Com. v. DJA

• Decision Date: 05 June 2002
• Citation: 800 A.2d 965
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. D.J.A.
• Court: Pennsylvania Superior Court

800 A.2d 965

COMMONWEALTH of Pennsylvania, Appellant, v. D.J.A.

Superior Court of Pennsylvania.

Argued February 19, 2002.

Filed June 5, 2002.

Kenneth A. Zak, Asst. Dist. Atty., Erie, for Com., appellant.

Timothy J. Lucas, Erie, for appellee.

Before: DEL SOLE, P.J., JOHNSON, HUDOCK, FORD ELLIOTT, ORIE MELVIN, LALLY-GREEN, TODD, BENDER, and BOWES, JJ.

FORD ELLIOTT, J.

¶ 1 The Commonwealth asks us to determine whether the trial court abused its discretion when it found a seven-year-old girl, "A.A.", incompetent to testify in a criminal action involving child sexual abuse. We are also asked to decide whether the trial court abused its discretion when it found A.A.'s statement to her physician implicating defendant/appellee as the perpetrator of the alleged abuse inadmissible pursuant to Pa.R.E. 803(4), 42 Pa.C.S.A. We affirm in part and reverse in part. Our reasons, and a brief statement of the facts of this case, follow.

¶ 2 From October 1996 through June 1997, appellee, A.A.'s father, had physical custody of A.A. and her two siblings, who resided with appellee and his paramour. On June 16, 1997, Child Protective Services received a report of suspected child abuse, alleging that appellee had fondled A.A.'s vaginal area and buttocks on more than one occasion and had physically hurt her. Child Protective Services sent the report to Erie County Children and Youth Services ("CYS"), whose case worker, Amy Hoffman, conducted four interviews with A.A., three of which were tape recorded. Ms. Hoffman also interviewed A.A.'s siblings.

¶ 3 On September 11, 1997, Dr. Justine Schober, a pediatric urologist, examined and interviewed A.A., who made the same disclosures to Dr. Schober that she had made to Ms. Hoffman. Dr. Schober's physical examination revealed evidence of anal penetration but no evidence of vaginal penetration. CYS then referred the case to the Pennsylvania State Police, which filed criminal charges against appellee on April 2, 1998, setting forth counts of rape, involuntary deviate sexual intercourse ("IDSI"), indecent assault, corruption of minors, and endangering the welfare of children.¹

¶ 4 On April 20, 1998, A.A., by then age six, testified at appellee's preliminary hearing concerning the allegations of abuse. Following the hearing, appellee was held over for trial. The Commonwealth then filed an information setting forth the counts enumerated above, and the case was eventually scheduled for trial in February 2000. On February 4 and 7, 2000, the trial court held a hearing to determine whether A.A. was competent to testify at trial; and on February 8th, the court ruled from the bench that A.A., who by then was almost eight years old, was incompetent to testify.

¶ 5 The Commonwealth next presented the court with Dr. Schober's interview of A.A. by way of an offer of proof. The court precluded the Commonwealth from introducing testimony concerning the identity of the alleged perpetrator. This timely appeal followed, in which the Commonwealth raises the following issues:

A. DID THE TRIAL COURT ERR IN EXCLUDING FROM EVIDENCE THE CHILD VICTIM'S TESTIMONY BASED ON INVESTIGATIVE INTERVIEWS CONDUCTED OF THE CHILD AND THE CHILD'S TESTIMONY AT THE PRELIMINARY HEARING?

B. DID THE COURT ERR IN CONSIDERING AND ENTERTAINING THE TESTIMONY BY AN EXPERT WITNESS PROFFERED BY THE DEFENSE ON INTERVIEWING TECHNIQUES OF THE CHILD AND YOUTH SERVICES WORKER WHO INVESTIGATED ALLEGATIONS OF ABUSE RATHER THAN BASE ITS COMPETENCY DECISION ON THE QUESTIONING OF THE CHILD WITNESS HERSELF BY THE COURT?

C. DID THE COURT ERR IN EXCLUDING THE TESTIMONY OF AN EXAMINING PHYSICIAN CONCERNING STATEMENTS BY THE CHILD AS TO THE

IDENTITY OF THE ALLEGED PERPETRATOR, STATEMENTS THAT WERE MADE BY THE CHILD IN THE COURSE OF A MEDICAL EXAMINATION AND WERE OFFERED BY THE COMMONWEALTH UNDER THE MEDICAL TREATMENT EXCEPTION TO THE HEARSAY RULE?

Commonwealth's brief at 4.

¶ 6 As this court recently observed:

`Our standard of review of rulings on the competency of witnesses is very limited indeed. As one Pennsylvania commentator has stated it, such rulings by trial judges will not be reversed except for a "flagrant abuse of discretion." 2 Henry, Pennsylvania Evidence § 790 (1953). Professor Wigmore goes further still in suggesting that appellate courts should virtually never disturb such rulings; it is preferable, he argues, to accept the testimony for what it is worth and leave the matter of credibility to the fact-finder. IV Wigmore on Evidence § 1821 (Rev. ed.1976). See also ALI, Model Code of Evidence, Rule 101 & p. 340 (1942).'

Commonwealth v. McMaster, 446 Pa.Super. 261, 666 A.2d 724, 727 (1995), quoting Commonwealth v. Mangello, 250 Pa.Super. 202, 378 A.2d 897, 898-899 (1977) (other citations omitted). McMaster's citation to Wigmore clearly indicates that a finding of competency is the rule, with credibility being a separate issue for the fact-finder.²

¶ 7 When ruling on the competency of a witness, the following principles should guide the court:

`[C]ompetency of a witness is presumed, and the burden falls on the objecting party to demonstrate incompetency. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959); Commonwealth v. Mangello, supra.

When the witness is under fourteen years of age, there must be a searching judicial inquiry as to mental capacity, but discretion nonetheless resides in the trial judge to make the ultimate decision as to competency.'

Id., quoting Commonwealth v. Short, 278 Pa.Super. 581, 420 A.2d 694, 696 (1980) (other citation omitted). In making its determination, the court must inquire whether the child possesses:

`(1) such capacity to communicate, including as it does both an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that she is called to testify about and (3) a consciousness of the duty to speak the truth.'

Id., quoting Rosche, supra at 620-621, 156 A.2d at 310 (other citations omitted).

¶ 8 In 1998, the supreme court adopted the Pennsylvania Rules of Evidence, including Rule 601, Competency, which provides:

Rule 601. Competency

(a) General Rule

Every person is competent to be a witness except as otherwise provided by statute or in these Rules.

(b) Disqualification for Specific Defects

A person is incompetent to testify if the Court finds that because of a mental condition or immaturity the person:

(1) is, or was, at any relevant time, incapable of perceiving accurately (2) is unable to express himself or herself so as to be understood either directly or through an interpreter;

(3) has an impaired memory; or

(4) does not sufficiently understand the duty to tell the truth.

Pa.R.E. 601, 42 Pa.C.S.A. The Comment to Rule 601 indicates that Rule 601(b) is consistent with Pennsylvania decisional law concerning the competency of, inter alia, children of tender years. Comment— 1998, citing Rosche, supra.

¶ 9 The trial court, when making a determination of competency, is confronted by conflicting policies:

`One is that a party should not be denied justice because reliance necessarily must be placed upon the testimony of a child of tender years. But, on the other hand, experience has informed us that children are peculiarly susceptible to the world of make-believe and of suggestions. Care must be exercised to keep the balance true as between these conflicting claims.'

McMaster, 666 A.2d at 727, quoting Rosche, supra at 621, 156 A.2d at 310.

¶ 10 Therefore, "`[t]he determination of competency is a matter for the sound discretion of the trial court, which will not be disturbed absent a clear abuse of that discretion.'" Id., quoting Commonwealth v. Hart, 501 Pa. 174, 177, 460 A.2d 745, 747 (1983) (other citations omitted). See also Commonwealth v. Delbridge, 771 A.2d 1, 6 (Pa.Super.2001),

appeal granted in part, 566 Pa. 618, 783 A.2d 764 (2001); and Commonwealth v. R.P.S., 737 A.2d 747, 749 (Pa.Super.1999) (quoting and citing McMaster with approval). An abuse of discretion is " `[n]ot merely an error of judgment, but if in reaching a conclusion, the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will as shown by the evidence or the record, discretion is abused.'" Commonwealth v. Long, 533 Pa. 388, 395, 625 A.2d 630, 634 (1993), quoting Kelly v. County of Allegheny, 519 Pa. 213, 217, 546 A.2d 608, 610 (1988) (other citation omitted). Most fundamentally, a trial court's judgment is manifestly unreasonable, and therefore an abuse of discretion, if it does not find support in the record.

¶ 11 In this case, the trial court found A.A. incompetent to testify. (Notes of testimony, competency hearing, 2/8/00 ("February 8th hearing") at 9.) The court reached its conclusion by applying the standard enunciated in Rosche, supra, R.P.S., supra,

and McMaster, supra, and set forth in Rule 601, especially Rule 601(b)(1). A.A. was almost eight years old when she testified at the competency hearing in 2000, but was only five years old when Ms. Hoffman interviewed her in the summer of 1997. While the trial court observed that during its interview with A.A. at the competency hearing, the court "focus[ed] on the present tense—is the child at the present time competent[,]" the court never specifically determined whether A.A. was competent at the time of the competency hearing. (February 8th hearing at 8-9.)

¶ 12 Our review of A.A.'s testimony at the February 4, 2000 competency hearing leaves little doubt that she was competent at that time. (Notes of testimony, competency hearing, 2/4/00 ("February 4th hearing") at 6-15.) Instead of relying on A.A.'s testimony in 2000, however, the trial court relied on the 1997 tapes and Rule 601(b)(1)'s requirement that the court determine whether A.A. "is or was at any relevant time incapable of perceiving accurately." As the trial court stated:

The best evidence ...