J-S79012-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ANTHONY FREEMAN,

                        Appellant                   No. 919 EDA 2014


      Appeal from the Judgment of Sentence entered April 29, 2011,
          in the Court of Common Pleas of Philadelphia County,
          Criminal Division, at No(s): CP-51-CR-0014560-2009
                      and CP-51-CR-0014561-2009


BEFORE: ALLEN, OLSON, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                       FILED DECEMBER 11, 2014

     Anthony Freeman (“Appellant”) appeals from the judgment of sentence

imposed after the trial court convicted him of two counts of corruption of

minors.

     The trial court recited the factual background as follows:

           In July 2009, S.S. and C.S., who was intellectually
     impaired, were living with their mother, brother and [Appellant]
     in their mother’s house on North 29th Street in the City of
     Philadelphia. At this time, S.S. and C.S. were under the age of
     eighteen and [Appellant] was thirty-three years old. Over the
     course of that summer, there were three separate incidents of
     contact between [Appellant] and the girls that constitute the
     basis for the instant matter.

           One morning, S.S. was downstairs in the living room
     texting on her phone, when [Appellant] walked past her and told
     her to close her legs. S.S. said “no, my legs aren’t open” and
     [Appellant] reached over and grabbed her vaginal area with the
     palm of his hand over the top of her shorts. S.S. kicked back at
*Retired Senior Judge assigned to Superior Court.
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      [Appellant] and he walked away.          As [Appellant] headed
      upstairs, C.S. was sitting on the stairs and [Appellant] told her
      to give him a kiss. When C.S. said “no”, [Appellant] leaned in
      and kissed her on the mouth.

            One Sunday, S.S. was locked out of the house and began
      knocking on the window when her hand went through the glass.
      She went upstairs to clean up her hand where [Appellant] helped
      her to clean and bandage it. [Appellant] then told her to pull up
      her shorts because he could see her butt. S.S. resisted and
      [Appellant] reached down the back of her shorts, under her
      panties, and put his hand on her butt. S.S. walked away and
      then, as she was sitting in the hallway by her brother’s bedroom,
      [Appellant] walked past her and grabbed her vaginal area with
      the palm of his hand over the top of her shorts. S.S. told her
      mother when she came home from work that night.

             One day, C.S. was downstairs in the living room watching
      television, when [Appellant] came over to her and took the palm
      of his hand and rubbed in around her vaginal area on the zipper
      area of her jeans. C.S. told him not to touch her and then he
      kissed her on the mouth, after which she told him not to kiss her
      anymore. C.S. told her mom immediately and her mom got mad
      at [Appellant].

            In August 2009, C.S. told her Aunt Ruby about what
      [Appellant] had done when she saw her at church on Sunday.
      Aunt Ruby went to the house, talked to S.S., and then notified
      the police. C.S. stayed with Aunt Ruby and S.S. stayed with
      Aunt Jeanette until their mother came home from work that day.
      On August 25, 2009, S.S. spoke with to two [sic] women from
      DHS and on September 3, 2009, S.S. gave her statement to the
      police detectives. [Appellant] stopped living at the house on
      August 23, 2009.

Trial Court Opinion, 5/7/14, at 3-4.

      The trial court, following the waiver trial, convicted Appellant of two

counts of corruption of minors, and sentenced Appellant to an aggregate 21

to 48 months incarceration and 5 years of reporting probation. Appellant did

not file a timely appeal.    He subsequently filed a PCRA petition, which


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ultimately resulted in the trial court reinstating Appellant’s direct appeal

rights.   Both Appellant and the trial court have complied with Pa.R.A.P.

1925. Appellant raises a single issue for our review:

             Did not the lower court err in finding C.S. competent to
      testify where she did not have the capacity to perceive
      accurately, the ability to communicate intelligible answers, the
      ability to remember, or an understanding of the duty to speak
      the truth?

Appellant’s Brief at 3.

      Appellant argues that the trial court erred by determining that C.S.

was competent to testify because her testimony was “fraught with

inconsistencies, contradictions, subject to taint, and she provided largely

‘yes’ or ‘no’ answers more in line with appeasing the interviewer than

demonstrating an understanding of the questions.”       Id. at 18.   Appellant

asserts that C.S. “could not distinguish between the truth and a lie.” Id.

      In Pennsylvania, competency is a threshold legal issue, to be decided

by the trial court. Commonwealth v. Hutchinson, 25 A.3d 277, 290 (Pa.

2011) (citation omitted). An appellate court's standard of review of a trial

court's evidentiary rulings, including rulings on determinations of witness

competency, is abuse of discretion.    Commonwealth v. Walter, 93 A.3d

442, 449 (Pa. 2014) (citation omitted). Competency relates to the “capacity

of the witness to communicate, to observe an event and accurately recall

that observation, and to understand the necessity to speak the truth.        A

competency hearing is not concerned with credibility. Credibility involves an



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assessment of whether or not what the witness says is true.”        Id. at 451

(citation omitted).


      Generally, a witness is presumed competent to testify, and the
      burden falls on the objecting party to demonstrate that a witness
      is incompetent. Under Pa.R.E. 601(b) a person may be deemed
      incompetent to testify if the Court determines that, because of a
      mental condition or immaturity, the person:

      (1) is, or was, at any relevant time, incapable of perceiving
      accurately;

      (2) is unable to express himself or herself so as to be understood
      either directly or through an interpreter;

      (3) has an impaired memory; or

      (4) does not sufficiently understand the duty to tell the truth.

      Pa.R.E. 601(b).

Id.

      Here, the trial court explained its reasoning for finding C.S. competent

to testify as follows:

      In conducting a preliminary inquiry into C.S.’s competence as a
      witness, this court asked a few questions of the witness before
      the Commonwealth and defense counsel began their respective
      competency examinations. In answering this court’s questions
      about telling the truth, among other things, C.S.’s responses
      clearly indicated that she understood that she was under an
      obligation to tell the truth. During the direct examination of the
      competency hearing, C.S. clearly testified as to her age, family
      members, and educational experience and the reason that she
      had to come to court. Moreover, she unequivocally identified
      [Appellant] in court as her mother’s boyfriend from a couple of
      years prior who she had lived with at her house on North 29 th
      Street. C.S. further testified that she had to come to court to
      talk about the “bad stuff” that had happened with [Appellant] in
      her house. While C.S. experienced some difficulty in responding
      to the district attorney’s hypothetical questions about telling the

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      truth with regard to jacket color, rain in the courtroom, and
      being a dog, C.S. demonstrated her comprehension of the
      gravity of telling the truth in the following exchange:

         District Attorney: Okay. Is telling the truth a good thing
                            or is it a bad thing?

         C.S.:                 A good thing.

         District Attorney: And is telling a lie, is that a good
                            thing or is that a bad thing?

         C.S.:                 Bad thing.

         District Attorney: If you tell a lie, what happens?

         C.S.:                 Go to jail.

         District Attorney: So if you tell a lie to the judge today,
                            what do you think will happen?

         C.S.:                 Go to jail.

      In consideration of the entire scope of C.S.’s testimony,
      regarding her life, her family and her schooling, as well as her
      testimony demonstrating her understanding of the gravity of
      telling the truth in court, this court finds that the four requisite
      capabilities for a witness were satisfied.

Trial Court Opinion, 5/7/14, at 5-6 (footnote citing notes of testimony

omitted).

      We discern no abuse of discretion by the trial court. As noted above,

competency and credibility are distinct concepts. Walter, supra. Here, the

trial court, sitting as fact-finder, recognized as much, stating, “It’s a waiver

[trial] so I’m going to allow [C.S.’s testimony].”       N.T., 1/31/11, at 31.

Although there may have been inconsistencies in the testimony, it was for

the trial court as fact-finder to assess credibility and believe all, part or none

of the evidence.    See, e.g., Commonwealth v. Buford, ---A.3d---, WL


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5018593 (Pa. Super. 2014) (citing Commonwealth v. Jones, 886 A.2d

689, 704 (Pa. Super. 2005) (The finder of fact, while passing upon the

credibility of witnesses and weight of the evidence produced, is free to

believe all part or none of the evidence.). Upon review, we find no error in

the trial court’s determination that C.S. was competent to testify.     We

therefore affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2014




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