Commonwealth v. Hess
| Decision Date | 05 October 1979 |
| Citation | 270 Pa.Super. 501,411 A.2d 830 |
| Parties | COMMONWEALTH of Pennsylvania v. Robert HESS, Appellant. |
| Court | Pennsylvania Superior Court |
Argued June 5, 1979.
Petition for Allowance of Appeal Granted Jan. 4, 1980. [Copyrighted Material Omitted]
Peter J. Verderame, Langhorne, for appellant.
John J. Kevlock, Asst. Dist. Atty., Doylestown, for Com appellee.
Before PRICE GATES [*] and DOWLING,* JJ.
Appellant Robert Hess, was tried before a judge and jury and found guilty of simple and aggravated assault, recklessly endangering another person, terroristic threats, and unlawful restraint, all committed against his wife. Appellant has filed this appeal following denial of post conviction motions.
The first issue relates to the trial court's exclusion of evidence of the appellant's inebriated condition at the time the criminal offenses were committed. He admits that the exclusion was dictated by statute, specifically 18 Pa.C.S.A. § 308 of the Crimes Code, [1] but contends that the statute is constitutionally infirm.
The identical issue was raised and disposed of in Commonwealth v. Custer, 30 Bucks.L.Rep. 178 (1977) aff'd per curiam, (1978). See also, Commonwealth v. Bable, 248 Pa.Super. 496, 375 A.2d 350 (1977); Commonwealth v. Pickett, 244 Pa.Super. 433, 368 A.2d 799 (1976). For the reasons stated in the foregoing decisions, we reject appellant's challenge and uphold both the constitutionality of Section 308 of the Crimes Code and the lower court's exclusion of evidence pursuant to it.
The next assignment of error concerns the trial court's ruling that the appellant's wife was required to testify against her will as a prosecution witness. The lower court's ruling was founded upon the Act of 1911, May 11, P.L. 269, § 1, 19 P.S. § 683, which abrogates the interspousal testimonial privilege ". . . in any criminal proceeding against either (spouse) for bodily injury or violence . . . threatened upon each other . . . ." Appellant acknowledges that his wife was a competent witness, but submits that the lower court's compulsion of her testimony was neither authorized by the terms of the statute nor encompassed by the legislative intent.
The question presented, one of first impression in our jurisdiction, [2] is essentially a matter of statutory construction. In this connection, we find enlightenment in a New Jersey decision, State v. Briley, 53 N.J. 498, 251 A.2d 442 (1969) wherein a unanimous Supreme Court, interpreting an evidentiary statute similar to our own, held that ". . . the wife should be a competent and compellable witness against her husband . . ." where the wife alone or together with others is victimized by the husband's criminal conduct.
Id. at 505, 251 A.2d at 445, 446 (citing cases).
It is axiomatic that no claimant of a testimonial privilege can be the final arbiter of his own claim, a rule well recognized in several related contexts. See, Commonwealth v. Hawthorne, 428 Pa. 260, 236 A.2d 519 (1968) (self incrimination); Commonwealth v. Jackson, 475 Pa. 604, 605, 381 A.2d 438 (1977) (mental incompetency); Commonwealth ex rel. Romanowicz v. Romanowicz, 213 Pa.Super. 382, 248 A.2d 238 (1968) (physician's privilege); Giordoni v. Hoffman, 278 F.Supp. 886 (E.D.Pa.1968) (attorney privilege).
Moreover, were the interspousal testimonial competency provided for in 19 P.S. § 683 to be contingent upon the discretion of the victimized spouse, it would materially frustrate the legislative intent of facilitating the prosecution of criminal behavior occurring in a domestic setting frequently devoid of witnesses other than the spouses themselves. Under the Statutory Construction Act, 1 Pa.C.S.A. § 1921 et seq., we are bound to consider the object sought to be attained by the legislature in enacting the statute at issue. Accordingly, we hold that where the statutory rule of interspousal testimonial competency is applicable pursuant to 19 P.S. § 683, a victimized spouse falling within its provisions may, in the discretion of the trial court, be compelled to testify as a Commonwealth witness in criminal proceedings instituted against the offending spouse.
Appellant next complains that the trial court committed error in admitting, under the excited utterance res gestae exception, certain hearsay testimony of one of the arresting officers concerning statements made to him by the appellant's wife immediately after the appellant had been apprehended and about one-half hour after the incident had occurred. The lower court based its decision on its determination that under the circumstances prevailing at the time, the declarations were sufficiently spontaneous to qualify as an excited utterance.
To come within the excited utterance res gestae exception to the hearsay rule, a 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." Commonwealth v. Pronkoskie, 477 Pa. 132, 137-138, 383 A.2d 858, 860 (1978) quoting Allen v. Mack, 345 Pa. 407, 410, 28 A.2d 783, 784 (1942)
Appellant contends that his wife's statements were not made sufficiently close in time to the startling event consisting of his criminal behavior to carry the stamp of spontaneity that belies calculation and informs the declarations with reliability. In support of his argument, appellant points to both the amount of time which elapsed between the incident and the statements in question, and to the fact that the statements were made in response to questions asked by the officer.
The fact that the statements were not made immediately after the incident is not, in itself, dispositive of the question of their admissibility. Commonwealth v. Cheeks, 423 Pa. 67 223 A.2d 291 (1966); see, Commonwealth v. Stokes, 409 Pa. 268, 186 A.2d 5 (1962); Commonwealth v. Harris, 351 Pa. 325, 41 A.2d 688 (1945). On numerous occasions, this court had previously approved the admission into evidence of such declarations notwithstanding interim periods comparable to or even greater than that involved in the present case. Lininger v. Kromer, 238 Pa.Super. 259, 358 A.2d 89 (197...
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