Appeal from the Judgment of Sentence January 9, 2013 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001292-2011
BEFORE: BENDER, P.J., PANELLA and MUSMANNO, JJ.
Appellant, Clark Kitchell, appeals from the judgment of sentence entered on January 9, 2013 in the Court of Common Pleas of Luzerne County. After careful review, we affirm.
Following a jury trial on October 15, 2012, Kitchell was found guilty of involuntary deviate sexual intercourse with a child under the age of 13 in violation of 18 PA.CONS.STAT.ANN. § 3123(B)-Kitchell had sexual intercourse per anus with his six-year-old stepdaughter, G.H., from November 2009 to April 2010. The trial court sentenced Kitchell to a period of 10 to 20 years' imprisonment. Kitchell's post-sentence motion was denied and this timely appeal followed.
Kitchell raises the following issue for our review:
Whether the trial court abused its discretion by finding that the child complainant, age nine (9), was competent to testify where
she lacked the mental capacity to observe the alleged events and to remember such events due to immaturity and a mental health condition?
Appellant's Brief, at 1.
"Our standard of review recognizes that a child's competency to testify is a threshold legal issue that a trial court must decide, and an appellate court will not disturb its determination absent an abuse of discretion. Our scope of review is plenary." Commonwealth v. Pena, 31 A.3d 704, 706-707 (Pa.Super. 2011) (citations, quotation marks, brackets, and emphasis omitted).
"In Pennsylvania, the general rule is that every witness is presumed to be competent to be a witness." Commonwealth v. Judd, 897 A.2d 1224, 1228 (Pa.Super. 2006); see also Pa.R.E. 601(a). "A party who challenges the competency of a minor witness must prove by clear and convincing evidence that the witness lacks the minimal capacity ... (1) to communicate, (2) to observe an event and accurately recall that observation, and (3) to understand the necessity to speak the truth." Pena, 31 A.3d at 707 (internal quotation marks and citations omitted).
On appeal, Kitchell specifically challenges the second prong of the above three-part test, what our Supreme Court has called "taint." "Taint speaks to the second prong ..., the mental capacity to observe the occurrence itself and the capacity of remembering what it is that the witness is called upon to testify about." Commonwealth v. ...