Commonwealth v. Judd

897 A.2d 1224

COMMONWEALTH of Pennsylvania v. James JUDD, Appellant.

Superior Court of Pennsylvania.

Submitted May 9, 2005.

Filed April 12, 2006.

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Peter A. Levin, Philadelphia, for appellant.

Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellee.

BEFORE: TODD, PANELLA, and POPOVICH, JJ.

OPINION BY PANELLA, J.:

¶ 1 Appellant, James Judd, appeals from the judgment of sentence entered on April 22, 2004, by the Honorable Anthony DeFino, Court of Common Pleas of Philadelphia County. After careful review, we affirm.

¶ 2 Judd lived in the basement of a friend's aunt's home, who was affectionately known as "grandmother" in her neighborhood. "Grandmother" often cared for the victims in this case, O.R. and S.H. O.R. and S.H. knew Judd as "Uncle James." Judd often drove O.R. and S.H. to school and took them shopping. He often allowed the children into his basement apartment to watch television.

¶ 3 In June 2002, O.R.'s parents became worried after hearing from a third party that Judd may have inappropriately touched O.R. When asked about Judd, O.R. admitted that Judd had touched her inappropriately. Furthermore, O.R. stated that Judd would often take the children into his apartment to watch pornography with him. Several days later, O.R.'s father met with S.H.'s mother, and the two questioned S.H. Upon being questioned, S.H. stated that Judd had put his "tail" in her "cuckoo."

¶ 4 Following these discussions, O.R.'s father contacted the police. During the police investigation, both children revealed further instances of sexual abuse by Judd. Judd was subsequently arrested, and a jury trial commenced on December 8, 2003. On December 10, 2003, Judd was convicted on two counts of rape,¹ two counts of indecent assault,² two counts of corrupting the morals of a minor,³ and one count of endangering the welfare of a child.⁴ Thereafter, on April 22, 2004, the trial court sentenced Judd to an aggregate term of imprisonment of not less than twelve nor more than twenty-four years. Judd filed post-sentence motions on April 25, 2004, which the trial court denied on April 29, 2004. This timely appeal followed.

¶ 5 On appeal, Judd raises the following issues for our review:

I. Whether the trial court was in error in not granting the following pretrial motions submitted by Appellant:

A. Motions to Determine Competency of Minor Witnesses and Request for Taint Hearing.

. . .

B. Motion to Compel Bill of Particulars.

. . .

C. Motion to Sever and Reply to Commonwealth's Motion to Consolidate.

. . .

D. Motion to Prohibit Introduction of Prior Convictions.

. . .

E. Motion to Preclude hearsay Statements of O.R. or S.H. From Any Family Member, Police Officer, Social Worker, Hospital Staff or Any Other Person.

. . .

F. Motion to Preclude Identification of Appellant Through Medical Witnesses and Documents.

. . .

II. Whether the trial judge was in error in not granting Appellants [sic] post trial Motion that the verdict was against the weight of the evidence.

Appellant's Brief, at 4. As stated, Judd's first six issues on appeal deal with the trial court's handling of the pre-trial motions filed by Judd. We address the issues seriatim.

¶ 6 First, Judd argues that the trial court erred in finding O.R. and S.H. competent to testify. The determination of a witness's competency rests within the sound discretion of the trial court. Commonwealth v. Bishop, 742 A.2d 178 (Pa.Super.1999), appeal denied, 563 Pa. 638, 758 A.2d 1194 (2000). The decision of the trial court will not be disturbed absent a clear abuse of that discretion; consequently, as the Superior Court has previously observed, "[o]ur standard of review of rulings on the competency of witnesses is very limited indeed." 742 A.2d at 186, citing Commonwealth v. McMaster, 446 Pa.Super. 261, 666 A.2d 724, 727 (1995).

¶ 7 In Pennsylvania, the general rule is that every witness is presumed to be competent to be a witness. Commonwealth v. Delbridge, 578 Pa. 641, 662, 855 A.2d 27, 39 (2003), opinion after remand, 580 Pa. 68, 859 A.2d 1254 (2004); Pa.R.E. 601(a). However, young children must be examined for competency pursuant to the following test:

(1) The witness must be capable of expressing intelligent answers to questions;

(2) The witness must have been capable of observing the event to be testified about and have the ability to remember it; and,

(3) An awareness of the duty to tell the truth.

Delbridge, 578 Pa. at 662, 855 A.2d at 39; Rosche v. McCoy, 397 Pa. 615, 620-621, 156 A.2d 307, 310 (1959). An allegation of taint centers on the second element of the above test. Delbridge, 578 Pa. at 664, 855 A.2d at 39. An allegation of taint must be supported by clear and convincing evidence. Commonwealth v. Lukowich, 875 A.2d 1169, 1173 (Pa.Super.2005), appeal denied, 584 Pa. 706, 885 A.2d 41 (2005). Where an allegation of taint is made before trial the "appropriate venue" for investigation into such a claim is a competency hearing. Delbridge, 578 Pa. at 664, 855 A.2d at 40. A competency hearing is centered on the inquiry into "the minimal capacity of the witness to communicate, to observe an event and accurately recall that observation, and to understand the necessity to speak the truth." Id., 578 Pa. at 663, 855 A.2d at 40. Credibility is not an issue at a competency hearing. Id.

¶ 8 Our Supreme Court has set the age of fourteen years as the upper limit to consider a witness immature for purposes of determining competency. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959). In turn, the concern addressed by a taint hearing is based on the immaturity of the witness:

The capacity of young children to testify has always been a concern as their immaturity can impact their ability to meet the minimal legal requirements of competency. Common experience informs us that children are, by their very essence, fanciful creatures who have difficulty distinguishing fantasy from reality; who when asked a question want to give the "right" answer, the answer that pleases the interrogator; who are subject to repeat ideas placed in their heads by others; and who have limited capacity for accurate memory.

Delbridge, 578 Pa. at 662, 855 A.2d at 39. These concerns clearly become less relevant as a witness's age increases, ultimately being rendered totally irrelevant as a matter of law by age fourteen. While the age of fourteen is somewhat arbitrary, it appears to give a sufficient buffer for slow developers such that any issue with competency at that age would need to be caused by some factor other than immaturity.

¶ 9 In the case sub judice, O.R. was fifteen years old when she testified at trial. N.T. 12/9/2003, at 9. As such, any issue with her ability to correctly remember the events in question is properly a question of credibility, and not of taint. Accordingly, Judd's challenge to the trial court's decision denying a taint hearing with respect to O.R. merits no relief.

¶ 10 In contrast, S.H. was six years old when she testified. Our Supreme Court has noted that the ability of a six year old to properly recall and comprehend past events and then adequately communicate these memories is inherently suspect. Delbridge, 578 Pa. at 665, 855 A.2d at 41. We therefore must address Judd's allegations of taint with respect to S.H. directly.

¶ 11 In order for the court to investigate the issue of taint at a competency hearing, however, the moving party must come forward with evidence of taint. Id., 578 Pa. at 664, 855 A.2d at 40. Once the moving party comes forward with some evidence of taint, the court must expand the scope of the competency hearing to investigate that specific question. Id. The party alleging taint bears the burden of production of "some evidence" of taint as well as the ultimate burden of persuasion to show taint by clear and convincing evidence after any hearing on the matter. Id., 578 Pa. at 664-665, 855 A.2d at 41. When determining whether a defendant has presented "some evidence" of taint, the court must consider the totality of the circumstances surrounding the child's allegations. Id., 578 Pa. at 664, 855 A.2d at 41. Some of the factors that are relevant in this analysis are: (1) the age of the child; (2) the existence of a motive hostile to the defendant on the part of the child's primary custodian; (3) the possibility that the child's primary custodian is unusually likely to read abuse into normal interaction; (4) whether the child was subjected to repeated interviews by various adults in positions of authority; (5) whether an interested adult was present during the course of any interviews; and (6) the existence of independent evidence regarding the interview techniques employed. Id. ¶ 12 In the present case, the trial court determined that Judd had not met his burden of producing sufficient evidence to warrant a closer inspection of the issue of taint with respect to S.H., and denied the motion for a taint hearing. N.T., 12/5/2003, at 89. We commend Assistant District Attorney Leslie Gomez for providing the trial court and opposing counsel with thorough and comprehensive information regarding the pretrial interviews and statements made by S.H. Id. at 63-89. It is clear from the record before us that the trial court conscientiously considered the uncontested proffered evidence of the interviews with S.H. in light of the factors set forth in Delbridge. We agree with the trial court that no evidence of taint was presented, let alone evidence which warranted a competency hearing to further investigate the issue of taint.

¶ 13 We have also closely examined the competency hearing held by the trial court out of the hearing of the jury. N.T., 12/9/2003, at 183-195. The trial court's determination of S.H.'s competency is supported in the record. Although she readily admitted she was scared, S.H. gave responsive and clear answers to ADA Gomez, defense counsel and the trial judge. The trial court acted...