of an overpowering emotion caused by a shocking, traumatic, and humiliating experience. The time lapse between the indecent assault and the statement did not negate the clear indicia of reliability which underlies the spontaneous declaration exception. The requirement of spontaneity is a question which turns on the particular circumstances of each case. Pronkoskie, supra. The definition of spontaneity is

[ 353 Pa. Super. Page 394]

    relaxed when the child declarant is the victim of sexual assault. Id. The statement was reliable and properly admitted into evidence.

Appellant next argues that the lower court erred in not finding that the verdict was contrary to the evidence and to the weight of the evidence. After a thorough review of the record, we find ample evidence to support a verdict of guilt beyond a reasonable doubt. The victim testified that appellant inserted his penis in his "butt" and began "rocking back and forth." Notes of trial at 38-42. Dr. Troyer testified that his examination of the victim revealed an abrasion of his rectum, and that the injury was consistent with the complaint. Accepting as true all of the evidence in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, we hold that the verdict was not contrary to the evidence. Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983). Although appellant presented some conflicting evidence at trial, the jury's verdict was based on its determination of the credibility of the witnesses. See Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975). Appellant has presented no argument to question whether the jury's verdict was properly rendered.

Finally, appellant argues that the sentence is excessive under the circumstances of this case. Appellant concedes that the sentence imposed is within the statutory maximum limit. We hold that the lower court did not abuse its discretion in the imposition of sentence. Commonwealth v. Valentin, 259 Pa. Super. 496, 393 A.2d 935 (1978). The lower court considered that appellant's prior criminal history includes a 1978 conviction for indecent assault and corruption of minors; appellant's medical needs; and the serious nature of this offense, which appellant committed against his own son. The term of imprisonment and recommended treatment for alcohol abuse meets appellant's rehabilitative needs.

The judgment of sentence is affirmed.

[ 353 Pa. Super. Page 395]

HOFFMAN, Judge, concurring:

While I agree with the dissent that the testimony of the victim's mother concerning his statements about the sexual abuse by appellant were not admissible under the exception to the hearsay rule for excited utterances, I believe that the testimony was admissible as evidence of a prompt complaint.

Evidence of a complaint of a sexual assault*fn1 is "competent evidence, properly admitted where limited to establish that a complaint was made and also to identify the occurrence complained of with the offense charged." Commonwealth v. Freeman, 295 Pa. Superior Ct. 467, 475, 441 A.2d 1327, 1331 (1982). See also Commonwealth v. Green, 487 Pa. 322, 328, 409 A.2d 371, 374 (1979); Commonwealth v. Krick, 164 Pa. Superior Ct. 516, 522, 67 A.2d 746, 749-50 (1949). In the instant case, the victim's mother testified about her son's statements concerning the assault as follows:

[District Attorney:] I'll repeat my question. Directing your attention to Monday morning, March 2, 1981, you had a conversation with your son . . . with regard to blood on his underpants. Would you please state as best as you can recollect for the members of the jury the substance of that conversation?

[Victim's mother:] He told me that his dad made him do bad things. He said his dad stuck his penis in his bum.

[ 353 Pa. Super. Page 396]

N.T. October 14, 1981 at 75. I believe that this testimony was properly limited to establishing that a complaint was made and to identifying the occurrence complained of with the offense charged. See, e.g., Commonwealth v. Krick, Page 396} supra (admitting father's testimony in statutory rape prosecution that his daughter told him that she had intercourse with the defendant).*fn2

The dissent, however, would find that the complaint was inadmissible because it was not made promptly enough. See slip op. at 4-5. I disagree.

It should be observed too that the weight attaching to a complaint depends upon the promptness with which it is made and the nature and explanation given for any delay. Indeed an unreasonable or unexplained delay may, in the circumstances, justify an inference against the sincerity of the complainant. . . . The weight of the testimony is for the jury but the court should carefully instruct it as to the relative probative value of prompt and delayed complaints, the circumstances in which they are made or withheld, and the possible inferences which may be legitimately drawn from them.

Commonwealth v. Krick, supra, 164 Pa. Superior Ct. at 522, 67 A.2d at 750. Here, the trial court admitted the evidence of the victim's complaint and specifically instructed the jury on how to weigh the evidence of his complaint:

[I]n determining the facts here, consider that there was a period of time from apparently early Saturday morning when [the victim] said that his father committed the act

[ 353 Pa. Super. Page 397]

    that is alleged to have happened here, and the time of about 7:00 a.m. on the following Monday that [the victim], in response to his mother's inquiry, told his mother what allegedly took place.

Now, the fact that there was that time lapse does not mean that the incident didn't occur. It doesn't mean that [the victim] made up this. It doesn't mean that he's not telling the truth. However, you can consider, just as one of the elements in determining the credibility to be given to the evidence here and the testimony here, that lapse of time.

You might consider that during that lapse of time that [the victim] was for the most part in the company of his father, or at least in his father's home. These are the kinds of things that you should consider in weighing the testimony on that point, the testimony of [the victim].

The evidence that [the victim] delayed in making his complaint in this case, in other words, the time between the incident and his conversation with his mother, does not necessarily make his testimony unreliable, but may remove from it the assurance of reliability that would accompany the prompt complaint or the outcry which a victim of a crime such as this would ordinarily be expected to make. Therefore, the delay in making the complaint should be considered in evaluating the testimony of [the victim] in deciding whether the act occurred at all, or in -- in this case it would have to be at all, because consent is not an issue due to the child's age.

You must not consider [the victim's] delay in making the complaint as conclusive evidence that the act did not occur. The failure to make prompt complaint is a factor bearing on the believability or the credibility of [the victim's] testimony and must be considered by you in light of all the evidence in this case.

N.T. October 14, 1981 at 141, 146-47. Thus, I would find that the trial court properly admitted the testimony of the victim's mother as evidence of a prompt complaint and

[ 353 Pa. Super. Page 398]

    instructed the jury to determine the weight to be accorded to that evidence.*fn3

I join Judge Olszewski's opinion insofar as he finds the remainder of appellant's arguments meritless.

CAVANAUGH, Judge, dissenting:

I respectfully dissent because, in my opinion, the facts establish that there was not a spontaneous declaration that would fall within an exception to the hearsay rule. The appellant, Robert Lewis Bailey, was separated from his common law wife, who retained custody of their two sons. The appellant had visitation rights and on a weekend in February, 1981, he took his two sons to his home in Centre County for a visit. His nine year old son, G.B., went to bed late on Friday evening. Sometime later, according to G.B.'s testimony, his father got into bed with him and sexually abused him.

G.B. and his brother remained with their father until Sunday evening when they returned home at about 10:30 P.M. and G.B. went to bed. On the next morning according to the testimony of his mother, she noticed that there was blood on her son's underwear at about 7:00 A.M. Her testimony was as follows:

Q. Ms. Bailey, I'll repeat my question. Directing your attention to Monday morning, March 2, 1981, you had a conversation with your son . . . with regard to blood on his underpants. Would you please state as best you

[ 353 Pa. Super. Page 399]

    can recollect for the members of the jury the substance of that conversation?

A. He told me his dad made him do bad things. He said his dad stuck his penis in his bum. I asked him if he was telling the truth; he said yes. I asked him if he was willing to tell it to the police; and he said yes. Immediately I called the hotline for child abuse. They told me to call the hospital; they'd make arrangements for me to go down and have him examined, which I did. And then I notified the police.*fn1

The court below admitted the hearsay testimony of the alleged victim's mother concerning what her son told her about the incident, under the excited utterance exception to the hearsay rule.*fn2 The exception requires that 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 so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part

[ 353 Pa. Super. Page 400]

    from his reflective faculties." Commonwealth v. Pronkoskie, 477 Pa. 132, 137-8, 383 A.2d 858, 860 (1978). See also Commonwealth v. Galloway, 302 Pa. Super. 145, 448 A.2d 568 (1982).

The statement by G.B. to his mother more than 48 hours after the alleged incident and some 9 hours after he returned to his mother's home was not a spontaneous utterance. On the Saturday after the incident G.B. played trucks and watched TV with his brother who was about 11 years old. Part of G.B.'s statement was in response to questions by his mother, and there was clearly time for reflection by him as the act occurred more than 2 days previously.*fn3 See Commonwealth v. Kasko, 322 Pa. Super. 62, 469 A.2d 181 (1983). ". . . [T]here 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 the particular facts of each case." Commonwealth v. Pronkoskie, 477 Pa. at 142, 383 A.2d at 863. While in this case the child remained with his father and his father's friends until Sunday evening when he returned to his mother's home, his first statements concerning the alleged abuse did not occur until the following morning and such statements do not have the requisite spontaneity. This case is controlled by our recent decision in Commonwealth v. Haber, 351 Pa. Super. 79, 505 A.2d 273 (1986).*fn4 The following language from that opinion is appropriate to our situation:

[ 353 Pa. Super. Page 401]

It is clear that the testimony of Mrs. Leigh-Manuel and Mrs. Predmore as to what their children told them was hearsay, since it related out-of-court assertions that were offered to prove their truth. Thus it was inadmissible unless it fit within an exception to the hearsay rule. The exception most commonly used by the courts to allow the admission of a child's statements regarding sexual abuse is the spontaneous declaration, or excited utterance exception. But in order to fall under this exception, the statement must have been made so spontaneously as to be under the excitement caused by the event, so as to preclude the possibility of fabrication.

(Emphasis added -- 505 A.2d 274-75)

The reason for carving out an exception to the hearsay rule based on an excited utterance is the element of reliability that is present in such spontaneous declarations. The requirement of spontaneity is not diminished because the declarant is a child.

The Commonwealth contends that even if the testimony of the alleged victim's mother was inadmissible under the spontaneous declaration exception to the hearsay rule, it could be admitted to show that G.B. made a prompt complaint about the offense, citing Commonwealth v. Freeman, 295 Pa. Super. 467, 441 A.2d 1327 (1982). This argument lacks merit as the complaint was not prompt and of equal importance, it was pointed out in Freeman, supra, that "[t]he challenged testimony of the victim and his sister-in-law, [was] introduced solely to establish that Ms. Eachus immediately reported that she was raped, [and] was neither detailed nor protracted." 295 Pa. Super. 476, 441 A.2d 1332. See also Commonwealth v. Rodriguez, 343 Pa. Super. 486, 495 A.2d 569 (1985). As noted in Commonwealth v. Freeman, 295 Pa. Super. at 475-76, 441 A.2d at 1131-32, "Hue and cry are thought to follow rape like smoke follows fire." In the instant case, however, there

[ 353 Pa. Super. Page 402]

    was too long a delay after G.B. came home to his mother's house to render his statements to his mother admissible, as a prompt complaint.

I would remand for a new trial.

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