author: CAVANAUGH, Judge: OLSZEWSKI, Judge,

text:
    505 A.2d 273
    COMMONWEALTH of Pennsylvania v. Edward M. HABER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 3, 1985.
    Filed Feb. 11, 1986.

      John P. Lawler, Stroudsburg, for appellant.
    James F. Marsh, District Attorney, Stroudsburg, for Commonwealth, appellee.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   CAVANAUGH, Judge:

Edward Haber appeals from a judgment of sentence entered against him by the Court of Common Pleas of Monroe County. Appellant was convicted by a jury of one count each of corruption of a minor and indecent assault. He alleges, inter alia, that the trial court committed reversible error in admitting the hearsay testimony of the mothers of the two alleged victims. We agree.

In the late spring or early summer of 1982 one of the alleged victims, Darrell Leigh-Manuel, then four and one-half years old, told his mother that he and Jaclyn Predmore, a five year old neighbor, had been sexually abused by appellant. Darrell’s mother contacted Jaclyn’s mother. The two mothers then interviewed their children and contacted the police. Through information obtained from the children and their mothers, the police eventually arrested and charged appellant with the above-stated crimes.

Appellant was tried twice. The first trial ended in a hung jury. The second trial ended in his conviction.

Prior to the first trial, the trial judge held a competency hearing, as a result of which he ruled that Darrell was competent to testify as to all matters, but that Jaclyn could not be questioned concerning the identity of the person whom she alleged had molested her. She was allowed to testify about the molestation itself.

At trial Mrs. Leigh-Manuel and Mrs. Predmore testified at length as to the stories told them by their children. Their testimony included statements about what was physically done to the children, and as to the identity of the alleged molester. This testimony was crucial to the Commonwealth’s case because the testimony of the children themselves consisted mostly of monosyllabic answers to leading questions, and both children repeatedly stated that they were unable to remember details about what happened. There were no other eyewitnesses to the events that the children reported to their mothers.

It is clear that the testimony of Mrs. Leigh-Manuel and Mrs. Predmore as to what their children told them was hearsay, since it related out-of-court assertions that were offered to prove their truth. Thus it was inadmissible unless it fit within an exception to the hearsay rule. The exception most commonly used by the courts to allow the admission of a child’s statements regarding sexual abuse is the spontaneous declaration, or excited utterance exception. But in order to fall under this exception, the statement must have been made so spontaneously as to be under the excitement caused by the event, so as to preclude the possibility of fabrication.

There is no evidence that the statements of the children were made under the stress of excitement caused by an exciting event or condition, as is required. On the contrary, the first relevant assertion was.a comment made by Darrell during a conversation between Darrell’s older brother and his mother. The other assertions were made during interviews conducted by the mothers with their children. Also, the record does not disclose the length of delay between the alleged criminal acts and the childrens’ assertions to their mothers. Clearly the excited utterance exception cannot be used to qualify the hearsay testimony of Mrs. Leigh-Manuel and Mrs. Predmore. See Commonwealth v. Kasko, 322 Pa.Super. 62, 469 A.2d 181 (1983).

The testimony of Mrs. Leigh-Manuel and Mrs. Predmore does not come within any exception to the hearsay rule that is recognized in Pennsylvania. The Commonwealth, however, asks us now to create a new exception to the hearsay rule for the out-of-court assertions of children pertaining to sexual abuse.

When considering the adoption of a new rule of evidence, it is often enlightening to review what other jurisdictions have done and to see how legal scholars view the matter.

In the last 22 years, the federal courts and 33 states have conducted studies of their rules of evidence culminating in their codification. Each of these 34 codifications includes the hearsay rule. Each of them delineates 25 to 35 exceptions to the hearsay rule. None of them includes an exception for the out-of-court assertions of children, whether relating to sexual activity or anything else.

In the other 16 states (Pennsylvania is the 17th) the hearsay rule is applied as a matter of common law development by the courts. None of the courts in these 16 states has created an exception to the hearsay rule for the out-of-court assertions of children.

The National Conference of Commissioners on Uniform State Laws has adopted what it calls the “Uniform Rules of Evidence.” The current version, which was adopted in 1974, contains the hearsay rule, 30 exceptions thereto, and two exceptions to the definition of hearsay. It does not include an exception for the out-of-court assertions of children.

In the twelve volumes of Wigmore on Evidence there is no recognition of an exception to the hearsay rule for the out-of-court assertions of children. Such an exception is not recognized in Jones on Evidence, or in McCormick on Evidence, or in Binder’s Hearsay Handbook.

The rationale for the hearsay rule is that hearsay is too untrustworthy to be considered by the trier of fact. Exceptions to the hearsay rule have been fashioned to accommodate certain classes of hearsay that are substantially more trustworthy than hearsay in general, and thus merit exception to the hearsay rule. See Binder, The Hearsay Handbook (Second Edition), Chapter Three and Introduction to Part II.

We do not believe that the out-of-court assertions of children, particularly four and five year old children, are substantially more trustworthy than the out-of-court assertions of adults. Life experience furnishes no basis upon which we can fairly conclude that children have any special qualities which render them as being dependably accurate historical reporters. Therefore, such assertions of children do not merit exception to the hearsay rule.

Evidentiary rules, including the hearsay rule, have a raison d’etre. Experience has taught us that trials conducted in accordance with such rules increase the likelihood of a fair and just resolution of the issues by the trier of fact. Otherwise, we would jettison the lot of them.

It is true, of course, that permitting the Commonwealth to introduce the out-of-court assertions of children against the defendant in a child abuse case would make it easier to convict the guilty. Unfortunately, it would also make it easier to convict the innocent. If such a trade-off is acceptable, why not suspend the hearsay rule entirely when the Commonwealth introduces evidence in a criminal case? More defendants, guilty and innocent alike, would undoubtedly be convicted. The same result would obtain if we allowed the Commonwealth to introduce coerced confessions.

However, such a trade-off is not acceptable. It is a fundamental precept of law in Pennsylvania that one charged with crime, be it murder, child abuse, or keeping a public nuisance, comes to trial clothed in the presumption of innocence. If we bear this in mind, we will be less tempted to distort the law of evidence in favor of the Commonwealth in order to increase the conviction rate. The Commonwealth should be bound by the same rules of evidence, including the hearsay rule, as other litigants.

In this case the trial court compounded its error in admitting the hearsay testimony of Mrs. Leigh-Manuel and Mrs. Predmore when it ruled that Jaclyn Predmore could not be questioned concerning her accusation identifying defendant as her molester. This violated defendant’s right to confront the witnesses against him as guaranteed by the Sixth Amendment to the United States Constitution.

If Jaclyn Predmore, while on the stand, had accused defendant in front of the jury of molesting her, defendant’s constitutional right fully and adequately to cross-examine her would be apparent. See Davis v. Alaska, 415 U.S. 308, 315-316, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974), in which the Supreme Court explained:

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him.” This right is secured for defendants in state as well as federal criminal proceedings under Pointer v Texas, 380 US 400, 13 L Ed 2d 923, 85 S Ct 1065 (1965). Confrontation means more than being allowed to confront the witness physically. “Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.” Douglas v Alabama, 380 US 415, 418, 13 L Ed 2d 934, 85 S Ct 1074 (1965). ...
Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.

Appellant did not forfeit his constitutional right of cross-examination merely because Jaclyn’s accusation against him was presented to the jury indirectly by means of the hearsay testimony of her mother. Appellant’s need to cross-examine Jaclyn concerning her accusation against him was greater than if she had made it from the witness stand, because she made it without benefit of oath, not subject to the penalty of perjury, and without the presence of the trier of fact.

Appellant did not receive a fair trial in the instant matter. The case against him was established by the admission of excludable hearsay in contravention of well-established Pennsylvania evidentiary law.

Appellant also makes four additional allegations of error. The first point raised involves the out-of-court identification of appellant by Darrell Leigh-Manuel. Appellant argues that the lower court erred in admitting testimony given by a police officer regarding the out-of-court identification, as this testimony was inadmissible hearsay. We find that, since the testimony was corroborative, it was properly within the discretion of the trial court to allow its admission. See, Commonwealth v. Dean, 300 Pa.Super. 86, 445 A.2d 1311, 1313 (1982).

The relevant testimony was elicited as follows. Initially, on direct examination of Officer Olsen, the Commonwealth did not bring out testimony as to the photo array identification made by the victim. Next, Darrell Leigh-Manuel testified, both making an in-court identification of the appellant, and confirming the previous photo array identification. Subsequently, on redirect, Officer Olsen was questioned and testified as to Darrell’s out-of-court identification. Therefore, this testimony was clearly corroborative evidence. Defense counsel previously had the opportunity to cross-examine the declarant regarding the out-of-court identification, therefore appellant was not prejudiced. The trial court did not abuse its discretion in admitting the testimony. See also, Commonwealth v. Sanders, 260 Pa.Super. 358, 394 A.2d 591 (1978).

Moreover, this reasoning does not run afoul of the recent supreme court decision of Commonwealth v. Floyd, 508 Pa. 393, 498 A.2d 816 (1985) which deals with the admissibility of a prior identification through the testimony of a third party. In Floyd, unlike here, the witness who made the out-of-court identification did not make an in-court identification, therefore, the prior identification was not corroborative evidence.

The second alleged error concerns the competency of the victims to testify at trial. Appellant contends that the lower court erred in admitting the testimony of the children without adequate inquiry into their competence at the time of the second trial. We find that the lower court’s first inquiry was adequate and, consequently, no error was committed.

The lower court properly reasoned that a second competency hearing was not necessary since it had already determined the competency of the children to testify. During the competency hearing, the court correctly complied with the standard set forth in Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959) which lists the factors to be considered. To be competent, a youthful witness must have a capacity to communicate, including an ability to understand questions and to frame and express intelligent answers; mental capacity to observe and remember the occurrence; and a consciousness of the duty to speak the truth. Rosche, Id., 397 Pa. at 620-621, 156 A.2d at 310. It was properly within the lower court’s discretion to decide on the competency of the children. A thorough examination was made, and the trial court found Darrell Leigh-Manuel competent to testify as to all matters, and Jaclyn Predmore competent to testify only as to matters relating to the actual physical attack upon her.

The lower court did not err in its refusal to conduct a second hearing, rather its decision was well within the proper discretion of the trial court. Furthermore, appellant had a safeguard against inaccurate testimony in his right to impeach the children’s later testimony through the record of their statements at the first trial. See Zank v. West Penn Power Co., 169 Pa.Super. 164, 82 A.2d 554 (1951).

Appellant next argues that the trial court erred in refusing to declare a mistrial, strike the testimony of Officer Olsen, or give the jury precautionary instructions when it was determined that the officer had disposed of his investigatory notes. Appellant contends that the officer’s actions prevented effective cross-examination, denying him a fair and impartial trial. However, we find that under Commonwealth v. York, 319 Pa.Super. 13, 465 A.2d 1028 (1983), the lower court did not err. York sets forth the requirements which determine whether testimony should be suppressed because of the destruction of evidence related thereto. Under York, which cites Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2567-68, 33 L.Ed.2d 706, rehearing denied, 409 U.S. 897, 93 S.Ct. 87, 34 L.Ed.2d 87 (1972), in order for the destruction of the notes to be a violation meriting a mistrial, proof is required of the following: suppression of evidence by the prosecution after a request by the defense; the favorable character of the evidence for the defense; and the materiality of the evidence. York, Id. 319 Pa.Super. at 18, 465 A.2d at 1029. Clearly, in the present case, the first and third requirements were not met by appellant. There was no evidence proving that the prosecution was responsible for destroying the notes after a request by the defense, and furthermore, appellant could not prove the materiality of the notes. This is because, as was reasoned by the lower court, the substance of the original notes was incorporated into the officer’s arrest warrant affidavit prior to their destruction. Thus, the notes were only cumulative evidence. Furthermore, the officer testified for the Commonwealth and was cross-examined by the defense; therefore, proper procedural safeguards were met.

Lastly, we do not reach the issue of merger as to the two crimes since appellant's conviction is reversed.

Judgment of sentence reversed. Remanded for a new trial. Jurisdiction relinquished.

OLSZEWSKI, J., dissents.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent from the majority’s opinion that a tender years exception to the hearsay rule should not be judicially created. This exception arises out of the necessity for the evidence and a profound respect for the tender years of the victims of sexual abuse.

The incidence of child sexual abuse has increased dramatically in recent years. The crimes are inherently difficult to detect. Child sexual abuse is predominantly nonviolent; it usually occurs in secrecy with the child victim as the only witness. Often the offender is a parent, relative, or an acquaintance of the child. Conviction of the child abuser is equally difficult due to the lack of witnesses or corroborative physical evidence, or the reluctance or inability of the victim to testify against the defendant. In the face of overwhelming circumstantial evidence implicating a defendant, the courts are faced with the dilemma that the victims are often found incompetent to testify or, during the passage of time between the incident and trial, the victims will lose their ability to recall coherently the details of the event.

Courts in several of our sister states, out of recognition that the statements are often the only proof of the crime, have admitted out-of-court statements by sexually abused children under traditional exceptions to the hearsay rule. The majority of courts have chosen a flexible application of the spontaneous declaration exception. The rationale for the exception is that, under certain circumstances, extreme excitement or shock may paralyze the declarant’s ability to reflect and contrive an unreliable statement. See Commonwealth v. Von Smith, 303 Pa.Super. 534, 450 A.2d 55 (1982); compare Commonwealth v. Zukauskas, 501 Pa. 500, 462 A.2d 236 (1983) (noncontemporaneous statement inadmissible). Proper application of the exception requires that the utterance be spontaneous and so closely related in time as to be precipitated by the traumatic event. Commonwealth v. Zukauskas, supra. The utterance is deemed, to be reliable because the declarant is acting as “the medium and not the message.” Id., 501 Pa. at 503, 462 A.2d at 237.

The spontaneous declaration exception has suffered heavy criticism for its application in the context of child sexual abuse. Its principle weakness lies in its reliance on spontaneity as an indicator of trustworthiness. Responding to the need to admit the out-of-court statements by child victims, the courts have expanded the spontaneity requirement to admit statements made hours or days after the traumatic event. See Lancaster v. People, 200 Colo. 448, 615 P.2d 720 (1980) (one-half-hour delay); Williams v. State, Miss., 427 So.2d 100 (1983) (twelve-hour delay — first reasonable opportunity to complain); State v. Creighton, — R.I. —, 462 A.2d 980 (1983) (eighteen-hour delay); State v. Padilla, 110 Wis.2d 414, 329 N.W.2d 263 (1982) (three days).

Any extension of the time element of the rule, however, eviscerates the justification for the exception: a spontaneous statement does not allow time for reflection or fabrication. As noted above, child sexual abuse is peculiarly susceptible to evading prompt discovery due to factors of embarrassment, the involvement of relatives or close acquaintances, and the evanescent nature of a child’s memory. A child may not have the capacity to articulate what has happened to him or her. Indeed, a child may not know that what has been done to him or her is wrong.

This Court has recently considered the use of the spontaneous declaration exception to admit hearsay testimony in child abuse cases. In Commonwealth v. Kasko, 322 Pa.Super. 62, 469 A.2d 181 (1983) (per Cavanaugh, J., joined by Hoffman, J.), we reversed and remanded where a defendant was convicted upon testimony by the mothers of victims of child abuse as to statements by the children. The Court rejected application of the spontaneous declaration exception where the statements referred to the defendant’s activities which had occurred on an unascertainable prior date. The Court recognized that “(w)hile the law fixes no definite time within which statements must be made to be received as part of the res gestae, there must be no break in the continuity of the litigated acts which would afford time for reflection.” Id., 322 Pa.Superior Ct. at 70, 469 A.2d at 185 (citation omitted). The Court held the spontaneous declaration exception inapplicable where the crucial statements came after extensive questioning by the parents of the children. “While the fifteen minutes itself afforded time for reflection, the parental interrogation demanded that reflection.” Id., 322 Pa.Superior Ct. at 70, 469 A.2d at 186. There is no question but that the testimony in the instant case would be barred under the spontaneous declaration decision. The record shows no evidence of the length of delay between the criminal act and Darrell Leigh-Manuel’s report of the event. Although Kasko is a correct analysis of the spontaneous declaration exception as applied to the facts of that case, I would hold that a new rule is necessary in cases of child sexual abuse.

The weakness of the spontaneous declaration exception lies in its reliance on spontaneity as the sole indicator of trustworthiness. Where the length of the delay in reporting cannot be ascertained, application of the spontaneous declaration exception can yield only inconsistent results. Such inequity is not impelled when there exist excellent alternative indicia of reliability.

The critical need for a victim’s testimony in child sexual abuse cases, and the inadequacy of the spontaneous declaration exception in meeting that need, has been met by the creation of a specific tender years exception to the hearsay rule by a growing number of courts and legislatures. Since 1982, seven states have realized, and acted upon this need. S. D. Codified Laws Ann. Sec. 19-16-38 (1984); Ind.Code Ann. Sec. 35-37-4-6 (1984); Act of April 26, 1984, Ch. 588, Sec. 4, 1984 Minn.Sess.Law Serv. 415-416; Kan.Stat.Ann. Sec. 60-460-(dd) (1982). See Colo.Rev.Stat. Sec. 13-25-129 (1983); Utah Code Ann. Sec. 76-5-411 (1983); Wash.Rev. Code.Ann. Sec. 9A.44.120 (1982); see also State v. McCafferty, S.D., 356 N.W.2d 159 (1984) (interpreting tender years statute); Bertrang v. State, 50 Wis.2d 702, 184 N.W.2d 867 (1971) (tender years exception found under Wisconsin Rules of Evidence, Rule 908.03(24), Residual Hearsay Exception). The Commonwealth of Pennsylvania General Assembly recently passed Senate Bill No. 1361 by both houses on November 29, 1984. The Bill provided for the admission of out-of-court statements made by a child victim. Due to an unrelated, last-minute amendment, the Governor vetoed the Bill on December 26, 1984. This Bill was spawned by the legislature’s awareness of the inadequacy of the spontaneous declaration exception in serving the public welfare in child sexual abuse cases.

Against this background of necessity for a victim’s testimony in the context of child sexual abuse and the successful protection of an accused’s interests in the criminal process by our sister jurisdictions, the tender years exception to the hearsay rule should be adopted as the law of this Commonwealth:

An out-of-court statement made by a child victim or witness describing indecent contact, sexual intercourse, or deviate sexual intercourse performed with or on the child by another is admissible in evidence in any criminal proceeding if:

(1) The court finds, in an in camera hearing, that the evidence is necessary, and that the time, content, and totality of the circumstances of the statement provide sufficient indicia of reliability; and

(2) The child either:
(a) Testifies at the proceedings; or
(b) Is unavailable as a witness: provided there is some other evidence of the act.

A statement may not be admitted into evidence under this exception unless the proponent of the statement makes known to the adverse party his intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to meet the statement.

This tender years exception provides ample opportunity to test the reliability of the evidence and withstands constitutional scrutiny under the confrontation clause of the Sixth Amendment. Reliability will be determined by the court in an in camera hearing. The court should consider the totality of circumstances, including: the time, content, and context of the statement; the language used by the child; the age and maturity of the child; the nature and duration of the abuse; the relationship of the child to the offender; and any other factor relevant to the case. This analysis is similar to Rule 803(24) of the Federal Rules of Evidence, the so-called catch-all hearsay exception. There, as within the limited area of child abuse cases, a court may admit hearsay which does not fit under a traditional enumerated exception if there are guarantees of reliability comparable to the guarantees of a traditional exception.

Through examination of the totality of the circumstances, a court may determine that a child’s delay in reporting an incident of sexual abuse is explainable and consistent with the event. Relevant factors are fear, embarrassment or a child’s incomprehension. This analysis is simply not available under the spontaneous declaration exception. Compare Commonwealth v. Kasko, supra. Further, the tender years exception allows a court to determine, on a case-by-case basis, whether the victim of an assault is of an age which renders it improbable that the statement was premeditated or fabricated. While there is no clear evidence that a statement by a child, specifically describing sexual abuse, is more or less trustworthy than that of an adult, the necessity for this evidence persuades us that this determination is properly resolved under the totality of the circumstances. Justice demands that the law of the Commonwealth evolve to permit consideration of the reliability of the statement.

Further indicia of reliability are provided by the requirement that there be some other evidence to support the allegation of illegal sexual conduct where the declarant is unavailable to testify at trial. While in most cases this “other evidence” will be corroborative evidence, in some situations the supporting evidence will be that which is probative on the issue of sexual abuse: an accused’s prior conviction on similar charges, complaints by other children, or other evidence not admissible at trial.

Our result today is consistent with the policy underlying the Commonwealth’s Child Protective Services Law, 11 Pa. C.S. Sec. 2201 et seq. This legislation seeks to protect children from abuse by requiring the reporting of child abuse by any persons who come in contact with an abused child in the course of employment. 11 Pa.C.S. Sec. 2204. It would be anomalous to prohibit the admission of out-of-court statements without special consideration of reliability where the legislature has gone to great lengths to insure that reports of child abuse will be brought to the attention of responsible authorities.

The tender years exception allows the courts more flexibility and promotes reliability to a degree greater than use of an expanded version of the spontaneous declaration exception. Expanded use of the spontaneous declaration arose from the need to admit critical testimony; yet the relaxation of the contemporaneity requirement undercut with the theoretical justification for the exception. The tender years exception arises from that same need to admit crucial testimony, but its strength lies in specifically meeting the unique circumstances of child sexual abuse. Child sexual abuse was simply not anticipated when the spontaneous declaration exception was created. The hearsay exception which we carve out today responds to a prevalent and pernicious offense against the most vulnerable members of society, our children.

The tender years exception also meets the demands of the confrontation clause of the Sixth Amendment. “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. Amend. VI; see Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (confrontation clause applies to the states through the Fourteenth Amendment). Despite the apparent plain meaning of the confrontation clause, the framers of the constitution did not intend to exclude all hearsay. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). The policy behind the confrontation clause must give way to the public’s interest in effective law enforcement, the probative necessities of particular cases, and other policy considerations. Ohio v. Roberts, 448 U.S. at 64, 100 S.Ct. at 2538. Against the probative necessity for the tender years exception, we must balance the policy behind the confrontation clause in two instances where a child’s out-of-court statements may be admitted.

Where the child is available or testifies at trial, protections inhere in an accused’s right to cross-examine as to inconsistencies in testimony. In California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), the Supreme Court stated:

(T)he Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise explain the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial as to both stories.

399 U.S. at 164, 90 S.Ct. at 1938.

The admissibility of an available child victim’s extra-judicial statements has been upheld against confrontation clause challenges. See United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980) (nine year old victim unable to repeat statements made to police officer).

Where the child is unavailable or unable to testify at trial, a different test must be employed. We must look at the hearsay statements themselves to determine whether the admitted hearsay statements had particularized guarantees of trustworthiness to afford the trier of fact a satisfactory basis for evaluating the reliability of the statements. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980); United States v. Nick, 604 F.2d 1199 (9th Cir. 1979). Analysis of an offered hearsay statement under the totality of circumstances approach of the tender years exception allows the trial court to determine whether circumstantial guarantees of trustworthiness have been met. The requirement of notice of the Commonwealth’s intent to use the hearsay testimony will offer substantial protection to the accused. See State v. McCafferty, S.D., 356 N.W.2d 159, 164-165 (1984). Further, the requirement that the court determine admissibility in an in camera hearing serves to protect an accused from the potentially prejudicial effect of the emotional impact of foundation testimony in this type of case. Finally, where the child declarant is unable to testify, the tender years exception goes beyond the requirements of the Sixth Amendment by requiring that “other evidence” be available as indicia of reliability. See Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539 (requiring only that the statement itself contain “adequate indicia of reliability”); see generally Comment, The Sexually Abused Infant Hearsay Exception: A Constitutional Analysis, 8 J. of Juvenile Law 59, 70-73 (1984). The majority is reluctant to create this new exception. They should not be. The courts have never held that all out-of-court statements must be excluded. In fact, the Supreme Court as early as 1895 realized that the general prohibition of hearsay evidence must occasionally give way to considerations of public policy and the necessities of the case. There can be no better case than the one presently before us.

In reviewing the facts of this case, there is no question but that the hearsay statements of the children, admitted through the testimony of their mothers, failed to satisfy the contemporaneity requirement of the spontaneous declaration exception. Commonwealth v. Kasko, supra. The sole evidence of the time frame between the incidents and the children’s statements is that Darrell’s incontinence began several months prior to his conversation with his mother. Neither child could fix the date of the incidents with precision.

Nevertheless, the hearsay was properly admitted under the tender years exception. The statements of both children concerned improper sexual contact by appellant. It is apparent from the record that the statements were absolutely necessary to allow a proper resolution of this case. During the ten months between discovery of the incidents and appellant’s second trial, the memories of these four- and five-year-old children had faded considerably. At trial, Darrell’s responses to questions consisted of single-word or “yes” and “no” answers. Notes of Trial at 146 et seq. Jaclyn’s responses, limited by the pretrial order to what had happened to her, were equally monosyllabic. Notes of Trial at 175 et seq. Both children repeatedly stated that they were unable to remember details of the incidents. The testimony of the mothers was absolutely necessary to give the jury an opportunity to evaluate the events in a coherent manner and from a time when the events were relatively fresh in the children’s minds.

Under the second stage of the tender years analysis, a child’s statements must be amply supported by indicia of reliability and trustworthiness. Judge Cavanaugh is of the opinion that small children are inherently unreliable because of their vivid imaginations. Even an imagination, however, must have some basis in fact. You cannot imagine what you do not know about. Darrell was four and one-half years old at the time the statements were made. The matter emerged only because of a chance conversation between Darrell’s brother and his mother. There are no indications that Darrell fabricated his story. In fact, it is extremely unlikely that he could have imagined this scenario. Darrell positively identified appellant among a large number of people at a pre-arrest confrontation, at a photographic display, at a lineup, and in court. Although not required due to Darrell’s availability at trial for cross-examination, Darrell’s statement was corroborated by the testimony of his examining physician. By way of illustration, evidence of Darrell’s incontinence was relevant as “other evidence” supporting the trustworthiness of the statement.

The testimony of Mrs. Predmore as to Jaclyn’s out-of-court statements was also admissible under the tender years exception. The statements were necessary to reach a just disposition in this case. Jaclyn’s testimony showed the effects of the ten month delay between the event and trial even more severely than did Darrell’s testimony. At trial, the record shows that Jaclyn was somewhat intimidated by the proceedings, to the point of giving conflicting answers to questions twice asked. The statements were necessary to give the jury a coherent version of Jaclyn’s story ten months earlier.

Under the second stage of the analysis, the trial court’s order, limiting Jaclyn’s testimony to what was actually done to her, effectively rendered her unavailable as a witness. See United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980). Therefore, there must be sufficient indicia of reliability for her statement and other evidence of trustworthiness. It is improbable that a five year old child, acting alone or with a four and one-half year old child, could have invented this story in such detail. Jaclyn was interviewed by her mother out of Darrell’s presence, yet the two stories were substantially the same. The similarity of the two stories is particularly compelling as indicia of reliability of both Darrell’s and Jaclyn’s statements.

Insofar as Jaclyn was effectively unavailable for cross-examination, it is necessary to look to other evidence for particularized guarantees of trustworthiness of her statement. That evidence is apparent in Darrell’s incontinence resulting from the abuse and in the testimony of Darrell’s examining physician. In separate interviews, both Jaclyn and Darrell gave identical accounts of the cause of Darrell’s injuries. Further, both children stated that the same offenses had been committed against Jaclyn. Compare Commonwealth v. Kasko, supra (statements inadmissible where they followed fifteen minutes of questioning of both children by one parent and joint interrogation by both parents which demanded reflection by the children). As a child victim and witness to the indecent contact, Jaclyn’s statement was properly admitted into evidence.

There is no inconsistency in the exclusion of Jaclyn’s identification testimony at trial yet admission of her statement identifying appellant. The tender years exception requires examination of the statement at the time it was given. At Jaclyn’s competency hearing, ten months later, the lower court properly determined that Jaclyn’s memory had faded to the point that she could not reliably identify appellant at trial.

Finally, it is apparent from the record that appellant was aware prior to trial that the Commonwealth intended to introduce these statements through the testimony of the mothers. Notes of Trial 5-7 (defense counsel’s pre-trial objection to potential hearsay). The Commonwealth’s intent was manifestly apparent from its use of the parents’ testimony at appellant’s first trial in March 1983. Appellant did not object to admission of the statements at that time. Under the circumstances of this case, appellant was on notice and had ample opportunity to prepare to meet this evidence.

Based on the foregoing analysis, I would hold that the tender years exception satisfied the reliability and trustworthiness requirements and is not inconsistent with the confrontation right of the accused. The adoption of such a statute would be an important step forward in combating the onslaught of child abuse cases.

Therefore, I would affirm.

      . We are not impressed by the fact that the legislatures in a handful of states have enacted statutes that permit the state to introduce the out-of-court assertions of children in child abuse cases. It is hard for a legislator, who must periodially run for reelection, to vote against a proposed statute that makes it easier to convict persons accused of child abuse, because of the danger that an opportunistic opponent and an unsophisticated electorate may interpret such a vote as being soft on crime in general, or soft on child-abusers in particular. Politically, the safest thing for a legislator to do is to vote in favor of such a statute, regardless of its merits, and leave it to the courts to deal with the ramifications of its enactment.

      . A national study by the American Humane Association showed a 200% increase in the reporting of child sexual abuse since 1976. By 1980, there were 25,000 reported cases of child sexual abuse per year. Collins, Statistics Find Sexual Abuse of Children is Widespread, New York Times, May 13, 1982 at Cl, col. 1, CIO, col. 2. There is a strong indication that statistics of reported cases may understate the problem as the child may refuse to report the problem or the parents may refuse to go to the authorities. Id., at CIO, cols. 5-6; see generally Comment, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 18 Colum.L.Rev. 1745 (1983); Note, A Tender Years Doctrine for the Juvenile Courts: An Effective Way to Protect the Sexually Abused Child, 61 U.Det.J. of Urban Laws 249 (1984).

      . A 1969 study of 250 cases of child sexual abuse reported to New York City’s protective services showed that less than one percent of the cases resulted in conviction. Collins, supra, n. 3 at CIO, col. 5.

      . We are sensitive to the related problem that children who are prepared too thoroughly to testify tend to sound rehearsed and unconvincing.

      . United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1980) (spontaneous declaration of nine year old victim of assault with intent to commit rape made to police officer); United States v. Nick, 604 F.2d 1199 (9th Cir.1979) (spontaneous declaration of three year old victim of sexual assault made to the victim’s mother); Beausoleil v. United States, 107 F.2d 292 (D.C.Cir.1939); People v. Orduno, 80 Cal.App.3d 738, 145 Cal.Rptr. 806 (1978), cert. denied, 438 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41 (1978); Lancaster v. People, 200 Colo. 448, 615 P.2d 720 (1980); Jackson v. State, 419 So.2d 394 (Fla.App.1982); People v. Miller, 58 Ill.App.3d 156, 15 Ill.Dec. 605, 373 N.E.2d 1077 (1979); Skaggs v. State, 438 N.E.2d 301 (Ind.App.1982); State v. Rodriguez, 8 Kan.App.2d 353, 657 P.2d 79 (1983); Smith v. State, 6 Md.App. 581, 252 A.2d 277 (1967); People v. Edgar, 113 Mich.App. 528, 317 N.W.2d 675 (1982); Williams v. State, Miss., 427 So.2d 100 (1983); State v. Duncan, 53 Ohio St.2d 215, 373 N.E.2d 1234 (1978); State v. Souza, - R.I. —, 456 A.2d 775 (1983); Arvey v. Texas, 646 S.W.2d 320 (Tex.App.1983); State v. McMillan, Utah, 588 P.2d 162 (1978); State v. Padilla, 110 Wis.2d 414, 329 N.W.2d 263 (1982).

      . See Comment, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 18 Colum.L.Rev. 1745, nn. 92-105 and accompanying text.

      . Alternative hearsay exceptions used in child sexual abuse cases also suffer from the limitations brought on by their application in a non-traditional context. See generally United States v. Nick, 604 F.2d 1199 (9th Circ.1979) (statement of physical condition); Fitzgerald v. United States, D.C., 412 A.2d 1 (1980), aff'd., 443 A.2d 1295 (1980) (en banc) (complaint of rape doctrine limited to show only that complaint was made); Thomas v. State, 92 Wis.2d 372, 284 N.W.2d 917 (1979) (prior consistent statement); Goldade v. State, Wyo., 674 P.2d 721 (1983) (physician’s treatment and diagnosis exception expanded to admit hearsay identification testimony).

      . Note that Michigan’s judically created tender years exception was abolished by the Michigan Supreme Court upon the legislative adoption of the Michigan Rules of Evidence. People v. Kreiner, 415 Mich. 372, 329 N.W.2d 716 (1982); compare People v. Debreczeny, 74 Mich. App. 391, 253 N.W.2d 776 (1977) (defining common law tender years exception). The Kreiner court held that the Michigan Rules of Evidence adopted only the specifically enumerated exceptions of the Federal Rules of Evidence to the hearsay rule and that the tender years exception was not a specific exception. 415 Mich, at 373, 329 N.W.2d at 717. Further, the Michigan legislature failed to adopt an analog to the catch-all provision of the Federal Rules of Evidence, Rule 803(24). For an excellent review of the development and demise of the tender years exception in Michigan, see Note, A Tender Years Doctrine for the Juvenile Courts: An Effective Way to Protect the

        Sexually Abused Child, 61 Univ. of Det.J. of Urban Law, 249 (Wint. 1984).

      . Bill 1361 Would have amended 42 Pa.C.S. Chapter 59 (Admissibility of Certain Statements) and provided:
      (A) GENERAL RULE — An out-of-court statement made by a child victim or witness describing indecent contact, sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise admissible by statute or rule of evidence is admissible in evidence in any criminal proceeding if:
      (1) The Court finds, in an in camera hearing, that the evidence is necessary, and that the time, content and circumstances of the statement provide sufficient indicia of reliability.
      (2) The child either:
      (I) Testifies at the proceeding; or
      (II) Is unavailable as a witness if there is corroborative evidence of the act.
      (B) NOTICE REQUIRED — A statement otherwise admissible under subsection (A) shall not be received into evidence unless the proponent of the statement notifies the adverse party of the proponent’s intention to offer the statement and the particulars of the statement, sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence, to provide the adverse party with a fair opportunity to prepare to meet the statement.
      Senate Bill No. 1361 of 1984. We have followed this Bill in the rule we adopt today.

      . A similar bill prepared by the California legislature has met the same fate. California Senate Bill 621 of 1983.

      . The majority gives little credit to the legislatures of our states who have voted to allow the introduction of out-of-court statements. This implies that the legislators are not doing their very best to uphold the constitution and do what is best for our welfare.

      . Compare Wash.Rev.Code Ann. Sec. 9A.44.120 (1982); Pennsylvania General Assembly Senate Bill 1361 (1984), n. 9 supra. Similar amendment of state evidentiary codes is recommended by the Young Lawyers Division of the American Bar Association. National Legal Resource Center for Child Advocacy and Protection, Recommendations for Improving Legal Intervention in Intrafamily Child Sexual Abuse Cases, Section 4.3 (October 1982).

      . Appellant challenges the constitutionality of the admission of the statements under the Sixth Amendment.

      . Rule 803(24) states:
      Other exceptions. — A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
      Federal Rules of Evidence, Rule 803(24).

      . Compare State v. McCafferty, S.D., 356 N.W.2d 159 (1984) (young child is unlikely to fabricate graphic account of sexual activity beyond the ken of personal experience); and Wilson v. United States, 271 F.2d 492 (D.C.Cir.1959) (citing Guttmacher & Weihofen, Psychiatry and the Law 374 (1952) (young child is highly suggestible, confused and fascinated about sexual activity; and does not understand serious consequences of charges)).

      . See Goldade v. State, Wyo., 674 P.2d 721 (1983):
      If the goal of our court were simply to pursue the common-law tradition of stare decisis, then the cited authorities must be recognized as supporting the position of the appellant. In this instance, however, the function of the court must be to pursue the transcendent goal of addressing the most pernicious social ailment which afflicts our society ... child abuse.

        Id., 674 P.2d at 725.

      . See Soto v. Territory, 12 Ariz. 36, 39, 94 P. 1104, 1105 (1908).

      . During the course of this case, Darrell Leigh-Manuel was found competent and did testify at trial; Jaclyn Predmore was permitted to testify only as to what was physically done to her and therefore was not fully “available” as a witness in light of the scope of her admitted out-of-court statements. See United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980) (declarant too young to be subjected to thorough cross-examination as envisaged by the constitution); United States v. Nick, 604 F.2d 1199 (9th Cir.1979).

      . Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895).

      . There is always a chance that a charge of sexual abuse is fictitious, but these instances do not happen often. In addition, as the analysis of child abuse and abusers continues, it is becomeing possible to recognize certain signs or signals alerting investigators and doctors to this fact.
      David P.H. Jones, Reliable and Fictitious Accounts of Sexual Abuse in Children, to be published in the Journal of Inter-personal Violence, Issue 2, June, 1986.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    505 A.2d 286
    Phyllis J. FIEDLER, J. Earl and Bonnie McCaleb, Robert and Margaret L. Cryan, Patricia and Walter M. Fish and Ann and Jay H. Calvert, Jr., Appellees, v. Wayne and Jean COEN and Stephen and Janet Tiley, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1985.
    Filed Feb. 18, 1986.

      Peter A. Mardinly, Media, for appellants.
    Robert W. Lentz, Paoli, for appellees.
    Before McEWEN, MONTEMURO and TAMILIA, JJ.
   MONTEMURO, Judge:

On August 17, 1984, the Honorable Charles B. Smith of the Court of Common Pleas of Chester County dismissed appellant’s exceptions to a Decree Nisi entered by Judge Smith on March 5, 1984 which had issued an injunction in favor of appellees. The order was made final and this appeal followed.

The instant litigation commenced with a complaint in equity filed by appellees, plaintiffs below, seeking to enjoin appellants Wayne and Jean Coen from diverting or obstructing a certain watercourse on the Coen property and to maintain the watercourse so that water continued to reach appellees’ properties. Appellees also prayed for “[s]uch other relief as the Court shall deem appropriate.” After a hearing on the matter, and an on-site inspection by Judge Smith, the court entered the following decree nisi:

AND NOW, this 5th day of March, 1984, ... it is ORDERED that Plaintiffs are granted a permanent injunction and Defendants, Wayne and Jean Coen, are Ordered and Directed to return permanently the flow of the stream on their property, to the man-made watercourse, which runs through the respective properties of Plaintiffs (the “man-made watercourse”). Within ten (10) days of the date of this Order, the Coens shall submit a plan setting forth the means they propose to use to return permanently the flow of water to the man-made watercourse to counsel for Plaintiffs for his approval. In the event said plan is approved by counsel for Plaintiffs, the Coens are Ordered and Directed to carry out said plan and have constructed within forty (40) days of the date of this Order, the device(s) for returning permanently the flow of water to the man-made watercourse. If said plan is not acceptable to counsel for Plaintiffs, or the flow of water is not returned permanently, to the man-made watercourse within forty (40) days of the date of this Order, pursuant to said approved plan, the Coens are Ordered and Directed to permit Plaintiffs, and/or their agents, independent contractors or employees, to enter upon the Coens’ property to construct the device(s) as described by Albert J. Giannantonio, at the Hearing in this case, including the opening of the now enclosed flume. Upon certification to this Court, by counsel for Plaintiffs, of the expense of the installation of said device, a judgment in that amount shall be entered in favor of Plaintiffs and against Defendants.
Thereafter it shall be the responsibility of the Plaintiffs to maintain said device(s) to the extent necessary, once installed, so that the flow of water remains in the man-made watercourse. Plaintiffs shall have the right to enter onto Defendant’s property for the purpose of inspecting said device(s) and insuring that it is functioning properly.
Defendants are permanently enjoined from disrupting in any way the flow of water from the man-made watercourse.
* * * * # *

BY THE COURT:

Charles B. Smith, J.

This decree nisi was made final by an order dated August 17, 1984.

The appellants frame the issues before us as follows:

I. May a chancellor exercise subject matter jurisdiction where property owners affected by the requested relief have not been joined as parties?
II. To assert a prescriptive easement against a bona fide purchaser for value, must Plaintiffs allege and prove that the easement is open and apparent?
III. Did the chancellor err in refusing to deny Plaintiffs relief due to laches, or equitable estoppel?
IV. Did the chancellor err in compelling Defendants to reconstruct the man-made streambed?

Brief for Appellant at 3.

We have reviewed the arguments of the parties, the lower court’s opinion, and the extensive record in this case and agree with the conclusions reached by the court below regarding issues II through IV. Finding that the court properly and adequately disposed of those issues, we see no need to add further comment. As to the first issue relating to jurisdiction, further discussion is in order.

Appellants contend that the appellees failed to join certain parties who are alleged to be indispensable to this litigation. This claim, if true, would mean the order appealed from is null and void, as such a claim goes to the court’s very jurisdiction over the instant controversy. Columbia Gas Transmission Corp. v. Diamond Fuel Co., 464 Pa. 377, 346 A.2d 788 (1975); Hartley v. Langkamp, 243 Pa. 550, 90 A. 402 (1914); Barren v. Dubas, 295 Pa.Super. 443, 441 A.2d 1315 (1982) (collecting cases). Appellants’ contention is that appellees, who are downstream landowners, should have joined other downstream landowners whose riparian rights may be affected by the instant suit in equity.

“In Pennsylvania, an indispensable party is one whose rights are so directly affected by litigation that he must be a party of record to protect such rights, and his absence renders any order or decree of court null and void for want of jurisdiction.” Columbia Gas Transmission Corp. v. Diamond Fuel Co., supra, 464 Pa. at 379, 346 A.2d at 789; see generally 14 STANDARD PENNSYLVANIA PRACTICE 2d §§ 79: 68-69; 5 GOODRICH AMRAM 2d § 1507:2.

Some of the parties claimed by appellants to be indispensable are landowners living downstream from appellants and upstream from appellees. These individuals own the land over which the watercourse flows as it makes its way from the Coens’ (appellants’) property to the appellees’ properties (i.e., the Fiedler, McCaleb, Cryan, Fish and Calvert properties). As appellants state in their brief, after flowing off the Coens’ property, “[t]he [watercourse] exits onto the Miller property, then to the Pension property and then flows over the Schless property” before reaching the property of the appellees . As we understand appellant’s argument, the simple fact that the stream flows over and through certain properties is sufficient to make the owners of those properties indispensable parties. We disagree.

As our supreme court noted in Columbia Gas, an indispensable party must be joined in a proceeding in order to protect his or her rights. Columbia Gas Transmission Corp. v. Diamond Fuel Corp., supra. However, in the instant proceeding, the parties alleged to have been indispensable have had their riparian rights protected, since the court properly found, as we confirmed above, that there was an existing watercourse flowing in a specific channel which was improperly obstructed or diverted by appellants (Coens). Thus, as to the intervening downstream riparian landowners, their riparian rights entitle them to the continued flow of the existing watercourse in the same channel and in the general quality and quantity as the watercourse had been flowing. Lucas v. Ford, 363 Pa. 153, 69 A.2d 114 (1949); White v. Penna. R.R. Co., 354 Pa. 397, 47 A.2d 200

(1946); Fricke v. Quinn, 188 Pa. 474, 41 A. 737 (1898); Hoy v. Sterrett, 2 Watts 327 (1834); see generally Gould on Waters § 204 (3rd ed.). These rights are the same as the appellees’ in the watercourse. Hence, the appellees have in this litigation, not only preserved but also enforced the riparian rights of the intermediate downstream landowners who appellants deem indispensable.

The remaining parties mentioned by appellants in their jurisdictional argument have no riparian rights vis-avis the watercourse because their properties are not touched by the stream. In the proceedings below, appellants attempted to establish that while the watercourse which flows to appellees’ properties did indeed exist, there was also a natural or historical watercourse. Appellant argued that this natural watercourse was the only one in which any party had riparian rights. The trial court rejected this claim, finding the watercourse flowing to appellees’ properties has existed since at least the turn of the century and that appellees had established their riparian rights in that stream. See City of Reading v. Althouse, 93 Pa. 400 (1880); Appeal of Fleming, 65 Pa. 444 (1870); Beech v. Kuder, 15 Pa.Super. 89 (1900). Our review of the record finds ample support for the trial court’s findings and conclusions. These other allegedly indispensable parties live along the coursé of the “natural or historical” watercourse which the lower court found has not been the channel through which the water in question flowed. As such, they have no riparian rights in the water flow, and can not therefore be said to have rights which may be affected by this litigation. We therefore do not find them to be indispensable.

Finding no reversible error, we will not disturb the trial court’s order.

Order affirmed.

      . Stephen and Janet Tiley were permitted to intervene as additional defendants. See Pa.R.C.P. 2327. The order from which this appeal was taken does not mention the Tileys or their property.

      . Although the court below did not address this claim at any length, it did, under the heading “CONCLUSIONS OF LAW", state: "This Court has jurisdiction over the parties and subject matter in this case.” Slip op. at 7. The trial court apparently considered appellants' motion to dismiss due to failure to join indispensable parties to have been untimely. See N.T. December 1, 1983 at 43. However, as this objection goes to the court’s jurisdiction, it may be raised at any time. Dozor Agency, Inc. v. Rosenberg, 403 Pa. 237, 169 A.2d 771 (1961); see also Pa.R.C.P. 1032.

      . The following diagram which shows the course of the watercourse was taken from Plaintiffs’ Exhibit # 1. This exhibit was admitted without objection at trial. N.T. December 1, 1983, at 6.

      . The owners of the Miller, Pension and Schless properties.

      . Indeed, we are uncertain as to just what role these parties would play in this litigation, and appellants provide us with no real indication of how their presence would affect the outcome. As we stated, the lower court properly found that appellees established riparian rights in a certain, long-existing stream. These rights were interfered with by the Coens. The appellees, as downstream riparian landowners, had the right to enjoin this interference. The intermediate riparian landowners had no more right to obstruct the flow from appellees than appellants (the Coens) had. In addition, the allegedly indispensable parties also had the obligation to allow the water to flow off of the Coens’ property. See Hughesville Water Co. v. Person, 182 Pa. 450, 38 A. 584 (1897); Beech v. Kuder, 15 Pa.Super. 89 (1900). Thus, as we are in agreement with the lower court that the water course in question was one in which appellees established riparian rights, and considering that these parties could not themselves obstruct the watercourse or refuse to allow the flow off of the Coen property, we cannot see why these parties are indispensable in this litigation.

      . We note that our supreme court approved of an order which granted substantially similar relief in Scheetz Appeal, 35 Pa. 88 (1860).


author: CAVANAUGH, Judge:

text:
    505 A.2d 290
    Michele Foussier LAUB, Appellant, v. Richard Michael LAUB, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1985.
    Filed Feb. 21, 1986.

      Gordon M. Mair, King of Prussia, for appellant.
    Frederic M. Wentz, Norristown, for appellee.

      Before CAVANAUGH, McEWEN and CERCONE, JJ.
   CAVANAUGH, Judge:

In this case, the appellant, Michele Foussier Laub, filed a complaint in divorce under the Pennsylvania Divorce Code of 1980, 23 P.S. § 101 et seq., asserting claims for equitable distribution, alimony, support and counsel fee. The appellee, Richard M. Laub, filed an answer and new matter raising as a defense to plaintiffs economic claims the existence of two ante-nuptial agreements which were executed on the same day. A hearing was held, limited to the issue of the validity of the ante-nuptial agreements, before the master who filed a report and recommendation finding the ante-nuptial agreements to be valid. The appellant filed exceptions to the report and recommendations of the master.

A hearing on the exceptions was held before Scirica, J. who entered an adjudication and decree nisi finding that the agreements and releases therein, foreclosed all of the appellant’s claims for alimony, support and equitable distribution of marital property and that the agreements were valid and binding upon the parties. The appellant filed exceptions to the adjudication and decree nisi which were dismissed by Lowe, P.J. An appeal has been taken to this court from the order of February 27, 1985 dismissing the exceptions to the adjudication and decree nisi.

Both agreements between the appellant and appellee were entered on June 9, 1969, after a full disclosure by the appellee of his assets to the appellant shortly before the parties were married. The pre-nuptial agreements were prepared by counsel for the appellee who suggested to the appellant that she have her own attorney. The appellant indicated that she did not want separate counsel. The attorney reviewed the entire agreements with the parties. The appellee is some twenty-two years older than the appellant and at the time of the marriage he was approximately fifty years of age and the appellant was twenty-eight. The marriage was the first for the appellant, but the second marriage for the appellee who had three children by his prior marriage. One child was born as a result of the marriage between the appellant and the appellee.

The first agreement entered into between the parties provided in paragraph two:

Each party shall be completely independent of the other in regard to possession, control and enjoyment of any property owned by him or her at the time of their marriage or acquired thereafter during their marriage

Paragraph four of the first agreement provides:

Each party does hereby remise, release ... to the other all of his or her ... and other rights and interests that will be acquired by each of them, upon their marriage, under the laws of ... Pennsylvania ... or ... any other jurisdiction ... in and to any property now owned or hereafter acquired by the other of them.
Paragraph one of the second agreement provides that: Each party agrees that he or she will not assert any claims for support or alimony, of any nature against the other.

Finally, paragraph three of the first agreement provides in part:

... this agreement shall not in any way apply to property the parties may acquire as tenants by the entire-ties or as joint tenants with the right of survivorship.

The pivotal issue is whether the marital agreements preclude equitable distribution, alimony, support and counsel fees under the Divorce Code of 1980. The agreements were entered into prior to the effective date of the Divorce Code which provides in Section 103:

This act shall not affect any marital agreement executed prior to the effective date of this act or any amendment or modification thereto.
1980, April 2, P.L. 63, No. 26, § 103, effective in 90 days.

Not only does the Act itself provide that it shall not affect a marital agreement entered into before the effective date of the Act, but the question was addressed in Wolfe v. Wolfe, 341 Pa.Super. 313, 318, 491 A.2d 281, 283 (1985) which held that a valid post-nuptial agreement entered into prior to the effective date of the Divorce Code bars a claim for equitable distribution under the Code. In Wolfe, the wife claimed that the post-nuptial agreement was not complete because she could not waive her right to equitable distribution since the right had not yet come into existence. We quoted from a New York decision in Boss v. Boss, 107 Misc.2d 984, 436 N.Y.S.2d 167 (1981) dealing with a New York statutory provision similar to 23 P.S. § 103 wherein the court stated:

Part of the quid pro quo which one gives up when one enters into a comprehensive agreement such as this is, [sic] the possibility that the law may change in one’s favor. A stable and sure arrangement in the present is preferred to the mere “possibility” of a better result in the future.
Boss v. Boss, 107 Misc.2d 984, 436 N.Y.S.2d 167 (1981).

The fact that the instant case involved a pre-marital agreement rather than a post-nuptial agreement is of no material consequence. In Fox v. Fox, 114 Montgomery County L.R. 145 (1984) the parties entered into an ante-nuptial agreement in which the parties waived rights to alimony pendente lite, counsel fees, costs and support. Both parties agreed that they could dispose of their own property and each waived statutory rights and common law rights in the property of the other. The court held that the agreement was valid and under Section 103 of the Divorce Code was not affected by the Divorce Code with respect to equitable distribution and alimony.

Our next point of inquiry is whether the parties intended that the agreement should apply only to property and rights in existence at the time the agreements were entered as the appellant contends, or whether they encompassed after acquired rights such as those acquired under the Divorce Code. In interpreting a written contract, the intention of the parties must prevail. Robert F. Felte, Inc. v. White, 451 Pa. 137, 302 A.2d 347 (1973); O’Farrell v. Steel City Piping Co., 266 Pa.Super. 219, 403 A.2d 1319 (1979) ; Snaith v. Snaith, 282 Pa.Super. 450, 422 A.2d 1379 (1980) . It is apparent that each party to the agreement was giving up his or her rights in the property of the other, whether the rights existed at the time of the agreement or subsequently came into being. The parties expressly gave up their right “in and to any property now owned or hereafter acquired by the other of them.” Further, each party gave up any “claims for support or alimony, of any nature against the other.” The concept of equitable distribution of marital property was not part of the statutory law at the time the agreements were entered, and the parties did'not refer to it. Nevertheless, by clear language, they gave up the right to any interest in the property of the other and this necessarily included an equitable distribution of the other’s property. Ante-nuptial agreements are presumed to be valid. McGannon v. McGannon, 241 Pa.Super. 45, 359 A.2d 431 (1976). - The party seeking to avoid or nullify or circumvent such agreement has the burden of proving the invalidity of the agreement by clear and convincing evidence. Ratony Estate, 443 Pa. 454, 277 A.2d 791 (1971).

The appellant contends that the ante-nuptial agreements are without ambiguity and the release clauses do not refer to future property or alimony rights. When the words of a contract are clear and unambiguous, the intent of the parties is to be discovered from the express language of the agreement. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982). In interpreting a contract, the intention of the parties must be ascertained from the complete writing and each and every part of it must be taken into consideration and given effect if reasonably possible. International Organization Masters, Mates and Pilots of America, Local No. 2 v. International Organization Masters, Mates and Pilots of America, Inc., 497 Pa. 102, 439 A.2d 621 (1981) . The agreements, read as a whole, manifested an intent that neither party was to have an interest in any property belonging to the other, whether the interest in the property, or the property itself, existed at the time of the agreement or was acquired at some time in the future. We would have to ignore the agreement of the parties to allow equitable distribution of the parties’ property under the Divorce Code. Similarly, the parties gave up any and all rights to alimony and support.

The appellant also contends that the ante-nuptial agreements are inoperative as they have terminated. The first agreement provides in paragraph six:

6. This Agreement represents the entire understanding between the parties and is binding on their respective heirs, administrators, and assigns, but shall automatically terminate in the event of the dissolution of the marriage by any means other than the death of either party.

The entry of a divorce decree would dissolve the marriage. However, in this case a divorce decree has not been entered. The Divorce Code permits a bifurcated proceeding in some circumstances whereby the divorce decree is entered and ancillary matters such as equitable distribution of property are subsequently disposed of. Pastuszek v. Pastuszek, 346 Pa.Super. 416, 499 A.2d 1069 (1985). Iri the case before us, Judge Yohn by order of August 4, 1983 approved the master’s report and directed a hearing on equitable distribution. This may not be construed as the entry of a divorce decree. Even when a divorce decree is entered, it is not final and remains pending until after the period for appeal expires. Oswald v. Oswald, 263 Pa.Super. 85, 397 A.2d 7 (1979).

The appellant’s contention that the ante-nuptial agreements must fall for lack of full disclosure by the appellee of his assets prior to entering the agreement is without merit. In order to overcome the presumed validity of a pre-nuptial agreement, the objecting party must establish its invalidity by clear and convincing evidence. In order for an inter vivos agreement to limit rights it must be established either that the intended spouse was not reasonably provided for or that there was not a full disclosure of net worth. In re Harrison Estate, 456 Pa. 356, 319 A.2d 5 (1974). Neither party contends that adequate provision was made for the appellant as under the agreement the only financial consideration she was to receive was to be named beneficiary under a $25,000.00 life insurance policy that the appellee owned. However, the agreement lists the appellee’s assets and liabilities in detail. The appellee’s financial statement listed securities, bank accounts and other financial interests that he owned and showed a net worth of approximately $272,000.00. The appellant’s assets were listed as personalty having a value of $1,600.00 and real estate located in Prance of an unknown value.

The appellant argues that there was not full disclosure because appellee did not reveal that he had established three trusts for his children. There is no evidence that he had any interest in the trusts which were created in the nineteen fifties and there is no indication that the trusts were revocable. The value of the trusts does not appear of record, although the appellee recalled that none of the trusts ever had a value of more than $20,000.00. Appellee believed that one of the trusts for his children had already been distributed.

The appellant also contends that, the financial statements did not disclose the appellee’s income and that this constituted failure to make a full disclosure. This argument is without merit. The appellee fully disclosed his assets in his financial statement. The requirement is that of a full disclosure of one’s financial worth at the time the agreement is entered. Income need not be separately listed. The reasonableness of a pre-marital agreement should be evaluated in the light of the circumstances existing when the agreement is entered, and consideration is to be given to the financial worth of the parties, age of the parties, number of children each has, and the intelligence of the parties. Kester Estate, 486 Pa. 349, 405 A.2d 1244 (1979). We are satisfied that there was adequate disclosure by the appellee of his financial worth in this case and the ante-nuptial agreements are valid and enforceable.

Order affirmed.


author: WIEAND, Judge:

text:
    505 A.2d 295
    COMMONWEALTH of Pennsylvania, Appellee, v. Roy BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 23, 1985.
    Filed Feb. 13, 1986.

      Paulette J. Balogh, Assistant Public Defender, Pittsburgh, for appellant.
    Kemal A. Mercli, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before WICKERSHAM, WIEAND and BECK, JJ.
   WIEAND, Judge:

On May 12, 1983, a neighbor observed a man carrying a television set from the home of Mary and Jack Johnson in Penn Hills, Allegheny County. He placed the television in a car in front of the Johnson home. The neighbor ran from his home, saw another man sitting behind the wheel of the car, and recorded the registration number as the vehicle was driven away. The neighbor subsequently identified Roy Brown, the appellant, as the driver of the car. After the Commonwealth had proved these facts, a jury found Brown guilty of theft and conspiracy.

The same jury, in a consolidated trial, found Brown guilty of criminal trespass and theft in connection with the removal of a television set and lace tablecloth from the home of Catherine Murtland in North Braddock, Allegheny County, on September 7, 1983. Brown had been observed by two neighbors who confronted him as he carried the television set and lace tablecloth from the Murtland home.

Post-trial motions were denied, and Brown was sentenced to two consecutive terms of imprisonment for an aggregate period of not less than four nor more than eight years. On direct appeal, he contends: (1) that the evidence was insufficient to show a conspiracy to steal the Johnson television; (2) that he was deprived of a speedy trial under Pa.R. Crim.P. 1100; (3) that the trial court erred in denying a defense request to continue the trial; (4) that the trial court erred in denying a defense request for separate trials; (5) that the trial court erred in denying a defense motion for a mistrial; (6) that the trial judge’s frequent interjections and adverse comments deprived him of a fair trial; and (7) that sentencing counsel was ineffective for failing to require the court to place on the record the reasons for the sentences. After careful review, we conclude that new trials are necessary.

A conspiracy need not be established by direct evidence. Commonwealth v. Davenport, 307 Pa.Super. 102, 106, 452 A.2d 1058, 1060 (1982). A corrupt agreement to commit a criminal act may be shown by circumstantial evidence. Commonwealth v. Hurlbert, 329 Pa.Super. 119, 125, 477 A.2d 1382, 1385 (1984). See also: Commonwealth v. Mills, 332 Pa.Super. 75, 480 A.2d 1192 (1984). “The existence of a common agreement may be inferred from the evidence of the circumstances surrounding the allegedly conspiratorial activities, and from the relationship between and the conduct of the parties.” Commonwealth v. Gordon, 329 Pa.Super. 42, 52, 477 A.2d 1342, 1347 (1984) (citations omitted). See also: Commonwealth v. Hart, 348 Pa.Super. 117, 501 A.2d 675 (1985). “Where the conduct of the parties indicates that they were acting together with a common and corrupt purpose ... the jury may properly infer that a conspiracy did exist.” Commonwealth v. Esposito, 236 Pa.Super. 127, 130, 344 A.2d 655, 657 (1975), quoting Commonwealth v. Armbruster, 225 Pa.Super. 415, 420, 311 A.2d 672, 674 (1973).

The evidence in this case was sufficient to enable a jury to infer that appellant, on May 12, 1983, had agreed to promote, facilitate and encourage the theft of a television set from the Johnson home in Penn Hills. Appellant had waited in a car while his companion had entered the Johnson home and removed the television. After the companion had returned and had placed the television set in the car, appellant sped away. An observant neighbor obtained the license number of the vehicle, which enabled police to trace the vehicle to appellant.

“[T]he driver of a ‘get away’ car can be found guilty as [a co-conspirator] if it is reasonable to infer that he was aware of the actual perpetrator’s intention. His agreement to effectuate the escape aids the perpetrator in the planning and commission of the actual crime.” Commonwealth v. Wright, 235 Pa.Super. 601, 605-606, 344 A.2d 512, 515 (1975). See: Commonwealth v. Azim, 313 Pa.Super. 310, 459 A.2d 1244 (1983) (appellant guilty of criminal conspiracy where he sat at wheel with engine running, lights on, and doors open while two other persons assaulted and robbed victim, after which appellant drove robbers from scene). See also: Commonwealth v. Perry, 334 Pa.Super. 495, 483 A.2d 561 (1984); Commonwealth v. Esposito, supra. A jury could find that appellant’s presence outside the Johnson home, where he had no cause to be, sitting behind the wheel of a car, which he then used to transport the stolen Johnson television set and the thief away from the scene of the crime, was not merely fortuitous.

The criminal complaint in the first incident was filed on May 25, 1983. A warrant for appellant’s arrest was issued the same day. The Rule 1100 run date, therefore, was November 21, 1983. Appellant was arrested on June 5, 1983 and released on his own recognizance. He failed to appear for a preliminary hearing on June 10, 1983 and remained in a fugitive status until December 9, 1983. On the latter date, the police learned that appellant had been incarcerated in the Allegheny County Prison on other charges. He was thereafter arraigned on February 1, 1984, and his trial commenced on February 20, 1984, sixty-two days after the run date.

“[A] criminal defendant on bail who willfully absents himself from a proceeding of which he had notice is precluded from relying on the concept of due diligence afforded by the speedy trial guarantee.” Commonwealth v. Williams, 299 Pa.Super. 226, 231, 445 A.2d 537, 539 (1982), citing Commonwealth v. Cohen, 481 Pa. 349, 356, 392 A.2d 1327, 1331 (1978). Such a defendant “has violated the conditions of his bail, and the Commonwealth is entitled to count any period of delay as excludable time under Rule 1100(d); a showing of due diligence is not required.” Commonwealth v. Byrd, 325 Pa.Super. 325, 329, 472 A.2d 1141, 1143-1144 (1984). See also: Commonwealth v. Cohen, supra; Commonwealth v. Colon, 317 Pa.Super. 412, 421, 464 A.2d 388, 392-393 (1983); Commonwealth v. Williams, supra. A defendant who has failed to make a scheduled court appearance has violated the terms of his or her bail and will be considered unavailable for Rule 1100 purposes from the time of the proceeding at which he or she failed to appear until he or she voluntarily surrenders or is subsequently apprehended. Commonwealth v. Cohen, supra; Commonwealth v. Gorham, 341 Pa.Super. 499, 503, 491 A.2d 1368, 1370 (1985); Commonwealth v. Williams, supra. “We have held that this principle applies even where the defendant is incarcerated, and therefore cannot appear, if he has not complied with the notice requirement of [Pennsylvania] Rule [of Criminal Procedure] 4013(c).” Commonwealth v. Gorham, supra, 341 Pa.Super. at 503, 491 A.2d at 1370.

Appellant, despite knowledge of the time and place of his preliminary hearing, failed to appear. He was thereafter not found by the police until December 9, 1983. The time between June 10, 1983 and December 9, 1983, therefore, is excludable. Because he failed to comply with the requirements of Pa.R.Crim.P. 4013(c) that he give notice of any change of address, it is not necessary to inquire, as appellant would have us do, whether the police exercised due diligence to find him while he was a fugitive. He was unavailable during this period; and, therefore, the period is excludable. Appellant was tried within the time constraints of Rule 1100.

Appellant’s next argument, ironically, is that he was tried too soon. He contends that his trial counsel needed additional time to prepare for trial and that the court erred in denying a defense request for a continuance. We disagree.

The granting or refusal of a request for continuance is vested in the discretion of the trial court. Commonwealth v. Lore, 338 Pa.Super. 42, 59, 487 A.2d 841, 850 (1984). The denial of a continuance will be reversed on appeal only upon a showing of palpable and manifest abuse of discretion. Commonwealth v. Maute, 336 Pa.Super. 394, 405-406, 485 A.2d 1138, 1144 (1984); Commonwealth v. Faraci, 319 Pa.Super. 416, 421, 466 A.2d 228, 231 (1983). “A simple allegation that more preparation is necessary for investigation and trial preparation will not suffice in demonstrating an abuse of discretion.” Id., 319 Pa.Superior Ct. at 421-422, 466 A.2d at 231. Mere shortness of time in which to prepare does not mandate the granting of a continuance. Commonwealth v. Lore, supra (three weeks from appointment to suppression hearing in which to prepare); Commonwealth v. Faraci, supra (thirteen days to file pre-trial motions and one month to prepare for trial); Commonwealth v. Hubble, 314 Pa.Super. 99, 460 A.2d 784 (1983)(three and one-half months to prepare); Commonwealth v. Eackles, 286 Pa.Super. 146, 428 A.2d 614 (1981) (fifty-five days in which to prepare for trial). An appellant must be able to show specifically in what manner he was unable to prepare his defense or how he would have prepared differently had he been given more time. Id., 286 Pa.Superior Ct. at 152, 428 A.2d at 617. We will not reverse a denial of a motion for continuance in the absence of prejudice. See: Commonwealth v. Hubble, supra, 314 Pa.Super. at 105, 460 A.2d at 787; Commonwealth v. Eackles, supra, 286 Pa.Super. at 152, 428 A.2d at 617.

Appellant argues that had trial counsel been given additional time to familiarize himself with the facts, he would have discovered that the Commonwealth had not exercised due diligence in attempting to bring appellant to trial within 180 days on the charges arising from the incident of May 12, 1983. Appellant’s argument seems to be that had counsel learned of these facts he could have filed a motion to dismiss under Rule 1100. However, trial counsel did file a pre-trial Rule 1100 motion to dismiss which, as we have observed, was properly denied by the trial court. Appellant’s further contention that trial counsel, having had additional time to prepare, might have been able to challenge the identification testimony is speculative and without any reasonable foundation. In short, appellant has failed to show that he was in any way prejudiced by the trial court’s denial of his motion for continuance of the trial.

Appellant’s several arguments that he was deprived of the right to a fair trial because of evidence of other crimes, however, are more troublesome. The first of these arguments pertains to the trial court’s refusal to allow separate trials for charges which seemingly related to two entirely different offenses. The second pertains to repeated testimony by a witness that she had observed appellant’s likeness in “mug shots” which had been displayed to her by the police.

Ordinarily, offenses charged in separate informations should be tried separately. If the offenses do not arise from the same act or transaction, they may be tried together if “the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion.” Pa.R.Crim.P. 1127 A(l)(a). Although a decision regarding consolidation necessarily rests in the discretion of the trial court, an appellate court will reverse a decision to consolidate separate offenses for trial where there has been an abuse of that discretion. Commonwealth v. Kasko, 322 Pa.Super. 62, 469 A.2d 181 (1983).

In Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973), the Supreme Court said:

It is black letter law that evidence of one crime is inadmissible against a defendant being tried for another crime because the fact of the commission of one offense is not proof of the commission of another. See Commonwealth v. Foose, 441 Pa. 173, 272 A.2d 452 (1971). However, there sometimes exist special circumstances which operate as exceptions to the general rule and bring the case within the equally well established principle that evidence of other crimes is admissible when it tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial — in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. See Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955).

Commonwealth v. Peterson, 453 Pa. at 197-198, 307 A.2d at 269. See also: Commonwealth v. Kasko, supra, 322 Pa.Super. at 67, 469 A.2d at 184. These principles were applied to the issue of consolidating separate charges for trial in Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981). There the Supreme Court held that separate informations may properly be consolidated for trial only where the separate offenses demonstrate an unusual or distinctive modus operandi. The Court defined those instances as follows:

As Professor McCormick explains, a distinctive and unusual “modus operandi”: appears where “crimes of the accused [are] so nearly identical in method as to earmark them as the handiwork of the accused.” He adds a further clarification:
Here much more is demanded then the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual or distinctive as to be like a signature. McCormick on Evidence, § 190 at 449 (2d Ed.1972).
The Commonwealth must show more than the other crimes are of the same class as the one for which the defendant is being tried. Rather, there must be such a high correlation in the details of the crimes that proof that the defendant committed one makes it very unlikely that anyone else but the defendant committed the others. See, Commonwealth v. Fortune, [464 Pa. 367, 346 A.2d 783 (1971)].

Commonwealth v. Morris, supra, 493 Pa. at 176, 425 A.2d at 720-721. See also: Commonwealth v. Larkins, 302 Pa.Super. 528, 531-533, 449 A.2d 42, 43-44 (1982).

In the instant case, the consolidated trial was for offenses allegedly committed in May, 1983 and September, 1983. Timewise, there was no connection whatsoever between the offenses. In light of the variance in dates, it was not sufficient to warrant consolidation that both offenses involved the theft of television sets during daylight hours in different municipalities in Allegheny County, even though both municipalities were suburban to the City of Pittsburgh. It was also insufficient that the premises from which the televisions were stolen had been ransacked. Although the offenses were of the same class, there was not that “high correlation in the details of the crimes that proof that the defendant committed one makes it very unlikely that anyone else but the defendant committed the others.” Commonwealth v. Bastone, 262 Pa.Super. 590, 595, 396 A.2d 1327, 1329 (1979). The separate crimes were not “so nearly identical in their unusual or distinctive aspects as to bear the ‘signature’ or be the ‘handiwork’ of the same person.” Commonwealth v. Kasko, supra, 322 Pa.Super. at 68, 469 A.2d at 184-185. We conclude, therefore, that it was an abuse of discretion for the trial court to deny a defense request for separate trials where, as here, the charges were for offenses which were unconnected in time and similar only in that television sets were stolen during daylight hours from ransacked dwelling houses. The Commonwealth should have been required to prove appellant’s guilt of each charge separately by evidence beyond a reasonable doubt and without benefit of any adverse inference arising from a duplicity of charges. See: Commonwealth v. Bobko, 453 Pa. 475, 309 A.2d 576 (1973).

The prejudice caused to appellant by the consolidation of separate charges for trial was exacerbated when the jury was told by a Commonwealth witness that she had observed appellant’s likeness among “mug shots” shown to her by the police. This information was elicited initially by the prosecuting attorney without objection by the defense. On a subsequent occasion, the witness said specifically, in response to a question by the trial judge, that she had observed appellant’s likeness among the “mug shots” shown to her by the police. When the witness concluded her testimony, defense counsel moved for a mistrial. The motion, however, was denied by the trial court.

This, we are constrained to hold, was error. A juror could reasonably infer from the testimony about mug shots that appellant had been engaged in prior criminal conduct. This was so prejudicial as to deprive appellant of a fair trial. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). Cf. Commonwealth v. Reiss, 503 Pa. 45, 468 A.2d 451 (1983); Commonwealth v. Jackson, 263 Pa.Super. 183, 397 A.2d 807 (1979).

Because we have concluded that these errors require the grant of a new trial, we do not consider appellant’s contention that the trial judge’s numerous interruptions impaired his right to a fair trial before an impartial tribunal. In all likelihood, the same interruptions will not occur upon retrial. Similarly, the grant of a new trial makes it unnecessary that we review the adequacy of the reasons given by the sentencing court for the sentences of imprisonment imposed upon appellant.

Reversed and remanded for new trials. Jurisdiction is not retained.


author: BROSKY, Judge:

text:
    505 A.2d 300
    David E. BROWN and Millie L. Brown, Appellants, v. Patrick M. CAIN.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1985.
    Filed Feb. 10, 1986.

      Bernard J. Rabik, Assistant Public Defender, Monaca, for appellants.
    Patrick M. Cain, Aliquippa, appellee, in properia persona.
    Before CAVANAUGH, BROSKY and WATKINS, JJ.
   BROSKY, Judge:

This appeal is from an order of the Court of Common Pleas of Beaver County, awarding custody of two children to their natural father and visitation rights to the maternal grandparents. Appellants, maternal grandparents, contend that they were denied a fair hearing at the pre-trial custody conference, violating their due process rights. We hold that due process rights did not attach at that point and, accordingly, affirm.

Appellants maintain that their due process rights were violated at the pre-trial conference with the Child Custody Conference Officer in that they were denied an opportunity to orally present their case. (Written forms had already been submitted to the Conference Officer.)

The primary function of the Child Custody Conference Officer in Beaver County under Local Rule 1920.32 is to attempt to achieve an amicable resolution of child custody or visitation disputes — obviating the need to resort to a contested proceeding. .

When a claim is filed with the Prothonotary, a copy is sent to the Child Custody Conference Officer, who arranges a pretrial conference at which the claim and response are reviewed. The officer, in addition to questioning the parties regarding the dispute, attempts to find a solution which will be acceptable to all parties involved. If an agreement does not result, the officer submits a report to the court in which he presents the positions of all parties together with his own recommendation.

After reviewing this report, the trial court issues a proposed order. Critically, this proposed order is not effective immediately. The parties are given five days prior to the effective date of the proposed order to file exceptions. If such exceptions are timely filed, the proposed order never goes into effect and a court hearing on the matter is scheduled. Only following a full hearing on the dispute may the trial court issue a binding custody and visitation order. In the case sub judice, these procedures were followed.

The first prerequisite for a violation of due process is that the proceeding was one in which due process was due. Instantly, that determination turns on the result of the pre-trial conference in child custody cases. If the result is adjudicative, due process rights would attach and their denial would constitute grounds to vacate the order of the trial court. If, on the other hand, the pre-trial proceeding does not result in a binding order, due process would not attach. Traditional due process analysis leads to this conclusion.

Due process attaches only when a protected liberty or property interest may be affected. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). If the proceeding cannot result in an order, it cannot affect any interest — protected or otherwise.

One method of dealing with the issue before us would be to characterize the conference as informational and conciliatory, rather than adversarial; and thus not subject to due process guarantees. This approach has been taken, in part at least, by one federal court. In King v. Georgia Power Co., 295 F.Supp. 943 (N.D.Ga.1968) the District Court rejected a claim that the failure to grant a hearing constituted a denial of due process on the grounds that the proceedings were “not adversarial in nature and are in no way binding.”

As a conceptual tool, we find this first element — “not adversarial in nature” — awkward to the task. When can adversaries be truly said to shed their combatant roles? Whether the thrust of the proceeding is to encourage compromise and gather information is, we think, quite beside the point if that proceeding can result in a disposition of the dispute. We rely, therefore, on the second element in King: "... are in no way binding.” That is the divide which separates those proceedings which require due process and those which do not.

This conclusion is supported by a decision of this Court. “The demands of due process do not require a hearing at the initial stage or at any particular point or at more than one point in an administrative proceeding so long as the requisite hearing is held before the final order becomes effective.” Womelsdorf Consolidated Water Co. v. Pennsylvania Public Utility Commission, 160 Pa.Super. 298, 304, 50 A.2d 548, 552 (1947) quoting Opp Cotton Mills v. Administrator of Wage and Hour Division, 312 U.S. 126, 152-153, 61 S.Ct. 524, 536, 85 L.Ed. 624, 640 (1941).

In this case no final order was issued prior to a full hearing by the court. The filing of exceptions prevented any effective order being entered based on the proceedings which did not comport with due process. Consequently, we find that there was no violation of due process.

Order affirmed.

      . Appellants also contend that the practice of assigning the same judge to preside over pre-trial procedures through the conclusion of a custody suit is prejudicial; and that they sustained their burden of proof that it would be in the childrens’ best interest to be placed in their custody. While we find all three issues to be without merit, one of them merits published treatment.

      . They further contend that the Conference Officer told them what he thought would constitute a sound agreement, and that he emphasized that his recommendations were almost invariably followed in any order subsequently issued by the court — a prediction which was fulfilled in the instant case. The inference is that the trial court merely "rubber stamps” the Conference Officer’s recommendation. If that were alleged and factually established, it would constitute another, independent, reason for due process to attach to the conference; but appellants do not develop this argument, so even the limited action of remanding for an evidentiary hearing on the matter is not indicated.

      . Our analysis of whether or not due process attaches to the Officer’s Conference is predicated upon this procedural point. The conference cannot result, even indirectly, in a currently effective order, if a party files exceptions. If, however, on the basis of the conference, and without a hearing, the procedures allowed the trial court to issue an order which was effective immediately, due process would attach. This would be so even if that order, once effective, was then subject to exceptions and consequently, a hearing.

      . The holding of this opinion does not apply to the issuance of a temporary order by the trial court. In areas like child custody it will frequently be necessary for some order to issue immediately, prior to a full hearing. Of course, such an order must be as temporary as possible and will usually merely maintain the status quo absent an emergency situation.

      . The same point is reached if one goes past the Morrissey test to Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976) which laid down a test to determine what degree of process was due after it was determined that a protected interest was affected. The first of Matthews’ three factors is a consideration of "the private interest which will be affected by the official action ...” If there is no "official action” no degree of due process will be required.

      . These are, indeed, its purposes.