BELLEFONTE - After hearing arguments from prosecutors and Jerry Sandusky's defense team, Senior Judge John Cleland ruled the eyewitness account of a former Penn State janitor now incapacitated by dementia could be told to the jury by a co-worker during the third day of Sandusky's child sex abuse trial in Bellefonte.
While hearsay evidence is usually not allowed, the judge ruled Wednesday that the "excited utterance" exception would apply in the case of Jim Calhoun's revelation to co-worker Ron Petrosky one fall night in 2000 that he had just seen Sandusky performing oral sex on a young boy in the staff locker room showers of the Lasch Football Building.
Cleland said the issue to consider was whether Calhoun's words as told by Petrosky fell under the hearsay exception and whether it was "sufficient to support the commonwealth's case."
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LEFT: Penn State University former quarterbacks coach Mike McQueary's father John McQueary arrives at the Centre County Courthouse to testify in the child sexual abuse trial of former Penn State University assistant football coach Jerry Sandusky Wednesday in Bellefonte.
After Calhoun allegedly witnessed the illicit sex act and Sandusky and the boy left the building, he was so shaken and distraught that Petrosky told the grand jury he thought he was having some kind of medical emergency.
Petrosky said Calhoun told him, and other janitors that night, what he saw but prosecutors said he never reported it.
Defense attorney Karl Rominger argued the Supreme Court has upheld that an "excited utterance," by itself, was inadmissible because there had to be independent proof of a crime.
Rominger went on to say that Petrosky's account of what he witnessed that night - walking into the shower to clean it before seeing two sets of legs and backing out as well as Sandusky leaving the locker room with a young boy a few minutes later - weren't indicators of any crime.
Just seeing two people in a shower and then walking down a hall wasn't enough to support allowing Calhoun's statements after the alleged incident, Rominger said.
Chief Deputy Attorney General Frank Fina argued the accounts of other alleged incidents in the showers by other accusers as well as the eyewitness testimony of former Penn State wide receivers coach Mike McQueary did provide other evidence of crime and therefore met the burden of the hearsay exception.
Fina said there was a "pattern of conduct" and although it could be considered "a novel idea," it could be allowed.
"I don't think you can buttress it with other conduct - just this conduct," Cleland said to Fina as the two sides pointed to case law to back their arguments.
The judge went on to say the problem he faced was "the proof of the event can't be the excited utterance."
Rominger said the support for the exception couldn't come from any other incident, only the incident involving Calhoun. Allowing it would violate Sandusky's Sixth Amendment right and he said the trend in the courts is "more confrontation, more Sixth Amendment - not less," Rominger asserted.
"We don't get to cross-examine the witness," Rominger said.
Cleland ultimately said "the jury would have to look at the evidence," overruled the defense's hearsay objection and Petrosky took the stand.
"Hearsay and hearsay exceptions are the murkiest area of the law," attorney Robert Donaldson said.
Donaldson pointed out that hearsay is not allowed because it violates a defendant's Sixth Amendment right to confront their accuser and when a person is unavailable, because of either incapacitation or death, there can be exceptions.
The "excited utterance" exception, Donaldson said, requires the statement to be said under stress or the excitement of a startling event and has to be spontaneous - the idea being that people who utter such statements haven't had time to make a conscious decision about what they are saying and therefore are likely telling the truth.
Cleland's decision could come up on an appeal if there's a conviction but Donaldson said since the jury has already heard evidence regarding alleged shower incidents, there was merit to letting them hear Calhoun's hearsay testimony.
