Com. v. Davis
| Decision Date | 13 June 1990 |
| Citation | 394 Pa.Super. 591,576 A.2d 1005 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Edward DAVIS, Appellant. |
| Court | Pennsylvania Superior Court |
Daniel M. Preminger, Philadelphia, for appellant.
Marianne E. Cox, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
Before CAVANAUGH, OLSZEWSKI and FORD ELLIOTT, JJ.
This is an appeal from judgment of sentence entered in the Court of Common Pleas of Philadelphia County. The appellant was found guilty of first degree murder, possessing an instrument of crime, four counts of simple assault and two counts of kidnapping. 1 The appellant asserts that he is entitled to a new trial because: 1) the lower court abused its discretion in ruling that D.F., a child witness, was competent to testify; 2) that appellant's right of confrontation was violated when the lower court erroneously permitted D.F. to testify at trial via closed circuit television; and 3) that the lower court committed reversible error by admitting evidence of other crimes. We disagree and accordingly, affirm the judgment of sentence.
The record reveals the following facts. In the early morning of April 27, 1987 the appellant went to the apartment of Renell F., the victim, knocked on the door and was admitted by her. He then directed the victim, his estranged girlfriend and the mother of two of his children, to remove her clothes. After the victim complied, she and the appellant went into the bedroom where, a short time later, the appellant shot Renell F. once in the face and twice in the back of the head, causing her death.
Approximately seven weeks prior to the shooting of Renell F. on March 8, 1987, the appellant, who had been searching for her, 2 forced his way at gunpoint into the car of Anthony Dates, an acquaintance of the victim. The appellant then forced Mr. Dates to drive to the home of Frances Saunders in Philadelphia. Mr. Dates and his wife, Sharon Saunders, had previously given the victim sanctuary in their Wilkes-Barre, Pennsylvania home during the victim's futile effort to keep appellant away from her. Once inside the residence, the appellant threw Frances Saunders (Sharon Saunders' mother and also a friend of Renell F.) to the floor, pointed the gun at her and demanded to know where the victim was living. Subsequently, he pointed the gun at Sharon Saunders, forced her to leave the house at gunpoint, and while walking down the street, still holding Sharon Saunders hostage, he was confronted by a police officer. The officer called for assistance and eventually placed the appellant under arrest. It was while appellant was on bail for the above assault and kidnapping offenses that he shot and killed the victim.
The case was tried without a jury from October 24-28, 1988. Trial counsel, who filed post-verdict and post-sentence motions, was then permitted to withdraw and new counsel was retained by the appellant. New counsel filed supplemental motions and all motions were heard and denied by the lower court on April 27, 1989. This appeal follows.
Appellant first maintains that the trial court abused its discretion in finding that D.F., the daughter of the appellant and the victim, was competent to testify. The child, who was the only witness to the actual murder, was five years old at the time of her mother's death and six years old at the time of trial. When evaluating the competency of children to testify, we are guided by the following principles:
A witness is presumed competent to testify unless proven otherwise. When a proposed witness is under fourteen years of age, however, there must be a searching judicial inquiry as to mental capacity. This inquiry will probe the capacity to communicate, observe and remember, and a consciousness of the duty to speak the truth in proportion to the witness's chronological immaturity. [T]he judge holds the superior opportunity to evaluate the competency of a proposed child witness....
Commonwealth v. McEachin, 371 Pa.Super. 188, 537 A.2d 883 (1988) (allocatur- denied), quoting Commonwealth v. Stohr, 361 Pa.Super. 293, 522 A.2d 589 (1987), (citations omitted).
Our Supreme Court has mandated that in evaluating competency, the trial court must be satisfied that the witness has:
"(1) such capacity to communicate, including as it does both an ability to understand questions and to frame express and intelligent answers; (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that [the witness] is called to testify about; and (3) a consciousness of the duty to speak the truth."
Rosche v. McCoy, 397 Pa. 615, 620, 156 A.2d 307, 310 (1959) (emphasis in original), quoted in Commonwealth v. Hart, 501 Pa. 174, 177, 460 A.2d 745, 747 (1983).
Determination of competency will not be disturbed on appeal absent a clear abuse of discretion. Commonwealth v. McEachin, supra.
Instantly, appellant concedes that D.F. demonstrated an understanding of the duty to speak the truth and an ability to understand questions and frame intelligent answers. However, appellant contends that the child did not demonstrate either the capacity to observe or perceive the occurrence with a substantial degree of accuracy or the ability to remember the events which were observed or perceived, or an ability to communicate intelligent answers about the occurrence.
A survey of D.F.'s direct testimony at trial rebuts the appellant's allegations:
[BY THE ASSISTANT DISTRICT ATTORNEY]:
Q. Do you remember when you told us what happened that night?
A. Yeah.
Q. Who came to the door?
A. My father.
Q. What did your father do when he came to the door?
A. He just came in.
Q. Who let him in?
A. My mom.
* * * * * *
Q. After your mother opened the door, what did she say or what did your father say?
A. She did not say nothing.
Q. I'm sorry?
A. She didn't say nothing.
Q. What did he say?
A. Nothing.
Q. What happened after that?
A. Tell her to go in the bathroom.
Q. And after that, tell us what happened.
A. Told her to take her clothes off.
Q. He told her to take her clothes off?
A. Yeah.
Q. Did she do that?
A. Yeah.
Q. What happened after that?
A. She came back out.
Q. Was she wearing anything?
A. No.
Q. What happened after that?
A. I was peaking [sic] through the door.
Q. You were peaking through the door of what?
A. To see that was gonna happen.
Q. What did happen?
A. She went in the room and when I went in there, she was on the mattress, and then she had blood all over her.
Q. How did she get blood on her?
A. Because he shot her.
Q. How many shots did you hear?
A. I don't know. Two or five.
Q. Can you show us on your fingers how many shots you heard?
A. First I said five and then I said two (indicating).
Q. Do you remember now how many it was?
A. Two.
Q. Were you looking at that time through the door?
A. No.
Q. After your heard the two shots, where did your daddy go?
A. When I went in there, he was gone.
Q. Did you see anything in his hand?
A. Unh-unh, but I know he had a gun.
Q. How do you know he had a gun?
A. Because sometimes I see it.
Q. How long was that gun; do you know?
A. No. I think it's medium though.
* * * * * *
Q. After daddy shot mommy, what did you do?
A. I came in the room and looked at her and I start crying, and then I told Miss White.
Q. What did you tell Miss White?
A. That my mom was there, and then the other girl came of the other hallway and then she thought I was knocking on her door and then she came and looked what happened.
* * * * * *
Q. What did you tell Miss White as to who did it?
A. I said she was dead.
Q. Did you tell Miss White who killed mommy?
A. No, but it was my daddy for real.
Q. Did anyone tell you to say that or are you saying that because it was the truth?
A. It was the truth.
The above colloquy between the assistant district attorney and D.F. on direct testimony unambiguously demonstrates that the child both recalled the murder and was able to intelligently recount what she saw and heard. Furthermore, our review of the record shows that during the lengthy cross-examination, the basic tenets of the child's testimony remained unchanged.
The appellant also claims that D.F. was incompetent on the theory that her testimony was fraught with inconsistencies, and that she was easily manipulated during questioning into giving yes or no answers to leading questions. While there were some minor inconsistencies during D.F.'s testimony, the child consistently maintained that it was the appellant who came to the apartment the night of the murder. We agree with the Commonwealth's argument that if mere inconsistencies were a sufficient basis for declaring a witness incompetent, few adult witnesses, much less child witnesses, would ever effectively testify in our courts. Furthermore, minor inconsistencies in testimony are not in themselves sufficient bases to find a child witness incompetent. Commonwealth v. McEachin, supra. In McEachin, supra, this court held that the trial court did not abuse its discretion in finding a child witness competent, notwithstanding that the witness occasionally gave inconsistent answers and answers that "could not possibly be correct". Like D.F.'s testimony, the child's testimony in McEachin on the whole demonstrated a concept of truth, understanding of questions, and the honesty to give intelligent and relevant answers. 3
Finally, the trial court, who sat as fact finder and had the opportunity to evaluate the child, aptly rejected all of appellant's challenges to D.F.'s competency:
The court's observation of the witness' demeanor indicates that she was above-average intelligence and possessed the ability to remember what had happened to her mother. Although she sometimes gave inconsistent answers, the witness demonstrated that she understood the questions, observed and remembered what had happened the night of the shooting, was not easily manipulated and could give relevant and intelligent answers to the questions put to...
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