Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, Oct. T., 1972, No. 749, in case of Commonwealth of Pennsylvania v. Robert James Chuck.
Lawrence Sager, with him Sager & Sager, for appellant.
Stewart J. Greenleaf, Assistant District Attorney, with him J. David Bean, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Cercone, J.
[ 227 Pa. Super. Page 614]
This is an appeal by the defendant from a conviction on charges of possession and sale of a controlled substance under The Controlled Substance, Drug, Device and Cosmetic Act of 1972, 35 P.S. 780-101 (eff. June 14, 1972). The basis of the appeal is that the conviction resulted from testimony given by a witness who was not competent to testify.
The Commonwealth's case against the defendant rested upon the testimony of one witness, David Keith Ewing. At the time of trial Mr. Ewing was nineteen years old. He was a drug user and had previously been arrested on drug and burglary charges. On the 5th of September, 1972, Mr. Ewing was committed to Norristown State Hospital under provisions of the Mental Health and Mental Retardation Act of 1966, 50 P.S. 4408. He was discharged from Norristown State Hospital on December 13, 1972, and appeared as a witness for the Commonwealth in this case in June of 1973. Mr. Ewing was also of a somewhat odd religious persuasion called Satanism. Since it was solely the testimony of Mr. Ewing which linked the appellant to the possession and sale of any drug, his competency as a witness was essential to the case presented by the Commonwealth.
[ 227 Pa. Super. Page 615]
The first issue raised by defendant is whether Mr. Ewing was mentally competent to testify. The mental competency of a witness is a matter for the trial judge to determine and his action is not reviewable in the absence of a clear abuse of discretion: Commonwealth v. Kosh, 305 Pa. 146, 157 A. 479 (1931); Commonwealth Page 615} v. Bartell, 184 Pa. Superior Ct. 528, 136 A.2d 166 (1957). When the mental competency of a witness is questioned the trial judge must determine whether the witness has sufficient understanding to comprehend the obligation of an oath and to be capable of giving a correct account of the matters he has seen or heard: Commonwealth v. Kosh, supra, Commonwealth v. Bartell, supra, Dulnikowski v. Stanziano, 195 Pa. Superior Ct. 508, 172 A.2d 182 (1961). A witness gives a correct account of the matters he has seen or heard when he describes them in a lucid rational manner and is responsive to questions upon cross-examination. Commonwealth v. Kosh, supra. See also Comment, "Competency of the Mentally Incompetent," 32 Southern California Law Review 65 (1958). There is no evidence indicating that Mr. Ewing did not understand the obligation of the oath or that his account of the alleged sale of narcotics was not given in a lucid rational manner. Once the trial judge has determined that a witness has the requisite understanding of the obligation of the oath, and that he is capable of giving a correct account of the matters he has seen or heard, that witness is competent to testify.
Mr. Ewing's commitment under the provisions of Section 4408 of the Mental Health and Mental Retardation Act of 1966, 50 P.S. 4408, was not a determination of his legal competence for the purpose of giving testimony in a courtroom. Even an insane person is competent to testify if he satisfies the test laid down in Commonwealth v. Kosh, supra; McClaney v. Scott, 188 Pa. Superior Ct. 328, 146 A.2d 653 (1958). It is true that if at the time of testifying, or shortly beforehand, the witness had been adjudicated insane, a rebuttable presumption of testimonial incompetency would arise: District of Columbia's Appeal, 343 Pa. 65 (1941). However, Mr. Ewing testified in June of 1973, a full seven months after his discharge from Norristown State Hospital
[ 227 Pa. Super. Page 616]
on December 13, 1972. Even if the commitment procedure could be construed as an adjudication of insanity, such adjudication does not give rise to the presumption of testimonial incompetency seven months after the witness has been discharged from the mental institution: Commonwealth v. Towber, 190 Pa. Superior Ct. 93, 152 A.2d 917 (1959). It is clear that under the test for mental competency in Commonwealth v. Kosh, supra, the trial judge did not err in his determination that David Keith Ewing was competent to testify.
However, the fact that the witness was mentally competent to testify does not mean that evidence as to his mental disability should be excluded. Treatment in a mental hospital within seven months of the date of trial is near enough to raise a question for the jury as to the effect ...