DocketNumber： 01640, 01792
Judges： Brosky, Wieand, Beck
Filed Date： 2/22/1988
Status： Precedential
Modified Date： 10/19/2024
At a jury trial, appellants, former Philadelphia police officers, together with one other defendant who has not appealed, were convicted of bribery in official matters and criminal conspiracy. The evidence established that appellants accepted a $400.00 payment to ensure two reputed mob hitmen, Joseph Pedulla and Victor DeLuca, that their bail would not rise above $50,000.00 each. After accepting payment, appellants expedited DeLuca and Pedulla’s processing and arraignment, and they were in fact released on $50,000.00 bail each.
Appellants were subsequently brought to trial. DeLuca and Pedulla testified against them. Both appellants inter alia challenge the competency of these witnesses, but only appellant Trudell has preserved any issues for appeal.
Although both appellants filed timely post-verdict motions, those motions simply stated that the verdict was contrary to the law and weight of the evidence. Such boilerplate challenges do not preserve any issues for appellate review. Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). Although appellant Verdón “re
Appellant Trudell, while having filed boilerplate post-verdict motions, did seek and obtain court permission to file supplemental motions, thereby preserving those issues contained in his filed supplemental motions. Commonwealth v. Rosko, 353 Pa.Super. 307, 509 A.2d 1289 (1986); Commonwealth v. Holmes.
Appellant Trudell has preserved and raised the following claims on appeal: (1) that witness Joseph Pedulla was incompetent to testify; (2) that the testimony of witnesses Victor DeLuca and Joseph Pedulla was patently unreliable; (3) that certain diagrams used by the Commonwealth were impermissibly distorted; (4) that the prosecutor commented on appellant’s failure to testify; and (5) that juror misconduct tainted the entire jury panel. We find all these contentions meritless and so affirm appellant Trudell’s judgment of sentence.
Trudell first argues that Commonwealth witness Joseph Pedulla, an admitted murderer and mobster, should have been ruled incompetent to testify because he had committed perjury before the grand jury and allegedly lacked the moral responsibility to tell the truth. Pedulla admitted to lying before the grand jury but was never prosecuted for perjury. He claimed to have lied pursuant to a mob “code of silence” which required him to protect those persons involved in illegal activities with him.
The court conducted an inquiry into Pedulla’s competency. In response to the court’s questioning, Pedulla repeatedly insisted that since he left the mob his reasons for lying no longer existed. He also acknowledged that taking the oath meant something to him and asserted his belief that only the truth could protect him now.
The trial court found Pedulla competent to testify. In support of this conclusion, the court noted that although in
The competency of a witness to testify is a matter within the sound discretion of the trial judge, whose decision will not be reversed absent a clear abuse of discretion. Commonwealth v. Short, 278 Pa.Super. 581, 420 A.2d 694, 696 (1980); Commonwealth v. Chuck, 227 Pa.Super. 612, 323 A.2d 123 (1974). The breadth of that discretion is wide since the trial judge has the opportunity personally to observe and evaluate the demeanor and sincerity of the witness. Commonwealth v. Mangello, 250 Pa.Super. 202, 206, 378 A.2d 897, 899 (1977). Indeed, we have recognized that the better practice where questions of witness competency arise is to permit the witness to testify and then leave the matter of credibility to the fact finder. Commonwealth v. Short, 278 Pa.Super. at 585-86, 420 A.2d at 696; Commonwealth v. Mangello, 250 Pa.Super. at 206-08, 378 A.2d at 898-99.
The standard by which a trial court’s exercise of discretion on questions of competency must be guided is quite simply stated. In general, the competency of a witness to testify is presumed and the burden of demonstrating the incompetency of the witness falls on the party objecting to competency. Id; see also 42 Pa.Cons.Stat.Ann. § 5911 (Purdon 1982) (“Except as otherwise provided in this subchapter, all persons shall be fully competent witnesses in any criminal proceeding before any tribunal”). Indeed, when the witness is a sane adult, the court need not even conduct an inquiry into competency unless it has some doubt concerning the witness’ competency based on the court’s observation of the witness. Commonwealth v. Fulton, 318 Pa.Super. 470, 465 A.2d 650 (1983).
Several exceptions to the general rule of competency are found in our statutory law. These include husband-wife incompetency, 42 Pa.Cons.Stat.Ann. §§ 5913, 5924 (Purdon 1982), and the “Dead Man’s Rule,” 42 Pa.Cons.Stat.Ann. § 5930 (Purdon 1982). Of somewhat greater importance to
In addition to these statutory exceptions, two other exceptions to the general rule of competency, both of limited scope, have been created by our courts. These exceptions focus on immature and insane or mentally disabled witnesses. As to child witnesses, our courts have expressed a concern that every parent will recognize. Children are peculiarly susceptible to “make-believe” and, therefore, are often not sufficiently aware of or able to fulfill their duty to tell the truth. Rosche v. McCoy, 397 Pa. 615, 621, 156 A.2d 307, 310 (1959). Because of this concern, a special rule of competency for children under the age of fourteen has developed. As to them, an inquiry into competency is required, with the goal being to ascertain whether, as the Rosche Court stated, the child has:
(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 [the witness] is called to testify about and (3) a consciousness of the duty to tell the truth.
Rosche v. McCoy, 397 Pa. at 620-21, 156 A.2d at 310.
In the child witness cases, the last factor, “consciousness of the duty to tell the truth”, has received particular
The other judge-made exception to the general rule of competency is found in cases involving witnesses who allegedly suffer from some type of mental disability. In these cases, the general standard for competency is stated somewhat differently than in the child witness cases. It has been stated that the witness must be found to be able to give a correct account of the matters he/she has seen or heard and to understand the meaning of the oath. Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974). Perhaps the most significant difference between these cases and those involving child witnesses is that whereas the child witness cases focus attention on the consciousness of the duty to tell the truth because of a child’s natural inclination to pretend, the mentally disabled witness cases focus their primary attention on the witness’ ability to perceive, remember and communicate facts. Commonwealth v. Ware, 459 Pa. at 354, 329 A.2d at 268; Pennsylvania Evidence, § 601.7 at 392-94. Where the court is assessing the competency of a mentally disabled person, the main concern is understandably whether the witness has the mental ability to understand what he observes, remember it and accurately relate it, since many mental disorders may well affect these mental functions. See, e.g., Commonwealth v. Goldblum, 498 Pa. 455, 463, 447 A.2d 234 (1982) (witness was of below average intelligence and suffered from organ
Turning to an analysis of the competency question before us, we perceive appellant’s argument as to the competency of Pedulla as an attempt to draw elements from both the child witness and mentally disabled witness cases and to apply them to this case, which involves a witness who does not fit into either the category of a child witness or of a mentally disabled witness. Appellant also seeks to have us give more attention to the fact that Pedulla admittedly lied to the grand jury than the law requires. We are unpersuaded by these arguments and agree with the trial court’s determination that Pedulla was competent to testify.
Appellant seeks to have us reverse the trial court’s finding of Pedulla’s competency largely because Pedulla is a convicted criminal and an admitted liar who at one time disregarded his duty to tell the truth out of a sense of responsibility to his organized crime group’s code of silence. As the foregoing survey of the law of competency demonstrates, none of these facts concerning Pedulla make him legally incompetent. They are all relevant only to Pedulla’s credibility.
The fact that Pedulla admits that he has previously lied, even in the context of a grand jury proceeding, is not a ground for a finding of incompetency. As we have stated, only an actual judgment of conviction of perjury provides such a ground. Moreover, we have previously held that a witness’ admission of prior lying alone does not even require that the trial court conduct an inquiry into the witness’ competency and bears only on his credibility absent evidence of a mental defect that might render the witness incapable of testifying truthfully. Commonwealth v. Dolhancryk, 273 Pa.Super. 217, 417 A.2d 246 (1979).
Similarly, Pedulla’s commission of other crimes not involving perjury is not a ground for incompetency. As we have also demonstrated, only a conviction for the crime of perjury is relevant under our law.
The record reveals that Pedulla comprehended the obligation of his oath. Although Pedulla experienced some difficulty in comprehending the trial judge’s hypothetical questions regarding truthfulness, the judge was satisfied that Pedulla’s difficulty in responding to the hypothetical questions did not result from his lack of understanding the obligations of his oath. During the colloquy, Pedulla stated that the oath meant “something” to him. The judge then asked Pedulla if, hypothetically, Pedulla would lie at trial if he felt the need to protect himself. Pedulla at first said he could not answer, since such a need to lie was not in fact present at this trial. He then said that he did not think he would lie. Thus, the colloquy shows that Pedulla understood the obligations of the oath. We agree with appellant that Pedulla’s answers were somewhat evasive. We note, however, that a witness need not give textbook perfect answers in the colloquy in order to have his competency upheld. Commonwealth v. Mangello; Commonwealth v. Allabaugh, 162 Pa.Super. 490, 493, 58 A.2d 184 (1948). Furthermore, nothing in the colloquy indicates that Pedulla suffered from any sociopathic mental disorder that might prevent him from testifying truthfully, nor did appellant present any other evidence to that effect.
In addition to challenging the witness’ competency, appellant argues the testimony of both Pedulla and DeLuca was so unreliable that the jury verdict can not stand because it was based on conjecture. In essence appellant argues that the verdict is not supported by the weight of the evidence. We disagree. Absent a finding of abuse of discretion, the decision of the trial judge as to whether the verdict was against the weight of the evidence is not to be disturbed on appeal. The standard is not whether another court would have decided the case in the same way, but whether the verdict is so contrary to the evidence that justice requires the awarding of a new trial. Commonwealth v. Polk, 347 Pa.Super. 265, 269, 500 A.2d 825, 827 (1985); Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984). Where evidence offered is so unreliable and/or so contradictory that it renders any verdict based thereon as pure conjecture, justice requires that the jury not be permitted to return such a verdict. Commonwealth v. Smith, 502 Pa. 600, 467 A.2d 1120 (1983); Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545 (1976).
We cannot say that the testimony of either Pedulla or DeLuca was so unreliable or contradictory that a verdict
Appellant’s remaining challenges can be dismissed summarily. Appellant argues that the trial court erred by permitting the Commonwealth to use certain diagrams, termed “flow charts,” which tracked the progress of prisoners through police headquarters during processing of the two prisoners in question. The admissibility of a diagram is within the sound discretion of the trial court. Commonwealth v. Ayala, 277 Pa.Super. 363, 419 A.2d 1187 (1980). The trial court, after appellant objected that the chart was not totally representative, carefully instructed the jury regarding the accuracy and shortcomings of the chart. Thus, no prejudice against appellant could have resulted from the Commonwealth’s use of the charts. Commonwealth v. Smith, 313 Pa.Super. 138, 150, 459 A.2d 777, 783 (1983); Commonwealth v. Schroth, 479 Pa. 485, 388 A.2d 1034 (1978).
Neither was the appellant deprived of a fair trial when the prosecutor in his closing argument stated that
Finally, the trial court committed no error in refusing to grant a mistrial after one of the jurors interrupted the counsel for the third defendant during closing arguments. The court called a recess and questioned the juror closely. Although the juror admitted asking the other jurors if they felt, as he did, that they were being scolded and shouted at by the defense counsel, the juror stated that he did not discuss the case, evidence or witnesses with any other juror. The trial court then acted appropriately by removing that juror and by examining the rest of the jury. The refusal of a new trial on the basis of alleged juror misconduct is within the sound discretion of the trial judge. Commonwealth v. Posavek, 278 Pa.Super. 265, 420 A.2d 532 (1980). No abuse of that discretion is present in this instance.
We affirm the judgment of sentence of appellants Verdón and Trudell.