Commonwealth v. Allabaugh

• Decision Date: 13 April 1948
• Citation: 58 A.2d 184,162 Pa.Super. 490
• Parties: Commonwealth v. Allabaugh, Appellant
• Court: Pennsylvania Superior Court

58 A.2d 184

162 Pa.Super. 490

Commonwealth v. Allabaugh, Appellant

Superior Court of Pennsylvania

April 13, 1948

Argued March 8, 1948.

Appeal, No. 41, Oct. T., 1948, from judgment of O. & T. and Q. S., Northampton Co., Dec. T., 1946, No. 82, in case of Commonwealth v. Michael Allabaugh.

Indictment charging defendant with sodomy. Before Frack, J.

Verdict of guilty and judgment of sentence thereon. Defendant appealed.

Justin D. Jirolanio with him Michael Donohue, for appellant.

Bernard Martin Goodman, Assistant District Attorney, for appellee.

Rhodes P. J., Hirt, Dithrich, Ross, Arnold and Fine, JJ. (Reno, J absent).

OPINION

DITHRICH, J.

Defendant was found guilty of having committed the crime of sodomy in that he had carnal knowledge of a female person, aged five years, by the anus.

The chief burden of his appeal is that his conviction on the uncorroborated testimony of the child, who did not know and could not comprehend or appreciate the meaning of an oath and who made no complaint to either of her parents, should not be permitted to stand.

That the uncorroborated testimony of the victim alone is sufficient to sustain a conviction of sodomy is well established by a long line of cases. Commonwealth v. Ebert, 146 Pa.Super. 362, 22 A.2d 610; Commonwealth v. Oyler, 130 Pa.Super. 405, 197 A. 508; Commonwealth v. Ramstedt, 113 Pa.Super. 548, 173 A. 772; Commonwealth v. Kertezitis, 111 Pa.Super. 5, 169 A. 417. It is only when the testimony of the one witness, in this case the victim, is so indefinite, contradictory, or unreliable that it would be unsafe to rest a conviction upon it, that corroboration is required. Commonwealth v. Cyaus, 88 Pa.Super. 227; Commonwealth v. Oyler, supra.

Although in the instant case the child victim did not know and could not comprehend or appreciate the meaning of an oath, the trial judge permitted her to be sworn and to testify, stating that in his opinion the child "who was within two weeks of being six years old, was intelligent, comprehended her duty to tell the truth and nothing else when she would testify and that she had promised she would testify only to the truth and realized that if she would not do so, she would be punished in various ways." Since much must be left to the discretion of the trial judge in determining the competency of a witness of tender years (Piepke v. Philadelphia and Reading Railway Co., 242 Pa. 321, 89 A. 124), we cannot say in this case, although the answers of the witness in her voir dire were not altogether satisfactory, that the trial judge was guilty of an abuse of discretion in permitting her to testify.

"The substantial test of the competency of an infant witness is his intelligence, and his comprehension of an obligation to tell the truth. The truth is what the law, under the rules of evidence is seeking, and if a full and present understanding of the obligation to tell it, is shown by the witness, the nature of his conception of the obligation is of secondary importance. . . . the witness clearly comprehended the difference between truth and falsehood, and his duty to tell the truth. That was the substance of qualification as a witness. The trial judge in whose discretion the matter very largely rested was satisfied of the competency of the boy, and we are of opinion that his discretion was well exercised." (Emphasis added.) Commonwealth v. Furman, 211 Pa. 549, 550, 60 A. 1089; Commonwealth v. Troy, 274 Pa. 265, 270, 118 A. 252.

Much emphasis is placed by defendant on the fact that the child made no complaint to her parents or to anyone else, so far as is disclosed by the record. The case of the Commonwealth is unquestionably weak in that respect, and we are not disposed to accept the explanation that it was merely because the defendant had told the child that she "shouldn't" tell her parents that she didn't "tell anybody about it." The record would be much more satisfactory if it disclosed how the alleged offense was brought to the attention of the authorities; but, since the prosecution was instituted within a few days of the alleged occurrence and the jury was properly instructed that it should take into consideration the failure of the child in not "making a prompt report of the occurrence . . . in determining whether the girl is a truth-telling girl," the weakness in the Commonwealth's case is not...