J-S46015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JAVON A. GARRETT                         :
                                          :
                    Appellant             :   No. 1341 EDA 2017

           Appeal from the Judgment of Sentence March 16, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0005053-2014

BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                       FILED NOVEMBER 30, 2018

      Javon A. Garrett appeals from the aggregate judgment of sentence of

six to twelve years incarceration, followed by thirty years probation, after a

jury convicted him of three counts of involuntary deviate sexual intercourse

(“IDSI”) involving victim Z.M. We affirm.

      Appellant’s mother and Z.M.’s mother were close friends going back to

the 1980s such that Z.M.’s mother thought of Appellant as a brother, and Z.M.

knew him as “Uncle Javon.” N.T. Trial, 8/3/16, at 62-63. Z.M. and his brother

were around Appellant and his family nearly every day, often went to

Appellant’s home, and were left in Appellant’s care. Id. at 47, 68. One day

several years later, Z.M. went to his brother, told him that Appellant had

“made me suck his thing,” and burst into tears. Id. at 43-44. The brother

took Z.M. to his mother, and he repeated the story to her. Id. at 62, 64. The

following day, she took Z.M. to the police station. Id. at 67.
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      Appellant was arrested and charged with, inter alia, three counts of

IDSI, and ultimately proceeded to a jury trial. The trial court summarized

the evidence offered against Appellant at trial as follows.

             The facts at trial established that [Appellant] sexually
      assaulted [Z.M.] who at the times in question was between the
      ages of three and five. Said assaults took place over a one-and-
      [one]-half to two year period beginning in 2006. The victim
      testified that during this time period [Appellant] forced him to
      perform oral sex on [Appellant] between ten and twenty times.
      This occurred at three different locations: [Appellant’s] bedroom,
      [Appellant’s] basement, and in the victim’s home. The victim first
      told his brother and then his mother about these incidents. The
      day after his disclosure, the victim’s mother took the victim to the
      Chester police station where the victim explained to the police
      what had happened.

             According to the victim, the first time [Appellant] forced him
      to perform oral sex occurred in [Appellant’s] bedroom. The victim
      testified that [Appellant] closed the door, moved his dresser in
      front of the door, and told the victim to "touch" and "lick" his
      penis. The victim also testified that, on a separate occasion,
      [Appellant] made the victim perform oral sex in the basement
      bathroom. Finally, the victim testified that [Appellant] also made
      him perform oral sex at the victim’s house, while the victim’s
      mother went to the market.

            On March 16, 2017[, the trial] court sentenced [Appellant]
      to 24 to 48 months on each of the three counts of involuntary
      deviate sexual intercourse, which were ordered to run
      consecutively to each other. [Appellant] was also sentenced to 30
      years of consecutive probation. [Appellant] was given credit for
      time served of 240 days. On March 20, 2017[, Appellant] filed a
      motion for reconsideration of sentence, which was denied . . . on
      March 30, 2017.

Trial Court Opinion, 10/30/17, at 1-2 (citations omitted).




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      Appellant filed a timely notice of appeal, and both Appellant and the trial

court complied with Pa.R.A.P. 1925. Appellant presents only one claim of error

for this Court’s review:

      The trial court abused its discretion in concluding that the victim,
      [Z.M.], was competent to testify at trial. No testimony was offered
      to demonstrate [Z.M.] had any recollection of the time period of
      the allegations against Appellant.        To the contrary, [Z.M.]
      demonstrated a poor memory or no memory at all of both recent
      events and the time period of the allegations.

Appellant’s brief at 6.

      We begin with the applicable law.             “It is well-settled that the

determination of whether a child is competent to testify is within the sound

discretion of the trial court, and an appellate court should not interfere with

the   lower   court’s     ruling   absent   a   manifest   abuse   of   discretion.”

Commonwealth v. Hunzer, 868 A.2d 498, 507 (Pa.Super. 2005). A mere

error in judgment does not constitute an abuse of discretion; “rather, an abuse

of discretion will be found when the law is overridden or misapplied, or the

judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill-will, as shown by the evidence or the record.”

Commonwealth v. Pukowsky, 147 A.3d 1229, 1233 (Pa.Super. 2016)

(citation and internal quotation marks omitted).

      Under Pa.R.E. 601, “the testimony of any person, regardless of [his or

her] mental condition, is competent evidence, unless it contributes nothing at

all because the victim is wholly untrustworthy.” Commonwealth v. Boich,




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982 A.2d 102, 109 (Pa.Super. 2009). “The presumption of competency also

applies to child witnesses.” Id. at 110 n.6.

      The witness at issue in the instant case, Z.M., was one month away from

turning thirteen years old.    N.T., 8/2/16, at 4.     Therefore, the following

informed the trial court’s duty.

      When the witness is under fourteen years of age, there must be a
      searching judicial inquiry as to mental capacity, but discretion
      nonetheless resides in the trial judge to make the ultimate
      decision as to competency. In making its determination, the court
      must inquire whether the child possesses: (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.

Hunzer, supra at 507 (quoting Commonwealth v. D.J.A., 800 A.2d 965,

969 (Pa.Super. 2002)). Both the child’s ability to remember at the time of

the testimony, as well as his ability to have perceived the events about which

he is testifying when they happened, are relevant to the trial court’s

determination. D.J.A., supra at 970-71.

      On appeal, Appellant does not contest that Z.M. “had a consciousness

of the duty to tell the truth, as well as the ability to communicate and express

answers to questions posed[.]” Appellant’s brief at 11. However, Appellant

argues that there was no evidence presented to demonstrate that Z.M. “had

the mental capacity to observe the occurrence itself and the capacity to

remember[.]” Id. It is Appellant’s position that, “[t]o the contrary, the limited

questions asked of record [show that] he had no memory of the time period

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of the allegations.” Id. Accordingly, Appellant maintains that the trial court

abused its discretion in permitting Z.M. to testify without having a proper basis

to conclude that Z.M. was competent to do so. Id.

      By the time of the competency hearing, the trial court was familiar with

Z.M.’s recitation of his recollections of the events in question, which were

alleged to have been committed by Appellant when Z.M. was between three

and five years old. Z.M.’s testimony from Appellant’s preliminary hearing was

before the trial court in relation to Appellant’s motion for a writ of habeas

corpus. See Omnibus Pretrial Motion, 4/27/15, at ¶¶ 13-16; see also Trial

Court Opinion, 10/30/17, at 4 n.2.

      Specifically, at the preliminary hearing, Z.M. testified that Appellant

made Z.M. suck Appellant’s “man’s private part” on more than ten occasions.

N.T. Preliminary Hearing, 8/12/14, at 13-14.         Appellant’s mother would

usually pick Z.M., his mother, and his siblings up and drive them to Appellant’s

home. Id. at 19. Appellant would tell Z.M. to come upstairs, or that he had

something to show Z.M. Id. at 25-26. The incidents happened in Appellant’s

room, which Z.M. recalled had white walls, a bed, and a dresser across from

the bed with a television on it. Id. at 15, 20. Appellant, sitting on his bed,

“just pulled down his pants and said you know what to do.” Id. at 15, 24-25.

      At the competency hearing itself, questioning relevant to Z.M.’s memory

included the following.

      Q.    Now, [Z.M.], I want to ask you a couple of questions about
            memory. Do you know what memory is?

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     A.   Yes.

     Q.   Can you tell me before this year, before this year in school
          in 8th grade, who’s your favorite teacher then?

     A.   I don’t have a favorite teacher.

     Q.   Do you remember any of the names of your teachers in 6th
          grade?

     A.   Yes.

     Q.   What were their names?

     A.   Mr. T. I don’t - - it’s hard to pronounce his full name.

     Q.   So you guys called him Mr. T?

     A.   Yeah.

     Q.   What did he teach?

     A.   Every subject.

     Q.   Okay. So in 6th grade you pretty much just get one
          teacher?

     A.   Yes.

     Q.   Is that the same way in 8th grade?

     A.   No.

     Q.   you have different teachers in 8th grade?

     A.   Yes.

     Q.   When did that start? When did you start having different
          teachers?

     A.   In 7th grade.

     Q.   Where do you go to school in 8th grade?

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     A.   In 8th grade?

     Q.   Um-hum.

     A.   Toby Farms.

     Q.   Where did you go to school in 5th grade?

     A.   Toby Farms - - oh, I’m sorry. CCCS.

     Q.   So when did you go to Toby Farms?

     A.   Seventh grade.

     Q.   Starting in 7th grade?

     A.   Yes.

          ....

     Q.   [Z.M.], I want to take you back a bit more in time. do you
          remember the first house that you lived in?

     A.   No.

     Q.   How old were you when you moved to the first house that
          you remember?

     A.   Four - - four or three.

     Q.   Where did you live?

     A.   People Street.

     Q.   Can you just briefly for the judge describe the house? Was
          it a townhouse, a stand[-]alone house?

     A.   What do you mean by stand[-]alone, like space in between?

     Q.   Right.

     A.   Yes.


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      Q.    Okay. So there was spaces in between. How many floors
            did it have?

      A.    One - - well, two.

      Q.    Like a basement and a first floor?

      A.    No, like living room and then - -

      Q.    And then an upstairs. Okay. Do you remember anything
            about your room?

      A.    Yes.

      Q.    Tell us about your room.

      A.    It had one window like opening the door, then the window
            in front of you, and I had a closet next to the door, and then
            a TV on this wall and I have a bunkbed.

N.T., 8/2/16, at 6-10.

      After Appellant cross-examined Z.M., highlighting his lack of memory of

his current teachers or the house in which he lived before he was four or five

years old, see id. at 11-14, the trial court declared Z.M. competent to testify

and offered the following explanation.

      I’m satisfied that he knows the differen[ce] between a truth and
      a lie and knows his obligation to tell the truth. . . . His ability to
      communicate was very good on the stand. . . . I believe he has
      the capacity to observe an event. He spoke about his favorite
      coloring. He spoke about a number of things that would require
      him to describe. He described his - - he remembered Mr. T., his
      teacher, and he remembered that in 6th grade he has one teacher
      and in 7th and 8th he had multiple ones. The [c]ourt is a little
      concerned [that] he did not remember the names of his teachers
      from his current year, but the [c]ourt is also aware that he was
      - - there was several things that happened during the current year
      that took him out of school for two and a half months, and
      although that’s - - although the [c]ourt . . . feels that he should
      be able to remember despite sporadic attendance, and the [c]ourt

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      did not ask whether the times he was not away for two and a half
      months how his attendance was. We don’t even know that. But
      the point of the matter is, I’m a little concerned about that but he
      - - the more - - I don’t want to use the word “more.” Perhaps
      important was that he could not remember the details of his
      bedroom prior, you know, at age - - if I remember the testimony,
      he moved to a house that he could remember at age four or five.
      The events were alleged to have taken place when he was three
      or four[.]

            ....

             And he could not remember the details of his bedroom.
      However, the [c]ourt was troubled a bit because the [c]ourt
      thought that the alleged events took place in his bedroom. They
      did not. They took place - - allegedly took place at a different
      location. The [c]ourt is understandable too that for a three- or
      four-year-old to remember the details of a home at that time, the
      details of what his bedroom would like, I mean, I’m trying to
      compare it to the detail he gave when he was able to remember.
      He remembered where the door was in his bedroom at age five,
      where the television was, so he’s pretty good, but he couldn’t
      remember anything like that. He had no memory. But at the
      same time, I think that the memory of a traumatic event as
      opposed to the details of a residence that you resided in at age
      three or four, the ability is not the same in this [c]ourt’s humble
      opinion. This [c]ourt would feel that there’s more reason to
      remember a traumatic event, which are alleged to have taken
      place in this case[;] you would be more likely to remember that
      than you would [remember] where you lived, [or] the details of
      one’s bedroom at age three or four. So with all things considered,
      I’m finding that [Z.M.] is competent to testify.

Id. at 21-23.

      We discern no abuse of discretion in the trial court’s ruling. At the time

of the hearing, the trial court had sufficient information to conclude that, at

the relevant time periods, Z.M. had the ability to perceive accurately what

happened to him.       See Hunzer, supra at 507 (affirming finding of

competency of child who was three years old at the time she was assaulted,

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where the child had been able to recall the abuse in detail and “answered

questions relating to her age, birthday, current and former addresses, her

best friend, with whom she resided, her pet’s name, what school she attended,

and in which grade she was”).

       Although Z.M. was very young at the time of the abuse, and his memory

of other events since that time was not solid, we find that the trial court

reasonably determined that the discrepancy could be explained by the

likelihood that Z.M. retained memories of traumatic events while forgetting

mundane details that would not have made an impression on a young child.

See, e.g., D.J.A., supra at 971-72 (reversing trial court’s conclusion that

victim was not competent to testify where earlier recording of her describing

her father’s sexual abuse perpetrated when she was five years old

demonstrated her ability to perceive and remember, although she did not

grasp at the time the nature of the acts, and often strayed off topic, giving

responses that “lay somewhere between the whimsical and the nonsensical”).

       In sum, the record does not demonstrate that the trial court’s ruling on

Z.M.’s competency was the result of a misapplication of the law or an exercise

of judgment that was manifestly unreasonable or the result of partiality,

prejudice, bias, or ill-will. Pukowsky, supra at 1233. As such, no relief is

due.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/18




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