EXCULPATORY STATEMENTS IN CYS REPORT ARE HEARSAY AND NOT ADMISSIBLE (exceptions may exist but … if you don’t raise ’em, you waive ’em)

The PA Superior Court has decided the case of Commonwealth v. Savage, No. 174 WDA 2016 (March 7, 2017), holding that it was not an abuse of discretion for the trial court to refuse to admit a CYS Report at trial, even though it supported Savage’s defense that it was his girlfriend, and not he, who injured his nine month old daughter.

On October 22, 2014, the victim, Savage’s daughter, was staying at his girlfriend (Bennett’s) home where she suffered facial injuries as a result of severe slaps across the left side of his face. Savage lived with Bennett. He initially told his mother, with whom he shared custody of his daughter, that his daughter had fallen off the bed. His mother was concerned about the extent of the injuries and took the child to the hospital. Police were contacted by medical personnel and interviewed Savage in the presence of Bennett who continually interjected and corrected Savage’s statements as to what had happened. After medical professionals concluded the child had been severely slapped and the injuries were non-accidental, Savage was arrested. On the way to the police station, he told police he did not injure his daughter and had lied to protect Bennett. He told them that Bennett was alone with his daughter at the time of the injury and she must have snapped, adding that Bennett had a previous history with CYS regarding her son.

A CYS caseworker interviewed Bennett’s seven year old son, H.B., who lived with Bennett and Savage. At the time of the interview, H.B. was in first grade. A report was prepared which included a summary of H.B.’s statements to the CYS worker. H.B. told her that it was his mother, Bennett, who was with the victim at the time of the incident and that Savage was downstairs. H.B. also stated that his mother “smacks him in the face a lot because he talks back” and that his mother “has a mean smack.” H.B. also stated that his mother “hasn’t smacked his face in a pretty long time because he is good now.” The CYS worker testified that H.B. did not have any problem remembering, was clear on what he said and, she believed him.

At trial, Savage’s counsel wanted to call H.B. as a witness at trial. 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, Savage’s counsel asked H.B. about the statements he made to CYS. Although H.B. remembered the interview and making statements, he recanted his earlier statements. In particular, H.B. now testified that he was not at home when the incident occurred. H.B. also testified that his mother, Bennett, had talked to him about his trial testimony, once at Christmas and immediately before the trial. However, he testified that he could not specifically remember what his mother said to him about the testimony that he was to give. That said, H.B. could remember his mother’s version of the events. He testified that his mother told him that he was at school at the time of the incident, his mother was in her room, and Savage was with the victim when the victim fell off the bed.

H.B. also recanted his statement that he gave to the CYS worker that his mother slapped him. He 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.

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.

The jury convicted Savage 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 him to a term of 6 to 20 months’ incarceration. Savage appealed, essentially raising two issues: (1) whether the trial court properly precluded Savage from introducing into evidence the CYS Report and (2) whether the trial court properly precluded H.B. from testifying.



Savage argued 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 was trustworthy. Therefore, it was a business record.

The Superior Court disagreed stating that where a business record that would otherwise be admitted as an exception to the hearsay rule itself contains hearsay, it is double hearsay. Therefore, the underlying hearsay must also qualify as a hearsay exception in order for the trial court to properly admit into evidence the business record.

In this case, H.B.’s statements to the CYS worker originated from a source outside of CYS and, thus, was not covered by the business records exception to the hearsay rule just because they happened to be 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.


Savage alternatively argued that the CYS Report was admissible under the “complete story exception” to the hearsay rule. However, the Superior Court agreed with the trial court’s conclusion that, in Savage’s view, the “complete story” included his claim made during his second interview with the police that Bennett must have injured the child. However, the trial court concluded that this did not mean that there was a 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. Instead, the CYS report was hearsay, and the “complete story” exception was not applicable.


Lastly, Savage wanted to introduce the CYS Report because it supported his defense that it was Bennett, and not he, who injured the victim. He argued 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.

Evidence which tends to show that the crime for which an accused stands trial was committed by someone else is relevant and admissible. However, such evidence must be relevant and not subject to exclusion under one of our established evidentiary rules.

Specifically, Savage argued to the Superior Court that the CYS Report supported his position that if Bennett slapped H.B. in the past, 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 the Pa. Rules of Evidence to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident, related to Bennett’s conduct.

However, because Savage failed to make this argument before the trial court or raise it in his written statement of appeal, the Superior Court concluded he waived that issue.


Savage also averred that the trial court improperly precluded H.B.’s testimony at trial. During the trial, the court stated, “I do not believe that you can impeach him with the statement or call him as a hostile witness at age seven.”

After Savage filed his appeal, the trial court admitted that it incorrectly stated that Savage’s counsel could not impeach H.B. But, the trial court justified its decision to preclude Savage from calling H.B. on the grounds that H.B. testified before the trial court, in camera, that H.B. was not at home when the victim was injured. Therefore, the trial court concluded that H.B. lacked the foundation from having seen or heard the incident. However, the Superior Court noted that by doing so, the trial court ignored the fact that H.B. made statements to the CYS worker that H.B., in fact, was at home during the incident.

The Superior Court was “troubled “by the the fact that the trial concluded H.B. did not have personal knowledge of the incident: H.B. had given a statement to the CYS worker about the incident and, the CYS worker testified that H.B. had given forthright statements. H.B.’s recantation of his statement in the in camera proceeding did not, in the Superior Court’s view, mean that H.B. lacked personal knowledge of the incident, especially in light of the fact that his mother talked to him about his testimony.

According to the Superior Court, just because a witness recants a statement does not mean that the witness lacks personal knowledge of the incident. However, because Savage failed to challenge this aspect of the trial court’s ruling, the Superior Court ruled it could not review this issue on direct appeal. It did, however, invite Savage to raise the issue in a Post Conviction Relief Act petition.

CASE LINK: http://www.pacourts.us/assets/opinions/Superior/out/J-A29006-16o%20-%2010301758316294444.pdf?cb=1

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