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COMMONWEALTH PENNSYLVANIA v. ROBERT LEWIS BAILEY (06/02/86)

filed: June 2, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT LEWIS BAILEY, APPELLANT



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.

COUNSEL

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 ...


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