Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Oct. T., 1970, Nos. 7696 and 7697, in case of Commonwealth of Pennsylvania v. John A. Rimmel.
Sallie Ann Radick, Assistant Public Defender, with her John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.
John E. Nickoloff, Assistant District Attorney, with him Carol Mary Los and Robert L. Campbell, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent). Opinion by Montgomery, J. Wright, P. J., would affirm on the opinion of Judge Ridge. Jacobs, J., dissents.
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This is an appeal from a conviction for two charges of indecent assault and sentence therefor imposed on each indictment of from one to two years, to be served consecutively.
This appellant's conviction rests entirely upon the sworn testimony of two girls who were eight years old at the time of the trial, January 28, 1971. When the offenses allegedly occurred, on or about August 29, 1970, they were seven years of age. Besides a question raised as to the sufficiency of the evidence upon which this conviction is based, the appellant also raises the question as to the competency of the minor witnesses.
Prior to their taking the witness stand, the minor witnesses were interrogated extensively upon their competency individually in chambers by the trial judge. That interrogation is a part of the record and consists of nine pages of transcript for Cynthya McNamara and over five pages for Linda McNamara. We have studied this voir dire examination to determine whether the lower court abused its discretion in permitting the witnesses, or either one of them, to be sworn and testify. A summary of the law concerning minor witnesses, including the responsibility of the trial judge on deciding their competency, was stated by Mr. Justice Thomas D. McBride, speaking for the Supreme Court of Pennsylvania, in the case of Rosche v. McCoy, 397 Pa. 615, 620-621, 156 A.2d 307, 310 (1959).
"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
[ 221 Pa. Super. Page 86]
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 abuse.
"In the earlier common law the ability of a child of tender years to understand the obligation of an oath was the pivotal factor because it was thought that otherwise the child might be giving what amounts to unsworn testimony . . . . However, the issue is not to be determined merely because of the capacity of the witness at the time he is called to communicate his thoughts in terms of language. There must be (1) such capacity to communicate, including as it does both an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that she is called to testify about and (3) a consciousness of the duty to speak the truth."
The appellant raises no question on this appeal on the first two qualifications of a witness, but he does request our close scrutiny of the competence voir dire interrogation of these two witnesses on the latter qualification, contending that the examination did not reveal sufficient data from which their knowledge of the difference between truth and ...