Com. v. McEachin

• Decision Date: 11 February 1988
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Thomas McEACHIN, Appellant.
• Court: Pennsylvania Superior Court

Page 883

537 A.2d 883

371 Pa.Super. 188

COMMONWEALTH of Pennsylvania, Appellee, v. Thomas McEACHIN, Appellant.

Superior Court of Pennsylvania.

Argued Nov. 5, 1987.

Decided Feb. 11, 1988.

Thomas J. Turner, III, Philadelphia, for appellant.

Deborah Fleisher, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CIRILLO, President Judge, and OLSZEWSKI and JOHNSON, JJ.

OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence entered after appellant's conviction by jury of two counts of involuntary deviate sexual intercourse and three counts of corrupting the morals of a minor child. Appellant complains on appeal that: (1) the trial court erred in finding child witnesses competent to testify; (2) the trial court erred in permitting repeated re-examination of one child witness and counsel was ineffective for failing to object; (3) the trial court erred in denying appellant's motions for a mistrial; (4) the trial court erred in permitting testimony as to prior consonant statements of two children and trial counsel was ineffective for failing to object; and (5) the trial court erred in not permitting evidence of prior inconsistent statements by two child witnesses. ¹ We find appellant's claims to lack merit and, accordingly, we affirm the order of the trial court.

Evidence presented at trial established that between late 1985 and early 1986, appellant, while employed as a maintenance worker at a day school in Philadelphia, sexually molested three ² pre-school aged children. With each victim, appellant pretended to play various children's games which culminated in his penis being placed in each child's mouth and/or rectal or genital area.

After conviction, post-trial motions were filed and denied. The trial court sentenced appellant to six to twenty-four years plus five years probation. This appeal followed.

Appellant first maintains that the trial court erred in finding the complainant children competent to testify. At the time of trial, the victims, R.J. E.J., and K.H., were aged five, five, and three and one-half, respectively. 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. Commonwealth v. Riley, 458 Pa. 390, 326 A.2d 384 (1974). When a proposed witness is under fourteen years of age, however, there must be a searching judicial inquiry as to mental capacity. Commonwealth v. Short, 278 Pa.Super. 581, 420 A.2d 694 (1980). 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. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959).... [T]he judge holds the superior opportunity to evaluate the competency of a proposed child witness.... Commonwealth v. Bailey, 322 Pa.Super. 249, 469 A.2d 604 (1983).

Commonwealth v. Stohr, 361 Pa.Super. 293, 522 A.2d 589 (1987).

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). See also Commonwealth v. Baker, 466 Pa. 479, 485, 353 A.2d 454, 457 (1976).

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. Id.

Instantly, the trial court made the following observations regarding the competency of the three children: each knew his/her name, age and where he/she went to school; each could distinguish colors; each articulated why he/she was in the courtroom; and each knew the difference between the truth and a lie and the consequences of telling a lie. In conclusion, the trial court stated:

Although the witnesses sometimes gave inconsistent answers and occasionally gave answers which could not possibly be correct, on the whole they demonstrated consistently that they knew the concept of truth, that they could understand the questions and that they could give intelligent, relevant answers. This was in contrast to the witness the Court found incompetent who, when asked a very concrete question about the weather that day, indicated that it was snowing (not a correct answer). Under the circumstances of this case, this Court did not commit error in finding witnesses [K.W.], [E.J.] and [R.J.] to be competent.

Opinion at 6.

The trial court's inquiry, therefore, reflects a careful and guided determination as to whether each child was competent to testify. We find no abuse of discretion by the trial court.

Appellant next contends that the trial court erred in permitting the Commonwealth to re-question K.H. and in acting favorably towards the child. We note that appellant has preserved the issue of re-questioning the witness by objecting on the record and, therefore, we need not address the ineffectiveness alternative in this regard. Because appellant's specific objection was that the question was "asked and answered," however, appellant's assertion on appeal that the trial court's behavior towards K.H. improperly influenced the jury is waived. See Commonwealth v. Berry, 355 Pa.Super. 243, 255-56, 513 A.2d 410, 416 (1986). Nonetheless, because appellant has cloaked this issue in an ineffectiveness assistance of counsel claim, we are constrained to address it. See infra.

Regarding the re-questioning of a witness, we adhere to the following principles:

The trial judges of this Commonwealth exercise broad powers while presiding at the trial of cases assigned to them. These powers include ruling on the admission or exclusion of evidence and controlling the scope of examination and cross-examination of witnesses. Such matters are committed to the sound discretion of the trial judge. Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980).

Commonwealth v. Pittman, 320 Pa.Super. 166, 172-73, 466 A.2d 1370, 1373 (1983).

In the instant case, the trial court admitted that the child was re-questioned. The court noted, however, that the requestioning was warranted because the child was tired. Opinion at 11. The court further observed that the child appeared intimidated by the jury. Id. The witness, nonetheless, indicated that she had something to tell the judge. In the interest of arriving at the truth, the trial court's control of the examination was not an abuse of discretion.

Appellant's counsel claims his own ineffectiveness for failing to preserve a challenge to the trial court's favorable treatment of K.H. Our Supreme Court has recently mandated:

When appellate counsel asserts a claim of his or her own ineffective assistance of counsel on direct appeal, the case should be remanded for the appointment of new counsel except (1) where, it is clear from the record that counsel was ineffective or (2) where it is clear from the record that the ineffectiveness claim is meritless.

Commonwealth v. McBee, 513 Pa. 255, 261, 520 A.2d 10, 13 (1986) (emphasis in original). ³ We find that appellant's claim is meritless and, therefore, need not remand for the appointment of new counsel.

When determining whether counsel rendered ineffective assistance, we must determine, first, whether the underlying claim has arguable merit. Only if the claim is determined to be of arguable merit do we inquire as to the reasonableness of counsel's action or inaction. Finally, appellant must have been prejudiced by counsel's performance such that the trial outcome would likely have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Griffin, 357 Pa.Super. 308, 515 A.2d 1382 (1986).

Instantly, counsel's allegations concerning his performance do not surmount the arguable merit hurdle. There was simply no impropriety by the trial court to which counsel should have objected. Scrutiny of the record indicates that the trial court did not display its opinion as to the credibility of K.H. nor did the court question the witness in a way which reflects bias. As the court indicated, it was merely concerned with the comfort of the three and one-half year old victim:

In the instant case, this Court did not question the witness or in any way indicate an opinion as to the guilt or innocence of the defendant or the truth or untruth of witness' testimony.... This Court merely stated to the witness, after the district attorney elicited that the witness was tired, "Would you like to go and have lunch now and come back later" to which the witness answered, "Yes" and the Court stated, "All right you can do that, dear, you can step down and go with your Grandmom". This remark may show some appropriate solicitousness for the witness' well being but certainly does not indicate any opinion by the Court as to the truthfulness or untruthfulness of the witness' testimony. Later on that day, after the witnss [sic] had been on the stand for some period of time, the witness indicated to the assistant district attorney that she was tired. After a sidebar conference requested by the district attorney the Court merely said, "[K.H.] you can step down now, you can go home with Daddy. All right?" It is difficult to see how this comment can be interpreted as expressing an opinion of the Court to either the witness or the jury concerning anything about the witness' testimony. The defense also complains that the court displayed solicitude during the witness' testimony for her, "fatigue, comfort and the number of people watching her" citing N.T. 193-4. As the Notes of Testimony indicate, this Court merely asked the witness if she would...