Appeal from Order of Superior Court Dated August 2, 1985 at No. 1659 Philadelphia 1983, Affirming Judgment of the Court of Common Pleas of Lycoming County Dated May 12, 1983 at No. 82-21502. 344 Pa. Superior Ct. 399,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., and McDermott, J., file concurring and dissenting opinions.
Appellants, John and Edith Steele, appeal by allowance a Superior Court order which affirmed the Court of Common
Pleas of Lycoming County. Appellants claim that the trial judge abused his discretion by allowing hearsay testimony into evidence in a custody matter pursuant to a previously unrecognized statement against social interest exception to the hearsay rule. We agree with appellants that this proposed exception does not enjoy the requisite indicia of reliability to qualify as a hearsay exception in this Commonwealth. We affirm the custody order of Common Pleas, however, as there is sufficient other evidence on this record that the trial judge acted properly in awarding custody to appellees, Joseph and Betty Gatz. We therefore affirm Superior Court's order.
On October 12, 1982, Janet Gatz, mother of two minor children, Heidi M. Gatz and Jason J. Gatz, died as a result of stab wounds inflicted by her husband, Mack C. Gatz. Mack Gatz pleaded guilty to the homicide and is currently serving a sentence of incarceration. After the arrest of Mack Gatz, the children were taken to the home of Janet's parents, John and Edith Steele, appellants herein. Numerous members of the paternal and maternal families filed petitions for custody in Lycoming County Common Pleas. Following the withdrawal of two parties to the action, the remaining litigants were appellants John and Edith Steele and Mack Gatz's sister and brother-in-law, Frank and Sandra Heddings. A hearing was held in March and April of 1983. On May 12, 1983, Common Pleas awarded primary custody of the children to the Heddings with limited visitation rights accorded the Steeles.
On September 28, 1983, a motion to change custody from the Heddings family to the Steele family was filed after the Heddings experienced substantial difficulty in meeting their obligations with respect to the custody of the children. The paternal grandparents, Joseph and Betty Gatz, appellees herein, appeared at the November 7, 1983 hearing and expressed an interest in the custody proceedings. The trial court indicated that, upon the filing of appropriate petitions, he would reconsider the custody issue. Appellees filed a petition to adopt the children on December 14, 1983. Attached
to the appellees' petition for adoption was Mack Gatz's statement indicating his consent to the proposed adoption. The court indicated to the parties that if the Gatzes' petition for adoption was denied, the court would also consider the petition as one for custody of the children. Common Pleas granted the parties' motions that it consider the evidence and findings from the hearings in May and April of 1983. Additional testimony was then taken in April of 1984. Common Pleas, on May 24, 1984, then issued its second opinion and order denying the Gatzes' petition for adoption but awarding primary custody to Joseph and Betty Gatz. Visitation rights were again accorded the Steeles. Superior Court affirmed.
At the Common Pleas hearings, seven witnesses testified to statements allegedly made by Janet Gatz regarding incestuous contact with her father, John Steele. Asserting that the statements were so contrary to Janet Gatz's "social interest" that the statements would not have been made if not true, Common Pleas accepted the hearsay testimony into evidence. The trial judge found the appellants generally fit and proper parties to seek custody "except for the Court's concerns regarding sexual immorality stated later herein." Common Pleas slip op., May 24, 1984, at 10. The court then found that appellant John Steele engaged in sexual intercourse with his daughter on several occasions while Janet was in her minority. Although there was no evidence that John Steele ever accosted his granddaughter Heidi Gatz, the Common Pleas court considered this "evidence" of her father's incest with the children's mother, Janet Gatz, as a factor weighing in favor of precluding appellants from enjoying permanent custody of the children. Id. at 12. Indeed, it is plain the court relied on it and ignored the other evidence on this issue which could have justified the same result. Superior Court, citing a number of guarantees of trustworthiness surrounding the damning hearsay statements of Janet Gatz, adopted the statement against social interest exception to the rule against hearsay and affirmed the judgment of Common Pleas. We granted allowance of appeal to examine this particular exception to
the rule against hearsay. We now reject it but, exercising the well recognized power of an appellate court to draw its own inferences from the evidence in custody cases, we nevertheless affirm Common Pleas award of custody to appellees.*fn1
Hearsay is an out-of-court statement offered into evidence to prove the truth of the matter asserted. Carney v. Pennsylvania R.R. Co., 428 Pa. 489, 492-93, 240 A.2d 71, 73 (1968); Whitfield v. Reading Co., 380 Pa. 566, 570, 112 A.2d 113, 115 (1955). See also 5 Wigmore, Evidence § 1361 (Chadbourn rev. 1974); 8 Standard Pennsylvania Practice 2d § 49:19 (1982). A hearsay statement lacks guarantees of trustworthiness fundamental to the Anglo-American system of jurisprudence. Perhaps such a statement's most telling deficiency is it cannot be tested by cross-examination. According to Dean Wigmore, cross-examination is "beyond any doubt the greatest legal engine ever invented for the discovery of truth." 5 Wigmore, supra, § 1367. Nor is the declarant under oath when the out-of-court statement is uttered. This court has long recognized the oath requirement as a further assurance of reliability. Commonwealth v. Stewart, 1 Serg. & Rawle 342, 344 (1815); Longenecker v. Hyde, 6 Binn. 1, 2 (1813). Out-of-court declarations also deprive the trier of fact of an opportunity to examine the demeanor of the declarant. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 495-496, 71 S.Ct. 456, 468, 95 L.Ed. 456 (1951). Moreover, an in-court declarant may be impressed with the solemnity of the proceeding and may be reluctant to lie in the face of the party ...