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COMMONWEALTH v. FOX (10/12/71)

decided: October 12, 1971.

COMMONWEALTH
v.
FOX, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Huntingdon County, No. 362 of 1969, in case of Commonwealth of Pennsylvania v. Jack Donald Fox.

COUNSEL

Edward L. Willard, Special Public Defender, with him Joseph W. Mullin, Public Defender, for appellant.

Newton C. Taylor, Special Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen concurs in the result.

Author: Roberts

[ 445 Pa. Page 77]

Appellant was convicted of murder in the first degree for the slaying of his former wife and received a sentence of life imprisonment. Post-trial motions were made which the court en banc denied on December 16, 1970. Appellant here seeks our view of the validity of his conviction in light of four asserted errors at trial. Having examined the record in its entirety, we affirm the judgment of sentence.

[ 445 Pa. Page 78]

Viewing the evidence, as we must, in the light most favorable to the Commonwealth, the material factual background is as follows:

Appellant lived in the Borough of Huntingdon in Huntingdon County and made a spotty living as a truck driver. In September, 1967, he married the deceased, Argie Dallessandro Fox, who had four children from a former marriage.*fn1 Theirs was a brief and stormy union, and the divorce was finalized on January 23, 1969. The deceased's eldest daughter, Donna Jean Rush, testified that appellant was extremely possessive and jealous and that the couple also fought continually over money. According to this witness, appellant threatened to kill his wife on at least five occasions.

In April, 1969, appellant was hospitalized due to physical illness. He recuperated at the ex-Mrs. Fox's home but occupied a room across the hall from the deceased.

On September 2, 1969, the deceased's youngest daughters, Karen and Dana, went to bed after watching television. Mrs. Fox retired shortly thereafter. Because of the heat Karen could not sleep, so she went to join her mother in bed.

According to Karen, appellant entered the room and began talking with her mother. They argued, and Mrs. Fox ordered appellant out of the house by the following day. Both the deceased and the child turned away from appellant, and in Karen's words: "Then after that I heard a big bang." The girl saw blood on her

[ 445 Pa. Page 79]

    mother's face and ran and awakened her sister, Dana, who came in, saw their mother, and screamed.

Appellant went to the bathroom and obtained a wet washcloth, attempting to aid the deceased. He then telephoned for an ambulance, and the police arrived and took charge. According to the officers, appellant initially stated that the gun would show up in time. He later showed them upstairs and produced the gun from under the mattress of his bed.*fn2 He was given his Miranda*fn3 warnings but willingly answered the officers' questions, maintaining his wife had committed suicide.

Appellant raises four issues for our review: (1) whether Karen Dallessandro was properly found competent to testify; (2) whether the admission of certain hearsay testimony was so prejudicial as to require a new trial despite the trial court's cautionary instructions; (3) whether it was error to admit into evidence certain allegedly unsupported threats made by appellant; and (4) whether the gun should have been suppressed. Each will be discussed in turn.

As to Karen's competence to testify, it is asserted that the trial court erred in not permitting counsel to interrogate Karen. When the child was first called as a witness, counsel objected to her testifying because, he contended, she did not appreciate the meaning of an oath in that she had told diametrically opposed stories.*fn4

The trial court ruled such an inconsistency, even if true, would only go to Karen's credibility and proceeded

[ 445 Pa. Page 80]

    to examine her to determine her competence. This was entirely proper.

"Competency is the rule and incompetency the exception. . . . The burden to show incompetency lies upon the party who asserts. . . .

"The question of competency of persons said to be mentally immature due to infancy is to be determined in the discretion of the trial judge after an inquiry as to mental maturity once the fact of infancy appears on the record or is obvious to the judge. This discretion, however, is not absolute but legal. Nevertheless, it will not be reversed in the absence of ...


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