No. 505 April Term, 1976, Appeal from Judgment of Sentence dated January 22, 1976 of the Court of Common Pleas, Criminal Division, County of Fayette, Pennsylvania at Nos. 124 and 124 2/6 of 1975.
Thomas P. Ruane, Jr., Assistant Public Defender, Uniontown, for appellant.
Conrad B. Capuzzi, District Attorney, Uniontown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 250 Pa. Super. Page 204]
This appeal arises from appellant's conviction by a jury of raping and indecently assaulting a five year-old girl. The only issue which appellant raises here which he preserved by written post-trial motions is the question whether the victim, since she was an infant, was competent to testify.*fn1
In general, the competency of a witness to testify is presumed and the burden falls on the party objecting to demonstrate the witness' incompetence. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959). However, when a child
[ 250 Pa. Super. Page 205]
under the age of fourteen is called to testify, the presumption does not operate, and the competency of the infant-witness must be independently established. Id. See also II Wigmore on Evidence § 508 (3rd ed.1940). In establishing competency the court should inquire into three areas of testimonial capacity: capacity to observe the acts about which the infant is to testify; capacity to recollect what was observed; and, capacity to communicate what was observed, that is, the capacity to understand questions and frame intelligent answers, and the capacity to appreciate the moral responsibility to be truthful. II Wigmore on Evidence § 506 (3rd ed.1940). On this point the Court in Rosche v. McCoy, 397 Pa. at 620-21, 156 A.2d at 310, spoke as follows:
"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."
Appellant concedes, as we think he must, given the nature of the attack on the little girl, that her capacity to observe and recollect the act is not assailable. Furthermore, appellant does directly challenge the little girl's ability to understand questions and frame answers.*fn2 The gist of appellant's argument is that the colloquy does not adequately demonstrate this six year-old girl's appreciation of the moral responsibility to be truthful, or, as the Court described it in Rosche, her consciousness of the duty to speak the truth. We disagree.
Our standard of review of rulings on the competency of witnesses is very limited indeed. As one Pennsylvania commentator has stated it, such rulings by trial judges will not be reversed except for a "flagrant abuse of discretion." 2 Henry, Pennsylvania Evidence § 790 (1953). Professor Wigmore goes further still in suggesting that appellate courts should virtually never disturb such rulings; it is
[ 250 Pa. Super. Page 206]
preferable, he argues, to accept the testimony for what it is worth and leave the matter of credibility to the fact-finder. IV Wigmore on Evidence § 1821 (Rev.ed.1976). See also ALI, Model Code of Evidence, Rule 101 & p. 340 (1942). The limit of our review can best be seen in Commonwealth v. Allabaugh, 162 Pa. Super. 490, 58 A.2d 184 (1948) where, despite allowing that the colloquy "was not wholly satisfactory," this court concluded that the breadth of the trial judge's discretion precluded reversal of his ruling permitting a five year-old to testify. Given this limited standard of review which defers to the trial judge's ability to observe the demeanor, alertness, thoughtfulness and sincerity of the infant witness, we find ample support in the colloquy for the court's ruling in the instant case.
Excerpted from the colloquy with the little girl, conducted by both the district attorney and the trial judge, are the following questions and answers:
"Q. How old are you Mary Ann?
Q. Do you go to school, ...