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decided: February 11, 1988.


Appeal from the Judgment of Sentence December 3, 1986, in the Court of Common Pleas of Philadelphia County, Criminal No. 86-03-4216/4217, 86-05-775-791.


Thomas J. Turner, III, Philadelphia, for appellant.

Deborah Fleisher, Assistant District Attorney, Philadelphia, for Com., appellee.

Cirillo, President Judge, and Olszewski and Johnson, JJ. Cirillo, President Judge, dissents.

Author: Olszewski

[ 371 Pa. Super. Page 191]

This is an appeal from a judgment of sentence entered after appellant's conviction by jury of two counts of involuntary deviate sexual intercourse and three counts of corrupting the morals of a minor child. Appellant complains on appeal that: (1) the trial court erred in finding child witnesses competent to testify; (2) the trial court erred in permitting repeated re-examination of one child witness and counsel was ineffective for failing to object; (3) the trial court erred in denying appellant's motions for a mistrial; (4) the trial court erred in permitting testimony as to prior consonant statements of two children and trial counsel was ineffective for failing to object; and (5) the trial court erred in not permitting evidence of prior inconsistent statements by two child witnesses.*fn1 We find appellant's claims to lack merit and, accordingly, we affirm the order of the trial court.

Evidence presented at trial established that between late 1985 and early 1986, appellant, while employed as a maintenance worker at a day school in Philadelphia, sexually molested three*fn2 pre-school aged children. With each victim, appellant pretended to play various children's games

[ 371 Pa. Super. Page 192]

    which culminated in his penis being placed in each child's mouth and/or rectal or genital area.

After conviction, post-trial motions were filed and denied. The trial court sentenced appellant to six to twenty-four years plus five years probation. This appeal followed.

Appellant first maintains that the trial court erred in finding the complainant children competent to testify. At the time of trial, the victims, R.J. E.J., and K.H., were aged five, five, and three and one-half, respectively. When evaluating the competency of children to testify, we are guided by the following principles:

A witness is presumed competent to testify unless proven otherwise. Commonwealth v. Riley, 458 Pa. 390, 326 A.2d 384 (1974). When a proposed witness is under fourteen years of age, however, there must be a searching judicial inquiry as to mental capacity. Commonwealth v. Short, 278 Pa. Super. 581, 420 A.2d 694 (1980). This inquiry will probe the capacity to communicate, observe and remember, and a consciousness of the duty to speak the truth in proportion to the witness's chronological immaturity. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959) . . . . [T]he judge holds the superior opportunity to evaluate the competency of a proposed child witness . . . . Commonwealth v. Bailey, 322 Pa. Super. 249, 469 A.2d 604 (1983).

Commonwealth v. Stohr, 361 Pa. Super. 293, 522 A.2d 589 (1987).

Our Supreme Court has mandated that in evaluating competency, the trial court must be satisfied that the witness has:

"(1) such capacity to communicate, including as it does both an ability to understand questions and to frame express and intelligent answers; (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that [the witness] is called to testify about; and (3) a consciousness of the duty to speak the truth."

[ 371 Pa. Super. Page 193]

    appeal that the trial court's behavior towards K.H. improperly influenced the jury is waived. See Commonwealth v. Berry, 355 Pa. Super. 243, 255-56, 513 A.2d 410, 416 (1986). Nonetheless, because appellant has cloaked this issue in an ineffectiveness assistance of counsel claim, we are constrained to address it. See infra.

Regarding the re-questioning of a witness, we adhere to the following principles:

The trial judges of this Commonwealth exercise broad powers while presiding at the trial of cases assigned to them. These powers include ruling on the admission or exclusion of evidence and controlling the scope of examination and cross-examination of witnesses. Such matters are committed to the sound discretion of the trial judge. Commonwealth v. Niemetz, 282 Pa. Super. 431, 422 A.2d 1369 (1980).

Commonwealth v. Pittman, 320 Pa. Super. 166, 172-73, 466 A.2d 1370, 1373 (1983).

In the instant case, the trial court admitted that the child was re-questioned. The court noted, however, that the requestioning was warranted because the child was tired. Opinion at 11. The court further observed that the child appeared intimidated by the jury. Id. The witness, nonetheless, indicated that she had something to tell the judge. In the interest of arriving at the truth, the trial court's control of the examination was not an abuse of discretion.

Appellant's counsel claims his own ineffectiveness for failing to preserve a challenge to the trial court's favorable treatment of K.H. Our Supreme Court has recently mandated:

When appellate counsel asserts a claim of his or her own ineffective assistance of counsel on direct appeal, the case should be remanded for the appointment of new counsel except (1) where, it is clear from the record that counsel was ineffective or (2) where it is clear from the record that the ineffectiveness claim is meritless.

[ 371 Pa. Super. Page 195]

    any opinion by the Court as to the truthfulness or untruthfulness of the witness' testimony. Later on that day, after the witness [sic] had been on the stand for some period of time, the witness indicated to the assistant district attorney that she was tired. After a sidebar conference requested by the district attorney the Court merely said, "[K.H.] you can step down now, you can go home with Daddy. All right?" It is difficult to see how this comment can be interpreted as expressing an opinion of the Court to either the witness or the jury concerning anything about the witness' testimony. The defense also complains that the court displayed solicitude during the witness' testimony for her, "fatigue, comfort and the number of people watching her" citing N.T. 193-4. As the Notes of Testimony indicate, this Court merely asked the witness if she would rather sit on her father's lap and then asked defense counsel if he had any objection to the witness sitting on her father's lap to which he replied, "No". This Court also indicted to the witness that she should speak into the microphone and that if she did not want to look at the jury she could just look at counsel or at the Court and talk into the microphone. These actions and statements by the Court were totally within the bounds of propriety and did not prejudice the defendant in any way.

Opinion at 8-9.

In light of the foregoing, we find appellant's ineffective assistance claim to be meritless.

Next, appellant maintains that the trial court erred in not granting appellant's motions for mistrial made after two witnesses testified concerning the arrest of appellant for sexually assaulting D.R. First, appellant protests the following testimony of Officer Tufo elicited during the Commonwealth's case in chief:

Q. And in regards to [D.R.], did you also show him photographs, including the photograph of the defendant?

A. Yes, ma'am.

Q. And did you also take with you and use when you spoke to [D.R.] the anatomically correct dolls?

[ 371 Pa. Super. Page 197]

A. Yes, ma'am, I did.

Q. Detective, as a result of that interview, did you obtain any ...

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