Johnsonbaugh v. Department of Public Welfare , 1995 Pa. Commw. LEXIS 410 ( 1995 )

RODGERS, Senior Judge,

dissenting.

I respectfully dissent to the majority’s conclusion that Susan R. was competent to testify-

The general rule is that a person with mental illness is competent to testify if she is capable of giving a correct account of matters which she has seen or heard in reference to the questions at issue. Kakas v. Department of Public Welfare, 65 Pa.Commonwealth Ct. 550, 442 A.2d 1243 (1982). Testimonial competency also requires minimum mental capacity at the time of the events testified to. Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974). The capacity to communicate, in itself, is meaningless unless it is supported by the capacity to note an occurrence at the time it happened and the ability to remember it. Id. Moreover, testimonial competency requires the mental capacity to perceive the event with a substantial degree of accuracy. Id.

In Kakas, the court stated that there was no indication in the record that the witness in question lacked the mental capacity to “understand the questions, communicate intelligible answers, or recollect the events in issue”. Id. at 552, 442 A.2d at 1244. The same cannot be said of the record in the present ease.

From the beginning of Susan R.’s brief direct examination, her testimony indicated that she was confused, at the very least, regarding the alleged events. For instance, the following exchange ensued:

Q When did you tell a staff member? When was the first time you told someone?

A About what?

Q About what happened, about you going in the elevator with him, and about the recreation room or the storage room?

A Something happened. I don’t know what happened, but something must have—

Q Okay. You don’t—

A —happened.

N.T. 52.

On cross-examination, the first question posed to Susan R. was regarding the dates the alleged incidents occurred.¹ In response, Susan R. testified as follows:

A It’s supposed to have been on the list; so, you’re going to have to check in with Jesus and God as to the dates and the time.

Q I’m sorry? I didn’t understand what you said.

A Oh—

Q Could you repeat what you said?

A I said, the times and the dates and the minutes, and stuff like that, usually are on the list when I did it.

Q What list are you talking about?

A Well, I sold my soul to the Devil for a list.

N.T. 53.

At this point, DPW’s attorney admitted that Susan R. is delusional and will go on about the devil and Jesus Christ. N.T. 54. Susan R. went on to testify that she and Petitioner had sex almost every day. N.T. 65-66.

The Commission relied on the testimony of Dr. Coronado in determining that Susan R. was competent to testify. Dr. Coronado explained that Susan R.’s diagnosis of undifferentiated schizophrenia meant that she can be out of touch with reality and sometimes see and feel things that don’t exist.² Dr. Coronado spoke to Susan R. once about the alleged incidents and opined that, at that time, her mental state was stable and her memory intact.

Dr. Coronado admitted that Susan R. was capable of lying.³ Most important, Dr. Coronado agreed that if Susan R. were delusional about having sex with other staff members, it is more likely than not that her testimony regarding Petitioner is delusional. N.T. 38.

As the majority notes, Petitioner’s former supervisor stated that Susan R. had told him on several occasions that she was carrying his baby. Three other witnesses corroborated this testimony, stating that Susan R. often said that she was carrying other staff members’ babies. A competent person would understand that having a baby presupposes engaging in sexual relations (absent medical — or divine — intervention). Thus, while the majority emphasizes that Susan R. did not accuse other staff members of impropriety, her statements that she was carrying their babies evidence a delusional belief that she had sex with them.

When reviewed as a whole, the record does not support the determination by the Commission that Susan R. possessed the mental capacity to understand questions, communicate intelligible answers and accurately recollect events at issue. Accordingly, I would reverse.

1 . As a matter of fundamental fairness, Petitioner was entitled to know the dates the alleged incidents of illicit sex with the patient occurred in order to properly defend himself.

2 . The record also reflects that Susan R. had a proclivity for sexual encounters and sexual fantasies, was sexually promiscuous with other patients, and had propositioned other staff members. N.T. 193-94, 293.

3 .Additionally, other witnesses testified that, on several occasions, Susan R. had threatened to do to them what she had done to Petitioner, i.e., that she would cause them to be terminated. N.T. 300-01, 336-37.