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decided: October 25, 1978.


No. 595 April Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at No. CC7607040.


Lester G. Nauhaus, Assistant Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Assistant District Attorney, and Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellee.

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

Author: Cercone

[ 259 Pa. Super. Page 436]

The instant appeal arises from appellant's conviction for rape and related offenses following a trial without jury. Ultimately, appellant was sentenced to three to six years in prison for rape, and sentencing on the remaining charges was suspended. On appeal appellant argues: (1) That the victim was incompetent to testify because of her mental retardation; (2) That trial counsel was ineffective for failing to require the court to persevere in inquiring into the competency of the victim; and (3) That appellant was denied due process of law because the evidence failed to establish with sufficient specificity the date of the alleged rape. The relevant facts, taken in the light most favorable to the Commonwealth, are as follows.

In late August or early September, 1976, the victim, Donna, was home alone watching television in the afternoon when appellant, an acquaintance of hers, entered the home through the kitchen door. When appellant's efforts to persuade Donna to voluntarily go with him were unsuccessful, he grabbed her by the arms and led her from the home to a neighbor's yard where he forced her to have intercourse with him. The act consummated, he returned with Donna to her home and remained there for a few minutes before departing. According to Donna she bled profusely and vomited after the rape. When her mother returned home later, Donna reported her bleeding but did not disclose its cause because she was afraid.

Subsequently, Donna received several phone calls from appellant during which he threatened to kill her if she were pregnant. Within a week or two of the incident, Donna was watching television late at night with her sister-in-law when both women heard noises outside. Donna was visibly upset and began to cry, and when her sister-in-law inquired why she was so frightened, Donna recounted the incident and the ensuing threats. Thereafter, the instant charges were filed against appellant.

Obviously, the foregoing facts if believed by the fact-finder, in this case the judge, were sufficient to sustain the

[ 259 Pa. Super. Page 437]

    verdict of guilty. The difficulty with this case is that the victim, while she was a twenty-four year-old woman at the time of the offense, had the intellectual age of an eleven or twelve year-old girl, and suffered from cerebral palsy. Consequently, her competence as a witness was immediately placed at issue, especially because she was the only witness to the crimes. At trial, Donna's mother was called to the stand first and questioned concerning her daughter's competence.*fn1 She testified that Donna could read and write, although she had some difficulty with spelling words correctly, that Donna had been educated in special schools, that Donna could function normally and did not require constant supervision, that Donna frequently attended church on religious holidays and believed in God, and that Donna could understand the nature and obligation of an oath. Furthermore, Donna's mother testified that Donna had quite a good memory upon which her mother frequently relied. Thereafter, Donna took the stand and, in response to the trial judge's questioning, stated that she understood the oath to mean that she was obliged "to tell the truth," that the judge expected her to tell the truth, and she promised that she would tell the truth. At this point the Commonwealth began questioning Donna on the facts underlying the charges, and defense counsel lodged no objection to the effect that Donna's competence as a witness had not been demonstrated. Defense counsel, however, subsequently argued in support of his demurrer that Donna's competency was sufficiently open to question as to raise a reasonable doubt concerning appellant's guilt. Of course, the demurrer was overruled.

With regard to the preservation of the question of Donna's competency as a witness, this case is four-square with Commonwealth v. McKinley, 181 Pa. Super. 610, 123 A.2d 735 (1956). In McKinley this court held that counsel's failure to object to the alleged incompetency of ...

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