Com. v. Rounds

• Decision Date: 04 September 1986
• Citation: 356 Pa.Super. 317,514 A.2d 630
• Parties: COMMONWEALTH of Pennsylvania v. Charles Alden ROUNDS, Sr., Appellant.
• Court: Pennsylvania Superior Court

Page 630

514 A.2d 630

356 Pa.Super. 317

COMMONWEALTH of Pennsylvania v. Charles Alden ROUNDS, Sr., Appellant.

Superior Court of Pennsylvania.

Argued March 12, 1985.

Filed Sept. 4, 1986.

Robert E. McBride, Erie, for appellant.

Ernest J. DiSantis, Asst. Dist. Atty., Erie, for Com., appellee.

Before BECK, POPOVICH and HANDLER ^*, JJ.

POPOVICH, Judge:

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, --- Pa. ---, 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, offered in evidence to prove the truth of the matter asserted.

Stated differently, it is evidence offered in court by a witness which is based not on his own knowledge, but on what some other person has stated, and the statement is offered to show the truth of its content. Wharton's Criminal Evidence, § 265 at 3-4 (1972).

The reason that such evidence is subject to exclusion is related to the fact that the declarant is not in court, and the safeguards of cross-examination afforded by the Fourth Amendment to the United States Constitution (to face one's accusers) are rendered nugatory. See McCormick on Evidence, supra at 585; Wharton's Criminal Evidence, supra at 6.

Instantly, this was not the case since the declarant, who observed the act to which he testified, was in court and subject to cross-examination. Therefore, under no interpretation of the rules of evidence can the victim's testimony, as to what the appellant did to him, be "hearsay". To state otherwise would be an aberration of the law.

The second assertion concerns the allegation that trial counsel was inept in not objecting to the victim testifying that "he was currently living in a foster home ... [and] that at various times in the past he had lived in other foster homes." Similar testimony was given by another witness (a Ms. Pamela Millspaw).

This, appellate counsel argues, when coupled with the disclosure that the "victim had again been placed in a foster home as a result of the instant criminal charges," was highly prejudicial in that the jury "might well have concluded" that the placement of the victim previously in such homes was the product of the appellant's commission of "prior bad acts or prior crimes".

Under the law of this jurisdiction:

" 'To warrant a characterization as prejudicial the testimony must convey to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense.' " (Emphasis added) Commonwealth v. Starks, 484 Pa. 399, 399 A.2d 353, 357 (1979), quoting Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978) see generally Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978); Commonwealth v. Hall, 264 Pa.Super. 261, 399 A.2d 767 (1979).

Commonwealth v. Potts, 314 Pa.Super. 256, 274, 460 A.2d 1127, 1136 (1983).

We have examined the transcript of the trial, and, although the victim testified to being presently in a foster home, there was no evidence linking the victim's foster status to the charges lodged against the appellant. Thus, we fail to discern any nexus between the challenged testimony and the purported inference flowing therefrom of prior criminal conduct on the part of the appellant prejudicing his right to a fair trial. Id.

Lastly, counsel for the appellant contends that trial counsel was less than effective for not objecting to the Commonwealth's expert witness (Dr. Fagenholtz) opining that: "I have no reservation in saying that I'm sure [the victim] was sexually abused."

The fact...