March 3, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
LESA M. HARRIOTT Appellant
Appeal from the Judgment of Sentence January 17, 2013 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000830-2012
BEFORE: BENDER, P.J., PANELLA, J., and MUSMANNO, J.
Appellant, Lesa M. Harriott, appeals from the judgment of sentence entered January 17, 2013, by the Honorable Jonathan D. Grine, Court of Common Pleas of Centre County. We affirm.
In April of 2012, the six-year-old minor victim reported to his preschool director, Gloria Rosenberger, that his mother, Harriott, hit him in the face, causing a bruise near his right eye. N.T., Trial, 11/2/12 at 32. The victim further reported that Harriott placed her hand over his mouth so that the child was unable to breathe. Id. at 35. The victim indicated that Harriott hit him because "[s]he was watching her program and he wouldn't be quiet." Id. at 36. Based on this information, Rosenberger contacted Children and Youth Services. Id. at 34. Harriott was subsequently charged with simple assault and harassment.
Following a jury trial on November 2, 2012, at which the victim testified via video, Harriott was convicted of both charges. On January 17, 2013, the trial court sentenced Harriott to three to 23½ months' imprisonment, to be followed by three years of probation. This timely appeal followed.
On appeal, Harriott raises the following issues for our review:
I. Did the Court of Common Pleas err by determining that Camren Luke Harriott was competent to testify against his mother at trial?
II. Did the Court of Common Pleas err by failing to conduct a searching judicial inquiry as to the mental capacity of Camren Luke Harriott, who was a mere six years of age at the time of trial?
Appellant's Brief at 4.
We will not disturb a trial court's determination of a witness's competency absent an abuse of discretion. Commonwealth v. Davis, 939 A.2d 905, 906-907 (Pa.Super. 2007).
Although competency of a witness is generally presumed, Pennsylvania law requires that a child witness be examined for competency. See Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27, 39 (2003) (citing Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307, 310 (1959) and Pa.R.E. 601). As we have recently reiterated, "this Court historically has required that witnesses under the age of fourteen be subject to judicial inquiry into their testimonial capacity." Commonwealth v. Ali, 10 A.3d 282, 300 n. 11 (Pa. 2010). "A competency hearing of a minor witness is directed to the mental capacity of that witness to perceive the nature of the events about which he or she is called to testify, to understand questions about that subject matter, to communicate about the subject at issue, to recall information, to distinguish fact from fantasy, and to tell the truth." Delbridge, supra at 45. In Pennsylvania, competency is a threshold legal issue, to be decided by the trial court. Commonwealth v. Dowling, 584 Pa. 396, 883 A.2d 570, 576 (2005).
Commonwealth v. Hutchinson, 611 Pa. 280, 289-290, 25 A.3d 277, ---(2011) (footnote omitted). Pennsylvania Rule of Evidence 601 states that:
(a) General Rule. Every person is competent to be a witness except as otherwise provided by statute or in these rules.
(b) Disqualification for Specific Defects. A person is incompetent to testify if the court finds that because of a mental condition or immaturity the person:
(1) is, or was, at any relevant time, incapable of perceiving accurately;
(2)is unable to express himself or herself so as to be understood either directly or through an interpreter;
(3)has an impaired memory; or
(4)does not sufficiently understand the duty to tell the truth.
Herein, prior to the victim's testimony, the trial court conducted a competency hearing outside of the jury's presence. See N.T., Trial, 11/2/12 at 97-103. After reviewing the victim's testimony presented at the hearing, we agree with the trial court's determination that the victim was competent to testify. The victim was able to accurately communicate his name, age, grade in school, the name of his school, and the names of his teachers. Id.at 97. The victim demonstrated that he understood the difference between the truth and a lie, acknowledged that he would get in trouble if he lied, and promised to tell the truth. Id. at 97-98; 103-104. Contrary to Harriott's insistence otherwise, we do not find the fact that the victim's attention wandered at times during the hearing indicative of incompetency. Rather, "we recognize in these verbal excursions the fairly commonplace inability of a young child's mind to stay focused on any one topic for an extended period of time." Commonwealth v. D.J.A., 800 A.2d 965, 972 (Pa.Super. 2002), appeal denied, 579 Pa. 700, 857 A.2d 677 (2004).
Based on the record of the hearing, we find no abuse of discretion in the trial court's determination of the victim's competency. We are further satisfied that the trial court's inquiry was in all aspects adequate and searching. We therefore find no merit to Harriott's issues raised on appeal.
Judgment of sentence affirmed.
Bender, P.J., notes dissent.