Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lancaster County at No. 1720 of 1985.
Michael J. Rostolsky, Lancaster, for appellant.
Cavanaugh, Olszewski and Melinson, JJ.
This is an appeal from a conviction and judgment of sentence in the Court of Common Pleas of Lancaster County. We affirm.
On May 8, 1986, following a trial by jury, Jonathan Anderson, the appellant, was found guilty of indecent assault and conspiracy to commit rape. The evidence presented at trial revealed that on the afternoon of June 16, 1985, James Vinson visited Anderson for approximately fifteen minutes. Vinson then left Anderson's apartment. On his way home he encountered Sandra Lewis as she left a laundromat. Vinson offered to take her home, but instead, he escorted her to Anderson's apartment. Ms. Lewis, age 39 at the time of trial, is a mentally retarded woman with the estimated intellectual age of a six year old child. Anderson testified that he recognized Lewis from the laundromat, but had never spoken to her and did not know of her mental retardation. However, he told the police officer who investigated the crime that he knew as soon as Vinson appeared with Sandra Lewis that the acts about to transpire were wrong. Shortly after bringing Sandra Lewis into Anderson's apartment, Vinson had sexual intercourse with her. Anderson watched this act take place and heard Lewis protest. Immediately after Vinson was done, Anderson had sexual intercourse with Sandra Lewis. When Anderson had finished, he told Lewis to put on her clothes. Anderson then called a taxicab for Lewis.
After his conviction, Anderson filed timely post-trial motions. These motions were denied. Anderson was subsequently sentenced to concurrent terms of incarceration of twenty-seven to fifty-four months on the conspiracy charges, and one to two years on the indecent assault charges. Following the denial of Anderson's motion to modify his sentence, this appeal was taken in a timely fashion.
On appeal, Anderson raises five issues for our review:
(1) Whether the trial court abused its discretion by ruling that the chief Commonwealth witness, Sandra Lewis, was competent to testify?
(2) Whether the trial court erred in permitting a Commonwealth witness to answer a hypothetical question, as well as seeking an answer which was the ultimate question of fact for the jury?
(3) Whether the trial court erred in permitting evidence of a photograph lineup to be introduced at trial?
(4) Whether there was insufficient evidence to support the jury's guilty verdict of conspiracy to commit rape?
(5) Was the sentence by the trial court excessive?
Initially, Anderson challenges the testimonial competency of Sandra Lewis. Prior to trial, the trial court conducted an inquiry into Ms. Lewis's testimonial competency. The court thereafter determined that she was competent to testify. Anderson argues that Sandra Lewis was unable to perceive the alleged occurrence with a substantial degree of accuracy, she did not remember what she saw, and that she was unable to understand questions or to communicate intelligent answers while on the witness stand.
Because a trial judge has a superior opportunity to assess the competency of a witness, an appellate court should virtually never reverse a competency ruling. See Commonwealth v. Stohr, 361 Pa. Super. 293, 522 A.2d 589 (1987). Thus, the determination of a witness's competency to testify will not be disturbed on appeal absent a clear abuse of discretion. Commonwealth v. Gaerttner, 335 Pa. Super. 203,
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A.2d 92 (1984). However, we have articulated some guidelines that a trial court must follow before reaching a decision as to a witness's competence to testify.
In general, the testimony of any person, regardless of his mental condition, is competent evidence, unless it contributes nothing at all because the witness is wholly untrustworthy. Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974). Thus, in Pennsylvania, witnesses are presumed competent to testify, and it is incumbent upon the party challenging the testimony to establish incompetence. Commonwealth v. Stohr, 361 Pa. Super. 293, 522 A.2d 589 (1987). Moreover, a trial court need not order an investigation of a witness's competency, unless the trial judge has some doubt about the witness's competency after having observed the witness. Commonwealth v. Fulton, 318 Pa. Super. 470, 465 A.2d 650 (1983).
Different standards apply for the interpretation of the testimonial competency of children. This court has recently concluded that the presumption of competency remains for proposed child witnesses. See Stohr, 361 Pa. Super. at 296, 522 A.2d 589; Commonwealth v. Fultz, 316 Pa. Super. 260, 462 A.2d 1340 (1983); ...