author:
POPOVICH, Judge:
      BECK, Judge, CAVANAUGH, Judge,

text:
    547 A.2d 1201
    COMMONWEALTH of Pennsylvania, Appellee, v. Lawrence FANELLI, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1987.
    Filed Sept. 15, 1988.

      Jules Epstein, Assistant Public Defender, Philadelphia, for appellant.
    Deborah Fleisher, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence (1-2 years imprisonment) for corrupting a minor by the appellant, Lawrence Fanelli. We affirm.

The facts, viewed in a light most favorable to the verdict-winner, reveal that the child-victim (who was 6 years old at the time of the October, 1984 trial) was living with her mother and younger sister (Tina) at a Philadelphia address at the time in question. The appellant was the mother’s boyfriend, resided with the family and was referred to by the children as “Daddy”.

Sometime between September 29,1981 and September 29, 1983, the victim testified that, with her mother and sister away, she was sexually assaulted by the appellant. She described it this way: She was lying on her back, the appellant’s face was even with hers and their stomachs touched. The next thing she recalled was feeling a pain in her vaginal area. This caused her to cry and to ask the appellant to stop. He failed to do so, kissed her lips and threatened to “beat” her if she told anyone what occurred. Nonetheless, albeit “afraid”, the victim told the mother what transpired on her arrival home.

The foster mother, who obtained custody of the child beginning in September of 1983, related how the child’s remarks about being “massaged” by the appellant, and the drawing of a male’s penis, caused her to become “very upset”. She spoke to her supervisor and was told to have the child checked at the hospital. She did so on October 7, 1983.

The attending pediatrician remembered conducting a pelvic examination of the victim. He found that the hymen was not intact and the vaginal orifice was large — three centimeters as compared to one centimeter. These two facts, opined the doctor, would be consistent with penetration or trauma of the child’s vagina, i.e., the application of abnormal force to that area.

The pediatrician also remarked that, even though there were no signs of trauma, bleeding or bruising to that area, “[t]he majority of cases in this age group [4-5 years] don’t show evidence of trauma to the vaginal area. It can be a normal examination.” This, according to the doctor, is consistent with “the experience of pediatricians throughout the years that you will not find signs of trauma.”

On cross-examination, the doctor did admit that a broken hymen can result from certain activity on the part of the child. However, he cautioned that such a condition could not come about because of a fall or doing acrobatics, unless one is doing “abnormal” gymnastics. This holds true, in the words of the doctor, with the absence of bruising and bleeding in sexual abuse cases, i.e., you may “not necessarily” find those signs.

With the hospital examination, the police were called and, upon interviewing the victim, were told that her vaginal area had been hurt by the appellant. Further, she told the police that the appellant had threatened to “beat her up” if she mentioned the assault to others. Thereafter, the appellant was arrested and charged with rape, statutory rape, indecent assault, indecent exposure and simple assault.

Following a non-jury trial, the appellant was convicted of all charges, except for rape and statutory rape. At the time set for sentencing, a term of incarceration was imposed for indecent assault only, it being the ruling of the court below that the other offenses merged for sentencing purposes. This appeal followed.

Of the four issues raised for our consideration, we would defer to and adopt the trial court’s opinion in disposing of issues one and four. The former challenges the child’s competency to testify while the latter questions the due diligence of the Commonwealth in prosecuting the accused under Pa.R.Crim.P. 1100. No assault is made on the sufficiency of the evidence.

Issues two and three are read by this Court to present the same issue, i.e., did the Commonwealth establish with reasonable certainty that the assault of the child-victim occurred within the applicable statute of limitations so as to afford the appellant due process?

This claim, raised below, is the equivalent of a motion in arrest of judgment since it seeks the appellant’s discharge, rather than a remand for a new trial. 10A P.L.E. Criminal Law § 802. In this context, the Supreme Court of Pennsylvania has indicated that a review of the entire record is to occur, and this is to include all evidence “presented at trial, whether or not such evidence was properly admitted.” Commonwealth v. Ward, 235 Pa.Super. 550, 557, 344 A.2d 650, 653 (1975) (Citation omitted). Accord Commonwealth v. Cohen, 489 Pa. 167, 177, 413 A.2d 1066, 1072 (1980), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980).

We make mention of this because we believe an erroneous ruling occurred when the court below excluded relevant, competent and material evidence (relating to the time-frame in which the assault took place) by sustaining defense counsel’s objection, on hearsay grounds, to the police officer’s testimony that she was told by the child-victim that the assault “happened right before she went to stay at mom Mary”, i.e., the foster parent that began to take care of the child in September of 1983.

Historically, the reasons for the exclusion of hearsay evidence from trial are three-fold. First, the out-of-court declarant commonly speaks or writes without the solemnity of the oath administered to witnesses in a court of law. Second, the out-of-court declarant’s absence from trial denies the trier-of-fact the opportunity to observe his/her demeanor, which would reflect on his/her credibility if a witness on the stand. Lastly, considered by most scholars to be the main justification for the exclusion of hearsay, is the lack of any opportunity for the adversary to cross-examine the absent declarant whose out-of-court statement is reported by the in-court witness. See McCormick on Evidence § 245 (3rd ed. 1984).

Save for the first criterion cited supra, the trier-of-fact was afforded the occasion to see the declarant at trial and, more importantly, the accused was availed the opportunity to question the declarant/victim. Thus, the prejudices sought to be avoided with the implementation of the hearsay rule were obviated. See Commonwealth v. Rounds, 356 Pa.Super. 317, 320-21, 514 A.2d 630, 632 (1986), rev’d on other grounds, 518 Pa. 204, 542 A.2d 997 (1988) and compare with Commonwealth v. Maybee, 429 Pa. 222, 226, 239 A.2d 332, 335 (1968). Thus, the officer’s testimony being, in actuality, admissible, it was for the trier-of-fact to attach what weight it deemed proper under the circumstances. We raise this matter in the hope that in the future similar exclusions of proper evidence do not occur and deprive the jurist or veniremen of the right to hear all evidence admissible in the rendition of a verdict.

Despite the trial court’s evidentiary ruling excluding the officer’s testimony, we find that the result reached was a proper one and is consistent with and supported by established case law in this Commonwealth. To explicate, in this jurisdiction the prosecution must establish the date of the alleged offense with “reasonable certainty” to withstand a demurrer or a motion in arrest of judgment. See Commonwealth v. Devlin, 460 Pa. 508, 333 A.2d 888 (1975).

We consider Devlin to be the polestar in our assessment of whether the appellant’s due process argument is to give way in favor of the child-victim’s right to have her assault brought to justice. In Devlin, our Supreme Court opted for a balancing approach to resolve conflicting interests of the accused vis-a-vis the victim when it came to the specificity required to be proven as to the time-frame of the alleged crime. It wrote:

“Here, as elsewhere, ‘The pattern of due process is picked out in the facts and circumstances of each case.’ ” Hoag v. New Jersey, 356 U.S. 464, 468, 78 S.Ct. 829, 833, 2 L.Ed.2d 913 (1958), citing Brock v. North Carolina, 344 U.S. 424, 427-28, 73 S.Ct. 349 [350-51], 97 L.Ed. 456 (1953); United States ex rel. Drew v. Myers, 327 F.2d 174 (3d Cir.1964). Due process is not reducible to a mathematical formula. Gibbs v. Burke, 337 U.S. 773, 781, 69 S.Ct. 1247 [1251] 93 L.Ed. 1686 (1949). Therefore, we cannot enunciate the exact degree of specificity in the proof of the date of a crime which will be required or the amount of latitude which will be acceptable. Certainly the Commonwealth need not always prove a single specific date of the crime. Cf Commonwealth v. Morrison, supra; Commonwealth v. Mourar, supra. Any leeway permissible would vary with the nature of the crime and the age and condition of the victim balanced against the rights of the accused.

460 Pa. at 515-16, 333 A.2d at 892 (Footnote omitted).

In Devlin, the Court found that a 14-month span within which the offense charged (sodomy of a 22-year-old retarded man who had the mental ability of a first or second grade child and the emotional stability of an even younger child) might have taken place was an egregious encroachment on the defendant’s ability to defend himself. As a result, the judgment of sentence was reversed and the defendant was discharged.

From our analysis of the facts presented, considering the interests of the accused and the victim, the balance tips in favor of the Commonwealth. While there was some confusion on the part of the child-victim concerning the date of the assault, we view the evidence to have been sufficient to withstand a due process argument.

Instantly, we have the testimony of the victim recalling that when she was assaulted her sister (Tina) was 1 year old — at the commencement of the October, 1984 trial the sister was 3. The victim indicated further that she was living with her mother, sister and the appellant during the incident. Likewise, the police officer who questioned the child remembers being shown the residence of the foster parent by the child. The Philadelphia address where the child stayed with her family before being removed from her mother’s custody, and the only other premises denoted as the child’s living quarters, was also designated to the police.

The victim, who was 4 or 5 years of age when attacked, was the object of abuse by a loco parentis. Indeed, the child was threatened with harm by her assailant to refrain from complaining, but even when the child vocalized her concerns to her mother she was not the impetus leading to an examination and the lodging of a complaint. Rather, it took a third party/foster parent to initiate medical inquiry that led to the appellant’s arrest.

Given the child’s age, threatened harm and apparent lack of support from her family, we will not turn our backs on the pleas of this child-victim to acknowledge her complaints and reprimand those at fault.

The views expressed by some of our sister states in this burgeoning area of the law, as of late, are encouraging and instructive. For instance, in State v. Berry, 101 Ariz. 310, 419 P.2d 337, 341 (1966), wherein a 6-year-old victim of child molestation was unable to testify regarding the exact dates of the assault, the court stated:

The fact that the victim seemed somewhat unsure of the time of the assault might be considered by the jury as going to the credibility of her testimony, but we find that it is insufficient grounds for declaring a fatal variance. The questions were posed at trial four months after the crime to a six-year-old girl that testified that she was not able to determine time on a clock nor dates on a calendar. That a jury might not pay much heed to counsel’s vigorous attempts to extract an inconsistency in the witnesses’ testimony by the use of such calendar dates with which she admittedly had no working knowledge does not seem unreasonable. If we were to find a fatal variance under such circumstances it would seem to behoove one who chooses to sexually assault children at the risk of irreparable psychological and physical damage to his victim, to make sure that the child is sufficiently young to be incapable of effectively testifying as to specific dates in the year and minutes on the clock. We recognize, rather, that it is for the jury to determine the trust of the witnesses’ story, and that it is not the function of this court to retry that issue.

Similarly, the Indiana Supreme Court in Tapp v. State, 256 Ind. 422, 269 N.E.2d 367, 369 (1971) evaluated the sexual assault of an 11-year-old girl by the accused. The accused asserted on review that no proof was submitted at trial relating to the date of the offense. In responding, the court held:

Although the precise date of the offense was not determined, it is clear that it occurred in mid-summer 1968. Time in no way being of the essence of the offense, there being no claim or indication that the defendant was in anyway misled or prejudiced ... and it clearly appearing that the offense took place in the period of the statute of limitations, defendant’s position on this point is without merit.

Lastly, we note the remarks of the Montana Supreme Court in a case in which the defendant contended that his right to an affirmative defense was precluded because there was a 10-month span to consider. It disagreed and responded:

In this case of incest, a four-year-old child was the victim. The prosecutor was handicapped from the outset of the case in obtaining specific information about the offense. We should recognize that children, particularly four-year olds are not governed by the clock and calendar as adults are. They are generally at a loss to apply times or dates to significant events in their lives. “Children are less likely to distinguish dates and time with specificity.” State v. Clark, 682 P.2d at 1344. The fact that the victim cannot set a date for the crime should not be fatal to the State’s case, thus making the defendant virtually immune from prosecution.

State v. D.B.S., 700 P.2d 630, 634 (Mont. 1985).

The cases we have perused are consistent in their treatment of a child-victim’s testimony (the level of specificity necessary) to establish the time-sequence of the crime charged, i.e., “reasonable certainty” allowing the accused to offer a defense if he so chooses.

We have scrutinized the evidence provided in light of the tender years of the victim. Her hesitancy in itemizing exactly when, where and how the abuse took place is understandable given her youth and the frailties which plague us all when it comes to recreating a distasteful event we would rather forget than relive.

If we were to hold that the appellant is entitled to be discharged because the period encompassing the time-frame for the assault exceeded a 14-month span (the time found to be offensive in Devlin), then we would be, in essence, ignoring the balancing test proclaimed by our Supreme Court in Devlin and resorting to a practice of merely watching the calendar.

Justice, in our opinion, is not reducible to such a simple, temporal formula. On the contrary, as exemplified by the scales of justice, one must engage in a weighing of competing interests. On the one hand we have the rights of the accused and the panoply of protections that have evolved through interpretation of our federal and state constitutions and statutes, to which all have to be adhered before one’s liberty and freedoms can be restricted or revoked. On the other side, we have the need of society to see the guilty punished and the victim’s desire not to be alienated, or the object of judicial blood-letting to rid the system of its short-comings, in the process. It is, admittedly, a delicate balance which needs to be maintained without undermining either side in the attempt.

We have done so with our conclusion that the victim’s minority (and the obvious effects it has on recall) should not be used as a sword by the appellant in avoiding the criminality of his behavior. We find the recollection of the 6-year-old victim to be sufficient enough to prove with reasonable clarity that she had been assaulted by the appellant within a period encompassed by the applicable statute of limitations. The appellant’s retort that his due process rights have been violated because the date of the assault was not proven with specificity works equally in his favor since it would reflect on the credibility of the victim and her ability to recall the events surrounding the sordid affair. In other words, the appellant had the opportunity to refute the allegations of the victim. On the other hand, the victim, given her tender age, recalled the events with sufficient clarity to establish their commission and the perpetrator. We see no reason to give the guilty party an access route from under his conviction.

It must be remembered that the victim stated her sister was 1 year old at the time of the assault, and with this same sister’s age being fixed at 3 years of age at the time of trial, we find that to extrapolate from the preceding that the offense charged occurred within 2 years of the filing of the complaint is eminently reasonable, taking into consideration the tender age of the child-victim.

Any doubt that might arise regarding the statute of limitations would relate to the lack of specificity in fixing the exact time at which the assault occurred. However, the law does not require exactitude on the level of laser precision in setting a date for a crime. One need only establish with “reasonable certainty” that the crime charged was brought within the statutory period. See Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980).

We offer that all the possible combinations one may conjure up when attempting to set the period in which the assault transpired, given the 2-year time span between the victim’s sister’s age at the time of the incident and the trial date, may just as reasonably be viewed to encompass the legitimate period in which the charge could be timely brought against the appellant.

This case, like most sexual assault scenarios, took place in the presence of only the appellant and the victim. Thus, the credibility of the parties involved is for the trier-of-fact to weigh. In deference to the trial court, our role is to answer questions of law, which, instantly, is one of first impression.

As laudatory as one’s concern for the interests of the appellant’s right to be tried timely may be, we find that it is overshadowed by the obligation of this tribunal to administer justice even-handedly, i.e., with equal concern for the rights of the victim and the integrity of the criminal system.

In carrying out our role as an appellate court, we have applied the law to the facts and conclude that the verdict and sentence will stand.

Judgment of sentence affirmed.

BECK, J., files a concurring opinion.

CAVANAUGH, J., files a dissenting opinion, in which WIEAND, J. and McEWEN, J. join.

BECK, Judge,

concurring:

I concur in the result reached by the majority. This case presents two significant issues for review. First, did the Commonwealth establish that appellant’s offenses were committed within the statute of limitations period? Second, did the Commonwealth deny the appellant due process of law by failing to fix the date of the offense with reasonable certainty (the Devlin issue)? Commonwealth v. Devlin, 460 Pa. 508, 333 A.2d 888 (1975).

The case sub judice raises these two questions as distinct issues. The majority’s discussion merges the two independent issues and errs in not considering them separately. In its discussion, the majority asserts that the Commonwealth must prove with “reasonable certainty” that appellant’s prosecution was not barred by the statute of limitations. At 565. The majority takes the reasonable certainty standard applicable to the Devlin issue and applies it in the statute of limitations context.

The question must then be addressed as to what the majority means by “reasonable certainty” in the context of the statute of limitations. From the majority’s opinion, the meaning of “reasonable certainty” is unclear. Must the Commonwealth prove that the prosecution was initiated within the statutory period by a preponderance of the evidence, by clear and convincing evidence, or beyond a reasonable doubt? A careful examination of the Pennsylvania Crimes Code indicates that the Commonwealth must prove beyond a reasonable doubt that a prosecution is not time barred. See Commonwealth v. Thek, 546 A.2d 83, 90 (1988); Commonwealth ex. rel. Atkins v. Singleton, 282 Pa.Super. 390, 394, n. 2, 422 A.2d 1347, 1349 n. 2 (1980).

The Commonwealth’s burden of proof must be determined with reference to section 103 of the Crimes Code. Section 103 contains the following definition.

“Element of an offense.” Such conduct or such attendant circumstances or such a result of conduct as:
(1) is included in the description of the forbidden conduct in the definition of the offense;
(2) establishes the required kind of culpability;
(3) negatives an excuse or justification for such conduct;
(4) negatives a defense under the statute of limitations; or
(5) establishes jurisdiction or venue.

18 Pa.Cons.Stat.Ann. § 103 (Purdon 1983) (emphasis added).

Under section 103, when the defendant interposes the statute of limitations as a defense, the Commonwealth is obliged to prove the “attendant circumstances” that “negative” the statute of limitations defense, i.e., the Commonwealth must establish as an element of the offense that the crime was committed within the statute of limitations period. The burden imposed upon the Commonwealth is proof beyond a reasonable doubt. The federal constitution mandates that each and every element of the crime must be proved by the prosecution beyond a reasonable doubt. See Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987); Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1979); In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

By choosing to designate the statute of limitations as an element of the offense, the Pennsylvania Legislature adopted the position advocated by the Model Penal Code. The Commentary to the Model Penal Code provides:

Much as there is to say for a distinction between facts that establish the criminality of the defendant’s conduct and those that merely satisfy procedural requirements, with a heavier burden for the former than the latter, there is grave danger of confusion in presenting to a jury different standards for appraising different features of the prosecution’s case.

Model Penal Code and Commentaries § 1.12 commentary at 189 (Official Draft and Revised Comments 1985). I appreciate the concerns which motivated the framers of the Model Penal Code. However, I am not persuaded that a jury would be incapable of following an instruction that: 1) the Commonwealth must prove the defendant guilty beyond a reasonable doubt, and 2) the Commonwealth need only prove that it is more likely than not that the offense was committed within the statute of limitations period.

Unless the Pennsylvania legislature narrows the definition of “element of the offense” to exclude the statute of limitations, the burden on the prosecutor remains beyond a reasonable doubt.

After reviewing the record, I conclude that the Commonwealth proved beyond a reasonable doubt that appellant’s offenses were committed within two years of the date when criminal charges were initiated. The majority relies heavily on the fact that the child victim testified that her sister was one year old at the time of the offense and three years old at the time of trial. Standing alone, this evidence would not be sufficient to prove beyond a reasonable doubt that the prosecution was initiated within the statute of limitations. As Judge Cavanaugh demonstrates in his dissenting opinion, the child’s testimony was too vague and ambiguous to prove the necessary facts beyond a reasonable doubt. See op. at 575-579 (Cavanaugh, J., dissenting).

However, I agree with the majority that the reviewing court must review all of the evidence adduced at trial, including, in the case sub judice, evidence of the police officer which was subject to an objection that was erroneously sustained by the trial court. As the majority correctly notes, the trial court improperly excluded as hearsay the testimony of the police officer that the victim stated that she was sexually assaulted by the appellant right before she went to live with her foster mother in September, 1983. See Commonwealth v. Rounds, 356 Pa.Super. 317, 514 A.2d 630 (1986), rev’d on other grounds, 518 Pa. 204, 542 A.2d 997 (1988). Considering the police officer’s testimony as well as the victim’s testimony, I conclude, the Commonwealth satisfied its burden beyond a reasonable doubt.

As for the Devlin issue, the testimony of the police officer, clearly demonstrates that the Commonwealth has fixed the date of the offense with reasonable certainty.

I concur in the majority’s determination that the judgment of sentence must be affirmed.

CAVANAUGH, Judge,

dissenting:

Appellant Lawrence Fanelli was convicted of various misdemeanors associated with a sexual attack upon the minor daughter of the woman with whom appellant was living. Appellant was found not guilty of charges of rape and statutory rape. On appeal appellant challenges various of the trial court’s rulings, including its finding that the Commonwealth sustained its burden of showing the date on which the offense occurred. Because I find that the Commonwealth did not prove beyond a reasonable doubt that the offense occurred within the period of the statute of limitations and did not fix the date of the offense with reasonable certainty, I would reverse the judgment of sentence.

Appellant was originally charged with corrupting the morals of a minor, indecent assault, and indecent exposure on October 9, 1983. These charges were later consolidated with charges of rape, statutory rape, and simple assault. The amended bills of information allege the crimes occurred between September 29, 1981 and September 29, 1983. Trial testimony established that only a single act occurred. At trial it was the Commonwealth’s burden to prove beyond a reasonable doubt that this offense occurred within the requisite time period. This the Commonwealth failed to do. The appellant also had a due process right to be apprised of the date of the offense with reasonable certainty. This right was violated.

The Commonwealth offered the testimony of four witnesses: the complainant, who was six years old at the time of trial; Harry A. Lehman, III, M.D., an expert who examined the complainant; Mary Breton, in whose care complainant was placed after September 29, 1983; and Earline Hammett-Mitchell, a police officer. Only the testimony of the complainant touched upon the time period within which the offense occurred. The other witnesses relied upon information supplied by the complainant in formulating their impressions regarding the date of the offense. In looking at the evidence of record the majority errs in considering, sua sponte, the purported error of the trial court in excluding the hearsay testimony of Officer Hammett-Mitchell. Such consideration transgresses a fundamental tenet of criminal jurisprudence — that there is no avenue of appeal by the Commonwealth for trial errors committed by the court below (except within limited circumstances not here applicable.) See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). The effect of this is to allow appellate review of an evidentiary ruling which was decided contrary to the Commonwealth. Appellate review, however, is precluded by the double jeopardy clause. An issue which could not be raised by the Commonwealth should not be raised sua sponte by the court.

The majority cites Commonwealth v. Ward, 235 Pa.Super. 550, 344 A.2d 650 (1975), a criminal case in which it was held that certain evidence was improperly admitted at trial. This court held that under the circumstances we look at the whole record to determine whether a motion in arrest of judgment was properly granted. We held that the proper remedy was the granting of a new trial. That is if looking at all the evidence admitted at trial it would withstand judgment n.o.v.' regardless of improper admission of some of the evidence, the remedy is to grant a new trial (since the defect may be cured), but if looking at all the evidence including that which was improperly admitted it is found to be insufficient as a matter of law, then the remedy is arrest of judgment since the case should never have gone to the jury in the first place.

This is simply an application of the rule that an appellate court does not “diminish the record” before reviewing the sufficiency of the evidence. See Commonwealth v. Cohen, 489 Pa. 167, 413 A.2d 1066 (new trial is proper remedy) and cases cited therein.

Moreover, the officer’s testimony was not admissible nor did it fall within an exception to the hearsay rule. The majority states that the trial judge erred in excluding the testimony of Officer Hammett-Mitchell, proffered by the Commonwealth, that the child told her that the assault “happened right before she went to stay at mom Mary.” However, the trial judge rightly excluded this testimony. Further, we must disagree with the majority’s admonition to trial courts to permit such evidence, presumably fashioning a rule that hearsay is admissible whenever the declarant is available to be called as a witness. For support the majority cites Commonwealth v. Rounds, 356 Pa.Super. 317, 514 A.2d 630 (1986), rev’d on other grounds, 518 Pa. 204, 542 A.2d 997 (1988). A child victim testified that he had told his brother that their father “did sex to me”. The court held that there was no ineffectiveness in failing to object to this testimony since it was not objectionable hearsay. It was held not to be hearsay since the declarant was in court (and was, in fact, the witness who testified to the out-of-court statement).

However, I would rely upon Commonwealth v. Haber, 351 Pa.Super. 79, 505 A.2d 273 (1986) in which the court held that a child’s mother could not offer testimony regarding statements made by the child relating to a sexual attack upon her since the statements were hearsay. In Haber, the children were witnesses at trial, but were unable to supply certain details which were contained in the hearsay statements. The testimony was inadmissible since it did not qualify under any exception to the hearsay rule, although the declarants were present and had themselves testified.

The testimony of Officer Hammett-Mitchell is hearsay, i.e., it is an out-of-court assertion offered to prove the truth of the matter asserted. See Kemp v. Qualls, 326 Pa.Super. 319, 327, 473 A.2d 1369, 1373 (1984); Fed.R.Evid. 801(c); D. Binder, Hearsay Handbook, Ch. 1 (What Is Hearsay) (2d ed. 1983). The majority points out that the child appeared as a witness at trial and thus appellant had an opportunity to cross-examine her. While such opportunity may satisfy appellant’s constitutional right to confront the witnesses against him, it does not create an exception to the hearsay rule. The fact that testimony could withstand objections under the Confrontation Clause of the Sixth Amendment (See California v. Green 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)) does not mean that it is ipso facto admissible. It still may be hearsay and subject to appropriate exception. Cf. McCormick on Evidence § 252 (3d ed. 1984). Moreover, the confrontation clause of the Sixth Amendment applies only to criminal proceedings. Again, there is no authority that satisfaction of Sixth Amendment right to face accusers referred to in Rounds, supra, eliminates an otherwise valid hearsay objection. As the court cogently explained in State v. Martin, 356 So.2d 1370, 1374 (La.1978):

... the hearsay character of a proffered out-of-court assertion is not altered by the fact that the statement was made by a person who appears in court as a witness.

The gist of the hearsay objection is the repetition on the witness stand on an out-of-court assertion. It is not dependent on the identity of the witness or the fact that the declarant may be available. Thus, even if a witness testifies to an assertion previously made by him and the assertion is offered to prove the truth of the matter asserted therein, it is hearsay. See McCormick, supra, § 251 (Prior Statements of Witness as Substantive Evidence); D. Binder, supra, § 1.01.

Although there are certain hearsay exceptions which are grounded on the fact that the witness is available to be cross-examined, see, e.g. Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986); Fed.R.Evid. 801(d)(1), there is no authority for the adoption of the unprecedented innovation of the majority which would hold that hearsay is admissible as substantive evidence so long as the declarant to the hearsay assertion is available for questioning in court. I would agree with the trial court that the officer’s testimony was inadmissible hearsay evidence and thus would disagree with the majority, and further I would overrule the hearsay holding of Commonwealth v. Rounds, supra.

The direct testimony of the complainant regarding the time period in question is as follows:

Q. [By the prosecutor] Now ... when this happened with you and Larry, okay, was your sister Tina born yet?
[Objection overruled]
Q. Was your sister Tina born yet?
A. Yes.
Q. Okay, When it happened, okay, do you remember about how old Tina would have been?
A. One.
[Objection overruled]
Q. How old is Tina now?
A. Three.

The defense of a prosecution’s being barred by the statute of limitations requires the Commonwealth to prove beyond a reasonable doubt that the action was timely commenced. See 18 Pa.C.S. § 103, conduct negating a defense under the statute of limitations is an element of an offense. The statute of limitations must be liberally construed in favor of the defendant and against the Commonwealth. Commonwealth v. Cardonick, 448 Pa. 322, 292 A.2d 402 (1972). The statute of limitations, which provides predictable legislatively enacted limitations on prosecutorial delay, is the primary guarantee against the bringing of overly stale criminal charges. Commonwealth v. Arnold, 331 Pa.Super. 345, 480 A.2d 1066 (1984). See generally LaFave and Israel, 2 Criminal Procedure § 18.5 (1984) (Objectives of statute of limitations include prevention of prosecution of persons who have been law abiding for some years, avoidance of prosecution where community’s retributive impulse has ceased, lessening the possibility of blackmail, and requiring prosecutions to be based upon reasonably fresh evidence.)

The application of the statute of limitations is not abrogated by the fact that a defendant is charged with a sexual offense. The standard of liberal construction in favor of defendant is uniform no matter the violation charged. The appropriate formulation of the Commonwealth’s burden is as follows:

In the prosecution of sodomy or other crimes in which a particular date or day of the week is not the essence of the offense, the Commonwealth’s burden is to prove the commission of the crime upon some date fixed with reasonable certainty and within the prescribed statutory period.

Commonwealth v. Yon, 235 Pa.Super. 232, 341 A.2d 169, 171 (1975) (emphasis added).

The Commonwealth is not relieved of its burden to prove the offense occurred within the “prescribed statutory period” because the offense involved is one of sexual abuse or because the victim is a child. This is not to say that no leeway is afforded in establishing the date of the offensive conduct in a child sexual abuse prosecution. Primary among the court-created mechanisms which recognizes the difficulty in fixing the exact date on which criminal acts of child abuse have taken place is the continuous course of conduct doctrine. For purposes of ensuring the defendant’s right to sufficiently specific charges so that he may adequately prepare a defense, it has been held that testimony establishing a series of acts over a period of time satisfies defendant’s due process rights. See Commonwealth v. Niemetz, 482 Pa.Super. 431, 422 A.2d 1369 (1980). Accord, Commonwealth v. McClucas, 357 Pa.Super. 449, 516 A.2d 68 (1986). Cf. Commonwealth v. Campbell, 342 Pa.Super. 438, 493 A.2d 101 (1985) (admission of testimony regarding a single, prior sexual assault upon complainant in an incest prosecution is reversible error absent a showing of a continuous course of conduct since its effect is to show bad character based upon a prior criminal act.)

As a criminal defendant, appellant has a right both to be tried within the statutorily prescribed period and to be afforded the benefit of responding to charges fixed with reasonable certainty to a specific date within that statutory period. The majority commits error where it combines appellant’s due process and statute of limitations arguments, since the two are reflective of different interests of our criminal justice system. This failure to distinguish between the two concepts results in its use of an improper standard to determine whether the Commonwealth has complied with its burden of showing that the prosecution was commenced within the period of the statute of limitations. Our courts have long recognized the independent nature of each of these rights. Commonwealth v. Devlin, 460 Pa. 508, 333 A.2d 888 (1975); Commonwealth v. Yon, supra; Commonwealth v. Levy, 146 Pa.Super. 564, 23 A.2d 97 (1941). The Supreme Court in Devlin articulated the distinction as follows:

Certainly, the Commonwealth has shown that the crime was committed, if at all, within the statutory period of limitations. As a general proposition of law, the evidence is sufficient to support a conviction if it tends to prove that the offense was committed prior to the commencement of the prosecution and that it was not committed at a time so remote that its prosecution is barred by the prescribed statutory period of limitations. [Citations omitted]. If the statute of limitations was our only consideration this conviction could be upheld. However, the rule announced in Levy contains another requirement: the date of the commission of the offense must be “fixed with reasonable certainty.” We do not feel that the Commonwealth’s proof to the effect that the crime was committed on any single day within a fourteen-month period meets the “sufficient particularity” standard of Levy. To hold otherwise would violate the notions of fundamental fairness embedded in our legal process.
Our holding is required by the Fourteenth Amendment Due Process Clause of the United States Constitution and by Article I, Section 9 of the Pennsylvania Constitution, P.S.

Commonwealth v. Devlin, 460 Pa. at 513, 333 A.2d at 890-891.

Although appellant offered no evidence at trial, such as alibi testimony, and, arguably, was not harmed in interposing a factual defense by the shaky dating of the offense, this is not a consideration in determining whether the evidence sufficiently established that appellant was charged within the statutory period.

As the above-quoted language in Devlin indicates, the “reasonable certainty” requirement relates to the due process consideration and not to the standard which must be met in order to show that the offense was committed within the statutory period. The Commonwealth’s burden regarding the statute of limitations remains proof beyond a reasonable doubt that the prosecution was timely commenced. See Cardonick, supra.

I further note my disagreement with the majority’s statement that since appellant had the opportunity to refute the allegations of the victim, his rights were not compromised. See majority opinion at 564. A criminal defendant is never under an obligation to present evidence in his defense or to offer his own testimony. An incremental slippage from the constitutional standards applicable during a criminal proceeding can only serve to weaken the entire structure of our justice system. All society shares in the outrage against perpetrators of child abuse, but it is the obligation of the courts to observe equal concern for the constitutional safeguards afforded those charged with criminal offenses. We may not shift the burden upon a criminal defendant to establish his innocence.

The Commonwealth has not carried its burden establishing that appellant has been afforded his due process rights. The failure of the evidence presented to fix the date, season, or even year of this incident requires a finding that appellant’s constitutional right to due process has been violated. Although Commonwealth v. Devlin, supra, has been appropriately distinguished by our court in many cases, this case presents us with a factual scenario which calls for an application of the holding in Devlin.

Additionally, the Commonwealth fell far short of proving beyond a reasonable doubt that the single offense to which the complainant testified occurred within the statute of limitations period of two years. The testimony offered by the Commonwealth did not show a continuing course of conduct and did not reasonably fix the date of the offense as within the prescribed statutory period. As quoted above, the complainant, who was six years old at the time of trial and five years old at the time appellant was charged and arrested, testified regarding the age of her sister at the time of the incident. However, this testimony lacks sufficient specificity to bring the conduct within the statutory period. The prosecutor’s question was phrased in terms of “about how old” the sister was and therefore calls for an answer only approximating the age. The single word answer, “One”, is likewise vague and subject to various interpretations, e.g. the witness may have meant ten or eleven months or twenty-three months of age. The follow-up question regarding the sister’s age at the time of trial, and the answer, “Three,” does not fix the date of the offense as within the statute. As is evident from a complete review of the complainant’s testimony, it is fraught with imprecisions, ambiguity, and gaps in memory, not unexpectedly given her young age and the subject matter of her testimony. However, the Commonwealth may not shirk its burden of complying with the statute of limitations by a vague accommodation to a mathematical formula to fit within the number of years necessary to render the prosecution timely commenced.

Since complainant was asked about how old her sister was at the time of the incident, her answer of “One”, assuming she meant one year, could be taken to mean the sister may have been as young as ten or eleven months old. Similarly, the answer “Three” regarding the sister’s current age includes the time period from three years and one day to three years, eleven months and twenty-nine days. Assuming that the sister was three years and eleven months old on October 24, 1984, the date of trial, she would have been ten months old on September 24, 1981, a date outside the statute of limitations. This example merely points out the ambiguity inherent in the complainant’s testimony regarding dating of the offense. This testimony standing alone is insufficient to bring the offense within the statutory period.

The Commonwealth should have secured alternate means of proof of the sister’s age, since this was the only point upon which it pegged the date of the offense, rather than rely upon the fragile testimony of its six year old complaining witness. We are not insensitive to the problems associated with the child victim/witness and the adversarial process. The fixing of dates certain is not an ability one would expect from a six year old who is recounting a traumatic event of some time passed. However, it is the responsibility of the Commonwealth to realistically assess those elements of a crime, and any asserted defense, which may be proved through such a witness. If it is beyond the testimonial ability of the witness to supply such evidence, the Commonwealth may not avoid its duty by failing to supply other evidence. Where the issue is the date of birth of the victim’s sister, the victim’s testimony is not the only, nor is it necessarily the best, evidence of this fact. Philadelphia County does maintain an office from which birth records may be obtained.

I strongly disagree with the process of speculation engaged in by the majority regarding the possible reasons for the victim’s mother’s not offering testimony at trial. This is not a proper exercise for this court. There is not a single reference in the record from which a reason for the lack of testimony by the mother may be determined. Moreover, the implication that the mother is the only alternative source of the date of the younger daughter’s birth is erroneous.

The statute of limitations remains the basic guarantee a criminal defendant has against stale prosecutions, and it is the duty of the court to liberally apply it in favor of the defendant. See discussion supra. The increased societal awareness of the nature and scope of abuse, sexual and otherwise, of children has caused the legislature to respond to the need to eliminate this abuse. There exists a mandatory sentencing provision for certain offenses against infant persons, 42 Pa.C.S.A. § 9718. Our statutory and decisional law provides for the use of videotaped depositions and closed-circuit television where a child victim or child material witness is involved in a prosecution. 42 Pa.C.S.A. § 5985(a); Commonwealth v. Ludwig, 366 Pa.Super. 361, 531 A.2d 459 (1987); Commonwealth v. Lohman, 370 Pa. Super. 404, 536 A.2d 809 (1988).

In 1985, the statute of limitations was amended to provide a tolling period where the victim of a crime is under 18 years of age and the accused is a parent or parental figure. 42 Pa.C.S.A. § 5554. The existence of the amendment, however, does not apply to this case since the offenses occurred and appellant was charged prior to the effective date of the amendment.

Since I would find that appellant was not afforded either his constitutional right to due process or his statutory right to be tried within the limitations period, I would reverse the judgment of sentence.

WIEAND and McEWEN, JJ., join.

      . There may be reason to believe, albeit we offer no ruling on the matter since it is not before the Court, that the victim’s mother not testifying at trial to buttress her child’s prompt complaint may in some way be the outgrowth of her involvement with the appellant, either as his paramour or common law spouse. Also, the fact that the child was removed to a foster home does not reflect positively on the home environment in which the child was being raised.
      We make mention of this potential scenario in answer to the Commonwealth’s inability to have fixed the time of the incident by evidence other than by the testimony of the victim. See Dissenting Opinion of Judge Spaeth in Commonwealth v. Devlin, 225 Pa.Super. 138, 141, 310 A.2d 310, 312 (1973), rev’d 460 Pa. 508, 333 A.2d 888 (1975).

      . See Commonwealth v. Niemetz, (CC 7706381, Alleg. Cty. 2/1/78) (Popovich, J.) (unreported opinion), aff’d 282 Pa.Super. 431, 422 A.2d 1369 (1980).

      . Indecent exposure, indecent assault, simple assault, and corrupting the morals of a minor.

      . A recent decision by our supreme court makes clear that the sustaining of an objection to hearsay evidence results in exclusion of that evidence from the record. Commonwealth v. Smith, 518 Pa. 15, 39, 540 A.2d 246, 257 (1988). In Smith, defendant claimed error in allowing the introduction of hearsay statements. The court reasoned, "The record discloses that all but one of appellant’s hearsay objections to [witness’s] testimony was sustained, and no further relief was requested. The record does not support appellant’s assertion, therefore, that [witness] was permitted to give hearsay evidence gathered from [appellant’s sister].” Ibid. Therefore, there is no basis upon which to find the hearsay evidence as constituting part of the record in the instant case.

      . This rule also applies to civil cases. See McCann v. Amy Joy Donut Shops, 325 Pa.Super. 340, 472 A.2d 1149 (1984) (Cavanaugh, J., dissenting).

      . But cf. Coy V. Iowa, — U.S. —, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), in which the Supreme Court found violative of a defendant’s right to face-to-face confrontation guaranteed by the Sixth Amendment a procedure where minor witnesses were separated from the defendant by a screen through which the defendant could see the witnesses but they could not see the defendant.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    547 A.2d 1214
    Donald W. COVEY and Joan M. Covey, Appellants, v. Wayne L. GROSS and Noreen W. Gross, Appellees.
    Superior Court of Pennsylvania.
    Argued June 14, 1988.
    Filed Sept. 14, 1988.

      Bryan C. Black, York, for appellants.
    Michael W. Flannelly, York, for appellees.
    Before CIRILLO, President Judge, and WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

This appeal requires that we interpret a building and use restriction which prohibits the erection of a private garage on a lot unless a dwelling house shall first have been erected thereon. Where two contiguous lots are owned by the same persons and form a single tract, may the dwelling house be erected on one lot and the garage on the other lot? The trial court held that such an arrangement did not violate the restriction and refused to enjoin construction of the garage. We affirm.

Donald Covey and Joan Covey, husband and wife, are the owners of a lot containing 18,000 square feet at 4540 Davidsburg Road, Dover Township, York County. They acquired title by deed dated April 30, 1966 from Frank P. Myers and his wife. Wayne Gross and Noreen Gross, husband and wife, are the owners of adjoining land at 4550 Davidsburg Road. This land consists of two lots and contains a total of 23,625 square feet. One of these lots, containing 18,000 square feet, had been purchased by Wayne Gross from Frank P. Myers and his wife on April 13, 1966. The other lot, being irregular in shape and containing only 5,625 square feet, had been purchased by Noreen Gross from Myers and his wife on November 15, 1972. Both lots were subsequently conveyed to Wayne and Noreen Gross, husband and wife, as tenants by the entireties.

All three of the foregoing lots are burdened by the following building and use restriction:

The land herein conveyed shall be used for private residence purposes only and no building of any kind shall be erected thereon except private dwelling houses, each designed for occupancy by a single family and private garages for the sole uses of the respective owners or occupants of the lot upon which such garages are erected; provided further, that no such private garages shall be erected on any lot unless a dwelling house shall be first erected upon the lot, or shall have been erected simultaneously with the erection of such garage, nor shall any building be erected or constructed of cinder block or cement block unless such cinder block or cement block shall be faced with other material so that none of the said block is exposed in the exterior walls.

A dwelling house is situated on the larger of the two lots owned by Wayne and Noreen Gross. On May 9, 1987, they began to construct a garage on the irregularly shaped lot for use in connection with the dwelling house. Donald and Joan Covey immediately filed, on May 19, 1987, an action to enjoin construction of the garage, contending that it would violate the restriction which prohibited a private garage on a lot which did not contain a dwelling house. The defendants denied that they were in violation of the restriction, contending that although they had purchased two lots, these lots were now one lot on which they could consistently with the restriction erect a dwelling house and detached garage. The trial court, after hearing, denied relief and dismissed the complaint. Post-trial motions were denied, and this appeal followed by the Coveys.

“Although convenants restricting the use of property are legally enforceable, the free right to use property in any way the owner desires has been said to be inherent in the ownership of land, and such restrictions on the use of land are not favored by the law because they are an interference with the owner’s free and full enjoyment of his property.” 10 P.L.E. Covenants § 13. Therefore, restrictive covenants are to be strictly construed against persons seeking to enforce them or claiming the benefits thereof and in favor of the free and unrestricted use of the property; all doubts and ambiguities in the language of the covenant are to be resolved in favor of the property owner. Schulman v. Serrill, 432 Pa. 206, 211, 246 A.2d 643, 646 (1968); Mishkin v. Temple Beth El of Lancaster, 429 Pa. 73, 77, 239 A.2d 800, 803 (1968); Young v. Cerone, 338 Pa.Super. 280, 285, 487 A.2d 965, 968 (1985).

The parties have called our attention to no appellate court decisions, and our research has disclosed none, which are determinative of the issue raised in this appeal. We observe, however, that the decisions in other states uniformly hold that “[wjhere an owner has acquired a plot comprising more than one contiguous lot and seeks to build in such a manner as to overlap what would be the side lines if the lots were owned separately, a side-line restriction is applicable only to the outside lines of the plot, regardless of how many lots it includes.” 20 Am.Jur.2d Covenants, Conditions, and Restrictions § 239. See: Watters v. Blatt, 249 Mass. 340, 144 N.E. 106 (1924); Goldstick v. Thomas, 237 Mich. 236, 211 N.W. 666 (1927); Scott v. Board of Missions North Carolina Annual Conference, 252 N.C. 443, 114 S.E.2d 74 (1960); Weld v. Bjork, 75 Wash.2d 410, 451 P.2d 675 (1969); Annotation, Building Side Line Restrictive Covenants, 36 A.L.R.2d 861, 871, § 10(a). Similarly in the instant case, we will treat the two contiguous lots as a single lot for purposes of applying the restriction permitting private garages only on lots where a dwelling house has first been erected.

The restriction imposed upon each lot by the common grantor was obviously intended to preserve the residential character of the neighborhood by requiring single family residences and permitting garages only in connection with such residences. This intent is neither violated nor impaired by the facts of the instant case in which appellees propose to use two contiguous lots for a single family residence and an unattached garage, connected by a driveway. As the trial court observed, “This ... will not affect the purpose behind the restrictive covenant[ ] which was to limit the use of the lots in question for residential purposes, nor will it place any particular burden on the plaintiff. The only effect is that defendant’s house and garage are on a lot which is bigger in size tha[n] it would have been had the defendant put his house and garage both on his original lot.”

Our decision does not mean that if, in the future, the land owned by appellees should be subdivided, the garage can then be maintained on a lot without a dwelling house. We hold only that the facts established in this case do not constitute a violation of the restriction. We do not thereby remove from the land the restriction which the common grantor imposed. That restriction continues to be applicable to the land and the future uses to which it may be put.

The trial court did not err when it denied appellants’ requested relief and dismissed their complaint.

AFFIRMED.

      . The trial court granted an ex parte restraining order which it vacated after hearing.

      . Appellants contend that the trial court abused its discretion by dismissing their complaint following hearing on a request for a preliminary injunction. Although this is technically correct, the parties are agreed that the issue in dispute was one of law and that there were no additional facts to be considered by the court. In order to resolve the procedural irregularities in this matter, an earlier appeal was remanded, by agreement of the parties, to the trial court so that the appellants could file post-trial motions and the trial court could decide finally the issues raised therein. Following the denial of these post-trial motions, a final decree was entered, which is the subject of the instant appeal.


author: CIRILLO, President Judge:

text:
    547 A.2d 1216
    Theo PLOTT, Deceased, v. Raymond R. COLE. Appeal of Lois E. PLOTT, Executrix.
    Superior Court of Pennsylvania.
    Submitted June 13, 1988.
    Filed Sept. 13, 1988.

      Richard B. Swartz, Harrisburg, for appellant.
    John W. Frommer, Harrisburg, for appellee.

      Before CIRILLO, President Judge and WIEAND and DEL SOLE, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Dauphin County dismissing plaintiffs action in ejectment and declaring defendant the owner of property in dispute. We reverse.

This boundary dispute arises out of the following facts. Theo Plott owned half of a double frame house in Dauphin County. She had lived in the western side of the house, 157 Ann Street, for fifty-six years before her death, which occurred during the pendency of this appeal. Following Theo Plotfs death, her daughter, administratrix of her estate, was substituted as appellant in this action. Raymond Cole is in possession of the eastern side of the house, known as 155 Ann Street.

Originally, these two homes were one large home owned by Katie Plott, Theo Plotfs mother-in-law. Katie Plott devised the double frame home to her four children. Following a family settlement, title to 157 Ann Street was vested completely in George D. Plott and his wife, Theo Plott, and title to 155 Ann Street was vested in Alice Plott Houser and her husband, Russell S. Houser. This family settlement was made a matter of record by deed of 1953. Mr. Houser died, and Mrs. Houser’s death followed in 1982. The premises were then conveyed to Joseph D. Robinson by Paul E. Houser, Executor of Alice Plott Houser’s estate, by deed dated March 15, 1982. Mr. Robinson defaulted on his mortgage, and the premises were sold by sheriff William Livingston to the Administrator of Veteran’s Affairs, and were conveyed by deed dated April 29, 1983. Early in October, 1983, the Administrator of Veteran’s Affairs gave defendant Raymond Cole permission to take possession of 155 Ann Street.

The deed conveying the property known as 157 Ann Street from the devisees (Katie Plotfs children) to George and Theo Plott describe the properties as being separated by a partition wall, providing for an easement in favor of the owners of 155 Ann Street to use the eastern half of the double stairway located on the western side of the partition wall to travel to and from the second floor of 155 Ann Street. The deed conveying the property known as 155 Ann Street from the devisees to Mr. and Mrs. Houser describes the premises along with the “right to use” the eastern half of the double stairway in the rear of the house known as 157 Ann Street, “along the western side of the aforesaid partition wall.”

The area in dispute is located in the rear of the house under the stairway. The area is rectangular, measuring three feet by nine feet. During the mid-1950s, a wall was erected along the western side of the double stairway, screening the stairway for privacy purposes. There is no access from 157 Ann Street to 155 Ann Street.

At trial, Mr. Robert Sherrick, a licensed surveyor, testified that the stairway used by the defendant at 155 Ann Street and the rectangular area under the stairway are within the boundaries of 157 Ann Street, and thus belong to Mrs. Plott. Mr. Sherrick based this statement on his physical reconstruction of the boundary lines from the call of the deeds. Mrs. Plott testified that although previous owners of 155 Ann Street had been permitted to use the area under the stairway as a storage closet, it was understood that the area was within the boundaries of 157 Ann Street. Mrs. Plott also testified that her son-in-law built the screening wall “quite a number of years” ago.

In 1986, defendant installed a water closet (toilet) in the rectangular area under the stairway. The screening wall is all that separates the water closet from Mrs. Plott’s kitchen. Mr. Cole testified that there is no ventilation in the water closet.

Mrs. Plott filed the instant action in ejectment, alleging that she and the other inhabitants of her home (her son and daughter) had been subjected to foul odors, noise, insects, and rodents as a result of the installation of the water closet. The defendant claims that the subject area is within his exclusive right, title, interest and control.

Following a hearing and a view of the premises, the trial court found the area in question to be part of the defendant’s property. This appeal followed.

Appellant raises the following issue for our review: whether the trial court erred by not giving effect to the clear intent of the parties to the original deeds, as established by the description of the properties in the deeds, the only survey in evidence, and the testimony of Mrs. Plott, all of which were uncontradicted.

“The question of what is a boundary line is a matter of law, but where a boundary line, or corner, is actually located is a question for the trier of fact.” Murrer v. American Oil Co., 241 Pa.Super. 120, 124, 125, 359 A.2d 817, 819 (1976). Where, as here, the court sat as trier of fact, we will not reverse on appeal unless the court’s findings are not supported by credible evidence. Norwich v. Beaver, 326 Pa.Super. 456, 474 A.2d 329 (1984); Bigham v. Wenschhof, 295 Pa.Super. 146, 441 A.2d 391 (1982).

The trial court found the screening wall erected for privacy purposes to be the boundary line between the disputing parties. The court relied upon Medara v. Dubois, 187 Pa. 431, 41 A. 322 (1898). In Medara, the Pennsylvania Supreme Court held that although a house may extend beyond a party wall as contained in a deed or survey, the deed or survey must give way to monuments on the ground. See also Lodge v. Barnett, 46 Pa. 477 (1864). It is true that where there is a conflict between the courses and distances in a deed description and the boundaries found on the ground, a monument on the ground will control. The principle behind this rule was explained as follows:

If titles were to depend upon the fluctuations of the compass, or errors of the chain or rod-pole, upon the measurement of angles or of distances, instead of the lines, monuments, or marks upon the ground, it would open a door to a flood of litigation, every new artist furnishing fresh cause of a new suit.

Lodge v. Barnett, 46 Pa. at 485. However, here there is no conflict between the courses and distances in the deeds and the actual location of the partition wall on the eastern side of the stairway as described in the deeds. The conflict before us is not the type which the rule in Medara and Lodge was meant to resolve.

The conflict here arose from the construction of the screening wall, which the plaintiff claimed was intended as a privacy wall, and not as a new boundary, and which the defendant claimed had become the new partition wall as a result of his and his- predecessors’ occupancy. The trial court stated in its opinion: “The Plaintiff’s predecessors], by erecting the division wall at this location (referring to the screening wall), expressed their intention that this wall become the boundary between the two properties.”

The primary function of the court faced with a boundary dispute is to ascertain and effectuate the intent of the parties at the time of the original subdivision. Roth v. Halberstadt, 258 Pa. Super. 401, 392 A.2d 855 (1978). The intent of the original grantors, as ascertained from the language of the deeds dated 1953, was to create two separate dwellings. However, the language in the deeds is clear that the stairway west of the partition wall is part of 157 Ann Street, with an easement for the use of that stairway in favor of 155 Ann Street. The deed to 157 Ann Street describes the property, and adds the following easement language:

Subject to the right of the owners of said premises known as No. 155 Ann Street, their heirs and assigns, to use the eastern half of the double stairway in the rear of the dwelling house on the land hereby granted and conveyed along the western side of the aforesaid partition wall for ingress, egress, and regress to and from the second floor of the dwelling house erected on the eastern side of the said partition wall on adjoining premises known as No. 155 Ann Street.

The deed to 155 Ann Street corresponds, describing the property as follows:

Together with the right to the said Grantees, their heirs and assigns, to use the eastern half of the double stairway in the rear of aforesaid dwelling house, known as No. 157 Ann Street, along the western side of the aforesaid partition wall for ingress, egress and regress to and from the second floor of the dwelling house hereby granted and conveyed.

The deed dated 1982, conveying the property known as 155 Ann Street, also contained the easement language. Following a sheriffs sale, the deed conveying the property (155 Ann Street) to the Administrator of Veterans’ Affairs referred to the previous conveyance and to the place of record in the Record Book (Record Book 277, Page 350, Dauphin County).

The crucial question here is whether the construction of the screening wall created a new boundary between the properties either through the establishment of a consentable line or through adverse possession. The doctrine of consentable line is a rule of repose for the purpose of quieting title and discouraging confusing and vexatious litigation. See Elsesser, Consentable Lines in Pennsylvania, 54 Dick.L.Rev. 96 (1949) (providing a brief historical summary of the doctrine of consentable lines). In Newton v. Smith, 40 Pa.Super. 615 (1909), this court held that there were three requirements for the establishment of a binding consentable line by dispute and compromise: (1) a dispute with regard to the location of a common boundary line; (2) the establishment of a line in compromise of the dispute; and (3) the consent of both parties to that line and the giving up of their respective claims which are inconsistent therewith. Id. at 616. The court explained that if the parties to the consentable line take possession of the property up to the line and hold such possession for twenty-one years, the title becomes complete by adverse possession. In Newton, there was an absence of testimony as to the assent of the owner of the land. The court stated: “Having failed to show any assent on the part of ... the owner of the land, ... the plaintiff, we think, failed to establish any one the essentials of a consentable line or in any way his right to the land ...” Id. at 619. As one commentator has noted:

It is apparent that the consent of the parties to be bound by the agreement and, consequently, to give up their respective claims which are inconsistent therewith, is a necessary requirement for the establishment of a consent-able line, since there can be no binding agreement without a meeting of the minds.

Elsesser, Consentable Lines in Pennsylvania, at 97; see also Beals v. Allison, 161 Pa.Super. 125, 54 A.2d 84 (1947) (in order to establish a binding consentable line the parties must intend to create a new line); Omensetter v. Kemper, 6 Pa.Super. 309 (1898) (defendant established the existence of a fence for thirty-five years, but failed to establish its character as a boundary line for the requisite period; there was no evidence indicating whether it was recognized by former owners as indicating the boundary or whether predecessors in title had claimed and held up to it).

In this case, there is insufficient evidence to prove consentable line by dispute and compromise. There is no evidence that the screening wall was built in compromise of a boundary dispute. Nor is there evidence of “the consent of both parties to that line and the giving up of their respective claims which are inconsistent therewith.” Newton v. Smith, supra 40 Pa.Super. at 616.

In Niles v. Fall Creek Hunting Club, Inc., 376 Pa.Super. 260, 545 A.2d 926, (1988), an en banc panel of this court recently addressed the issue of consentable line, noting that “[t]here are actually two ways in which one may prove a consentable line: by dispute and compromise, or by recognition and acquiescence.” Id., 376 Pa.Superior Ct. at 267, 545 A.2d at 930. The court in Niles also pointed out that the doctrine of consentable line has emerged as a separate and distinct theory from that of traditional adverse possession.

If adjoining landowners occupy their respective premises up to a certain line which they mutually recognize and acquiesce in for the period of time prescribed by the statute of limitations, they are precluded from claiming that the boundary line thus recognized and acquiesced in is not the true one. See Adams v. Tamaqua Underwear Co. 105 Pa. Super. 339, 161 A. 416 (1932); see generally, 12 Am. Jur.2d, Boundaries §§ 85-90. In Dimura v. Williams, 446 Pa. 316, 286 A.2d 370 (1972), our supreme court held that the parties need not have specifically consented to the location of the line. The court stated:

It cannot be disputed that occupation up to a fence on each side by a party or two parties for more than twenty-one years, each party claiming the land on his side as his own, gives to each an incontestable right up to the fence, and equally whether the fence is precisely on the right line or not. Our courts have always favored the settlement of disputes of this character by recognizing consent-able lines established by the parties themselves, and this without regard to whether the line agreed upon conforms to the exact courses, distances and bounds of the original surveys, (citations omitted).

Dimura, 446 Pa. at 319, 286 A.2d at 371. The requirements, then, for establishing a binding consentable line by recognition and acquiescence are: (1) a finding that each party has claimed the land on his side of the line as his own; and (2) a finding that this occupation has occurred for the statutory period of twenty-one years. Compare Newton v. Smith, supra, with Dimura v. Williams, supra.

We must now determine whether the evidence shows consentable line by recognition and acquiescence. It is clear in this case that Mr. Cole has claimed the rectangular area beneath the stairway on his side of the screening wall as his own. This is evidenced by his adverse use of that area. As stated above, Mrs. Plott testified that she did not consent to Mr. Cole’s installation of a water closet.

However, Mr. Cole has been in possession of the property in question only since 1983. Thus, a finding of consentable line would depend upon the actions of defendant’s predecessors in interest, and whether it is proper in this case to tack their possession of the property to the defendant’s possession so that the statutory period may be met. Stark v. Lardin, 133 Pa. Super. 96, 1 A.2d 784 (1938).

This issue was recently before this court in Wittig v. Carlacci, 370 Pa. Super. 584, 537 A.2d 29 (1988). In that case, Grace Kile and her husband acquired title to a ten-acre tract of land in 1951. In 1952, the property was surveyed and subdivided. In 1956 or 1957, the Kiles built a fence between the land on which their home was located (tract A) and the adjoining land (tract B). In 1959, they conveyed tract B to Mr. and Mrs. Major, who, in turn, conveyed it in 1961 to Mr. and Mrs. Carlacci. . In 1964, the Kiles sold tract A to Mr. and Mrs. Wittig. The Wittigs maintained the land up to the fence line until 1982, when the Carlaccis tore down a portion of the fence and removed a tree. The Carlaccis contended that their property line, as determined by survey and the deed description, was located a foot or more on the Wittigs’ side of the fence. The Wittigs commenced an action in ejectment against the Carlaccis, claiming ownership of the disputed strip of land. Id., 370 Pa.Superior Ct. at 587, 537 A.2d at 30-31.

The Wittigs alleged that they had acquired title by deed, or by adverse possession, or by a long-standing fence which constituted a consentable boundary line. The trial court found record title for the disputed strip of land was in the Carlaccis by virtue of their deed description and the description contained in the deed from the Kiles to the Carlaccis’ predecessor in title. The Wittigs’ claims of title by adverse possession or consentable line were rejected because the Wittigs had been in possession for only eighteen years. The court also held that the Wittigs “could not tack on the possession of their predecessor because there was no evidence that the Kiles had intended to effect an adverse and hostile possession of any part of the land which, several years after erection of the fence, they had conveyed to the Carlaccis’ predecessor in title.” Id., 370 Pa.Superior Ct. at 588, 537 A.2d at 31.

On appeal, this court pointed out that in order for the Wittigs to claim title, it was essential that their predecessor’s possession be tacked on to their eighteen years of possession. The evidence showed that, although the fence had been erected in 1956 or 1957, the Kiles’ 1959 deed to the Carlaccis’ predecessor in title (tract B) included the fence within the boundaries of the land conveyed, and, when the Kiles later conveyed to the Wittigs (tract A), the deed description did not include the land immediately adjacent to the fence. Id., 370 Pa.Superior Ct. at 588, 537 A.2d at 31. The applicable law on tacking was stated as follows:

The possession of successive occupants may be tacked, but only where there is privity between them. For our purposes, “privity” refers to a succession of relationship to the same thing, whether created by deed or other acts or by operation of law. But a deed does not of itself create privity between the grantor and the grantee as to land not described in the deed but occupied by the grantor in connection therewith, although the grantee enters into possession of the land not described and uses it in connection with that conveyed. The deed, in itself, creates no privity as to land outside its calls. Nor is privity created by the bare taking of possession of land previously occupied by the grantor.

Id., quoting Castronuovo v. Sordoni, 357 Pa. Super. 187, 515 A.2d 927 (1986) (citations omitted). Each predecessor must have claimed title to the property in dispute, and in transferring to his successor, must have purported to include it. Castronuovo v. Sordoni, 357 Pa.Super. at 193-94, 515 A.2d at 931. The Wittig court thus concluded that a grantee cannot tack his grantor’s possession of land when the grantor does not convey such land to him; the period of the Kiles’ occupancy therefore could not be tacked on to the eighteen years in which the Wittigs held possession of the land up to the fence. Id., 370 Pa.Superior Ct. at 589-90, 537 A.2d at 32.

Applying this analysis to the case before us, we can find no privity between Mr. Cole and his predecessors so as to preserve unity of possession. Schrack v. Zubler, 34 Pa. 38, 41 (1859); Gerhart et ux. v. Hilsenbeck, 164 Pa.Super. 85, 63 A.2d 124 (1949); cf. Masters v. Local Union No. 472, United Mine Workers of America of South Fork, 146 Pa.Super. 143, 22 A.2d 70 (1941). We find nothing in the record to indicate that any of Mr. Cole’s predecessors ever asserted any right to ownership of the property in dispute. Additionally, we find no indication in the record that any of Mr. Cole’s predecessors intended to convey anything more than what was set forth in their respective deeds. Dimura v. Williams, 446 Pa. at 319, 286 A.2d at 371. Privity is not created by the bare taking of possession of land previously occupied by the grantor, Masters v. Local Union No. 472, United Mine Workers of America of South Fork, 146 Pa.Super. 143, 22 A.2d 70 (1941), which is what Mr. Cole has done here. See also Miles v. Pennsylvania Coal Co., 245 Pa. 94, 91 A. 211 (1914) (line created must be recognized and acquiesced in as a boundary by adjoining landowners); Reiter v. McJunkin, 173 Pa. 82, 33 A. 1012 (1896) (passim).

Nor was the evidence sufficient to show that Mr. Cole acquired title through adverse possession. It is only since 1986 that the area in question has been used adversely. In her reply to defendant’s new matter and counterclaim, Mrs. Plott admits that she permitted the defendant and prior owners to use the area in question for dry storage, and her testimony to that effect is uncontroverted. Vlachos v. Witherow, 383 Pa. 174, 118 A.2d 174 (1955); Klos v. Molenda, 355 Pa.Super. 399, 513 A.2d 490 (1986); see also Citizens’ Electric Co. v. Susquehanna Boom Co., 227 Pa. 448, 76 A. 203 (1910) (when possession of land is permissive, with the consent of the owner, possession cannot ripen into title by the mere lapse of time).

We conclude that the trial court’s finding — that “[t]he Plaintiff’s predecessor, by erecting the division wall at this location, expressed their intention that this wall become the boundary between the two properties[ ]” — is not supported by credible evidence. Norwich v. Beaver, supra; Bigham v. Wenschhof supra. Moreover, this finding reveals a possible misapprehension of fact by the trial court. Our review of the record reveals that it was Theo Plott who erected the screening wall (via her son-in-law), and not her predecessor, Katie Plott. The trial court states:

In Medera [Medara], the Court held that where a common owner erects a dividing wall between twin houses, that wall becomes a party wall, and the center line of the wall, is the dividing line between the properties. Medera [Mediara, 187 Pa.] at 439 [41 A. 322].

As we have pointed out, it was not the common source of title, Katie Plott, who erected the wall; rather, it was Theo Plott who had the wall built for privacy purposes. To the extent that the trial court’s holding was based on what we perceive to be a factual error, it is unsupported by either the record or the law.

We reverse that part of the trial court’s order declaring defendant the owner of the property in question, and we order defendant ejected from the area in question. We note that our disposition does not affect the easement in favor of the owner of 155 Ann Street.

      . The court recognized that “where such a line has been clearly established and the parties on each side take possession or surrender possession already held up to that line, it becomes binding, under the application of the doctrine of estoppel.” 40 Pa. Super, at 616. See also Morrison v. Howell, 37 Pa. 58 (1860) (consentable line was established between M and B as to the location of their boundary line; the boundary line was later affirmed in the presence of H, who subsequently bought from B; H made improvements; held: M’s vendee was estopped to claim contrary to the consentable line established between M and B.

      . The requirement of privity had its genesis in the notion that a succession of trespasses, even though there was no appreciable interval between them, should not, in equity, be allowed to defeat the record title. The “claim of right,” “color of title" requirement of the statutes and cases was probably derived from the early American belief that the squatter should not be able to profit by his trespass. See F. Clark, Law of Surveying and Boundaries, (3d ed. 1959) § 561 at 568.


author: CAVANAUGH, Judge: WIEAND, Judge,

text:
    547 A.2d 1223
    COMMONWEALTH of Pennsylvania v. Stuart THOMPSON, Appellant.
    Superior Court of Pennsylvania.
    Argued April 27, 1988.
    Filed Sept. 19, 1988.

      Jenny Steinen, Assistant Public Defender, Philadelphia, for appellant.
    Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellee.
    Before CAVANAUGH, WIEAND and DEL SOLE, JJ.
   CAVANAUGH, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Chester County, sentencing the appellant to a thirty (30) day to twenty-three (23) month term of incarceration following his conviction for Driving Under the Influence of Alcohol. We reverse.

On the evening of August 3, 1986, Valley Forge Park Ranger John Bandurski observed the appellant run a stop sign within the confines of the park. He activated his emergency lights and siren and pursued the appellant until the latter brought his yellow sedan to a stop approximately one-quarter mile beyond the park limits. This area was within the boundaries of Tredyffrin Township. Ranger Bandurski then approached the appellant, who had exited his vehicle, and noted that “[h]e had slurred speech and the smell of alcohol on his breath.” After advising the appellant of his failure to stop at the traffic sign (an assertion which the appellant denied), Ranger Bandurski asked him to submit to a field sobriety test. Three such tests were administered, two of which the appellant failed. Ranger Bandurski then contacted his dispatcher in an effort to communicate with Tredyffrin Township as well as to secure assistance from an additional park ranger. Approximately two to five minutes thereafter, Ranger Paul Reilly and Tredyffrin Township Police Officer Stephen Dintino and his shift sergeant arrived at the scene. After being advised that the appellant might be intoxicated, Officer Dintino proceeded to administer his own sobriety tests. Based upon the results of the foregoing, the appellant was placed under arrest. He was subsequently advised of his Miranda warnings and of the Pennsylvania Implied Consent provision in connection with a request that he submit to chemical testing of his blood. The appellant refused to comply, whereupon he was transported to the Tredyffrin Township police station and advised of the township policy regarding the video taping of persons arrested for Driving Under the Influence. Prior to taping, the appellant requested the assistance of a Public Defender. Accordingly, both the appellant and Officer Dintino attempted to contact the Chester County Public Defender by various methods but were unsuccessful in their efforts. Officer Dintino then proceeded to film the appellant as he performed a horizontal gaze nystagmus test and a walk and turn test. Prior to taping, the appellant was not advised of his Miranda rights a second time, but the warnings were administered during the course of the filming. Several months later at a preliminary hearing held on October 1, 1986, the appellant was held for court on the charge of Driving Under the Influence (75 Pa.C.S.A. § 3731(a)). A pretrial suppression hearing was conducted on December 9-10, 1986, at the conclusion of which the hearing court denied the appellant’s Motion to Quash the indictment on jurisdictional grounds. Said hearing was continued until January 7, 1987, at which time the court denied the remaining Motion to Suppress concerning the videotape. At the conclusion of the jury trial on January 9, 1987, the appellant was convicted of Driving Under the Influence. Following the denial of Post-Verdict Motions on July 14, 1987, the appellant was sentenced to a thirty (30) day to twenty-three (23) month term of incarceration and was further required to pay a fine in the amount of $1,500.00. This is an appeal from the judgment of sentence.

The following issues have been raised for our consideration:

Did the trial court err when he held that the extra-territorial arrest of the defendant by a federal park ranger was proper?
Did the court err when he ruled that the video tape of the defendant’s third set of field test was admissible at trial?

While we find no merit in the appellant’s first claim, a thorough review of the record and controlling authority leads us to the conclusion that the trial court erred in failing to suppress the videotape evidence. Accordingly, we reverse the judgment below.

It is initially contended that the extraterritorial arrest was improper, insofar as Ranger Bandurski was without jurisdiction to detain the appellant beyond the boundaries of the federal park. While the appellant would characterize his detention as an arrest, it would appear from the record that the actual arrest was effectuated by Officer Dintino subsequent to the second set of field sobriety tests. Notwithstanding the foregoing, it is beyond peradventure that Ranger Bandurski was authorized to apprehend the appellant in the circumstances at bar.

Pursuant to 16 U.S.C.A. § la-6(a)(l):

§ la-6. Law enforcement personnel within National Park System
(A) Designation authority of Secretary; powers and duties of designees
In addition to any other authority conferred by law, the Secretary of the Interior is authorized to designate, pursuant to standards described in regulations by the Secretary, certain officers or employees of the Department of the Interior who shall maintain law and order and protect persons and property within areas of the National Park System. In the performance of such duties, the officers or employees, so designated may—
(1) carry firearms and make arrests without warrant for any offense against the United States committed in his presence, or for any felony cognizable under the laws of the United States if he has reasonable grounds to believe that the person to be arrested has committed or is committing such felony, provided such arrests occur within that system or the person to be arrested is fleeing therefrom to avoid arrest;

(emphasis added.)

According to the testimony elicited at trial, Ranger Bandurski observed the appellant run a stop sign within the confines of Valley Forge Park. He thereafter pursued the appellant until the latter brought his vehicle to a stop beyond park limits. We agree with the lower court that while Ranger Bandurski is without jurisdiction to effectuate an arrest in Tredyffrin Township, “the point of arrest should be determined to be the location where [the ranger] indicated his intent to stop [the appellant] not where [the appellant] actually chose to stop ...” Had the detention occurred on park property, there would be no question that Ranger Bandurski would have been entitled to arrest the appellant. Thus, the process of arrest was “set in motion” within park limits (i.e., within Ranger Bandurski’s jurisdiction) and the fact that the process terminated beyond those limits (due solely to the appellant’s actions) is irrelevant. As this court noted in Commonwealth v. Gamer, 314 Pa.Super. 566, 461 A.2d 302 (1983), “Any police officer of any political subdivision may arrest any person beyond the territorial limits of such political subdivision for a summary or other offense committed by such person within such political subdivision if the officer continues in pursuit of such person after commission of the offense.” Id., 314 Pa.Superior Ct. at 569-570, 461 A.2d at 304 (citing 42 Pa.C.S.A. § 8901). Section 8901, repealed in 1982, has been replaced by 42 Pa.C.S.A. § 8953 which provides in pertinent part:

§ 8953. Statewide municipal police jurisdiction
(a) General rule. — Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:
******
(2) Where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense.

(emphasis added.)

It is obvious that Ranger Bandurski was in “hot pursuit” of the appellant as evidenced by the circumstances of the case. Moreover, even though the foregoing discussion focuses upon Pennsylvania (as opposed to federal) law, the rationale behind the Commonwealth statutes is identical to that which underlies 16 U.S.C.A. § la-6. Accordingly, we find no merit in the claim that Ranger Bandurski was without legal authority to apprehend the appellant.

The appellant next challenges the lower court’s failure to suppress the videotape of his third set of sobriety tests. The appellant has framed this claim in both fifth and sixth amendment terms. We conclude that the appellant’s fifth amendment and sixth amendment rights were violated.

It is well settled that field sobriety tests do not, in and of themselves, implicate the fifth amendment. As we observed in Commonwealth v. Romesburg, 353 Pa.Super. 215, 509 A.2d 413 (1986), “Field sobriety tests do not elicit testimonial or communicative evidence and, thus, do not trigger fifth amendment protection.” Id., 353 Pa.Superior Ct. at 218, 509 A.2d at 415. However, a recent line of cases has carved out an exception to this rule. Where the administration of a sobriety test results in the production of testimonial or communicative evidence, and where the test subject was compelled to supply this evidence, the fifth amendment protections apply. In Commonwealth v. Bruder, 365 Pa.Super. 106, 528 A.2d 1385 (1987), this court held that forcing a defendant to recite the alphabet while he was under suspicion for intoxication yielded evidence that was “essentially communicative in nature.” Id., 365 Pa.Superior Ct. at 114, 528 A.2d at 1388. More recently, in Commonwealth v. Conway, 368 Pa.Super. 488, 534 A.2d 541 (1987), we relied upon the Bruder analysis in concluding that the audio portion of a videotape of the defendant’s field sobriety performance should have been suppressed. In that case, the subject was filmed while attempting to execute the directional instructions of the arresting officer. The officer explained each test to the defendant and asked whether he had understood what was required of him. In response to this questioning, the defendant either asked for clarification or indicated what he perceived the requirements to be. The Conway court noted that:

The test procedure was structured so that Mr. Conway was compelled to reveal his thought processes by asking for clarification of some of the officer’s instructions, and his statements in response thereto manifest his confusion. Because confusion is arguably a sign of intoxication, Mr. Conway was forced to incriminate himself by 'communicating’ his confusion while performing the tests.

Id., 368 Pa.Superior Ct. at 498, 534 A.2d at 546.

In the case at bar, the appellant was forced to undergo filmed sobriety exercises. The transcript of the audio portion of the performance reveals that the subject was obscene and uncooperative, and that he repeatedly commented upon the absence of legal representation. While his statements were not responsive to direct interrogation, as in the case of Conway, supra, we are nonetheless convinced that the appellant was compelled by circumstances to utter them. Arguably, obscenity and belligerence are just as indicative of an individual’s thought processes as is confusion. In both instances, the individual is exhibiting a lack of control, and a jury could reasonably conclude that this manifests some level of intoxication. For the above reasons, we find Conway to be controlling in the case sub judice. Since the appellant was compelled to incriminate himself in a testimonial or communicative manner, his fifth amendment rights were abridged by Officer Dintino’s failure to administer Miranda warnings immediately prior to the taping.

It is clear from the record that defense counsel acquiesced in presenting the video and audio portions of the tape to the jury for tactical reasons. On the audio, the appellant can be heard demanding an attorney. Cognizant of the fact that he could not comment upon these requests, the Commonwealth’s attorney suggested that the sound be turned off when the tape was presented to the jury. As the appellant notes in his brief, this placed defense counsel in “the untenable position of having to decide between two undesirable strategies:” either allowing the jury to hear the appellant’s comments and thereby give credence to the claim that he was rightfully annoyed at his treatment, or simply permitting the jury to view his “angry and frustrated gestures and responses” with no evidence of the audio commands which elicited such responses. Accordingly, counsel agreed that the entire tape should be played at trial. The following exchange occurred prior to the presentation of the videotape:

THE COURT: I want a waiver on the record with regard to his invoking his right to have counsel.
MS. SMITH [defense counsel]: My client has agreed to waive this particular right.
However, I would like the record to show that we don’t— in the process, we are not waiving the original argument which we made about all of this.
If it’s going to come in, we will waive that right. MR. HALL [assistant district attorney]: Well, I would like the record to reflect that after the suppression hearing, it was the Commonwealth’s opinion that the sound should be turned off of the video and would have done so but for the trial tactic of the defense attorney.
THE COURT: Okay. Let me know when you are ready.

In light of the above, it is fairly obvious that counsel was preserving her original objections to the tape with the exception of those portions where the appellant invoked his right to counsel. Therefore, the Commonwealth’s contention that the appellant waived his right to challenge the videotape since his attorney agreed that it could be presented to the jury is without merit.

In Commonwealth v. Waggoner, 373 Pa.Super. 23, 540 A.2d 280 (1988), the defendant was taped while reenacting sobriety tests that he had earlier performed. During the course of the taping, he was advised of his Miranda warnings and responded to inquiries regarding his comprehension of those warnings. He also made various other comments before taping was completed. This court held that “[the defendant’s] verbalizations during the videotaping must be suppressed unless he made a voluntary, knowing and intelligent waiver of his rights after receiving his Miranda warnings.” Waggoner, supra, 373 Pa.Superior Ct. at 30-31, 540 A.2d at 284. In the case sub judice, the appellant was also advised of his rights during the course of the videotape session but, far from waiving those rights, it appears that he continually objected to the absence of counsel. Accordingly, we find Waggoner to be directly on point.

In light of the holding in Waggoner, supra, we conclude that appellant’s sixth amendment rights were violated. The police continued to interrogate appellant after he repeatedly requested counsel. Because appellant had been arrested prior to the videotaping, his right to counsel had attached. This failure to supply counsel warrants the suppression of the videotape.

Having found that the appellant’s fifth amendment rights were violated by Officer Dintino’s failure to administer Miranda warnings prior to filming his test performance, we conclude that the lower court erred in refusing to suppress the tape evidence. Moreover, the lower court erred in refusing to suppress the tape as appellant’s right to counsel had clearly been violated. Accordingly, we reverse the judgment below.

Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

WIEAND, J., files a concurring and dissenting opinion.

WIEAND, Judge,

concurring and dissenting:

I agree with the majority that the park ranger had jurisdiction to arrest appellant for driving while under the influence of alcohol. However, I disagree with the decision to award a new trial.

In my judgment, Commonwealth v. Bruder, 365 Pa.Super. 106, 528 A.2d 1385 (1987) and Commonwealth v. Peth, 374 Pa.Super. 265, 542 A.2d 1015 (1988), as well as Commonwealth v. Conway, 368 Pa.Super. 488, 534 A.2d 541 (1987) and Commonwealth v. Waggoner, 373 Pa.Super. 23, 540 A.2d 280 (1988), were incorrectly decided. Evidence that a defendant is unable to recite the alphabet and videotaped evidence of a D.U.I. defendant’s conduct are demonstrative evidence, not communicative. To suggest otherwise is wholly unrealistic. In the instant case, therefore, I would hold that the videotaped evidence of appellant’s attempted execution of the arresting officer’s directional instructions was not testimonial or communicative and did not implicate fifth or sixth amendment rights.

I would affirm the judgment of sentence.

      . At trial, Officer Dintino testified that "[t]he defendant’s eyes were red, glassy and bloodshot”, that his speech was “slurred, mumbled”, that ”[h]e was ... obscene” and that his "balance was unstable as he walked and as he stood.” The officer further detected an "odor of alcoholic beverage” on the appellant’s breath.

      . The appellant was also held for court on a violation of 75 Pa.C.S.A. § 3323(b) (provision of the vehicle code imposing a duty to observe stop signs and yielding the right of way under specified conditions). The appellant was found guilty of this offense by the court on August 6, 1987.

      . While the court noted at this time that the Motion to Quash remained open, the record reveals that said motion was disposed of on December 10, 1986.

      . The appellant was also requested to pay the costs of prosecution and directed to submit himself to drug evaluation and treatment. With respect to the conviction under 75 Pa.C.S.A. § 3323(b), the appellant was fined in the amount of $25.00 and ordered to pay costs.