Com. v. Fox

• Decision Date: 12 October 1971
• Citation: 282 A.2d 341,445 Pa. 76
• Court: Pennsylvania Supreme Court
• Parties: COMMONWEALTH of Pennsylvania v. Jack Donald FOX, Appellant.

Page 341

282 A.2d 341

445 Pa. 76

COMMONWEALTH of Pennsylvania v. Jack Donald FOX, Appellant.

Supreme Court of Pennsylvania.

Oct. 12, 1971.

Edward L. Willard, Joseph W. Mullin, Public Defenders, State College, for appellant

Newton C. Taylor, Sp. Atty., Huntingdon, for appellee.

Before BELL, C.J., and JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

Appellant was convicted of murder in the first degree for the slaying of his former wife and received a sentence of life imprisonment. Post trial motions were made which the court en banc denied on December 16, 1970. Appellant here seeks our view of the validity of his conviction in light of four asserted errors at trial. Having examined the record in its entirety, we affirm the judgment of sentence.

Viewing the evidence, as we must, in the light most favorable to the Commonwealth, the material factual background is as follows.

Appellant lived in the Borough of Huntingdon in Huntingdon County and made a spotty living as a truck driver. In September, 1967, he married the deceased, Argie Dallessandro Fox, who had four children from a former marriage. ¹ Theirs was a brief and stormy union, and the divorce was finalized on January 23, 1969. The deceased's eldest daughter, Donna Jean Rush, testified that appellant was extremely possessive and jealous and that the couple also fought continually over money. According to this witness, appellant threatened to kill his wife on at least five occasions.

In April, 1969, appellant was hospitalized due to physical illness. He recuperated at the ex-Mrs. Fox's home but occupied a room across the hall from the deceased.

On September 2, 1969, the deceased's youngest daughters, Karen and Dana, went to bed after watching television. Mrs. Fox retired shortly thereafter. Because of the heat Karen could not sleep, so she went to join her mother in bed.

According to Karen, appellant entered the room and began talking with her mother. They argued, and Mrs. Fox ordered appellant out of the house by the following day. Both the deceased and the child turned away from appellant, and in Karen's words: 'Then after that I heard a big bang.' The girl saw blood on her mother's face and ran and awakened her sister, Dana, who came in, saw their mother, and screamed.

Appellant went to the bathroom and obtained a wet washcloth, attempting to aid the deceased. He then telephoned for an ambulance, and the police arrived and took charge. According to the officers, appellant initially stated that the gun would show up in time. He later showed them upstairs and produced the gun from under the mattress of his bed. ² He was given his Miranda ³ warnings but willingly answered the officers' questions, maintaining his wife had committed suicide.

Appellant raises four issues for our review: (1) whether Karen Dallessandro was properly found competent to testify; (2) whether the admission of certain hearsay testimony was so prejudicial as to require a new trial despite the trial court's cautionary instructions; (3) whether it was error to admit into evidence certain allegedly unsupported threats made by appellant; and (4) whether the gun should have been suppressed. Each will be discussed in turn.

As to Karen's competence to testify, it is asserted that the trial court erred in not permitting counsel to interrogate Karen. When the child was first called as a witness, counsel objected to her testifying because, he contended, she did not appreciate the meaning of an oath in that she had told diametrically opposed stories. ⁴

The trial court ruled such an inconsistency, even if true, would only go to Karen's credibility and proceeded to examine her to determine her competence. This was entirely proper.

'Competency is the rule and incompetency the exception. * * * The burden to show incompetency lies upon the party who asserts * * *.

'The question of competency of persons said to be mentally immature due to infancy is to be determined in the discretion of the trial judge after an inquiry as to mental maturity once the fact of infancy appears on the record or is obvious to the judge. This discretion, however, is not absolute but legal. Nevertheless, it will not be reversed in the absence of abuse.'

Rosche v. McCoy, 397 Pa. 615, 619--620, 156 A.2d 307, 309--310 (1959) (citations omitted).

In Rosche, we continued by listing three requirements necessary for determining a child witness's ability to testify:

'* * * There must be (1) * * * (a) 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. These first two considerations are in some instances easily answered where a 7 year old witness is called upon to testify as to a very recent event. * * *'

Id. at 620--621, 156 A.2d at 310.

We also there recognized the conflicting policy considerations confronting courts attempting to determine a child's ability to testify:

'* * * 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. So it is that much must be left to the discretion of the trial judge who hears and sees the witness.'

Id. at 621, 156 A.2d at 310.

The record clearly supports the trial court's determination of Karen's competency. She gave responsive and clear answers, and she initially indicated explicitly that she knew the meaning of the oath and that she would be 'in trouble' if she did not tell the truth. ⁵ The trial court acted well within the permissible limits of its discretion in personally conducting the competency examination.

Appellant's second assertion of error concerns the testimony of Dana Dallessandro, the other daughter who was home on the night of the shooting. The contested evidence is set forth in the record as follows:

'Q. Do you remember the night that she died?

'A. Yea.

'Q. Could you tell us what you remember about that night?

'A. Yea.

'Q. Go ahead, Dana.

'A. Karen, she work me up and she said, 'Jack shot Mon', so I got up and then I--

'BY MR. WILLARD: Now, this is objected to and I move to strike that what Karen said to her.

'BY THE COURT: You can't testify to what Karen told you. Guard that, Mr. Taylor, with your questions.'

After Dana's testimony, counsel approached the bench and stated:

'BY MR. WILLARD: (Sidebar)

Co-counsel feels very strongly that I should make a motion at this time for the declaration of a mistrial due to the admission of the statement by this witness that Karen said that Jack shot her mother.

'BY THE COURT:

Members of the Jury, I have been advised that this last witness said that Jack shot her mother. There is no testimony to that effect, and you are instructed to disregard that absolutely from your minds. The statement that Jack shot her mother, you will pay no attention to that and you will not consider that when you go to discuss your verdict.'

Appellant asserts Dana's statement was so prejudicial that the trial court's subsequent instructions could not possibly undo the damage. We disagree.

No one will gainsay that jurors are requested to undergo a conceivably unattainable degree of mental gymnastics when asked to disregard a statement which they have already heard. ⁶ However, we do not believe that prejudice here involved is analogous to the constitutional error pinpointed by the United States Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) where it was held, inter alia, that limiting instructions could not cure the admission into evidence of a codefendant's confession implicating the defendant. A confession is a particularly damaging type of evidence, and nothing so 'crucial' or 'devastating' was involved in the present case. See Dutton v. Evans, 400 U.S. 74, 87, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970); see generally, Commonwealth v. Thomas, Pa., 279 A.2d 20 (1971).

The hearsay here challenged concerned Karen's alleged statement to Dana. However, it had been made quite clear during Karen's testimony that she did not actually see appellant do the shooting. Both she and her mother were facing the other direction at the time, and Karen could only state that she heard '* * * a big bang.' Thus, Dana's unsolicited report of what Karen said did not rise to that level of error so prejudicial as to necessitate a new trial, especially in view of the trial court's instructions. Accord, Commonwealth v. Gwyn, 441 Pa. 546, 548, 272 A.2d 891, 892 (1971) (where a witness's unsoliciated response that appellant said to her 'I killed my cousin' was held to be harmless error).

Appellant's third assertion of error concerns threats reportedly made by him to the deceased. Before the court en banc appellant challenged the trial court's instructions concerning the threats. That court properly noted that appellant had made no specific objections to the complained of portion of the charge and that appellant could not sit idly by without affording the trial court an opportunity to correct any errors in the jury instructions.

Appellant now abandons his challenge to the charge and focuses on another asserted ground for a new trial by contending that the district attorney exceeded the boundaries of permissible cross examination when, during his questioning of appellant, he mentioned alleged threats made on two occasions that had not been previously brought out either by appellant or any other witness.

Although the prosecuting attorney in all probability exceeded his proper scope of cross examination...