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COMMONWEALTH PENNSYLVANIA v. JAMES E. PAYTON (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES E. PAYTON, APPELLANT



No. 1512 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Indictment Nos. 717-718, July Session, 1976.

COUNSEL

John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, and Edward G. Rendell, District Attorney, Philadelphia, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Jacobs

[ 258 Pa. Super. Page 142]

Appellant James Payton was convicted by the Honorable Alfred J. DI BONA, Jr. sitting without a jury of attempted rape and indecent assault. His post trial motions were denied and he was sentenced to a term of imprisonment of not less than two and one-half and not more than five years for attempted rape; sentence was suspended on the indecent assault conviction. The only issue raised on this appeal is whether the trial court abused its discretion in ruling that the six year old complaining witness was competent to testify. We hold that the court did not abuse its discretion and, accordingly, affirm.

"Competency is the rule and incompetency the exception. . . . The burden to show incompetency lies upon the party who asserts it. [Citations omitted.]" Rosche v. McCoy, 397 Pa. 615, 619-20, 156 A.2d 307, 309 (1959). No two witnesses are alike. It follows, therefore, that every determination of competency must be individual and that the facts presented in other cases dealing with competency of a witness cannot be controlling in a subsequent case.

[ 258 Pa. Super. Page 143]

Two generalizations, however, do control in all competency cases. First, the competency of a witness is a matter for the trial court to determine and that determination will not be reversed absent a clear abuse of discretion by the court. Commonwealth v. Baker, 466 Pa. 479, 484, 353 A.2d 454, 457 (1976). Second, in order to find a witness competent

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. at 620-21, 156 A.2d at 310.

A review of appellant's brief indicates that he challenges only the third criterion -- whether the child had a consciousness of her duty to speak the truth. In support of his argument he states that the witness lied during the voir dire, that she could not give an accurate example of conduct which would constitute lying, and that the Assistant District Attorney coached her concerning punishment by God. We do not entirely disagree with appellant's assertions. Even given these circumstances, however, the trial court did not abuse its discretion in finding her to be competent.

There is more to a child's consciousness of the duty to speak the truth than being able to give a clear example of a lie or to understand the concept of an "oath." In fact, the trial judge's opportunity to observe the demeanor, alertness, thoughtfulness, and sincerity of a child witness may be more informative than the answers the child gives to questions such as "What is a lie?" and "What will happen to you if you tell a lie?" ...


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