Com. v. Anderson

• Decision Date: 15 December 1988
• Citation: 381 Pa.Super. 1,552 A.2d 1064
• Parties: COMMONWEALTH of Pennsylvania v. Jonathan ANDERSON, Appellant. . Filed
• Court: Pennsylvania Superior Court

Page 1064

552 A.2d 1064

381 Pa.Super. 1

COMMONWEALTH of Pennsylvania v. Jonathan ANDERSON, Appellant.

Superior Court of Pennsylvania.

Filed Dec. 15, 1988.

Reargument Denied Feb. 3, 1989.

Michael J. Rostolsky, Lancaster, for appellant.

Before CAVANAUGH, OLSZEWSKI and MELINSON, JJ.

MELINSON, Judge:

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, 484 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); and Commonwealth v. Short, 278 Pa.Super. 581, 420 A.2d 694 (1980).¹ However, children are "peculiarly susceptible to the world of make-believe and of suggestions." Rosche v. McCoy, 397 Pa. 615, 621, 156 A.2d 307 310 (1959). Accordingly, the law of this Commonwealth is that when a proposed witness is under fourteen years of age there must be a searching judicial inquiry into his or her mental capacity before he or she can testify. Stohr, 361 Pa.Super. at 296, 522 A.2d 589. This competency investigation should determine whether the witness has the following:

(1) capacity to observe or perceive the occurrence with a substantial degree of accuracy; (2) ability to remember the event which was observed or perceived; (3) ability to understand questions and to communicate intelligent answers about the occurrence, and (4) consciousness of the duty to speak the truth.

Fultz, 316 Pa.Super. at 267, 462 A.2d 1340; see also: Commonwealth v. Penn, 497 Pa. 232, 240, 439 A.2d 1154, 1158 (1982), cert. denied Penn v. Pennsylvania, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982); Commonwealth v. Trudell, 371 Pa.Super. 353, 538 A.2d 53 (1988). With age, children acquire a greater command of language, develop better powers of observation and memory, and have a more acute comprehension of a responsibility to tell the truth. Thus, the inquiry into the child's competence to testify must be more searching in proportion to the proposed witness's chronological immaturity. Rosche, 397 Pa. at 621, 156 A.2d 307; Stohr, 361 Pa.Super. at 296, 522 A.2d 589.

We hold that the competency considerations applicable to a child witness are also applicable to a retarded adult with the mental capacity of a child. While we realize that no precise comparison can be made linking the mental capacity of a child who is functioning age-appropriately with the mental capacity of a retarded adult who is not, we find the criteria for determining the testimonial competence of a proposed child witness to be helpful in determining the testimonial competence of a mentally retarded proposed witness.

Initially, we note that the determination of the trial court regarding the testimonial competency of a mentally retarded person will not be disturbed absent a clear abuse of discretion. The trial court, however, shall follow certain guidelines before making its competency determination. If the trial court is presented with credible evidence that a proposed witness is or might be mentally retarded, the court shall conduct a judicial inquiry to determine the testimonial competency of the proposed witness. The factors the judge shall consider in making his determination are the same factors, enumerated previously herein, used in determining the competency of a child witness.² See Penn, 497 Pa. at 232 439 A.2d 1154. It would be a grave injustice to deny a retarded victim of a crime his or her right to testify against the alleged perpetrator of the crime simply because of the victim's retardation. Accordingly, because all witnesses, including child witnesses, are presumed competent to testify, the judge shall presume the mentally retarded proposed witness competent to testify when conducting his inquiry. To hold otherwise would be to countermand the general presumption of testimonial competency established in Pennsylvania, and would be unfair to retarded citizens who would be subjected to the resulting double standard of testimonial competency. See: Ware, 459 Pa. at 351-52, 329 A.2d 258; Stohr, 361 Pa.Super. at 296, 522 A.2d 589; see also United States v. Odom, 736 F.2d 104 (4th Cir.1984) citing Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978).

Furthermore, even though we are not convinced that the mental age of a mentally retarded person can always be determined with exactitude, the judge shall be permitted to receive evidence of estimated mental age to assist him in making a determination concerning the degree of retardation of the proposed witness. Just as the judicial inquiry into the competence of a proposed child witness must be more searching in proportion to the child's chronological immaturity, the judicial inquiry into the testimonial competence of a mentally retarded individual must be more exhaustive in proportion to the proposed witness's degree of mental retardation. Only after a trial court has followed these guidelines in making its decision as to the proposed witness's competency, shall we apply an abuse of discretion standard to its determination.

At bar, the trial court conducted a pre-trial hearing to inquire into the testimonial competence of Sandra Lewis. At the hearing, Ms. Lewis was subject to direct and cross-examination by counsel for both parties. The questions posed by counsel probed the criteria necessary for a determination of testimonial competence. At the hearing, Ms. Lewis testified that she knew the difference between the truth and a lie, and that she would "go to hell" if she did not tell the truth. After the inquiry, the court determined that she was competent to testify.

At trial, Ms. Lewis did experience some difficulty in understanding the questions asked by...