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LAWRENCE J. APPEAL LAWRENCE J. ROBERT J. APPEAL ROBERT J. (02/11/83)

filed: February 11, 1983.

IN THE INTEREST OF LAWRENCE J. APPEAL OF LAWRENCE J.; IN THE INTEREST OF ROBERT J. APPEAL OF ROBERT J.


No. 486 Philadelphia, 1980, No. 487 Philadelphia, 1980, Appeals from the Orders of the Court of Common Pleas of Philadelphia County, Family Division, Juvenile Branch, Nos. 3726-79-4, and 3727-79-4, 216909.

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellants.

Jane Culter Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, participating party.

Brosky, Rowley and Montgomery, JJ.

Author: Per Curiam

[ 310 Pa. Super. Page 353]

Lawrence J. and Robert J. (appellants), were arrested on April 30, 1979 and charged with attempted rape, indecent exposure, indecent assault, aggravated assault, simple assault and recklessly endangering another person as the result of two (2) separate incidents involving the same victim, Michelle D. The appellants are brothers. The first incident occurred about December 24 or 25, 1978 and involved Lawrence J. who was then 15 years, 11 months old. The second incident occurred December 31, 1978 and involved Robert J. who was then 13 years, 4 1/2 months old. The victim in December 1978 was 9 years old. Both incidents occurred in appellants' home.

Following a consolidated hearing before the juvenile branch of the trial court, appellants were each adjudicated delinquent on the charges of indecent assault and indecent exposure, and were adjudged not guilty of the other charges. Appellants' direct appeals to this Court were consolidated for argument.

Two issues are raised by appellants: 1) Did the trial court err in finding the victim competent to testify?; and 2) Did the trial court err in prohibiting testimony concerning the victim's reputation for truth and veracity?

[ 310 Pa. Super. Page 354]

Appellants' first argument is without merit. The determination of the competency of witnesses is left to the sound discretion of the trial judge and will not be reversed absent a "flagrant" abuse of discretion. Commonwealth v. Short, 278 Pa. Super. 581, 420 A.2d 694 (1980). The determination is based on three criteria. The witness must possess 1) the capacity to communicate, including both an ability to understand questions and to frame and express intelligent answers, 2) the 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, 156 A.2d 307 (1959). Our review of the record shows that the question of the victim's competency to testify was fully explored during the hearing. The trial court did not err in determining that the victim was competent to testify.

Appellants next argue that the trial court erred in prohibiting testimony by a defense witness concerning the victim's reputation for truth and veracity. We agree.

Appellants' counsel attempted to present testimony from Charlayne J. (appellants' sister) on the issue of the victim's ...


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