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.