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filed: March 6, 1987.


Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 82-06 1211-1213.


Daniel P. McElhatton, Philadelphia, for appellant.

Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Com., appellee.

Cirillo, President Judge, and Wickersham, Brosky, McEwen, Olszewski, Montemuro, Beck, Kelly and Johnson, JJ. Olszewski, J., files a concurring opinion. Kelly, J., files a concurring opinion joined by McEwen, J.

Author: Wickersham

[ 361 Pa. Super. Page 295]

This is an appeal from the judgment of sentence entered on November 17, 1983, by the Honorable Thomas N. Shiomos of the Court of Common Pleas of Philadelphia County. Appellant was convicted of indecent assault, indecent exposure, and corrupting the morals of a minor. We affirm.

Appellant, Edward Stohr, is the natural father of the victim, who was age four and a half at the time of the incident. Appellant and the victim's mother have been divorced since March 29, 1979. Pursuant to the divorce decree, appellant was granted visitation privileges. On February 27, 1982, the victim was visiting with her father for the weekend at appellant's duplex in Northeast Philadelphia. Testimony produced at trial indicated that while bathing his daughter that evening, appellant exposed his erect penis and ejaculated into her mouth and onto her vaginal area. Immediately thereafter, the victim attempted to telephone her mother but was unable to remember her phone number. Later that evening, when appellant and the victim were about to go asleep, appellant again ejaculated over his daughter's vagina, this time rubbing his semen on her body and into her mouth.

Appellant returned the victim to her mother the following day, February 28, 1982. Her mother found the little girl to be uncharacteristically quiet and behaving in an unusual manner. As her mother undressed the child for a bath, she observed a clear "crusty substance" and irritation around her pelvic region. The child promptly revealed to her mother the events that had occurred the night before. She explained in great detail how her father had put "magic soap" on her "hiney", her belly, and her mouth to get her clean. Her mother reported the incident to the Sex Crimes Unit at Jefferson Hospital.

Appellant was thereafter arrested and charged with indecent assault, indecent exposure, corrupting the morals of a minor, involuntary deviate sexual intercourse, and attempted rape. Appellant pleaded not guilty to all charges. A jury trial was held, but a motion for mistrial was granted

[ 361 Pa. Super. Page 296]

    when the jury was unable to return a unanimous verdict. Appellant then waived his right to another trial by jury, and, on June 9, 1983, proceeded by bench trial before Judge Shiomos. Appellant was adjudged guilty of indecent assault, indecent exposure, and corrupting the morals of a minor. Appellant was found not guilty of involuntary deviate sexual intercourse and attempted rape. Post-verdict motions being denied, appellant was sentenced to three years psychiatric probation with two conditions: (1) he was not to see his daughter without authority of the legal guardian, and (2) he was to attend an outpatient program. Appellant filed a timely appeal. In his appeal appellant raises the following two issues for our review:

1. Did the trial court err in finding that the complainant, [], who was 4 1/2 years old at the time of the alleged incident was competent to testify at trial regarding the said event?

2. Did the trial court err in ruling that the out of court statements made by the Complainant, [], to her mother were admissible, although hearsay, as evidence of a fresh or prompt complaint?

Brief for Appellant at 3. This court, by order dated June 2, 1986, listed the case for argument before the court en banc.

Appellant first contends that the trial court improperly admitted testimony by the victim. The averment that the lower court erred by allowing the child victim to testify at trial is unsupported by the record. A witness is presumed competent to testify unless proven otherwise. Commonwealth v. Riley, 458 Pa. 390, 326 A.2d 384 (1974). When a proposed witness is under fourteen years of age, however, there must be a searching judicial inquiry as to mental capacity. Commonwealth v. Short, 278 Pa. Super. 581, 420 A.2d 694 (1980). This inquiry will probe the capacity to communicate, observe and remember, and a consciousness of the duty to speak the truth in proportion to the witness's chronological immaturity. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959). The record reflects that the trial judge did conduct such an inquiry to determine whether the child

[ 361 Pa. Super. Page 297]

    was competent to testify. As the judge holds the superior opportunity to evaluate the competency of a proposed child witness, once a determination is made, we will not disturb the court's finding absent a flagrant abuse of discretion. Commonwealth v. Bailey, 322 Pa. Super. 249, 469 A.2d 604 (1983). We find no such abuse herein. See N.T. of June 9, 1983 at 13-21.

We next address appellant's allegation of error in admitting testimony of the victim's mother.*fn1 The lower court opinion reveals that the court admitted the mother's testimony as res gestae under the excited utterance exception to the hearsay rule. To qualify a statement as an excited utterance the 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 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.' Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942).

Commonwealth v. Pronkoskie, 477 Pa. 132, 137-38, 383 A.2d 858, 860 (1978). See also Commonwealth v. Galloway, 302 Pa. Super. 145, 448 A.2d 568 (1982). In the instant case, the trial court cites Commonwealth v. Nowalk, 160 Pa. Super. 88, 50 A.2d 115 (1946), as authority for its decision to allow the mother's testimony. In Nowalk, a three-year old girl told her baby-sitter she had been sexually

[ 361 Pa. Super. Page 298]

    assaulted by an adult neighbor. The baby-sitter told the child to tell her mother as soon as she arrived home. Finding the child's timely statements to the mother upon her return to be part of the res gestae, the mother was permitted to testify to the same in court. The rationale therein was that the child victim had taken the first opportunity to relate the events of the assault to her mother.

While we accept that a time lapse between an assault and the victim's statements does not negate the indicia of reliability which underlies the res gestae rule, Commonwealth v. Bailey, 353 Pa. Super. 390, 510 A.2d 367 (1986) (plurality), it is certainly of great significance. The requirement of spontaneity is a question which turns on the particular circumstances of each case. Additionally, the requirement that the statement be sufficiently contemporaneous is relaxed where the child declarant is the victim of a sexual assault. Id., 353 Pa. Superior Ct. at 393, 510 A.2d at 368. "Such a relaxation of the rule recognizes both the likelihood of a young child's inability to comprehend . . . the assault and the possibility of the child's hesitancy to discuss the matter for fear of incurring punishment." Commonwealth v. Pronkoskie, supra, 477 Pa. at 142 n. 9, 383 A.2d at 863 n. 9.

Instantly, however, the victim was assaulted on Saturday night and reported the assault to her mother on Sunday night, some 24 hours later. The time span between the assault and the accusatory statements to her parent was greater than that in Commonwealth v. Nowalk, supra (approximately a six hour delay), and casts doubt on the spontaneous nature of the statement as res gestae. As this court stated in Commonwealth v. McIntosh, 258 Pa. Super. 101, 105, 392 A.2d 704, 706 (1978):

Nowalk did not create a new res gestae rule allowing admission of a child declarant's out of court statement regardless of when and under what conditions it was made so long as it was made to the child's parent at the child's first opportunity to be alone with the parent. To

[ 361 Pa. Super. Page 299]

    apply such a rule is to misapply Nowalk and the res gestae exception.

An excited utterance or "res gestae" basis for admission in this case would be tenuous although the particular circumstances could conceivably establish such an admission. See Commonwealth v. Bailey, supra (plurality) (fifty-five-hour delay). See also Williams v. State, 427 So.2d 100 (Miss. 1983) (twelve-hour delay and first reasonable opportunity to complain); State v. Creighton, 462 A.2d 980 (R.I.1983) (fourteen-hour delay); State v. Padilla, 110 Wis.2d 414, 329 N.W.2d 263 (1982) (three-day delay). But see Commonwealth v. McIntosh, supra, 258 Pa. Superior Ct. at 107, 392 A.2d at 706. (Spaeth, J. concurring) ("There is not, and should not be, an 'earliest opportunity exception' to the hearsay rule.").

While we are not persuaded to admit the testimony of the mother as res gestae under the excited utterance exception to the hearsay rule, the testimony was clearly admissible as evidence of a "prompt complaint." It is well established that an appellate court may affirm the action of the lower court on a different rationale than that advanced by the lower court in support of its judgment. Commonwealth v. Meischke, 273 Pa. Super. 134, 139 n. 3, 416 A.2d 1126, 1128 n. 3 (1979); Commonwealth v. Whitehouse, 222 Pa. Super. 127, 292 A.2d 469 (1972) (en banc). It is the judgment itself which is the subject of our review, not the reasons given in support thereof. Commonwealth v. Marks, 442 Pa. 208, 275 A.2d 81 (1971).

Evidence of a complaint of a sexual assault is "competent evidence, properly admitted when 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. Super. 467, 475, 441 A.2d 1327, 1331 (1982). See also Commonwealth v. Green, 487 Pa. 322, 409 A.2d 371 (1979); Commonwealth v. Bailey, supra; Commonwealth v. Pettiford, 265 Pa. Super. 466, 402 A.2d 532 (1979); Commonwealth v. Krick, 164 Pa. Super. 516, 67 A.2d 746 (1949). In the instant case, the victim's mother

[ 361 Pa. Super. Page 300]

    testified to corroborate her daughter's statements concerning the assault and the ...

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