Commonwealth v. D.J.A.

800 A.2d 965, 2002 Pa. Super. 176, 2002 Pa. Super. LEXIS 1130
CourtSuperior Court of Pennsylvania
DecidedJune 5, 2002
StatusPublished
Cited by38 cases

This text of 800 A.2d 965 (Commonwealth v. D.J.A.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. D.J.A., 800 A.2d 965, 2002 Pa. Super. 176, 2002 Pa. Super. LEXIS 1130 (Pa. Ct. App. 2002).

Opinions

FORD ELLIOTT, J.

¶ 1 The Commonwealth asks us to determine whether the trial court abused its discretion when it found a seven-year-old girl, “A.A.”, incompetent to testify in a criminal action involving child sexual abuse. We are also asked to decide whether the trial court abused its discretion when it found A.A.’s statement to her physician implicating defendant/appellee as the perpetrator of the alleged abuse inad[968]*968missible pursuant to Pa.R.E. 803(4), 42 Pa.C.S.A. We affirm in part and reverse in part. Our reasons, and a brief statement of the facts of this case, follow.

¶ 2 From October 1996 through June 1997, appellee, A.A.’s father, had physical custody of A.A. and her two siblings, who resided with appellee and his paramour. On June 16, 1997, Child Protective Services received a report of suspected child abuse, alleging that appellee had fondled A.A.’s vaginal area and buttocks on more than one occasion and had physically hurt her. Child Protective Services sent the report to Erie County Children and Youth Services (“CYS”), whose case worker, Amy Hoffman, conducted four interviews with A.A., three of which were tape recorded. Ms. Hoffman also interviewed A.A.’s siblings.

¶ 3 On September 11, 1997, Dr. Justine Schober, a pediatric urologist, examined and interviewed A.A., who made the same disclosures to Dr. Schober that she had made to Ms. Hoffman. Dr. Schober’s physical examination revealed evidence of anal penetration but no evidence of vaginal penetration. CYS then referred the case to the Pennsylvania State Police, which filed criminal charges against appellee on April 2, 1998, setting forth counts of rape, involuntary deviate sexual intercourse (“IDSI”), indecent assault, corruption of minors, and endangering the welfare of children.1

¶ 4 On April 20, 1998, A.A., by then age six, testified at appellee’s preliminary hearing concerning the allegations of abuse. Following the hearing, appellee was held over for trial. The Commonwealth then filed an information setting forth the counts enumerated above, and the case was eventually scheduled for trial in February 2000. On February 4 and 7, 2000, the trial court held a hearing to determine whether A.A. was competent to testify at trial; and on February 8th, the court ruled from the bench that A.A., who by then was almost eight years old, was incompetent to testify.

¶ 5 The Commonwealth next presented the court with Dr. Schober’s interview of A.A. by way of an offer of proof. The court precluded the Commonwealth from introducing testimony concerning the identity of the alleged perpetrator. This timely appeal followed, in which the Commonwealth raises the following issues:

A. DID THE TRIAL COURT ERR IN EXCLUDING FROM EVIDENCE THE CHILD VICTIM’S TESTIMONY BASED ON INVESTIGATIVE INTERVIEWS CONDUCTED OF THE CHILD AND THE CHILD’S TESTIMONY AT THE PRELIMINARY HEARING?
B. DID THE COURT ERR IN CONSIDERING AND ENTERTAINING THE TESTIMONY BY AN EXPERT WITNESS PROFFERED BY THE DEFENSE ON INTERVIEWING TECHNIQUES OF THE CHILD AND YOUTH SERVICES WORKER WHO INVESTIGATED ALLEGATIONS OF ABUSE RATHER THAN BASE ITS COMPETENCY DECISION ON THE QUESTIONING OF THE CHILD WITNESS HERSELF BY THE COURT?
C. DID THE COURT ERR IN EXCLUDING THE TESTIMONY OF AN EXAMINING PHYSICIAN CONCERNING STATEMENTS BY THE CHILD AS TO THE [969]*969IDENTITY OF THE ALLEGED PERPETRATOR, STATEMENTS THAT WERE MADE BY THE CHILD IN THE COURSE OF A MEDICAL EXAMINATION AND WERE OFFERED BY THE COMMONWEALTH UNDER THE MEDICAL TREATMENT EXCEPTION TO THE HEARSAY RULE?

Commonwealth’s brief at 4.

¶ 6 As this court recently observed:

‘Our standard of review of rulings on the competency of witnesses is very limited indeed. As one Pennsylvania commentator has stated it, such rulings by trial judges will not be reversed except for a “flagrant abuse of discretion.” 2 Henry, Pennsylvania Evidence § 790 (1953). Professor Wigmore goes further still in suggesting that appellate courts should virtually never disturb such rulings; it is preferable, he argues, to accept the testimony for what it is worth and leave the matter of credibility to the fact-finder. IV Wigmore on Evidence § 1821 (Rev. ed.1976). See also ALI, Model Code of Evidence, Rule 101 & p. 340 (1942).’

Commonwealth v. McMaster, 446 Pa.Super. 261, 666 A.2d 724, 727 (1995), quoting Commonwealth v. Mangello, 250 Pa.Super. 202, 378 A.2d 897, 898-899 (1977) (other citations omitted). McMaster’s citation to Wigmore clearly indicates that a finding of competency is the rule, with credibility being a separate issue for the fact-finder.2

¶ 7 When ruling on the competency of a witness, the following principles should guide the court:

‘[Competency of a witness is presumed, and the burden falls on the objecting party to demonstrate incompetency. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959); Commonwealth v. Mangello, swpra. 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.’

Id., quoting Commonwealth v. Short, 278 Pa.Super. 581, 420 A.2d 694, 696 (1980) (other citation omitted). 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.’

Id., quoting Rosche, supra at 620-621, 156 A.2d at 310 (other citations omitted).

¶ 8 In 1998, the supreme court adopted the Pennsylvania Rules of Evidence, including Rule 601, Competency, which provides:

Rule 601. Competency
(a) General Rule
Every person is competent to be a witness except as otherwise provided by statute or in these Rules.
(b) Disqualification for Specific Defects
A person is incompetent to testify if the Court finds that because of a mental condition or immaturity the person:
(1) is, or was, at any relevant time, incapable of perceiving accurately;
[970]*970(2) is unable to express himself or herself so as to be understood either directly or through an interpreter;
(3) has an impaired memory; or
(4) does not sufficiently understand the duty to tell the truth.

Pa.R.E. 601, 42 Pa.C.S.A. The Comment to Rule 601 indicates that Rule 601(b) is consistent with Pennsylvania decisional law concerning the competency of, inter alia, children of tender years. Comment— 1998, citing Rosche, supra.

¶ 9 The trial court, when making a determination of competency, is confronted by conflicting policies:

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Bluebook (online)
800 A.2d 965, 2002 Pa. Super. 176, 2002 Pa. Super. LEXIS 1130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dja-pasuperct-2002.