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[U] Commonwealth v. Kitchell

Superior Court of Pennsylvania

March 7, 2014



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




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. Delbridge, 855 A.2d 27, 40 (2003) (citation and brackets omitted, emphasis in original).

In Delbridge, the Court stated the following regarding the issue of taint:

The core belief underlying the theory of taint is that a child's memory is peculiarly susceptible to suggestibility so that when called to testify a child may have difficulty distinguishing fact from fantasy. Taint is the implantation of false memories or the distortion of real memories caused by interview techniques of law enforcement, social service personnel, and other interested adults, that are so unduly suggestive and coercive as to infect the memory of the child, rendering that child incompetent to testify.

Id., at 34-35 (internal citations omitted). The Court also explained the effect of taint on the testimonial capacity of immature witnesses:

The capacity of young children to testify has always been a concern as their immaturity can impact their ability to meet the minimal legal requirements of competency. Common experience informs us that children are, by their very essence, fanciful creatures who have difficulty distinguishing fantasy from reality; who when asked a question want to give the "right" answer, the answer that pleases the interrogator; who are subject to repeat ideas placed in their heads by others; and who have limited capacity for accurate memory.
A competency hearing concerns itself with the minimal capacity of the witness to communicate, to observe an event and accurately recall that observation, and to understand the necessity to speak the truth. A competency hearing is not concerned with credibility. Credibility involves an assessment of whether or not what the witness says is true; this is a question for the fact finder. An allegation that the witness's memory of the event has been tainted raises a red flag regarding competency, not credibility. Where it can be demonstrated that a witness's memory has been affect so that their recall of events may not be dependable, Pennsylvania law charges the trial court with the responsibility to investigate the legitimacy of such an allegation.

Id., at 39-40 (internal citations omitted). The Supreme Court concluded the "appropriate venue" for investigation into a taint claim is a competency hearing. Id., at 40.

In the present case, the trial court conducted an in-camera competency hearing on September 14, 2012. G.H., eight years old at the time of the competency hearing, exhibited excellent communication skills. G.H. had the ability to understand the questions posed and to express intelligent answers. See N.T., Competency Hearing, 9/14/12, at 1-24. G.H. answered questions regarding her age, birthday, what school she attends, her likes and dislikes at school, favorite subject, book and television show. See id., at 2-5. G.H. also answered questions regarding her family life. Particularly, G.H. explained to the court with whom she resided, her siblings' names and ages and, her previous residences. See id., at 7-11. G.H. was able to vividly recall that, when she was "five and six" years old, she lived in a three-bedroom trailer with her mom, brothers and her step-father, Kitchell. Id., at 9-10. Most importantly, in response to questioning, G.H. demonstrated a strong comprehension for the difference between telling the truth and a lie. See id., at 7-10. G.H. avowed to the court that she would tell the truth in these proceedings. See id., at 13.

While counsel for Kitchell attempted to elicit answers from G.H. at the competency hearing with respect to mental health treatment G.H. received at the hospital, the trial court, finding that it "doesn't speak to taint" asked counsel to "reserve that [for] an appropriate time if it comes to that." Id., at 18.

Furthermore, in compliance with Delbridge, supra, upon finding that G.H. had the capacity to communicate, observe the events and accurately recall observations, the court proceeded to review any issues of taint. See id., at 14. Again, G.H. was poised in her answers. G.H. testified that: (1) she had not discussed her testimony with anyone; (2) she had not seen her mother since the last court hearing; and (3) she had not been promised anything in exchange for her testimony. See id., at 15-17. G.H. indicated that she had spoken with the police officer and Children & Youth Services; however, neither party had "told her what to say." Id., at 17.

We have reviewed the transcript of the competency hearing and are in agreement with the trial court's decision to declare G.H. competent to testify. Kitchell has failed to show by clear and convincing evidence that there was any taint of the child witness or that the child was in any way incompetent to testify. Further, there is no indication from the child's answers that a mental health condition renders her incompetent.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

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