J. A29006/16
                               2017 PA Super 57



COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                   v.                       :
                                            :
DAMON WESLEY SAVAGE,                        :
                                            :
                         Appellant          :     No. 174 WDA 2016

          Appeal from the Judgment of Sentence January 28, 2016
              In the Court of Common Pleas of Fayette County
             Criminal Division at No.: CP-26-CR-0000536-2015

BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.

OPINION BY DUBOW, J.:                                 FILED MARCH 07, 2017

      Appellant, Damon Wesley Savage, appeals from the Judgment of

Sentence entered in the Fayette County Court of Common Pleas following his

convictions for Aggravated Assault of a Child less than six years of age,

Simple Assault, Endangering the Welfare of Children, and Recklessly

Endangering Another Person.1 After careful review, we affirm.

      In this child abuse case, Appellant is the victim’s father.    Appellant

lived with his girlfriend, Diana Bennett, and shared custody of the victim

with the victim’s mother. On October 22, 2014, the victim was nine months

old and while staying at Ms. Bennett’s home, suffered facial injuries as a

result of severe slaps across the left side of his face.



1
  18 Pa.C.S. § 2702(a)(8); 18 Pa.C.S. § 2701(a)(1); 18 Pa.C.S. §
4304(a)(1); and 18 Pa.C.S. § 2705, respectively.
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      Before Appellant was scheduled to drop off the victim to the victim’s

mother, Appellant called the victim’s mother to tell her that the victim had a

small bruise by his eye as a result of the victim falling off a bed. N.T. Trial

at 12.2     When the victim’s mother saw the victim and the severity of the

marks on the victim’s face, the victim’s mother took the victim to the

hospital. Id. at 13, 15. The hospital admitted the victim.

      The victim’s mother then contacted the police and met with Trooper

James Garlick and a caseworker from the Children and Youth Service Agency

(“CYS”), Brittany Liptak. Id. at 15.

      Trooper Garlick then interviewed Appellant at Ms. Bennett’s home.

Appellant told the state trooper that it was the Appellant who “was alone

with [the victim] in the bedroom.” Id. at 32. Appellant further explained

that he “was changing [the victim]’s diaper and he turned to get some

powder and that when he turned back around [the victim] rolled off the bed

onto the floor.” Id.

      Rather than interview Appellant alone, Trooper Garlick interviewed

Appellant while Ms. Bennett was in the next room. Ms. Bennett periodically

interrupted the interview and corrected the Appellant’s statements about the

incident.    Each time, Appellant concurred with Ms. Bennett’s statements

about the incident. Id. at 49. In fact, Appellant stated originally that the


2
  The Notes of Testimony from Appellant’s trial consist of two days of
proceedings from January 11 and 12, 2016, combined into one volume.



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injury was on the right side of the victim’s face, but Ms. Bennett interjected

that the injury was on the left side of the victim’s face. Id. at 47.

      While the medical professionals were treating the victim in the

hospital, a doctor examined the victim and concluded that the injuries were

not consistent with a fall from a bed and non-accidental. Commonwealth’s

Exhibit 4; N.T. Trial at 22-26.   As a result, the state trooper obtained an

arrest warrant for Appellant the next day.

      The state trooper served the arrest warrant on Appellant and while

transporting Appellant to the State Police Barracks, Appellant changed his

story and said that he lied the previous day. Appellant stated that he was

out riding his “quad” while Ms. Bennett took care of the victim. N.T. Trial at

73.   In particular, Appellant said that Ms. Bennett “must of snapped and

slapped the victim” and Ms. Bennett had problems with CYS and her son.

Id. at 75.   Appellant also said that “he agreed to take the blame for the

victim falling out of bed.” Id. at 76.

      Brittany Liptak, the CYS caseworker, interviewed Ms. Bennett’s son,

H.B., who lived with Ms. Bennett and Appellant.           At the time of the

interview, H.B. was in first grade.       Ms. Liptak prepared a report, which

included a summary of H.B.’s statements to her (“CYS Report”). H.B. told

Ms. Liptak that it was his mother, Ms. Bennett, who was with the victim at

the time of the incident and Appellant was downstairs. H.B. also stated that

his mother “smacks him in the face a lot because he talks back” and that his



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mother “has a mean smack.” Id. H.B. also stated that his mother “hasn’t

smacked his face in a pretty long time because he is good now.” Id.

      Ms. Liptak testified that H.B. did not have any problem remembering,

was clear on what he said and she believed him. N.T. Trial at 178.

      The trial began on January 11, 2016. The Commonwealth first called

Dr. Adelaide Eichmann, who is the pediatrician at Children’s Hospital in

Pittsburgh and examined the victim.           Dr. Eichmann concluded that the

victim’s injuries were non-accidental and the result of child abuse.

      In particular, Dr. Eichmann concluded that the victim’s injuries were as

a result of “slap marks on his face.”       Id. at 22, 26.   She also found the

victim’s injuries were not consistent with falling off a bed. Id.

      The next witness was State Trooper James Garlick who investigated

the claim of child abuse.        Trooper Garlick tesified that Appellant initially

stated that he was with the victim and the victim fell off the bed. Trooper

Garlick also testified about Diana Bennett interrupting his interview with

Appellant and correcting Appellant’s statements.

      Trooper Garlick further testified that Appellant changed his story after

Trooper Garlick arrested Appellant.        Appellant stated that the victim was

with Ms. Bennett at the time of the incident and he took the blame the day

before in order to prevent CYS from investigating Ms. Bennett’s ability to

care for her child. Id. at 34.




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      The Commonwealth next called Diana Bennett who testified that it was

Appellant who was with the victim when she heard the victim cry. She then

went into the bedroom where Appellant was with the victim and Appellant

was trying to console the victim.    Id. at 111.   On cross-examination, she

admitted that once she slapped H.B., her son. Id. at 115. She also testified

that CYS investigated her ability to care for H.B. because of her addiction to

heroin. Id. at 116.

      Appellant’s counsel then wanted to call H.B. as a witness.      The trial

court held an in camera interview of H.B. to consider his competency. After

asking him questions about his ability to differentiate between telling the

truth and a lie, Appellant’s counsel asked him about the statements he made

to CYS.

      Although H.B. remembered the interview and making statements, he

recanted his earlier statements.    Id. at 164, 165. In particular, H.B. now

testified that he was not at home when the incident occurred. Id. at 163.

      H.B. also testified that his mother, Diana Bennett, talked to him about

his trial testimony, once at Christmas and immediately before the trial. Id.

at 165.   H.B., however, testified that he could not specifically remember

what his mother said to him about the testimony that he was to give.

      H.B., however, could remember his mother’s version of the events.

H.B. testified that his mother told H.B. that H.B. was at school at the time of

the incident, his mother was in her room and Appellant was with the victim



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when the incident occurred, and the victim fell off a bed. Id. at 165, 167,

168.

       H.B. also recanted his statement that he gave to the CYS worker that

his mother slapped him. H.B. testified that his statement to the CYS worker

was a lie, and that his mother did not slap him but only pushed him away

after H.B. bit her in the stomach. Id. at 166.

       Although the trial court found H.B. competent, it found that H.B. was

not at home at the time of the incident and thus, lacked the personal

knowledge about the incident to testify. Id. at 169.

       The jury convicted Appellant of Aggravated Assault of a Child less than

6 years of age, Simple Assault, Endangering the Welfare of Children, and

Recklessly Endangering Another Person.        On January 28, 2016, the trial

court sentenced Appellant to a term of 6 to 20 months’ incarceration.

       On February 4, 2016, Appellant filed a Notice of Appeal.              Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

       Appellant presents five issues for our review:

       1. Did the trial court [err] when it refused to allow into evidence
       a Contact/Summary/Safety Assessment report from Children and
       Youth Service under the business record exception to the
       hearsay rule regarding an interview they conducted with [H.B.],
       a seven[-]year[-]old who was present during the assault, found
       competent as a witness by the trial court?

       [2.] Did the trial court [err] when it refused to allow into
       evidence the Contact/Summary/Safety Assessment report from
       Children and Youth Services under the complete story exception
       to the hearsay rule?



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        [3.] Did the trial court [err] in not allowing the [Appellant] to
        enter into evidence the aforementioned report to show someone
        other than himself might have committed the crime?

        [4.] Did the trial court [err] regarding the testimony of [H.B.], a
        seven[-]year[-]old present at the time of the assault when the
        court said “I do not believe that you can impeach him with the
        statement or call him as a hostile witness at age seven[?”]

        [5.] Did the trial court [err] when it ruled that the [Appellant]
        could not impeach his own witness?

Appellant’s Brief at 3.3

        Appellant’s issues on appeal collectively deal with two issues: (1)

whether the trial court properly precluded Appellant from introducing into

evidence the CYS Report, and (2) whether the trial court properly precluded

H.B. from testifying. We will address the admissibility of the CYS Report first

(Appellant’s first three issues), and then address the testimony of H.B.

(Appellants fourth and fifth issues).

        Admissibility of the CYS Report

        When reviewing a trial court’s decision regarding the admissibility of

evidence, we use an abuse of discretion standard and will only reverse “upon

a     showing    that   the   trial   court     clearly   abused   its   discretion.”

Commonwealth v. Schoff, 911 A.2d 147, 154 (Pa. Super. 2006) (citation

omitted).

        In this case, the CYS Report supported Appellant’s defense that it was

Ms. Bennett, and not he, who injured the victim. 4 Appellant argues that the

3
    Issues reordered for ease of disposition.



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trial court erred in precluding him from introducing the CYS Report into

evidence because the CYS Report falls within the Business Record exception

to the Hearsay Rule.     Appellant’s Brief at 8-12.   In particular, Appellant

argues that the CYS report was properly made in the ordinary course of the

CYS agency’s business, the caseworker properly qualified the CYS Report as

the custodian, and the CYS Report is trustworthy. Id. We disagree.

      Hearsay is an out-of-court statement offered for the truth of the

matter asserted. Pa.R.E. 801(c). It is generally inadmissible unless it falls

within one of the exceptions to the hearsay rule delineated in the Rules of

Evidence.   Commonwealth v. Yarris, 731 A.2d 581, 591 (Pa. 1999).

Pennsylvania Rule of Evidence 803(6) provides an exception to the hearsay

rule for business records as follows:

      Records of a Regularly Conducted Activity. A record (which
      includes a memorandum, report, or data compilation in any
      form) of an act, event or condition if,

         (A) the record was made at or near the time by--or from
         information transmitted by--someone with knowledge;

         (B) the record was kept in the course of a regularly
         conducted activity of a “business”, which term includes
         business, institution, association, profession, occupation,
         and calling of every kind, whether or not conducted for
         profit;

4
  Appellant argues that the CYS Report supported his position that if Ms.
Bennett slapped H.B. in the past, Ms. Bennett was more likely the one who
slapped the victim based on her violent propensities. The use of the CYS
Report for this purpose would only be relevant under a Pa.R.E. 404(b)
analysis. Appellant failed to make this argument before the trial court or
raise it in his 1925(b) Statement, so it is waived.



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        (C) making the record was a regular practice of that
        activity;

        (D) all these conditions are shown by the testimony of the
        custodian or another qualified witness, or by a certification
        that complies with Rule 902(11) or (12) or with a statute
        permitting certification; and

        (E) neither the source of information nor              other
        circumstances indicate a lack of trustworthiness.

Pa.R.E. 803(6).

     Where a business record that would otherwise be admitted as an

exception to the hearsay rule itself contains hearsay, it is double hearsay.

See Commonwealth v. Sanchez, 610 A.2d 1020, 1029 (Pa. Super. 1992).

The underlying hearsay must also qualify as a hearsay exception in order for

the trial court to properly admit into evidence the business record.    Id.;

Pa.R.E. 805; Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of

Evidence § 805.05 et seq. (2017 ed. LexisNexis Matthew Bender).

     Applying this principle in Commonwealth v. Simmons, 548 A.2d

284, 288 (Pa. Super. 1988), this Court held that the trial court properly

excluded, as inadmissible hearsay, a portion of a medical examiner’s report

indicating the location of the crime involved in that case. Though the report

itself was made in the ordinary course of the medical examiner’s business,

“the preparer of the report had no independent knowledge of the location of

[sic] crime but had relied on information supplied to the medical examiner.”

Id. In other words, the medical examiner’s office obtained the information



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about the location of the crime from sources outside of the medical

examiner’s office and thus, that information was hearsay and inadmissible

unless it independently fell into an exception to the hearsay rule.

      In this case, H.B.’s statements originate from a source outside of CYS

and, thus, are not covered by the business records exception to the hearsay

rule just because the statements were contained in a report that CYS

prepared.   Rather, those statements must independently fall within an

exception to the hearsay rule. In other words, H.B.’s statements originated

from H.B., a source outside of CYS.      This is similar to the information in

Simmons in which the source of the location of the crime in the coroner’s

report was not from the coroner’s office, but an external source. As such,

the information must fall within another exception to the hearsay rule to be

admissible. Simmons, supra at 288.

      Appellant fails to argue or point to any other exception to the hearsay

rule for H.B.’s statements and thus, we must conclude that H.B.’s

statements contained in the CYS Report are hearsay and the trial court

properly precluded them from evidence.

      Appellant alternatively argues that the CYS Report is admissible under

the “complete story exception” to the hearsay rule. The trial court rejected

this theory on the ground that the purpose of admitting the CYS Report

would be to establish that it was not Appellant, but Ms. Bennett, who injured

the victim, not to complete a small detail in completing the story of a crime:



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      The Court did not allow [the CYS report] as substantive evidence
      under the “Complete Story” exception because that exception
      relates to res gestae, and is allowed as one piece of a puzzle
      when necessary to complete the story of the crime, establishing
      the motive or the existence of a plan, etc.                   See
      Commonwealth v. Mayhue, [] 639 A.2d 421 ([Pa.] 1994). It
      is obvious that, in [Appellant’s] view, the “complete story”
      includes his claim made during his second interview with Trooper
      Garlick that Diana Bennett must have injured the child.
      However, in this Court’s view of this case, there was no puzzle to
      be completed so as to get a true and accurate account of exactly
      what the crime was and/or why it was committed. The CYS
      report is hearsay, and the “complete story” exception is not
      applicable here. See also Commonwealth v. Levanduski,
      907 A.2d 204 (Pa. Super. 2006).

Trial Court Opinion at 6. We agree.

      Finally, Appellant argues that the trial court erred in not entering into

evidence the CYS Report “to show [that] someone other than himself could

have committed the crime.” Appellant’s Brief at 7. Although we agree that

H.B.’s statements are exculpatory, Appellant wholly fails to point to any legal

basis to permit double hearsay evidence just because the statements are

exculpatory.5

      Accordingly, the trial court properly refused to admit the CYS Report at

trial and we discern no abuse of discretion.



5
   Appellant relies upon cases that provide for the general proposition that
“evidence which tends to show that the crime for which an accused stands
trial was committed by someone else is relevant and admissible.”
Commonwealth v. McGowan, supra at 115 (citing Ward, supra at 797).
However, such evidence must be “relevant and not subject to exclusion
under one of our established evidentiary rules.” Id. (citing Ward, supra at
797).



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       Preclusion of H.B.’s Testimony

       In his fourth and fifth issues, Appellant avers that the trial court

improperly precluded H.B.’s testimony at trial based on the trial court’s

statement that “I do not believe that you can impeach him with the

statement or call him as a hostile witness at age seven.” Appellant’s Brief at

13.

       In its Opinion, the trial court admits that it incorrectly stated that

Appellant’s counsel could not impeach its own witness who was seven years

old.   The trial court, however, at trial and in its Opinion, also justifies its

decision to preclude Appellant from calling H.B. on the grounds that H.B.

testified before the court that H.B. was not at home when the victim was

injured and thus, “lacks the foundation from having seen this [incident] or

heard it.” N.T. Trial at 169.

       In particular, the trial court relies upon Pennsylvania Rule of Evidence

602 that provides that “a witness may testify to a matter only if evidence is

introduced sufficient to support a finding that the witness has personal

knowledge of the matter.”       Pa.R.E. 602.     The trial court, however, in

concluding that H.B. lacked personal knowledge of the incident because H.B.

testified in camera that he was at school when the incident occurred, ignored

the fact that H.B. made statements to the CYS worker that H.B., in fact, was

at home during the incident.




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     Appellant, however, did not challenge the trial court’s finding that

H.B.’s recantation of the incident precluded him from testifying pursuant to

Pa.R.E. 602. Therefore, the Appellant has waived this issue.6

     Accordingly,   Appellant’s   claims     merit   no   relief   and   we   affirm

Appellant’s Judgment of Sentence.

     Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/7/2017




6
  We are troubled that the trial court found that H.B. did not have personal
knowledge of the incident when H.B. gave a statement to the CYS worker
about the incident and the CYS worker testified that H.B. gave forthright
statements. H.B.’s recantation of his statement in the in camera proceeding
does not mean that he lacks personal knowledge of the incident, especially
in light of the fact that his mother talked to him about his testimony. Just
because a witness recants a statement does not mean that the witness lacks
personal knowledge of the incident. Appellant failed to challenge this aspect
of the trial court’s ruling and thus, we cannot review this issue on direct
appeal. Appellant may choose to raise this issue in a Post Conviction Relief
Act petition.



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