393 A.2d 740 | Pa. Super. Ct. | 1978
The defendant-appellee was convicted by a jury of indecent assault
The only question raised on appeal is whether the evidence was sufficient to convict appellant in that the competency of the main Commonwealth witness is in dispute. Sharon Yeatch, a girl nine years of age with a mental age of 6.6 years and an I.Q. of 64, was the only witness to give direct testimony as to the crimes. Initially the defendant had raised on a pre-trial application the question of the competency of the victim. After a hearing, the Honorable James F. Clarke, Judge, ruled that she was entitled to the benefit of the presumption in that no disqualifying incompetency on her part had been demonstrated. The trial was conducted before the Honorable Nicholas P. Papadakos, Judge, who permitted the victim to testify. However, after a verdict of guilty, he arrested judgment because he determined that the evidence given by the victim was incompetent to prove the commission of a crime, and the circumstantial evidence was likewise insufficient. However, in his opinion Judge Papa-dakos indicates strongly that his decision, in so far as the testimony of the victim was concerned, was based on the fact she was unreliable rather than incompetent.
Without reciting the testimony of Sharon, a review of the record indicates it was sufficient to establish the crime of which the defendant was found guilty by the jury, which must have been satisfied beyond a reasonable doubt.
Also, having been permitted to testify, the Commonwealth was entitled to have the benefit of the most favorable view of the victim's testimony. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977), Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1956).
The order arresting judgment must be reversed, and the case remanded to the trial court for the disposition of the motion for a new trial.
. Act of December 6, 1972, P.L. 1482, No. 334, § 1; effective June 6, 1973; 18 Pa.C.S.A. § 3126.
. Act of December 6, 1972, P.L. 1482, No. 334, § 1; effective June 6, 1973; 18 Pa.C.S.A. § 3127.