finding the excited utterance exception applicable where the testimony of the child’s mother and physician circumstantially established the event evincing that the child perceived “some unexpected or shocking occurrence”
How later courts described this case
- finding the excited utterance exception applicable where the testimony of the child’s mother and physician circumstantially established the event evincing that the child perceived “some unexpected or shocking occurrence”
- linding the excited utterance exception applicable where the testimony of the child’s mother and physician circumstantially established the event evincing that the child perceived “some unexpected or shocking occurrence”
- noting that a statement in narrative form is “inadmissible.”
- three judge panel, Cavanaugh, J., dissenting
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Crawford v. Washington, 541 U.S. 36 (2004)
580 A.2d 784, 789 (Pa. Super. 1990), abrogated on separate grounds, Crawford v. Washington, 541 U.S. 36
The opinion
CAVANAUGH, Judge,
dissenting.
I respectfully dissent. I recognize that this case is another in a series of cases which demonstrate the tension between the desire to fairly and fully prosecute in cases involving child abuse on the one hand and allegience to long settled evidentiary principles on the other. However, I disagree with the reasoning of the majority with respect to both hearsay issues involved in this case. For reasons expressed in Commonwealth v. Haber, 351 Pa.Super. 79 , 505 A.2d 273 (1986), I would find that the child’s statements in this case, as testified to by her mother, are beyond the standards which must be met in order to admit a statement as excited utterance. Specifically, I believe that the time *600 lapse and the interrogational nature of the mother’s conversation with the child are facts which remove this case from the ambit of the . excited utterance exception to the hearsay rule.
Secondly, I believe that in order to admit any statement to the physician who examined the minor victim, it is necessary to demonstrate that the declarant’s purpose in making the statement must have been an aid to . medical diagnosis or treatment. In this matter there is no evidence that such was the case and, in fact, the examining physician testified that he specifically elicited the identification information from the child by questioning in order to fulfill what he considered to be his medico-legal responsibilities. Moreoyer, there appears to have been no attempt to place evidence in the record in order to fulfill the obligation that the declarant be “unavailable” before a determination that alleged hearsay evidence may be received.
I join in the majority’s order that a new trial be granted since I do not believe that either the physician’s or the mother’s statement should have been admitted in evidence. It would seem to me, however, that upon retrial the Commonwealth will have available to it the provisions of recently enacted statute, 42 Pa.C.S.A. 5985.1. Since this is an evidentiary rule, I see no reason why it would not be available to the Commonwealth on the retrial of this case and if the provisions of the rule are satisfied, might make the child’s statements in this case admissible in evidence. 1
." See, however, our comments in Commonwealth v. Haber, 351 Pa.Super. at 82-83 , 505 A.2d at 275 .