Com. v. Kennedy

Decision Date04 May 1973
Citation305 A.2d 890,451 Pa. 483
PartiesCOMMONWEALTH of Pennsylvania v. Howard KENNEDY, a/k/a Tyrone Mars, Appellant.
CourtPennsylvania Supreme Court

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.



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 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

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

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

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 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).

In Commonwealth ex rel. Hilberry v. Maroney, 424 Pa. 493, 227 A.2d 159 (1967), we pertinently stated the following with respect to what the defendant must establish:

'(T)he test to be applied in determining the legal sufficiency of his mental capacity to stand trial, or enter a plea at the time involved, is not the M'Naghten 'right or wrong' test, but rather his ability to comprehend his position as one accused of murder and to cooperate with his counsel, in making a rational defense. See Commonwealth v. Moon, supra, 383 Pa. 18, 117 A.2d 96 and Commonwealth ex rel. Hilberry v. Maroney, supra, 417 Pa. 534 at 544, 207 A.2d 794. Or stated another way, did he have sufficient ability at the pertinent time to consult with his lawyers with a reasonable degree of rational understanding, and have a rational as well as factual understanding of the proceedings against him. See Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Otherwise, the proceedings would lack due process: Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956).' Id. at 495, 227 A.2d at 160.

See also Commonwealth v. Harris, 431 Pa. 114, 243 A.2d 408 (1968).

The question squarely presented herein is whether appellant could cooperate with his attorney in preparing a meaningful defense. On the medical evidence presented, appellant met the burden the law places upon him and should have been declared incompetent to stand trial, because he was unable to cooperate with his counsel in preparing a defense to the charges against him. Two of the doctors unequivocally declared appellant incompetent because he was unable to cooperate because of his illness. The third doctor although unable to testify with certainty one way or the other, made it clear he had serious reservations as to appellant's ability to cooperate with counsel.

A man's right to a fair trial and a meaningful defense strike at the heart of due process of the law. If a defendant is incapable of cooperating with his defense counsel, because of mental illness he cannot take advantage of the basic protections the law affords to all men. Moreover, the United States Supreme Court, as well as this Court, have consistently ruled that legal counsel is an absolute necessity in a criminal trial, and, yet, if a man is provided with counsel, but unable to cooperate with his counsel because of mental illness, the protections which counsel can provide become a nullity. 6

Judgment reversed and new trial ordered if and when the appellant is competent to stand trial.

1 Appellate jurisdiction of the judgments imposed on the robbery and burglary conviction is in the Superior Court. Act of July 31, 1970, P.L. 673, No. 223, Art. III, § 302, 17 P.S. § 211.302. The record before us does not indicate that appeals from these judgments were filed.

2 Doctor Nelson stated:

'Suppose this man's only salvation-- suppose he k...

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