Commonwealth v. Shearer

828 A.2d 383, 2003 Pa. Super. 240, 2003 Pa. Super. LEXIS 1861

• Court: Superior Court of Pennsylvania
• Decided: June 20, 2003
• Status: Published

Opinions

OPINION BY

HUDOCK, J.:

¶ 1 This is a certified interlocutory appeal taken by the Commonwealth from a pre-trial order compelling a child witness to submit to psychological testing prior to the trial court’s determination of whether the child is competent to testify in court.¹ We quash.

¶ 2 In November of 1999, James Alvin Shearer, Sr. (Appellee) was charged with sexually assaulting a four year old boy. On August 11, 2000, the Commonwealth filed a notice as required by the Tender Years Hearsay Act² that the prosecutor intends to offer into evidence a taped interview with the child that was conducted by Butler County Children and Youth Services. Appellee moved to have the child examined by a psychologist alleging that the little boy’s competency to testify is an issue in the case. The trial court conducted several hearings on the matter at which the Commonwealth unsuccessfully opposed the defense motion.

¶ 3 On April 5, 2001, the trial court entered an order directing the child to submit to an examination by Appellee’s proposed expert. A second order, entered on April 26, 2001, states that the psychologist must confine the examination to ascertaining the boy’s ability to give a correct account of events he has seen or heard regarding the acts charged against Appel-lee. The trial court clearly indicated the purpose of the psychological examination is to assist in the court’s determination of whether the child is competent to testify against Appellee. Trial Court Opinion, 4/26/01, at 3.

¶ 4 On May 2, 2001, the Commonwealth filed a notice of appeal accompanied by a certification pursuant to Rule of Appellate Procedure 311(d) that the pre-trial order will terminate or substantially handicap the prosecution of the charges against Ap-pellee. The trial court directed the Commonwealth to file a concise statement of issues raised on appeal and the Commonwealth complied. Initially, a three judge panel of this Court quashed the Commonwealth’s appeal as interlocutory and unap-pealable at this stage of the proceedings. The Commonwealth sought en banc review and we granted its request. This appeal presents two arguments for our consideration: (1) whether the Superior Court has jurisdiction to hear the Commonwealth’s appeal from the trial court’s pre-trial order compelling the child witness to undergo a compulsory psychological examination; and (2) whether the trial court erred in ordering a compulsory mental examination of the child by Appellee’s proposed expert.

¶ 5 The Commonwealth first argues that Rule of Appellate Procedure 311(d) authorizes an appeal from any pre-trial order whenever the prosecutor files a certification that the order effectively terminates a case or imposes a substantial handicap to the prosecution. According to the Commonwealth, a Rule 311(d) certification automatically creates jurisdiction for an appellate court to address any and all substantive questions certified by a prosecutor. We cannot agree with this position.

¶ 6 Rule of Appellate Procedure 311 states in pertinent part:

In a criminal case, under circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution.

Pa.R.A.P. 311(d). The Rule does not explicitly limit the Commonwealth’s right of interlocutory appeal to any particular class of pre-trial orders. Rather, it indicates that the Commonwealth may proceed with an interlocutory appeal “under circumstances provided by law.” Id.

¶ 7 Our Supreme Court has explained that the entire purpose of amending Rule 311 to add subsection (d) was to “permit an interlocutory appeal as a matter of right to the Commonwealth in instances where the Commonwealth asserts that the order will terminate or substantially handicap the prosecution.” Commonwealth v. Rosario, 538 Pa. 400, 404, n. 3, 648 A.2d 1172, 1174 n. 3 (1994). It is clear from the context in which the above statement was made that the Supreme Court’s attention was focused on the effect of a pre-trial order granting suppression. However, our Supreme Court subsequently extended this reasoning and permitted the Commonwealth to appeal a pre-trial order granting a motion in limine excluding evidence. Commonwealth v. Matis, 551 Pa. 220, 231, 710 A.2d 12, 17 (1998). Matis relies on an earlier Supreme Court determination that no fundamental distinction can be made between a motion to suppress evidence and a motion in limine concerning the admissibility of evidence:

There is no essential difference between suppression rulings and rulings on motions in limine to admit or exclude evidence. In both cases, a pretrial ruling is handed down which admits or excludes evidence at trial, and in both cases, once a jury is sworn, the Commonwealth may not appeal from an adverse ruling. That suppression motions are always of constitutional dimension and motions in limine are only sometimes of constitutional dimension is of no import, for in both cases, without an immediate right of review, the Commonwealth’s case may be so hampered that the Commonwealth may be unable to proceed.

Commonwealth v. Gordon, 543 Pa. 513, 517, 673 A.2d 866, 868 (1996). This ruling turns on the inescapable reality that, once a jury is sworn, the Commonwealth may not appeal an adverse ruling, whatever form that ruling takes. Id., 543 Pa. at 517, 673 A.2d at 868.

¶ 8 The Double Jeopardy Clause of the United States Constitution bars a second prosecution for the same offense after either an acquittal or a conviction. Commonwealth v. McGee, 560 Pa. 324, , 744 A.2d 754, 756 (2000). “Double jeopardy protections afforded by the United States and Pennsylvania constitutions are coextensive and prohibit repeated prosecutions for the same offense.” Commonwealth v. Lively, 530 Pa. 464, 467, 610 A.2d 7, 8 (1992). Our statutory law explicitly precludes the Commonwealth from trying a defendant a second time if a former prosecution resulted in either acquittal or conviction. Commonwealth v. Bracalielly, 540 Pa. 460, 470, 658 A.2d 755, 760 (1995) (citing 18 Pa.C.S.A. § 110). Thus, double jeopardy considerations preclude appeal if the Commonwealth loses. If it wins, it still may not appeal because it is not an aggrieved party. In contrast, a defendant convicted under an erroneous pre-trial ruling retains the opportunity to cure the defect on appeal.

¶ 9 Our Supreme Court originally authorized the Commonwealth to take interlocutory appeals from pre-trial suppression orders because of the effective finality of such rulings:

From the point of view of the Commonwealth, two possible situations may arise: (a) the order of suppression will result in a termination and conclusion of the prosecution or (b) while the order of suppression will not result in a termination or conclusion of the prosecution, it will result in a prosecution wherein the Commonwealth is handicapped because it cannot present all its available evidence.

Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, 308 (1963). The Court further explained that unless the prosecution is afforded the right of appeal after entry of an adverse suppression order, the Commonwealth will be completely deprived of any opportunity ever to secure an appellate court evaluation of the validity of that pre-trial order.

¶ 10 Bosurgi and its progeny address the Commonwealth’s need to proceed to trial with the proper quantum of admissible evidence. If the Commonwealth has no opportunity to obtain appellate review of an adverse pre-trial interlocutory order implicating double jeopardy concerns, such review will never occur because the Commonwealth cannot try a defendant for a second time if the first prosecution results in an acquittal. Thus, some pre-trial evi-dentiary rulings are in essence “final” in the sense that if the defendant is acquitted, appellate review of the trial court’s order can never be attained. This premise is so basic that our Supreme Court has not limited the principle originally articulated in Bosurgi only to pre-trial evidentiary rulings. See, e.g., Matis, supra (permitting the Commonwealth to appeal, on double jeopardy grounds, from an order denying a continuance to secure a necessary witness); Commonwealth v. Johnson, 542 Pa. 568, 669 A.2d 315 (1995) (authorizing the Commonwealth to appeal from an order transferring a case from the criminal division to the juvenile division because double jeopardy attaches at the initiation of a juvenile adjudicatory hearing).

¶ 11 In the present case, a pretrial competency ruling is required of the trial court with regard to the child witness. As a general matter, a witness’s competency to testify is presumed and the burden falls on the objecting party to demonstrate the witness’s incompetence. Commonwealth v. Harvey, 571 Pa. 533, 548, 812 A.2d 1190, 1199 (2002). However, when a child under the age of fourteen is called to testify, the child’s competency must be independently established. Id. A child’s competency to testify is a threshold legal issue that the trial court must decide. Commonwealth v. Washington, 554 Pa. 559, 563, 722 A.2d 643, 646 (1998). In order to be found competent, a child under fourteen must possess: (1) the capacity to communicate, including both the ability to understand questions and to frame and express intelligent answers, (2) the mental capacity to observe the occurrence itself and to remember the matter about which the child has been called to testify, and (3) a consciousness of the duty to speak the truth. Harvey, 571 Pa. at 548-49, 812 A.2d at 1199. The competency inquiry must take place outside the presence of the jury. Washington, 554 Pa. at 566, 722 A.2d at 647.

¶ 12 Instantly, the trial has not commenced, no jury has been impaneled, and no competency hearing has been conducted by the trial court. In recognition of its obligations, the trial court has ordered the child witness to submit to a psychological examination prior to the competency hearing. However, no order has as yet been entered which either declares the child to be incompetent or suppresses any portion of the child’s proposed testimony. Furthermore, the trial court has entered no order indicating that Ap-pellee will be permitted to call the examining psychologist as a witness. In other words, no order has been entered delineating the quantum of evidence that the Commonwealth or Appellee will be permitted to adduce at trial.

¶ 13 If the trial court declares the child to be incompetent, thereby excluding evidence, Bosurgi and its progeny authorize the Commonwealth to pursue an interlocutory appeal as of right pursuant to Rule 311(d). See also Commonwealth v. D.J.A., 800 A.2d 965 (Pa.Super.2002) (en banc) (explicating relevant considerations in a Commonwealth appeal from an order declaring a child witness incompetent to testify concerning sexual abuse allegations). If the trial court denies a motion in limine and permits Appellee to adduce psychological evidence to which the Commonwealth objects, the prosecutor may certify an interlocutory appeal consistent with our decision in Commonwealth v. Jones, 826 A.2d 900 (Pa.Super.2003)(en banc). The Commonwealth clearly has a right to challenge a pretrial ruling that circumscribes the quantum of evidence it may adduce at trial. But no such ruling has been made yet. The pre-trial order entered in this case is in no sense “final” and it does not implicate double jeopardy concerns. Therefore, despite the Commonwealth certification pursuant to Rule 311(d), we cannot justify asserting jurisdiction over this appeal.

¶ 14 Because of our ruling on the jurisdictional issue, we do not reach the merits of the Commonwealth’s challenge to the trial court’s order. The questions of whether the child witness will be declared competent to testify and, if so, whether counsel for appellee will be permitted to subject the boy to harsh cross-examination, must be left for the trial court to resolve at the appropriate time. See Ap-pellee’s Brief at 14 (indicating the intention of Appellee’s counsel to conduct a brutal cross-examination thereby inflicting emotional trauma with “lasting effects”). As matters now stand, the trial court’s order has neither terminated nor substantially handicapped the Commonwealth’s case. Thus, there is no jurisdictional basis for this appeal and we must quash it.

¶ 15 Appeal quashed. Superior Court jurisdiction relinquished. The case is remanded to the trial court for further proceedings.

¶ 16 DEL SOLE, P.J. files a Concurring Opinion, joined by McEWEN, P.J.E., TODD, J., and BENDER, J. ¶ 17 TODD, J. concurs in the result of this Opinion by HUDOCK, J. ¶ 18 GRACI, J. files a Dissenting Opinion, joined by STEVENS, J.

1 . The Commonwealth has certified that the order in question substantially handicaps the prosecution pursuant to Rule of Appellate Procedure 311(d).

2 . 42 Pa.C.S.A. § 5985.1.