dissenting:
Appellant Lawrence Fanelli was convicted of various misdemeanors 1 associated with a sexual attack upon the minor daughter of the woman with whom appellant was living. Appellant was found not guilty of charges of rape and statutory rape. On appeal appellant challenges various of the trial court’s rulings, including its finding that the Commonwealth sustained its burden of showing the date on which the offense occurred. Because I find that the Commonwealth did not prove beyond a reasonable doubt that the offense occurred within the period of the statute of limitations and did not fix the date of the offense with reasonable certainty, I would reverse the judgment of sentence.
Appellant was originally charged with corrupting the morals of a minor, indecent assault, and indecent exposure on October 9, 1983. These charges were later consolidated with charges of rape, statutory rape, and simple assault. The amended bills of information allege the crimes occurred between September 29, 1981 and September 29, 1983. Trial testimony established that only a single act occurred. At trial it was the Commonwealth’s burden to prove beyond a reasonable doubt that this offense occurred within the requisite time period. This the Commonwealth failed to do. The appellant also had a due process right to be apprised of the date of the offense with reasonable certainty. This right was violated.
The Commonwealth offered the testimony of four witnesses: the complainant, who was six years old at the time of trial; Harry A. Lehman, III, M.D., an expert who examined the complainant; Mary Breton, in whose care complainant was placed after September 29, 1983; and Earline Hammett-Mitchell, a police officer. Only the testimony of *570the complainant touched upon the time period within which the offense occurred. The other witnesses relied upon information supplied by the complainant in formulating their impressions regarding the date of the offense. In looking at the evidence of record the majority errs in considering, sua sponte, the purported error of the trial court in excluding the hearsay testimony of Officer Hammett-Mitchell. Such consideration transgresses a fundamental tenet of criminal jurisprudence — that there is no avenue of appeal by the Commonwealth for trial errors committed by the court below (except within limited circumstances not here applicable.) See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). The effect of this is to allow appellate review of an evidentiary ruling which was decided contrary to the Commonwealth. Appellate review, however, is precluded by the double jeopardy clause. An issue which could not be raised by the Commonwealth should not be raised sua sponte by the court.2
The majority cites Commonwealth v. Ward, 235 Pa.Super. 550, 344 A.2d 650 (1975), a criminal case in which it was held that certain evidence was improperly admitted at trial. This court held that under the circumstances we look at the whole record to determine whether a motion in arrest of judgment was properly granted. We held that the proper remedy was the granting of a new trial. That is if looking at all the evidence admitted at trial it would withstand judgment n.o.v.' regardless of improper admission of some of the evidence, the remedy is to grant a new trial (since the defect may be cured), but if looking at all the evidence *571including that which was improperly admitted it is found to be insufficient as a matter of law, then the remedy is arrest of judgment since the case should never have gone to the jury in the first place.
This is simply an application of the rule that an appellate court does not “diminish the record” before reviewing the sufficiency of the evidence. See Commonwealth v. Cohen, 489 Pa. 167, 413 A.2d 1066 (new trial is proper remedy) and cases cited therein.3
Moreover, the officer’s testimony was not admissible nor did it fall within an exception to the hearsay rule. The majority states that the trial judge erred in excluding the testimony of Officer Hammett-Mitchell, proffered by the Commonwealth, that the child told her that the assault “happened right before she went to stay at mom Mary.” However, the trial judge rightly excluded this testimony. Further, we must disagree with the majority’s admonition to trial courts to permit such evidence, presumably fashioning a rule that hearsay is admissible whenever the declarant is available to be called as a witness. For support the majority cites Commonwealth v. Rounds, 356 Pa.Super. 317, 514 A.2d 630 (1986), rev’d on other grounds, 518 Pa. 204, 542 A.2d 997 (1988). A child victim testified that he had told his brother that their father “did sex to me”. The court held that there was no ineffectiveness in failing to object to this testimony since it was not objectionable hearsay. It was held not to be hearsay since the declarant was in court (and was, in fact, the witness who testified to the out-of-court statement).
However, I would rely upon Commonwealth v. Haber, 351 Pa.Super. 79, 505 A.2d 273 (1986) in which the court held that a child’s mother could not offer testimony regarding statements made by the child relating to a sexual attack upon her since the statements were hearsay. In Haber, the children were witnesses at trial, but were unable to supply *572certain details which were contained in the hearsay statements. The testimony was inadmissible since it did not qualify under any exception to the hearsay rule, although the declarants were present and had themselves testified.
The testimony of Officer Hammett-Mitchell is hearsay, i.e., it is an out-of-court assertion offered to prove the truth of the matter asserted. See Kemp v. Qualls, 326 Pa.Super. 319, 327, 473 A.2d 1369, 1373 (1984); Fed.R.Evid. 801(c); D. Binder, Hearsay Handbook, Ch. 1 (What Is Hearsay) (2d ed. 1983). The majority points out that the child appeared as a witness at trial and thus appellant had an opportunity to cross-examine her. While such opportunity may satisfy appellant’s constitutional right to confront the witnesses against him, it does not create an exception to the hearsay rule. The fact that testimony could withstand objections under the Confrontation Clause of the Sixth Amendment (See California v. Green 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)) does not mean that it is ipso facto admissible. It still may be hearsay and subject to appropriate exception. Cf. McCormick on Evidence § 252 (3d ed. 1984). Moreover, the confrontation clause of the Sixth Amendment applies only to criminal proceedings. Again, there is no authority that satisfaction of Sixth Amendment right to face accusers referred to in Rounds, supra, eliminates an otherwise valid hearsay objection. As the court cogently explained in State v. Martin, 356 So.2d 1370, 1374 (La.1978):
... the hearsay character of a proffered out-of-court assertion is not altered by the fact that the statement was made by a person who appears in court as a witness.
The gist of the hearsay objection is the repetition on the witness stand on an out-of-court assertion. It is not dependent on the identity of the witness or the fact that the declarant may be available. Thus, even if a witness testifies to an assertion previously made by him and the assertion is offered to prove the truth of the matter asserted therein, it is hearsay. See McCormick, supra, § 251 (Prior *573Statements of Witness as Substantive Evidence); D. Binder, supra, § 1.01.
Although there are certain hearsay exceptions which are grounded on the fact that the witness is available to be cross-examined, see, e.g. Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986); Fed.R.Evid. 801(d)(1), there is no authority for the adoption of the unprecedented innovation of the majority which would hold that hearsay is admissible as substantive evidence so long as the declarant to the hearsay assertion is available for questioning in court. I would agree with the trial court that the officer’s testimony was inadmissible hearsay evidence and thus would disagree with the majority, and further I would overrule the hearsay holding of Commonwealth v. Rounds, supra.
The direct testimony of the complainant regarding the time period in question is as follows:
Q. [By the prosecutor] Now ... when this happened with you and Larry, okay, was your sister Tina born yet?
[Objection overruled]
Q. Was your sister Tina born yet?
A. Yes.
Q. Okay, When it happened, okay, do you remember about how old Tina would have been?
A. One.
[Objection overruled]
Q. How old is Tina now?
A. Three.
The defense of a prosecution’s being barred by the statute of limitations requires the Commonwealth to prove beyond a reasonable doubt that the action was timely commenced. See 18 Pa.C.S. § 103, conduct negating a defense under the statute of limitations is an element of an offense. The statute of limitations must be liberally construed in favor of the defendant and against the Commonwealth. Commonwealth v. Cardonick, 448 Pa. 322, 292 A.2d 402 (1972). The statute of limitations, which provides predicta*574ble legislatively enacted limitations on prosecutorial delay, is the primary guarantee against the bringing of overly stale criminal charges. Commonwealth v. Arnold, 331 Pa.Super. 345, 480 A.2d 1066 (1984). See generally LaFave and Israel, 2 Criminal Procedure § 18.5 (1984) (Objectives of statute of limitations include prevention of prosecution of persons who have been law abiding for some years, avoidance of prosecution where community’s retributive impulse has ceased, lessening the possibility of blackmail, and requiring prosecutions to be based upon reasonably fresh evidence.)
The application of the statute of limitations is not abrogated by the fact that a defendant is charged with a sexual offense. The standard of liberal construction in favor of defendant is uniform no matter the violation charged. The appropriate formulation of the Commonwealth’s burden is as follows:
In the prosecution of sodomy or other crimes in which a particular date or day of the week is not the essence of the offense, the Commonwealth’s burden is to prove the commission of the crime upon some date fixed with reasonable certainty and within the prescribed statutory period.
Commonwealth v. Yon, 235 Pa.Super. 232, 341 A.2d 169, 171 (1975) (emphasis added).
The Commonwealth is not relieved of its burden to prove the offense occurred within the “prescribed statutory period” because the offense involved is one of sexual abuse or because the victim is a child. This is not to say that no leeway is afforded in establishing the date of the offensive conduct in a child sexual abuse prosecution. Primary among the court-created mechanisms which recognizes the difficulty in fixing the exact date on which criminal acts of child abuse have taken place is the continuous course of conduct doctrine. For purposes of ensuring the defendant’s right to sufficiently specific charges so that he may adequately prepare a defense, it has been held that testimony establishing a series of acts over a period of time satisfies *575defendant’s due process rights. See Commonwealth v. Niemetz, 482 Pa.Super. 431, 422 A.2d 1369 (1980). Accord, Commonwealth v. McClucas, 357 Pa.Super. 449, 516 A.2d 68 (1986). Cf. Commonwealth v. Campbell, 342 Pa.Super. 438, 493 A.2d 101 (1985) (admission of testimony regarding a single, prior sexual assault upon complainant in an incest prosecution is reversible error absent a showing of a continuous course of conduct since its effect is to show bad character based upon a prior criminal act.)
As a criminal defendant, appellant has a right both to be tried within the statutorily prescribed period and to be afforded the benefit of responding to charges fixed with reasonable certainty to a specific date within that statutory period. The majority commits error where it combines appellant’s due process and statute of limitations arguments, since the two are reflective of different interests of our criminal justice system. This failure to distinguish between the two concepts results in its use of an improper standard to determine whether the Commonwealth has complied with its burden of showing that the prosecution was commenced within the period of the statute of limitations. Our courts have long recognized the independent nature of each of these rights. Commonwealth v. Devlin, 460 Pa. 508, 333 A.2d 888 (1975); Commonwealth v. Yon, supra; Commonwealth v. Levy, 146 Pa.Super. 564, 23 A.2d 97 (1941). The Supreme Court in Devlin articulated the distinction as follows:
Certainly, the Commonwealth has shown that the crime was committed, if at all, within the statutory period of limitations. As a general proposition of law, the evidence is sufficient to support a conviction if it tends to prove that the offense was committed prior to the commencement of the prosecution and that it was not committed at a time so remote that its prosecution is barred by the prescribed statutory period of limitations. [Citations omitted]. If the statute of limitations was our only consideration this conviction could be upheld. However, the rule announced in Levy contains another requirement: *576the date of the commission of the offense must be “fixed with reasonable certainty.” We do not feel that the Commonwealth’s proof to the effect that the crime was committed on any single day within a fourteen-month period meets the “sufficient particularity” standard of Levy. To hold otherwise would violate the notions of fundamental fairness embedded in our legal process.
Our holding is required by the Fourteenth Amendment Due Process Clause of the United States Constitution and by Article I, Section 9 of the Pennsylvania Constitution, P.S.
Commonwealth v. Devlin, 460 Pa. at 513, 333 A.2d at 890-891.
Although appellant offered no evidence at trial, such as alibi testimony, and, arguably, was not harmed in interposing a factual defense by the shaky dating of the offense, this is not a consideration in determining whether the evidence sufficiently established that appellant was charged within the statutory period.
As the above-quoted language in Devlin indicates, the “reasonable certainty” requirement relates to the due process consideration and not to the standard which must be met in order to show that the offense was committed within the statutory period. The Commonwealth’s burden regarding the statute of limitations remains proof beyond a reasonable doubt that the prosecution was timely commenced. See Cardonick, supra.
I further note my disagreement with the majority’s statement that since appellant had the opportunity to refute the allegations of the victim, his rights were not compromised. See majority opinion at 564. A criminal defendant is never under an obligation to present evidence in his defense or to offer his own testimony. An incremental slippage from the constitutional standards applicable during a criminal proceeding can only serve to weaken the entire structure of our justice system. All society shares in the outrage against perpetrators of child abuse, but it is the obligation of the courts to observe equal concern for the constitutional *577safeguards afforded those charged with criminal offenses. We may not shift the burden upon a criminal defendant to establish his innocence.
The Commonwealth has not carried its burden establishing that appellant has been afforded his due process rights. The failure of the evidence presented to fix the date, season, or even year of this incident requires a finding that appellant’s constitutional right to due process has been violated. Although Commonwealth v. Devlin, supra, has been appropriately distinguished by our court in many cases, this case presents us with a factual scenario which calls for an application of the holding in Devlin.
Additionally, the Commonwealth fell far short of proving beyond a reasonable doubt that the single offense to which the complainant testified occurred within the statute of limitations period of two years. The testimony offered by the Commonwealth did not show a continuing course of conduct and did not reasonably fix the date of the offense as within the prescribed statutory period. As quoted above, the complainant, who was six years old at the time of trial and five years old at the time appellant was charged and arrested, testified regarding the age of her sister at the time of the incident. However, this testimony lacks sufficient specificity to bring the conduct within the statutory period. The prosecutor’s question was phrased in terms of “about how old” the sister was and therefore calls for an answer only approximating the age. The single word answer, “One”, is likewise vague and subject to various interpretations, e.g. the witness may have meant ten or eleven months or twenty-three months of age. The follow-up question regarding the sister’s age at the time of trial, and the answer, “Three,” does not fix the date of the offense as within the statute. As is evident from a complete review of the complainant’s testimony, it is fraught with imprecisions, ambiguity, and gaps in memory, not unexpectedly given her young age and the subject matter of her testimony. However, the Commonwealth may not shirk its burden of complying with the statute of limitations by a vague accommo*578dation to a mathematical formula to fit within the number of years necessary to render the prosecution timely commenced.
Since complainant was asked about how old her sister was at the time of the incident, her answer of “One”, assuming she meant one year, could be taken to mean the sister may have been as young as ten or eleven months old. Similarly, the answer “Three” regarding the sister’s current age includes the time period from three years and one day to three years, eleven months and twenty-nine days. Assuming that the sister was three years and eleven months old on October 24, 1984, the date of trial, she would have been ten months old on September 24, 1981, a date outside the statute of limitations. This example merely points out the ambiguity inherent in the complainant’s testimony regarding dating of the offense. This testimony standing alone is insufficient to bring the offense within the statutory period.
The Commonwealth should have secured alternate means of proof of the sister’s age, since this was the only point upon which it pegged the date of the offense, rather than rely upon the fragile testimony of its six year old complaining witness. We are not insensitive to the problems associated with the child victim/witness and the adversarial process. The fixing of dates certain is not an ability one would expect from a six year old who is recounting a traumatic event of some time passed. However, it is the responsibility of the Commonwealth to realistically assess those elements of a crime, and any asserted defense, which may be proved through such a witness. If it is beyond the testimonial ability of the witness to supply such evidence, the Commonwealth may not avoid its duty by failing to supply other evidence. Where the issue is the date of birth of the victim’s sister, the victim’s testimony is not the only, nor is it necessarily the best, evidence of this fact. Philadelphia County does maintain an office from which birth records may be obtained.
*579I strongly disagree with the process of speculation engaged in by the majority regarding the possible reasons for the victim’s mother’s not offering testimony at trial. This is not a proper exercise for this court. There is not a single reference in the record from which a reason for the lack of testimony by the mother may be determined. Moreover, the implication that the mother is the only alternative source of the date of the younger daughter’s birth is erroneous.
The statute of limitations remains the basic guarantee a criminal defendant has against stale prosecutions, and it is the duty of the court to liberally apply it in favor of the defendant. See discussion supra. The increased societal awareness of the nature and scope of abuse, sexual and otherwise, of children has caused the legislature to respond to the need to eliminate this abuse. There exists a mandatory sentencing provision for certain offenses against infant persons, 42 Pa.C.S.A. § 9718. Our statutory and decisional law provides for the use of videotaped depositions and closed-circuit television where a child victim or child material witness is involved in a prosecution. 42 Pa.C.S.A. § 5985(a); Commonwealth v. Ludwig, 366 Pa.Super. 361, 531 A.2d 459 (1987); Commonwealth v. Lohman, 370 Pa. Super. 404, 536 A.2d 809 (1988).4
In 1985, the statute of limitations was amended to provide a tolling period where the victim of a crime is under 18 years of age and the accused is a parent or parental figure. 42 Pa.C.S.A. § 5554. The existence of the amendment, however, does not apply to this case since the offenses occurred and appellant was charged prior to the effective date of the amendment.
Since I would find that appellant was not afforded either his constitutional right to due process or his statutory right *580to be tried within the limitations period, I would reverse the judgment of sentence.
WIEAND and McEWEN, JJ., join.. Indecent exposure, indecent assault, simple assault, and corrupting the morals of a minor.
. A recent decision by our supreme court makes clear that the sustaining of an objection to hearsay evidence results in exclusion of that evidence from the record. Commonwealth v. Smith, 518 Pa. 15, 39, 540 A.2d 246, 257 (1988). In Smith, defendant claimed error in allowing the introduction of hearsay statements. The court reasoned, "The record discloses that all but one of appellant’s hearsay objections to [witness’s] testimony was sustained, and no further relief was requested. The record does not support appellant’s assertion, therefore, that [witness] was permitted to give hearsay evidence gathered from [appellant’s sister].” Ibid. Therefore, there is no basis upon which to find the hearsay evidence as constituting part of the record in the instant case.
. This rule also applies to civil cases. See McCann v. Amy Joy Donut Shops, 325 Pa.Super. 340, 472 A.2d 1149 (1984) (Cavanaugh, J., dissenting).
. But cf. Coy V. Iowa, — U.S. —, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), in which the Supreme Court found violative of a defendant’s right to face-to-face confrontation guaranteed by the Sixth Amendment a procedure where minor witnesses were separated from the defendant by a screen through which the defendant could see the witnesses but they could not see the defendant.