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COMMONWEALTH v. RILEY (10/16/74)

decided: October 16, 1974.

COMMONWEALTH
v.
RILEY, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1972, No. 1539, in case of Commonwealth of Pennsylvania v. Warren Riley.

COUNSEL

Leonard Turner, for appellant.

Benjamin H. Levintow, Assistant District Attorney, with him David Richman, Assistant District Attorney, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 458 Pa. Page 392]

On April 27, 1972, appellant, Warren Riley, was convicted by a jury of murder in the second degree. Post-trial motions were denied, and appellant was sentenced to a term of not less than seven nor more than twenty years in a state correctional institution. This appeal followed.

The salient facts surrounding this appeal are as follows: Appellant and the decedent, Constance Riley, were husband and wife at the time of the homicide, but were not living together. On November 22, 1971, at or about 9:30 a.m., a brother of the decedent went to the home of his sister Constance in order to check on her, as he had been doing since she had separated from appellant. Upon entering the home, he was greeted by a child of the decedent, but did not see the decedent. He proceeded to the upstairs bedroom and found his sister dead. The police learned from Warren Riley III, the decedent's son, that appellant, the child's father, may have committed the homicide. Appellant, accompanied by an attorney, surrendered to the police. A preliminary hearing was held and appellant was discharged, apparently due to the magistrate's decision that the son, six years old and the only eyewitness to

[ 458 Pa. Page 393]

    the crime, was incompetent to testify because of his age. Appellant was then re-arrested, and at his second preliminary hearing, his son was allowed to testify and appellant was bound over for trial. At trial, appellant's son testified over objection.

At appellant's trial, his son testified that he had seen his father kill his mother. After the jury returned their guilty verdict, appellant requested to speak to his son, whereupon appellant, appellant's mother, appellant's son and three sheriff's deputies went into a small room. After this meeting, appellant's attorney informed the trial judge that appellant's son had stated that he lied when he stated that his father had killed his mother. The trial judge then made arrangements for a court en banc hearing. A court en banc hearing was held on May 8, 1972, at which a sheriff's deputy testified that Warren did tell his father that he lied on the witness stand when he said his father killed his mother.

The child testified before the court en banc that he told his father that he lied because he wanted his father to feel happy, but that his original testimony was true. The court en banc found that the child's testimony was competent and admissible.

Appellant first argues that the trial court erred in finding that his six-year-old son was competent to testify. We do not agree. In Commonwealth v. Fox, 445 Pa. 76, 282 A.2d 341 (1971), we stated:

"'Competency is the rule and incompetency the exception . . . . The burden to show incompetency lies upon ...


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