Com. v. Garrett, J.

Superior Court of Pennsylvania

Com. v. Garrett, J.

DecidedNovember 30, 2018

Docket1341 EDA 2017

StatusUnpublished

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Bluebook

Com. v. Garrett, J., (Pa. Ct. App. 2018).

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Opinion

J-S46015-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAVON A. GARRETT : : Appellant : No. 1341 EDA 2017

Appeal from the Judgment of Sentence March 16, 2017 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005053-2014

BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 30, 2018

Javon A. Garrett appeals from the aggregate judgment of sentence of

six to twelve years incarceration, followed by thirty years probation, after a

jury convicted him of three counts of involuntary deviate sexual intercourse

(“IDSI”) involving victim Z.M. We affirm.

Appellant’s mother and Z.M.’s mother were close friends going back to

the 1980s such that Z.M.’s mother thought of Appellant as a brother, and Z.M.

knew him as “Uncle Javon.” N.T. Trial, 8/3/16, at 62-63. Z.M. and his brother

were around Appellant and his family nearly every day, often went to

Appellant’s home, and were left in Appellant’s care. Id. at 47, 68. One day

several years later, Z.M. went to his brother, told him that Appellant had

“made me suck his thing,” and burst into tears. Id. at 43-44. The brother

took Z.M. to his mother, and he repeated the story to her. Id. at 62, 64. The

following day, she took Z.M. to the police station. Id. at 67. J-S46015-18

Appellant was arrested and charged with, inter alia, three counts of

IDSI, and ultimately proceeded to a jury trial. The trial court summarized

the evidence offered against Appellant at trial as follows.

The facts at trial established that [Appellant] sexually assaulted [Z.M.] who at the times in question was between the ages of three and five. Said assaults took place over a one-and- [one]-half to two year period beginning in 2006. The victim testified that during this time period [Appellant] forced him to perform oral sex on [Appellant] between ten and twenty times. This occurred at three different locations: [Appellant’s] bedroom, [Appellant’s] basement, and in the victim’s home. The victim first told his brother and then his mother about these incidents. The day after his disclosure, the victim’s mother took the victim to the Chester police station where the victim explained to the police what had happened.

According to the victim, the first time [Appellant] forced him to perform oral sex occurred in [Appellant’s] bedroom. The victim testified that [Appellant] closed the door, moved his dresser in front of the door, and told the victim to "touch" and "lick" his penis. The victim also testified that, on a separate occasion, [Appellant] made the victim perform oral sex in the basement bathroom. Finally, the victim testified that [Appellant] also made him perform oral sex at the victim’s house, while the victim’s mother went to the market.

On March 16, 2017[, the trial] court sentenced [Appellant] to 24 to 48 months on each of the three counts of involuntary deviate sexual intercourse, which were ordered to run consecutively to each other. [Appellant] was also sentenced to 30 years of consecutive probation. [Appellant] was given credit for time served of 240 days. On March 20, 2017[, Appellant] filed a motion for reconsideration of sentence, which was denied . . . on March 30, 2017.

Trial Court Opinion, 10/30/17, at 1-2 (citations omitted).

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Appellant filed a timely notice of appeal, and both Appellant and the trial

court complied with Pa.R.A.P. 1925. Appellant presents only one claim of error

for this Court’s review:

The trial court abused its discretion in concluding that the victim, [Z.M.], was competent to testify at trial. No testimony was offered to demonstrate [Z.M.] had any recollection of the time period of the allegations against Appellant. To the contrary, [Z.M.] demonstrated a poor memory or no memory at all of both recent events and the time period of the allegations.

Appellant’s brief at 6.

We begin with the applicable law. “It is well-settled that the

determination of whether a child is competent to testify is within the sound

discretion of the trial court, and an appellate court should not interfere with

the lower court’s ruling absent a manifest abuse of discretion.”

Commonwealth v. Hunzer, 868 A.2d 498, 507 (Pa.Super. 2005). A mere

error in judgment does not constitute an abuse of discretion; “rather, an abuse

of discretion will be found when 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.”

Commonwealth v. Pukowsky, 147 A.3d 1229, 1233 (Pa.Super. 2016)

(citation and internal quotation marks omitted).

Under Pa.R.E. 601, “the testimony of any person, regardless of [his or

her] mental condition, is competent evidence, unless it contributes nothing at

all because the victim is wholly untrustworthy.” Commonwealth v. Boich,

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982 A.2d 102, 109 (Pa.Super. 2009). “The presumption of competency also

applies to child witnesses.” Id. at 110 n.6.

The witness at issue in the instant case, Z.M., was one month away from

turning thirteen years old. N.T., 8/2/16, at 4. Therefore, the following

informed the trial court’s duty.

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. 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.

Hunzer, supra at 507 (quoting Commonwealth v. D.J.A., 800 A.2d 965,

969 (Pa.Super. 2002)). Both the child’s ability to remember at the time of

the testimony, as well as his ability to have perceived the events about which

he is testifying when they happened, are relevant to the trial court’s

determination. D.J.A., supra at 970-71.

On appeal, Appellant does not contest that Z.M. “had a consciousness

of the duty to tell the truth, as well as the ability to communicate and express

answers to questions posed[.]” Appellant’s brief at 11. However, Appellant

argues that there was no evidence presented to demonstrate that Z.M. “had

the mental capacity to observe the occurrence itself and the capacity to

remember[.]” Id. It is Appellant’s position that, “[t]o the contrary, the limited

questions asked of record [show that] he had no memory of the time period

-4- J-S46015-18

of the allegations.” Id. Accordingly, Appellant maintains that the trial court

abused its discretion in permitting Z.M. to testify without having a proper basis

to conclude that Z.M. was competent to do so. Id.

By the time of the competency hearing, the trial court was familiar with

Z.M.’s recitation of his recollections of the events in question, which were

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