use of prior consistent statement was corroborative, not substantive, where it was not used to establish any of the elements of the offense
How later courts described this case
- use of prior consistent statement was corroborative, not substantive, where it was not used to establish any of the elements of the offense
Written by the judges who cited it.
The opinion
OLSZEWSKI, Judge,
concurring:
While I agree with the result reached by the majority on both issues, I differ with the Court’s rationale for admitting the testimony of the victim’s mother.
Today this Court is asked to determine whether the statements of a child abuse victim made to a trusted adult regarding the assault are admissible as hearsay. Although the Court’s decision to admit the statements of the victim to her mother is commendable, I believe the majority errs in resting that determination on the prompt complaint exception to the hearsay rule.
As the majority correctly states, supra, at 299, the prompt complaint exception permits the use of hearsay statements to corroborate the fact “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) (citations omitted). Indeed, our Supreme Court stated that “(t)here is some authority” for the admission of testimony regarding the occurrence of the assault, its time and place, and the identity of the alleged attackers. Commonwealth v. Green, 487 Pa. 322, 328 , 409 A.2d 371, 374 (1979) (citations omitted). However, even though the Court in Green expressly declined to define the scope of the prompt complaint exception, the Court noted that any testimony which went beyond identifying the complaint and its nature was inad *303 missible. Green, supra, 487 Pa. at 328 , 409 A.2d at 374 . As I see it, any testimony beyond the fact of the complaint, the name of the complainant, and the nature of the complaint is not covered by the prompt complaint exception. Today, the Court has added a new dimension to this hearsay exception.
The victim testified that appellant abused her while bathing that evening. The testimony of the victim’s mother corroborated the details of that incident. Further, the victim’s mother, not the victim, related what she had been told regarding a second incident which occurred while appellant and the victim were in bed that evening. In my view, the testimony of the mother established far more than the fact that a complaint was made and the nature of that complaint.
There is, however, an acceptable means of determining the admissibility of such hearsay statements without sacrificing the hearsay rule. Pursuant to the tender years exception, the hearsay statements of the victim are admissible provided the trial court is satisfied that the statements are sufficiently reliable, and the child either testifies or, if unavailable to testify, corroborative evidence of the act is presented. S. Bill 1361 would have amended 42 Pa.Cons. Stat.Ann. Chap. 59. See Commonwealth v. Bailey, 353 Pa.Super. 390, n. 1 , 510 A.2d 367, n. 1 (1986) (plurality opinion); Commonwealth v. Haber, 351 Pa.Super. 79 , 505 A.2d 273 (1986) (Olszewski, J., dissenting).
As it is well within the power of this Court to develop our rules of evidence by the case law method, I believe the time has come to recognize the need for the tender years exception in child abuse cases and to accept this exception. Accordingly, for the reasons I set forth in Bailey, supra, and Haber, supra, I would affirm the order of the court below.