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COMMONWEALTH PENNSYLVANIA v. GARY SHORT (06/13/80)

filed: June 13, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
GARY SHORT, APPELLANT



No. 1787 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal Division, Trial Section, Nos. 279, 280, 282-285, October Session, 1977.

COUNSEL

John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Price, Spaeth and Lipez, JJ. Spaeth, J., files a concurring opinion.

Author: Price

[ 278 Pa. Super. Page 584]

Pursuant to a jury trial commenced on February 14, 1978, appellant was convicted of possession of an instrument of crime generally,*fn1 burglary,*fn2 theft by unlawful taking or disposition,*fn3 rape,*fn4 involuntary deviate sexual intercourse,*fn5 unlawful restraint,*fn6 simple assault,*fn7 and aggravated assault.*fn8 Post-trial motions were denied and appellant was sentenced on May 24, 1978.*fn9 He now alleges several instances of error in the trial court.

The pertinent testimony presented at trial is as follows. The nine year-old victim testified that during the late afternoon of September 6, 1977, she was playing with a friend near her house on Allison Street in Philadelphia. At that time, appellant, whom the victim had known for some two months, approached her and asked her if she wished to see a clubhouse. The victim agreed, and he did indeed take

[ 278 Pa. Super. Page 585]

    her to a clubhouse. Appellant then asked the victim if she would like to accompany him to his apartment to procure some wood for another clubhouse. The victim assented, and after a momentary stop at home, she accompanied appellant to an apartment on Woodland Avenue. Appellant kicked the door of the apartment open and the pair entered. Once inside, appellant struck the victim in the face, ordered her to disrobe, raped her repeatedly, and forced her to perform oral sex. He next choked the victim with her own underpants and concluded by hurling a table toward her head. Appellant was seventeen years old at the time of the offense.

Also testifying for the Commonwealth, Mr. George Mullen stated that he lived in a third floor apartment at 5434 Woodland Avenue. When he returned from work on September 6, 1977, Mr. Mullen noticed that the lower panel of his door had been knocked out. He entered the apartment and heard tapping coming from a locked closet; a closet that had been open earlier in the morning. Opening the closet door, he found the victim naked, crumpled over, and bleeding profusely from the head and around the eyes. He procured the aid of the police, handed the victim over to them, and accompanied the police to the local station. Upon returning to his apartment, he found a radio and ten to fifteen dollars in cash missing.

Officers Benjamin Boyce and Edward Garvin testified that on the evening of the incident, they were patrolling the city when they received word of an emergency hospital case. They proceeded to 5434 Woodland Avenue in their emergency patrol wagon and there met several officers already on the scene attending the victim. During the trip to the hospital, the victim responded to questions asked by the officers and stated that "Gary" or "little man" beat her. Evidence was later adduced that appellant was known as "little man."

Finally, Dr. James Fox testified that the victim had suffered five facial fractures, including one of the right orbital floor which resulted in the eye dropping back in its socket. That condition, as well as double vision, will be permanent physical after-effects of the incident.

[ 278 Pa. Super. Page 586]

Appellant's first contention is that at the time of the hearing to certify him for trial as an adult, the Commonwealth did not establish a prima facie case*fn10 because the victim was not competent to testify. He bases this conclusion on the argument that the victim was not cognizant of her responsibility to tell the truth, nor did she recognize the possibility of divine retribution inherent in the oath if she lied. With this, we must disagree.

Initially, we note that the determination of a witness' competency to testify is left to the sound discretion of the trial judge, and we will not reverse his ruling on the matter absent a flagrant abuse of that discretion. Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976); Commonwealth v. Hall, 267 Pa. Super. 204, 406 A.2d 765 (1979); Commonwealth v. Payton, 258 Pa. Super. 140, 392 A.2d 723 (1978); Commonwealth v. Mangello, 250 Pa. Super. 202, 378 A.2d 897 (1977). Indeed, as we noted in Mangello, Wigmore suggests that appellate courts should virtually never reverse such rulings; the better practice being to accept the testimony on its face and leave the matter of credibility to the fact finder. Commonwealth v. Mangello, supra, 250 Pa. Super. at 205-06, 378 A.2d at 898-99. See VI Wigmore on Evidence ยง 1821 (Rev. ed. 1976).

With this truncated scope of review in mind, our starting point is the principle that competency of a witness is presumed, and the burden falls on the objecting party to demonstrate incompetency. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959); Commonwealth v. Mangello, supra. When the witness is under fourteen years of age, there must be a searching judicial inquiry as to mental capacity, but discretion nonetheless resides in the trial judge to make the ultimate decision as to competency. As enunciated in Rosche v. McCoy, supra, 397 Pa. at 620-21, 156 A.2d at 310, that decision is based on three criteria:

[ 278 Pa. Super. Page 587]

"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." (Emphasis in original).

Appellant focuses on this third requirement and argues that the victim's terse yes and no answers to counsel's questions on the nature of truth and the obligation of the oath, her inability to give an example of an action which would constitute lying, and her failure to recognize the concept of divine retribution indicate her failure to comprehend "the duty to speak the truth."

While we agree that the cold record does indicate some hesitancy on the child's part in answering the questions,*fn11

[ 278 Pa. Super. Page 588]

    this does not necessarily signify an abuse in the trial court's discretion. As we have previously noted,

"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?' See Commonwealth v. Mangello, 250 Pa. Super. 202, 206, 378 A.2d 897, 899, allocatur refused, [250] Pa. Super. [xxxvi] (1977)." Commonwealth v. Payton, supra, 258 Pa. Super. at 143, 392 A.2d at 725.

The victim indicated that she knew what the truth meant and that the judge and her parents would punish her if she told a lie. This is sufficient to indicate her cognizance of the possibility of punishment in response to false statements. We have previously held that this requirement is satisfied by a similar recognition of punishment. Commonwealth v. Riley, 458 Pa. 390, 326 A.2d 384 (1974) (six year-old witness stated that he would "go to the devil" if he were to lie); Commonwealth v. Hall, supra (43 year old epileptic found competent by virtue of belief that he would "get sent to prison" if he lied); Commonwealth v. Payton, supra (six year-old child testified that her mother would punish her if she told a lie); Commonwealth v. Hughlett, 249 Pa. Super. 341, 378 A.2d 326 (1977) (twelve year-old witness testified that she would go to hell were she to lie).

Nevertheless, appellant argues strenuously that the witness' answers here did not comport with the standard established

[ 278 Pa. Super. Page 589]

    in Commonwealth v. Rimmel, 221 Pa. Super. 84, 289 A.2d 116 (1972). In Rimmel, this court granted a new trial based upon our finding that a colloquy conducted of seven and eight year-old girls was inadequate to establish competency. During that colloquy, the girls responded that they would be "hollered at" or "beaten" if they did not tell the truth. There was no further attempt to elicit the girls' conception of moral responsibility or divine retribution nor of their comprehension of the difference between truth and falsehood. While Rimmel has never been overruled, it was criticized and confined to its facts in Commonwealth v. Mangello, supra. Hence, as in Mangello, we are not disposed to apply Rimmel to the facts of this case. We therefore, conclude that the witness exhibited a sufficient awareness of her moral responsibility to testify truthfully, and that the trial judge did not abuse his discretion in finding her competent.

Appellant next attacks the suppression court's failure to suppress certain evidence seized pursuant to a purportedly invalid search warrant. That warrant recites in part as follows:

"The Mobile Crime Lab, Technicians Genoy & Jackson examined the scene for prints. They found evidence of a shoe print on the door of apt. at 5434 Woodland Ave.

The assigned believes that the low cut black sneakers worn by the Defendant at the time he gave himself up, 1:00 PM, 9-7-77, are the same sneaks used at the time of the rape and assault. These sneaks are believed to match the prints lifted by the Police Mobile Crime Unit on 9-6-77 at res. 5434 Woodland Ave. The shirt and pants are believed to have blood and semen stains on them from the rape and assault." (Emphasis added).

[ 278 Pa. Super. Page 590]

Appellant argues that because the warrant application must allege facts, and not conclusions, which would enable an issuing authority to make an independent determination that illegal activity was afoot and that a search would be reasonable and supported by probable cause, Spinelli v. Page 590} United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the use of the word "belief" in the present warrant fails to meet that standard. We disagree.

In Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979), our supreme court was faced with a similar question. In that case, the warrant recited, inter alia, that the officers who arrested the defendant's accomplice observed his tennis shoes and "believed" that the tread markings were identical to tracks observed at the scene of the homicide. Just as in this case, the defendant contended that a statement of "belief" was insufficient to support a finding of probable cause. The Chumley court concluded that a motion to suppress filed on the theory that the affidavit should have alleged that the markings "were" identical would have been frivolous. We reach a similar conclusion here.*fn12

Appellant next argues that the trial court erred in not dismissing for cause a prospective juror who allegedly could not maintain an impartial attitude. Prior to examining the witness' answers, we first note certain general principles relevant to the voir dire examination and jury selection.

The sole purpose of the voir dire examination is to provide the accused with a "competent, fair, impartial and unprejudiced jury." Commonwealth v. Biebighauser, 450 Pa. 336, 345, 300 A.2d 70, 75 (1973). See Commonwealth v. Dukes, 460 Pa. 180, 331 A.2d 478 (1975). Nevertheless, voir dire is not designed to provide a defendant with twelve persons devoid of emotion or opinion.

"The law recognizes that it would be unrealistic to expect jurors to be free from all prejudices, a failing common to all human beings. ...


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