Lester G. Nauhaus, Louis R. Dadowski, Jr., Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., Robert A. Zunich, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Pomeroy, J., files a dissenting opinion.
Appellant, Howard Mazzoccoli, was tried by a judge and jury and was convicted of burglary, theft, theft by receiving stolen goods, and arson. Post-verdict motions were denied and appellant was sentenced to prison terms of two and one-half to five years for the burglary conviction, and two and one-half to five years for the theft conviction, and two and one-half to five years for the arson conviction. Sentence was suspended for the receiving of stolen goods conviction. The Superior Court affirmed the judgments of sentence by a per curiam order. Commonwealth v. Mazzoccoli, 238 Pa. Super. 712, 356 A.2d 830 (1976). Appellant filed a petition for allowance of appeal which the court granted on January 5, 1977.
The facts are as follows. On May 18, 1974, appellant and a fifteen-year-old juvenile, Ronald Jankowski, allegedly climbed a ladder and entered a second-story window of the Acme Scale and Supply Company in the Lawrenceville section of the City of Pittsburgh. Appellant allegedly took a camera from the premises. Jankowski further testified that appellant had spilled lighter fluid throughout the building, which was damaged by fire that evening.
Appellant claims that he is entitled to a new trial because the trial court abused its discretion in determining that Ronald Jankowski was competent to testify. In Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974), we held that the competency of every witness is presumed, with the
burden of showing incompetency on the party asserting it. When determining the testimonial competency of an infant witness:
". . . 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. . . ." Rosche v. McCoy, 397 Pa. 615, 620-21, 156 A.2d 307, 310 (1959). (Emphasis in original.)
More recently, we stated:
". . . the relevant inquiry is whether the witness: (1) has the capacity to observe or perceive the occurrence with a substantial degree of accuracy; (2) has the ability to remember the event which was observed or perceived; (3) has the ability to understand questions and to communicate intelligent answers about the occurrence; and (4) has a consciousness of the ...