Com. v. Ault

• Decision Date: 21 June 1974
• Citation: 323 A.2d 33,228 Pa.Super. 353
• Parties: COMMONWEALTH of Pennsylvania v. Henry AULT, Appellant.
• Court: Pennsylvania Superior Court

Page 33

323 A.2d 33

228 Pa.Super. 353

COMMONWEALTH of Pennsylvania v. Henry AULT, Appellant.

Superior Court of Pennsylvania.

June 21, 1974.

Application for Allocatur Denied Sept. 3, 1974.

VAN der VOORT, Judge.

Henry Ault, after trial by jury, was convicted of assault and solicitation to commit sodomy and corrupting the morals of a minor child. After post trial motions, he filed this appeal in which his sole claim is that the trial judge erred in permitting the minor, who was the alleged victim of the crimes to testify.

In reviewing the Appellant's claim, which basically rests on assertions that the witness was incompetent due to mental immaturity, we must be mindful of certain legal concepts and requirements. These matters were discussed in detail by our Supreme Court in Rosche v. McCoy 397 Pa. 615, 156 A.2d 307 (1959). In that case it was noted that:

(1) Competency is the rule and incompetency the exception;

(2) The burden to show incompetency lies upon the party asserting it; and

(3) The trial judge's determination of mental maturity (after inquiry) will not be reversed absent a finding of abuse of discretion.

Rosche also reviewed the nature of the inquiry required of the trial court in this situation. The judge must investigate the child's capacity to communicate (including an ability to understand questions and to frame and express intelligent answers), the child's capacity to observe and remember the matter about which testimony is sought, and the child's consciousness of the duty to speak the truth. See also Commonwealth v. Fox, 445 Pa. 76, 282 A.2d 341 (1971). Mindful of all of the above concepts, we have reviewed the record and conclude that the trial judge did not abuse his discretion in allowing the minor to testify.

First, the transcript evidences an excellent ability to communicate on the part of the minor in question. The witness, in a manner to be envied by some adults, clearly expressed himself and provided clear and intelligent answers throughout his questioning. His responsive answers reflect a good understanding of the questions posed to him. Quite admirably and contrary to many older witnesses at trials, the minor in the instant case did not answer the few questions he did not hear or understand, but asked that they be repeated or rephrased.

Turning to the second area of inquiry, we find that the record exhibits a more than adequate capacity on the part of the witness to have observed the incident about which he was aked to testify. The occurrence in question took place on August 3, 1971, when the witness was eight years old. At the time of trial in mid-November, 1972, the witness was nine years old. Only the witness and the Appellant were present...