305 A.2d 890 (Pa. 1973), Commonwealth v. Kennedy

Citation:305 A.2d 890, 451 Pa. 483
Opinion Judge:Author: Eagen
Party Name:COMMONWEALTH of Pennsylvania v. Howard KENNEDY, a/k/a Tyrone Mars, Appellant.
Case Date:May 04, 1973
Court:Supreme Court of Pennsylvania

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305 A.2d 890 (Pa. 1973)

451 Pa. 483

COMMONWEALTH of Pennsylvania


Howard KENNEDY, a/k/a Tyrone Mars, Appellant.

Supreme Court of Pennsylvania.

May 4, 1973.

        Rehearing Denied June 29, 1973.

        [451 Pa. 484] Eugene H. Clarke, Jr., John T. Grigsby III, Philadelphia, for appellant.

        Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., James D. Crawford, Deputy Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, Norris E. Gelman, Asst. Dist. Atty., Philadelphia, for appellee.

        [451 Pa. 483] Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.


        [451 Pa. 484] EAGEN, Justice.

        The appellant, Howard Kennedy, was convicted by a jury of murder in the second degree, aggravated robbery, burglary and conspiracy. All of the crimes were based on and were allegedly committed in

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the perpetration of a robbery of a drug store in Philadelphia during which the druggist was fatally shot. After post trial motions were denied, separate prison sentences of 10 to 20 years, to run consecutively, were imposed on the murder, robbery and burglary convictions. Sentence was suspended on the conspiracy conviction. A timely appeal from the judgment of sentence imposed on the murder conviction was filed in this Court. 1

        [451 Pa. 485] Two assignments of error are asserted, but only one need be discussed herein.

        Prior to trial the issue was raised as to whether or not Kennedy was competent to stand trial. After an extended hearing the trial court found he was so competent. On the record this ruling was incorrect.

        At the pretrial competency hearing the following evidence was presented. Dr. Francis Hoffman, Director of the Neuropsychiatric Unit of the Court of Common Pleas in Philadelphia stated it was his opinion, after undertaking an examination of appellant in conjunction with the efforts of one Dr. VonSchlichten, that appellant was a paranoid schizophrenic and incompetent to stand trial. The foundation of the Doctor's opinion rested on the fact that throughout the period of examination, appellant did not in any way cooperate with the doctors, and it was the Doctor's judgment that this was not a deliberate refusal, but rather appellant was unable to cooperate because of his illness. The Doctor indicated this involuntariness would carry over to the efforts of appellant's trial counsel.

        Dr. James Nelson, a certified neuropsychologist, also testified appellant was a paranoid schizophrenic and unable to stand trial. The Doctor stated appellant's paranoia rendered him incapable of trusting anyone and he would be unable to cooperate with his counsel even if it were to his own advantage. 2

        [451 Pa. 486] Lastly, Doctor Edward Guy 3 , Director of Psychiatric Services in the Philadelphia prison testified. While Doctor Guy would not say that appellant could not stand trial he expressed serious doubts as to whether appellant could stand trial because he could not cooperate with his attorney because he was suffering from paranoia. 4

        [451 Pa. 487] It was also established at trial that for almost six years prior to the crimes appellant had been confined at Farview State Hospital. Moreover, at the close of the

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hearing appellant's trial counsel requested to withdraw from the case on the grounds he could not provide appellant with a proper defense, because appellant had completely refused to cooperate with him.

        On the record there is no affirmative testimony appellant was competent to stand trial 5 and, in view of the substantial evidence appellant presented, we are left to conclude that the hearing judge's finding that appellant was competent to stand trial is not supported by the record.

        It has long been established that a mentally incompetent person cannot be required to stand trial. Cf. Commonwealth v. Scovern, 292 Pa. 26, 140 A. 611 (1927). It is equally well established the person asserting mental incompetence to stand trial has the burden of proving incompetency by a preponderance of the evidence. Cf. Commonwealth v. Carluccetti, 369 Pa. 190, 85 A.2d 391 (1952); Commonwealth v. Simanowicz, 242 Pa. 402, 89 A. 562 (1913).


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