Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Erie County at No. 1323 Criminal of 1983.
Robert E. McBride, Erie, for appellant.
Ernest J. DiSantis, Assistant District Attorney, Erie, for Com., appellee.
Beck, Popovich and Handler,*fn* JJ.
[ 356 Pa. Super. Page 319]
This case is on remand from the Pennsylvania Supreme Court for the disposition of Charles Alden Rounds, Sr.'s remaining allegations of error. The Supreme Court reversed the order of this panel vacating the judgment of sentence and remanding for a new trial because the alleged trial court error had, in fact, not been preserved for appellate review because of waiver. Commonwealth v. Rounds, 510 Pa. 524, 510 A.2d 348 (1986).
The facts, having already been set forth in the Supreme Court's opinion, need not be repeated here.
The appellant properly raises for our consideration, this being the first occasion that he is represented by counsel unassociated with trial counsel (see Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977)), three issues assailing the competency of his trial counsel.
The first claim to be treated alleges that trial counsel was ineffective in failing to object to the victim testifying that he told his brother that the appellant, their father, "did sex to me." Aside from the allegation being of the boiler-plate variety requiring dismissal (see Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981)), we note that appellate counsel's contention that the testimony was "hearsay" in nature, requiring the lodging of an objection by prior counsel, is specious.
Traditionally, the term "hearsay" relates to and the exclusion of evidence (whether it be spoken or written) offered in court "as an assertion to show the truth of matters asserted therein, and thus rests for its value upon the credibility of the out-of-court asserter." McCormick on Evidence, § 246 at 584 (1972). As noted in the Federal Rules of Evidence 801 (1971), the word has been defined as follows:
(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at trial or hearing,
[ 356 Pa. Super. Page 320]
offered in evidence to prove the truth of ...