Lancaster Co,. CYS v. DHS – Cmwlth. Court – July 1, 2020 – reported decision
Held: Police officer’s testimony--to which alleged abuser mother did not object at admin. hearing--about the unobjected-to statement of father to police at scene of alleged child abuse was admissible as an excited utterance—an exception to the hearsay rule--to prove that the mother was alone in her car when she overdosed on heroin.
DHS found that the CYS had not proved its case, because, inter alia, it was based on uncorroborated hearsay—the testimony about what the police officer said at the scene. CYS appealed, arguing that DHS erred in excluding it from consideration as hearsay because: (1) corroborating evidence [to support the unobjected-to hearsay] existed in the form of Officer Ayers’ first-hand observations of the scene; and (2) the Father’s statements constituted an “excited utterance” and, therefore, are subject to a hearsay exception. The court reversed the DHS decision on the basis of (1).
From the opinion:
Hearsay is a statement, other than the one made by a declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted in the statement. Pa. R.E. 801(c). Generally, hearsay is not admissible under the Pennsylvania Rules of Evidence. Pa. R.E. 802. We recognize, however, that “Commonwealth agencies [are] not . . . bound by technical rules of evidence at agency hearings, and all relevant evidence of reasonably probative value may be received.” A.Y. v. Dep’t of Pub. Welfare, Allegheny Cty. Children & Youth Servs., 641 A.2d 1148, 1150 (Pa. 1994) (citing 2 Pa. C.S. § 505).
We have consistently applied the following standard, referred to as the Walker Rule, to determine whether hearsay evidence is admissible at administrative proceedings:
(1) Hearsay evidence, [p]roperly objected to, is not competent evidence to support a finding of [an agency][;]
(2) Hearsay evidence, [a]dmitted without objection, will be given its natural probative effect and may support a finding of [an agency], [i]f it is corroborated by any competent evidence in the record, but a finding of fact based [s]olely on hearsay will not stand.
Rox Coal Co. v. Workers’ Comp. Appeal Bd. (Snizaski), 807 A.2d 906, 915 (Pa. 2002) (citing Walker v. UCBR, 367 A.2d 366, 370 (Pa. Cmwlth. 1976)). The Walker Rule “need not be considered if evidence is admissible under an exception to the hearsay rule.” Estate of Fells by Boulding v. UCBR, 635 A.2d 666, 669 (Pa. Cmwlth. 1993), appeal denied, 647 A.2d 905 (Pa. 1994).
One of the more well-established exceptions to the inadmissibility of hearsay evidence is commonly referred to as the “excited utterance exception,” and it is set forth among other hearsay exceptions in Pennsylvania Rule of Evidence 803. Specifically, Rule 803(2) defines an “excited utterance” as:
A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. When the declarant is unidentified, the proponent shall show by independent corroborating evidence that the declarant actually perceived the startling event or condition.
Pa. R.E. 803(2).
The court held that the father’s statement satisfied the requirements of Pa. R.E. 803(2) and where thus admissible to help prove abuse by the mother. The court also noted that mother did not object the father’s hearsay statement. For some reason, the court did not then go on to determine if it was supported by some other competent evidence in the record, as per the Walker rule.
In addition, there is a reasonable argument that the court improperly considered the Pa. Rules of Evidence.Rule 101 – scope and citation of rules, says that the rules “shall govern proceedings in all courts of the Commonwealth.” The Comment to the Rules clarifies that this means that the rules “are not intended to supersede these other provisions of law unless they do so expressly or by necessary implication” and—more important—that the rules “are applicable only to courts. . . . They are not applicable to other tribunals, such as administrative agencies and arbitration panels, except as provided by law or unless the tribunal chooses to apply them.” [emphasis added]
In this writer’s opinion, the court’s consideration of hearsay exceptions has the potential of poking a big hold in the Walker rule.
