Com. v. Washington

Citation722 A.2d 643,554 Pa. 559
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Calvin WASHINGTON, Appellant.
Decision Date22 December 1998
CourtUnited States State Supreme Court of Pennsylvania

John W. Packel, L. Roy Zipris, Philadelphia, for Calvin Washington.

Catherine Marshall, Thomas W. Dolgenos, Philadelphia, for Com.



NIGRO, Justice.

Calvin Washington (Washington) appeals an Order of the Superior Court that affirmed the judgment of sentence following his convictions in the Court of Common Pleas of Philadelphia (trial court). We reverse the Order of the Superior Court.


Washington resided with his girlfriend, Crystal Thomas, and her two female children, D.T.1 (born July 3, 1984), and I.T. (born June 7, 1983), in Philadelphia. Early in July 1991, the children told Ms. Thomas that Washington had sexually molested them on numerous occasions while she was not home. They said the molestation consisted of Washington having vaginal and anal intercourse with them, and inserting his finger and tongue into their vaginas. The children were approximately five and six years old respectively during the pertinent period of time.

Thomas reported the molestation to the police in July of 1991, and the police officer assigned to this case interviewed the children and prepared copies of their statements. After that, the assigned police officer became ill and the police department took no further action on this case until June of 1992, when the officer returned to work on limited duty and obtained a warrant for Washington's arrest. On August 7, 1992 Washington was arrested and charged with two counts of rape, two counts of corruption of minors, two counts of indecent assault, two counts of involuntary deviate sexual intercourse, and one count of aggravated indecent assault.

Defense counsel raised a challenge to the competency of the two complainants, who were eight and nine years old at the time of trial. When defense counsel requested a competency hearing outside the presence of the jury, the following exchange occurred:

"[DEFENSE COUNSEL]: Judge, I am going to ask that you conduct a competency hearing with regard to both of the complaining witnesses, and I would ask that you do that out of the presence of the jury, that certainly not —
THE COURT: Competency hearing for what purpose?
[DEFENSE COUNSEL]: To see if they are competent to testify, and I am challenging their competency. I reviewed the preliminary hearing —
THE COURT: No; they will be examined. They will be called as witnesses by the assistant district attorney, and they will be testifying.
[DEFENSE COUNSEL]: Well, Judge, I am going to ask that you allow a voir dire with regard to competency which is certainly not an issue for the jury, but an issue for your honor, and I would ask that you do that out of the presence of the jury.
I believe that there is information that will come up during competency —
THE COURT: No, you want a mini trial, which you are not going to have. We are not having a mini trial."

Notes of Testimony, May 18, 1993 at 18-19.

During trial in the presence of the jury, the prosecutor and defense counsel conducted voir dire of the juvenile witnesses concerning their competency to testify. Id. at 45-61. During voir dire of D.T., the prosecutor asked her about her age, birthday, the names and ages of her sisters, what grade she was in, the name of her school, and the names of her current and former teachers. D.T. was asked whether she knew the difference between telling the truth and telling lies, and demonstrated that she knew the difference by asking a simple question about whether she was telling the truth when she described the color of a jacket she was wearing. D.T. testified that it is good to tell the truth and bad to tell lies. She said that if she told a lie, she would get in trouble, her mother would punish her, and God would feel upset. D.T. further stated that she would not tell a lie even if nobody knew about it, and that she would tell the truth in court.

On cross-examination, D.T. admitted that she had told lies "when she was little," and that her mother became angry and gave her a beating. She stated that she had practiced her testimony with the assistant district attorney before going to court, and she remembered testifying in a prior court proceeding. Defense counsel probed D.T.'s ability to remember by asking her about how she spent recent birthdays and Christmas, and what presents she had received. D.T. said that God would be mad at her if she lied, but she nevertheless stated if her mother wanted her to, she would lie.

On redirect examination, D.T. stated that she would not lie in court if her mother asked her to, and that she would tell the truth. At the conclusion of voir dire, defense counsel objected to D.T.'s competency. In the presence of the jury, the trial court stated, "Objection overruled. The witness is competent." Id. at 61. The trial court did not give the jury any other instructions concerning the meaning of its ruling on competency.

The prosecutor and defense counsel posed similar questions to I.T. Id. at 170-177. At the conclusion of voir dire concerning I.T.'s competency, defense counsel also objected to her competency, and the trial court ruled that she was competent to testify. Again, this occurred in the presence of the jury without any additional instructions concerning the meaning of the trial court's ruling. Following trial, the jury convicted Washington of all charges. The trial court denied post trial motions and sentenced him to an aggregate term of seven and one-half to twenty years incarceration.

The Superior Court affirmed the judgment of sentence in a Memorandum Opinion and Order dated February 27, 1996. This Court granted allocatur to determine whether competency proceedings should be held in the presence of the jury.

Washington does not challenge the merits of the trial court's ruling on the competency of the victims, but argues that conducting voir dire concerning I.T. and D.T.'s competency in the presence of the jury was improper. He argues that permitting the jury to observe voir dire and the trial court's ruling concerning competency had the practical effect of the trial court endorsing the credibility of the witnesses. He claims that he suffered prejudice because the jury was exposed to the witnesses' repeated assertions that they were telling the truth.2

Washington argues that questions, which are permissible during a competency hearing of a witness of tender years, are improper in the presence of the jury because such questioning unfairly bolsters the testimony of the child witness. He also argues that allowing the jury to observe the competency hearing distinguishes the child's testimony from other witnesses who, because they are not challenged for competency, cannot insist that they will tell the truth.

A child's competency to testify is a threshold legal issue that the trial court must decide, and an appellate court will not disturb its determination absent an abuse of discretion. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959). In Rosche, this Court stated the following as the standard for the competency of a witness:

There must be (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 [the child] is called to testify about and (3) a consciousness of the duty to speak the truth.

Id. at 620-21, 156 A.2d at 310.

On the other hand, assessing the truthfulness of a child witness during trial is a function for the finder of fact when deliberating. The invariable result of a jury's presence during competency proceedings is that the truth determining process exclusively reserved for the jury is influenced by the inquiry into competency. Moreover, the jury's presence during the ruling of a witness's competence can only be an endorsement by the trial judge of the witness's credibility. Should the witness be deemed incompetent, the likely result is a mistrial, which certainly nullifies any promise of judicial economy. A competency hearing of a child witness necessarily entails an investigation into the witness's appreciation of the importance of telling the truth. Thus, the attorney might pose questions that are proper during a competency hearing, but which would be improper during trial before the jury because they would be irrelevant, call for hearsay, or violate evidentiary rules and statutes. Thus, conducting the hearing in the presence of the jury also gives rise to the risk that the jury may hear inadmissible testimony.

The issue of whether a competency hearing should be conducted in the absence of the jury is one of first impression.3

There is a division of authority among the courts of other jurisdictions concerning whether a voir dire examination of a child witness should be conducted in the presence of the jury. Several jurisdictions have held that conducting this examination in the presence of the jury is proper. In many of those cases, however, the appellate courts have required an instruction to the jury advising that it is the sole judge of credibility of witnesses.4 Other authorities hold or indicate a preference that the examination should be conducted in the absence of a jury, but require that the party questioning competency must request that the examination be conducted outside the presence of the jury. Absent such a request, the claim is waived.5

This Court recognizes that there are valid reasons to allow a jury to observe voir dire of a child witness. When addressing this issue in State v. Harris, 1988 WL 38034, (Ohio App. 5 Dist.1988), the Ohio Court of Appeals quoted from commentators who stated the following:

There are occasions when no harm will result from

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