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COMMONWEALTH PENNSYLVANIA v. GEORGE TRUDELL (02/22/88)

filed: February 22, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE TRUDELL, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. RICHARD VERDON, APPELLANT



Appeal from the Judgment of Sentence of May 29, 1986, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 1502 & 1503 September Term 1984.

COUNSEL

Jane R. Goldberg, Philadelphia, for appellant in No. 1640.

Jay S. Gottlieb, Philadelphia, for appellant in No. 1792.

JoAnn Verrier, Assistant District Attorney, Philadelphia, for Com., appellee.

Brosky, Wieand and Beck, JJ. Brosky, J., files a concurring opinion.

Author: Beck

[ 371 Pa. Super. Page 357]

At a jury trial, appellants, former Philadelphia police officers, together with one other defendant who has not appealed, were convicted of bribery in official matters and criminal conspiracy. The evidence established that appellants accepted a $400.00 payment to ensure two reputed mob hitmen, Joseph Pedulla and Victor DeLuca, that their bail would not rise above $50,000.00 each. After accepting payment, appellants expedited DeLuca and Pedulla's processing and arraignment, and they were in fact released on $50,000.00 bail each.

Appellants were subsequently brought to trial. DeLuca and Pedulla testified against them. Both appellants inter alia challenge the competency of these witnesses, but only appellant Trudell has preserved any issues for appeal.

Although both appellants filed timely post-verdict motions, those motions simply stated that the verdict was contrary to the law and weight of the evidence. Such boilerplate challenges do not preserve any issues for appellate review. Commonwealth v. Holmes, 315 Pa. Super. 256, 461 A.2d 1268 (1983). Although appellant Verdon "reserved

[ 371 Pa. Super. Page 358]

    a right" to file supplemental post-verdict motions, the record does not reveal that he filed them. Therefore, appellant Verdon has failed to preserve any issue for appeal. Commonwealth v. Kelly, 365 Pa. Super. 28, 528 A.2d 1346 (1987). We affirm his judgment of sentence.

Appellant Trudell, while having filed boilerplate post-verdict motions, did seek and obtain court permission to file supplemental motions, thereby preserving those issues contained in his filed supplemental motions. Commonwealth v. Rosko, 353 Pa. Super. 307, 509 A.2d 1289 (1986); Commonwealth v. Holmes.

Appellant Trudell has preserved and raised the following claims on appeal: (1) that witness Joseph Pedulla was incompetent to testify; (2) that the testimony of witnesses Victor DeLuca and Joseph Pedulla was patently unreliable; (3) that certain diagrams used by the Commonwealth were impermissibly distorted; (4) that the prosecutor commented on appellant's failure to testify; and (5) that juror misconduct tainted the entire jury panel. We find all these contentions meritless and so affirm appellant Trudell's judgment of sentence.

Trudell first argues that Commonwealth witness Joseph Pedulla, an admitted murderer and mobster, should have been ruled incompetent to testify because he had committed perjury before the grand jury and allegedly lacked the moral responsibility to tell the truth. Pedulla admitted to lying before the grand jury but was never prosecuted for perjury. He claimed to have lied pursuant to a mob "code of silence" which required him to protect those persons involved in illegal activities with him.

The court conducted an inquiry into Pedulla's competency. In response to the court's questioning, Pedulla repeatedly insisted that since he left the mob his reasons for lying no longer existed. He also acknowledged that taking the oath meant something to him and asserted his belief that only the truth could protect him now.

The trial court found Pedulla competent to testify. In support of this conclusion, the court noted that although in

[ 371 Pa. Super. Page 359]

    the past Pedulla had displayed contempt for the duty to tell the truth, at present he was conscious of that duty and could observe it.

The competency of a witness to testify is a matter within the sound discretion of the trial judge, whose decision will not be reversed absent a clear abuse of discretion. Commonwealth v. Short, 278 Pa. Super. 581, 420 A.2d 694, 696 (1980); Commonwealth v. Chuck, 227 Pa. Super. 612, 323 A.2d 123 (1974). The breadth of that discretion is wide since the trial judge has the opportunity personally to observe and evaluate the demeanor and sincerity of the witness. Commonwealth v. Mangello, 250 Pa. Super. 202, 206, 378 A.2d 897, 899 (1977). Indeed, we have recognized that the better practice where questions of witness competency arise is to permit the witness to testify and then leave the matter of credibility to the fact finder. Commonwealth v. Short, 278 Pa. Super. at 585-86, 420 A.2d at 696; Commonwealth v. Mangello, 250 Pa. Super. at 206-08, 378 A.2d at 898-99.

The standard by which a trial court's exercise of discretion on questions of competency must be guided is quite simply stated. In general, the competency of a witness to testify is presumed and the burden of demonstrating the incompetency of the witness falls on the party objecting to competency. Id; see also 42 Pa.Cons.Stat.Ann. § 5911 (Purdon 1982) ("Except as otherwise provided in this subchapter, all persons shall be fully competent witnesses in any criminal proceeding before any tribunal"). Indeed, when the witness is a sane adult, the court need not even conduct an inquiry into competency unless it has some doubt concerning the witness' competency based on the court's observation of the witness. Commonwealth v. Fulton, 318 Pa. Super. 470, 465 A.2d 650 (1983).

Several exceptions to the general rule of competency are found in our statutory law. These include husband-wife incompetency, 42 Pa.Cons.Stat.Ann. §§ 5913, 5924 (Purdon 1982), and the "Dead Man's Rule," 42 Pa.Cons.Stat.Ann. § 5930 (Purdon 1982). Of somewhat greater importance to

[ 371 Pa. Super. Page 360]

    the instant case is the final statutory exception to the general rule of competency, which renders incompetent as a witness any person who has been convicted by a court of this Commonwealth of perjury. 42 Pa.Cons.Stat.Ann. §§ 5912, 5922 (Purdon 1982). Although at common law persons convicted of certain crimes other than perjury, such as those involving fraud or deceit, were also deemed incompetent, this ground for incompetency no longer exists. In fact, the perjury exception itself has been given a limited scope by our courts, which have held that only a judgment of conviction of perjury will render a witness incompetent, Commonwealth v. Myers, 485 Pa. 519, 403 A.2d 85 (1979), and that an admission of perjury alone is insufficient. Commonwealth v. Levenson, 282 Pa. Super. 406, 422 A.2d 1355 (1980). See generally Packel, L. and Poulin, A., Pennsylvania Evidence, § 601.4 at 375-77 (1987).

In addition to these statutory exceptions, two other exceptions to the general rule of competency, both of limited scope, have been created by our courts. These exceptions focus on immature and insane or mentally disabled witnesses. As to child witnesses, our courts have expressed a concern that every parent will recognize. Children are peculiarly susceptible to "make-believe" and, therefore, are often not sufficiently aware of or able to fulfill their duty to tell the truth. Rosche v. McCoy, 397 Pa. 615, 621, 156 A.2d 307, 310 (1959). Because of this concern, a special rule of competency for children under the age of fourteen has developed. As to them, an inquiry into competency is required, with the goal being to ascertain whether, as the Rosche Court stated, the child has:

(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 [the witness] is called to ...


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