Commonwealth v. Shearer

DISSENTING OPINION BY

GRACI, J.:

¶ 1 While I am always reluctant to disagree with my learned colleagues in the majority, under the circumstances here presented, I am constrained to dissent.

¶ 2 The majority accurately portrays the procedural posture of this case so I will not repeat it here. Suffice it to say that this appeal from a pre-trial order is before us because the Commonwealth, in conformity with Rule 311(d) of the Pennsylvania rules of Appellate Procedure, certified in its notice of appeal that the order that the child victim in this case undergo an involuntary psychological examination to determine the victim’s competency to testify against Appellee “will terminate or substantially handicap the prosecution” of the case. We have previously been clear in stating: “ ‘The Commonwealth’s good faith certification, alone, provides an absolute right of appeal; it is not required to demonstrate the need for the evidence.’ ” Commonwealth v. Allburn, 721 A.2d 363, 366 (Pa.Super.1998) (quoting Commonwealth v. King, 456 Pa.Super. 72, 689 A.2d 918, 921 (1997)) (citing Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, 386 (1985)). In Allbum, we recognized that King involved an order granting a defense motion in limine excluding certain evidence and that AUbum itself involved an order allowing certain defense evidence. Id. In reaching the same conclusion that a pretrial appeal on the Commonwealth’s certification was proper we said “the same logic applies.” Id. We stated in unequivocal terms: “The Commonwealth does not have to prove it will be ‘substantially handicapped’; the good faith certification suffices.” Id.

¶ 3 In reaching the conclusion that the Commonwealth’s appeal in Allbum was properly before us under Rule 311(d) we noted:

WTiile the specific handicap is not articulated, and need not be, we can easily envision the effect this ruling [allowing introduction of rape victim’s prior sexual conduct as an exception to the Rape Shield Law, 18 Pa.C.S.A. § 3104(b)] may have on the victim. The Rape Shield law was meant to protect a victim from being placed on trial, victimized a second time by the justice system. An order removing that minimal protection may cause a victim to refuse to testify at all, an understandable if regrettable result. • As such orders may affect the availability of evidence, they should be subject to pretrial review.

Allburn, 721 A.2d at 365 n. 2.

¶ 4 In my view, the “same logic applies” here. The alleged victim in this case may not wish to undergo such an examination. Such a requirement may cause the victim, like the rape victim in Allburn, to refuse to testify at all. Accordingly, like the order in Allburn, .as the order in this case “may affect the availability of evidence,” it is subject to pretrial review on the Commonwealth’s good faith certification.

¶ 5 The majority does not address All-bum. While its facts (and those of King) may be distinguishable, its logic is not. The effect of the majority’s ruling, however, will, in my view, lead to arguments as to the contestability of certifications by the Commonwealth, a possibility we have previously eschewed. King, 689 A.2d at 921 (“The Commonwealth’s good faith certification, alone, provides an absolute right to appeal — ”) (emphasis added); Allburn, 721 A.2d at 365 (same, quoting King). That will result from the majority’s statement that it cannot agree with the Commonwealth’s position that “a Rule 311(d) certification automatically creates jurisdiction for an appellate court to address any and all substantive questions certified by a prosecutor.” Opinion, at 385.³

¶ 6 Having concluded that the order here under review is appealable by the Commonwealth, I am obliged to address the merits of the appeal. Before doing so, however, I note that the Commonwealth offered alternative theories as to the ap-pealability of the order for a psychological examination of its child victim. The Commonwealth argued that the order was ap-pealable as a collateral order under Pa. R.A.P. 313. Substituted Brief for Appellant on En Banc Reargument, at 17-18. The Commonwealth also argued that we could consider its notice of appeal as a petition for review under Pa.R.A.P. 1503. Id., at 18-19. The majority does not address these alternatives. Though I find that this appeal is properly before us Rule 311(d), I feel compelled to address the alternatives since the majority, by its silence, necessarily determines that none of them form the basis for a proper appeal.

¶ 7 As to this child victim, this order is a collateral order and is subject to the immediate appeal by the child. Commonwealth v. Miller, 406 Pa.Super. 206, 593 A.2d 1308 (1991) (Women’s Resource Center could appeal order directing it to provide records pertaining to alleged sexual assault victim); Commonwealth v. Simmons, 719 A.2d 336 (Pa.Super.1998) (mental health provider could appeal order directing it to turn over records relating to alleged sexual abuse victim). The order here meets the definition of collateral order just as in Miller and Simmons.⁴ In those cases, the appeals were brought by the entities which were the subjects of the disputed orders.⁵

¶ 8 I am not aware of any indication on this record as to when the child victim or anyone on the child’s behalf was advised of the entry of the order for a psychological exam. The child may still be able to appeal the order.⁶ This would be the child’s appeal; not the Commonwealth’s. Who would act to protect the child’s rights in that appeal is beyond the scope of this opinion. I observe, however, that “[t]he victim in a criminal case is only a witness; he is not the ‘client’ of the district attorney.” Commonwealth v. Price, 454 Pa.Super. 88, 684 A.2d 640, 642 (1996). Perhaps under circumstances such as those presented here, the court should appoint a guardian ad litem for the child witness.⁷ The child (or, more likely, the child’s advocate) could argue the child’s rights and the impact of an order for an involuntary psychological examination on those rights.⁸

¶ 9 As to the Commonwealth’s second alternative, I find it unavailing. Commonwealth v. Tilley, 566 Pa. 812, 780 A.2d 649 (2001), relied on by the Commonwealth, involved a situation where the trial court refused to amend its interlocutory order and certify it for immediate appeal under section 702 of the Judicial Code, 42 Pa. C.S.A. § 702(b). See also, Pa.R.A.P. 1311. The Tilley Court said a petition for review could be filed seeking to rectify that omission and that an appellate court could review the matter if it determined that the trial court abused its discretion in refusing to certify the order. See Pa.R.A.P. 1311 Note. Here, the Commonwealth never sought a section 702 certification from the trial court. Accordingly, its reliance on Tilley is misplaced.

¶ 10 Returning to the merits, the question of a person’s competency to be a witness is vested with in the sound discretion of the trial court. Commonwealth v. D.J.A., 800 A.2d 965, 969 (Pa.Super.2002) (en banc). We review such a determination for “flagrant” or “clear abuse of discretion.” Id., at 969-970. On this record, I would find such an abuse.

¶ 11 As we are dealing here with the competency of a young child, the trial court must determine if the witness 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 she is called to testify about and (3) a consciousness of the duty to speak the truth.

D.J.A., 800 A.2d at 969 (citations and quotations omitted). In determining competency, a court may rely on expert testimony. Id., at 973. We have previously said, however, that “[a] ‘trial court need not order an investigation of a witness’s competency, unless he or she has some doubt of such after observing the witness.”’ Commonwealth v. Smith, 414 Pa.Super. 208, 606 A.2d 939, 943 (1992).

¶ 12 Here, however, the trial court ordered a psychological examination of the child without ever interviewing the child. In a different context, members of our Supreme Court have referred to psychological exams ordered by the State as “Orwellian.” In re T.R., 557 Pa. 99, 731 A.2d 1276, 1281 (1999) (plurality). Certainly, trial courts regularly make these determinations in a variety of proceedings. A court ordered psychological examination should never be the starting point for a competency determination for a child. Here, the trial court never observed the witness. At this point, therefore, the order directing the involuntary psychological examination of the child witness on the sole issue of competency was an abuse of discretion. Accordingly, I would vacate the order and remand for further proceedings.

¶ 13 STEVENS, J. joined in this Dissenting Opinion by GRACI, J.

3 . I do not mean to suggest that the Commonwealth's certification under Rule 311(d) is never contestable. The certification must be made in good faith. Evidence to the contrary • could result in the quashing of an appeal brought by way of Rule 311(d). I recognize that some might say that this is little protection because there would rarely be evidence of lack of good faith or bad faith by the certifying prosecutor. This may be so, but it is because the Commonwealth's prosecutors, with rare exception, take their responsibilities to the courts and to the public seriously and in conformity with the rules of professional conduct.

4 . This order is clearly separable from the main cause of action. The issue raised by this order, i.e., the propriety of the involuntary psychological examination of the child victim, may be addressed without analysis of the alleged underlying cause of action. Barley v. Consolidated Rail Corp., 820 A.2d 740, 744 (Pa.Super.2003). As the Commonwealth explains: "[t]he question of whether the victim must submit to an involuntary mental examination is separate from the issues of his credibility or his competence to testify.” Substituted Brief for Appellant on En Banc Reargument, at 17. Important rights of the child, including the fundamental right to be free from unwarranted governmental intrusion, are involved. Such rights are deeply rooted in public policy and go beyond this litigation. Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547, 552 (1999). They are too important to be denied review. Lastly, if the court’s order cannot be reviewed before the examination is conducted, the claim will be lost forever. Nothing could be done by any court at any time thereafter that could restore the child victim’s right not to undergo an involuntary psychological examination if the order for same was erroneously entered.

5 .I do not think this court’s dicta in Commonwealth v. Montgomery, 799 A.2d 149, 154 n. 6 (Pa.Super.2002), establishes that the Commonwealth may appeal all collateral orders in criminal cases as a matter of right. As we said in Montgomery, ”[t]he collateral order inquiry is necessarily dependant upon the party raising its application, as the questions asked related directly to the party seeking an appeal.” • Id. (citation omitted) As noted above, when asked in relation to the child victim in this case, it is clear that the order is a collateral order under Rule 313.

6 . Clearly, the child could do so by refusing to undergo the examination and being held in contempt. Commonwealth v. Williams, 729 A.2d 603, 607 n. 1 (Pa.Super.1999).

7 . That is not to say that the district attorney or. one of his or her assistants could not represent a child witness on appeal if requested to do so. That is a matter of policy for the district attorney, not the courts.

8 . The Commonwealth's brief identifies many of the child’s rights implicated by the order here at issue. Substituted Brief for Appellant on En Banc Reargument, at 24-25.