OPINION BY
The Commonwealth appeals 1 from the order entered on March 11, 2010, and docketed on April 14, 2010, by the Court of Common Pleas of Philadelphia County, which granted the motion to preclude the juvenile sexual assault victims from testifying filed by Appellee Jose Pena. We reverse in part, vacate in part, and remand.
Minor victims X.R., age fourteen, and A.R., age fifteen, accused the Appellee of repeatedly sexually assaulting them in August 2007. At the time, the victims were living with Appellee and his girlfriend. Both girls had previously accused other men of sexually assaulting them. In 1998 or 1999, the girls claimed that one of their uncles, Abraham Santos, 2 sexually abused them. Santos ultimately pleaded guilty to two counts of corrupting the morals of a minor. 3 The girls further claimed that another uncle, Carlos Cortez, 4 sexually assaulted them. Cortez pleaded guilty to two counts of rape and other charges, some of which involved sexual assaults on a third minor, after police discovered videos he had made of the sexual abuse.
*706 As a consequence of the abuse, both girls have a history of mental health and behavioral problems. X.R. was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and Oppositional Defiant Disorder (“ODD”) and takes Adderall and Benadryl on a regular basis. A.R. was also diagnosed with ADHD and depression. A.R. has twice been hospitalized on an inpatient basis. She currently takes Respidol, Zoloft, and Ability. A.R. has had side effects from the Ability in the form of “flashbacks” to the sexual abuse committed by Abraham Santos.
Appellee was charged with two counts each of rape, aggravated indecent assault, indecent assault, sexual assault, statutory sexual assault, simple assault, corrupting the morals of a minor, and unlawful contact with a minor. Prior to trial, Appellee filed a motion seeking a “taint” hearing. Over the Commonwealth’s objection, the trial court conducted such a hearing on July 9, 2009, July 24, 2009, November 12, 2009, and March 5, 2010. On March 11, 2010, the trial court mailed an order declaring both X.R. and A.R. incompetent to testify on the basis of taint.
For reasons, not apparent in the record, although the order was sent to the Clerk of Quarter Sessions and mailed to the parties on March 11, 2010, it was never docketed. On April 14, 2010, following a hearing, the order was placed on the docket. On May 4, 2010, the Commonwealth filed the instant appeal. The Commonwealth was ordered to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The Commonwealth filed a timely statement, and the trial court issued an opinion.
On appeal, the Commonwealth raises two issues for our review:
1. Under controlling precedent, is an appeal timely when it is filed within thirty days of the docketing of the lower court’s order, even if more than thirty days have passed since the issuance of the order?
2. Under controlling precedent, was it error to preclude the juvenile sexual assault victims from testifying where they were at least fourteen years of age, and, in any event, there was no evidence — much less clear and convincing evidence — that their memories had been “tainted” by improper and suggestive interview techniques?
Commonwealth’s Brief at 3.
The first issue raised relates to the timeliness of the appeal. Timeliness of an appeal is a jurisdictional question. When a statute fixes the time within which an appeal may be taken, the time may not be extended as a matter of indulgence or grace.
Day v. Civil Service Com’n of Borough of Carlisle,
The Commonwealth challenges the decision of the trial court finding that the minor victims were incompetent to testify because of “taint.” Our standard of review recognizes that “[a] child’s competency to testify is a threshold
legal issue
that a trial court must decide, and an appellate
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court will not disturb its determination absent an abuse of discretion.”
Commonwealth v. Washington,
Every witness is presumed competent. Pa. R.E. 601(a). A party who challenges the competency of a minor witness must prove by clear and convincing evidence that the witness lacks “the minimal capacity ... (1) to communicate, (2) to observe an event and accurately recall that observation, and (3) to understand the necessity to speak the truth.”
Commonwealth v. Delbridge (“Delbridge I”),
The Pennsylvania Supreme Court has defined “taint” as “... the implantation of false memories or distortion of actual memories through improper and suggestive interview techniques!!]” Id. at 30, 35. Within the three-part test described above, “[t]aint speaks to the second prong ..., the mental capacity to observe the occurrence itself and the capacity of remembering what it is that the witness is called upon to testify about.” Id. at 40 (citation omitted, emphasis in original, brackets omitted).
In discussing testimonial competency, Pennsylvania courts have clearly and unequivocally stated that taint is only “a legitimate question for examination in cases involving complaints of sexual abuse made by
young children.” Delbndge I,
X.R. and A.R. were, respectively, fourteen and fifteen at the time of the taint hearing. Thus, the issue of taint was “totally irrelevant as a matter of law,” and the trial court abused its discretion in conducting a competency hearing in this matter. Instead, the issues raised by Appellee in his motion, i.e., the witnesses’ alleged bias against him, the role played by the victims’ mother, and the victims’ mental health/behavioral problems are credibility factors to be weighed by the finder-of-fact, not a legal issue to be determined by the trial court via a competency hearing.
In its decision, the trial court also found that, even in the absence of
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taint, A.R. was incompetent to testify because of her mental health problems. This issue was not raised by Appellee in his motion to preclude the victims from testifying. A trial court should not act as a party’s advocate.
Yount v. Pennsylvania Department of Corrections,
The trial court abused its discretion in holding a “taint” hearing and finding the minor victims incompetent to testify. Accordingly, we reverse that portion of the trial court’s order finding the victims tainted. Because the general issue of competence was not properly raised, we vacate that portion of the trial court’s order finding A.R. incompetent to testify.
Order REVERSED in part and VACATED in part. Case REMANDED. Jurisdiction RELINQUISHED.
Notes
.The Commonwealth may take an appeal of right from an order that does not end the entire case if the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution. Pa.R.A.P. 311(d);
Commonwealth v. Torres,
. Appellee incorrectly refers to this individual as "Adam Santos.”
. In his motion for a taint hearing, Appellee wrongly claimed that Santos was exonerated.
. Appellee incorrectly refers to this individual as "Carlos Santos.”