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COMMONWEALTH v. AULT (06/21/74)

decided: June 21, 1974.

COMMONWEALTH
v.
AULT, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Crawford County, May T., 1972, Nos. 73A and 73B, in case of Commonwealth of Pennsylvania v. Henry Ault.

COUNSEL

Barney Phillips, for appellant.

Gordon R. Miller, First Assistant District Attorney, and Paul D. Shafer, Jr., District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J.

Author: Van Der Voort

[ 228 Pa. Super. Page 354]

Henry Ault, after trial by jury, was convicted of assault and solicitation to commit sodomy and corrupting the morals of a minor child. After post-trial motions, he filed this appeal in which his sole claim is that the trial judge erred in permitting the minor, who was the alleged victim of the crimes, to testify.

In reviewing the Appellant's claim, which basically rests on assertions that the witness was incompetent due to mental immaturity, we must be mindful of certain legal concepts and requirements. These matters were discussed in detail by our Supreme Court in Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959). In that case it was noted that:

(1) Competency is the rule and incompetency the exception;

(2) The burden to show incompetency lies upon the party asserting it; and

(3) The trial judge's determination of mental maturity (after inquiry) will not be reversed absent a finding of abuse of discretion.

Rosche also reviewed the nature of the inquiry required of the trial court in this situation. The judge must investigate the child's capacity to communicate (including an ability to understand questions and to frame and express intelligent answers), the child's capacity to observe and remember the matter about which testimony is sought, and the child's consciousness of the duty to speak the truth. See also Commonwealth v. Fox, 445 Pa. 76, 282 A.2d 341 (1971). Mindful of all of the above concepts, we have reviewed the record and conclude that the trial judge did not abuse his discretion in allowing the minor to testify.

First, the transcript evidences an excellent ability to communicate on the part of the minor in question. The witness, in a manner to be envied by some adults, clearly ...


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