Com. v. Megella
| Decision Date | 03 August 1979 |
| Citation | 268 Pa.Super. 316,408 A.2d 483 |
| Parties | COMMONWEALTH of Pennsylvania v. Paul MEGELLA, Appellant. |
| Court | Pennsylvania Superior Court |
Calvin S. Drayer, Jr., Asst. Public Defender, Chief, Appeals Div., Norristown, for appellant.
Eric J. Cox, Asst. Dist. Atty., Chief, Appeals Div., for Com., appellee.
Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.
The instant appeal is from the order of the court below revoking appellant's probation and sentencing him to a term of imprisonment of from six (6) to twelve (12) months on his prior conviction for disorderly conduct. 1 For the reasons stated herein, we affirm the order of the court below.
The facts giving rise to this appeal are as follows. On April 16, 1976, appellant assaulted Kathy Brown in Bridgeport, Montgomery County. He was charged with three offenses simple assault, 2 recklessly endangering another, 3 and disorderly conduct. On May 25, 1976, appellant was diagnosed by a physician at the Norristown State Hospital as mentally ill, schizophrenic of the paranoid type with delusions that others were "harassing" him. On June 4, 1976, a hearing was held regarding appellant's capacity to stand trial. Found incompetent, he was committed to the Norristown Hospital for a period of ninety days. Appellant was subsequently adjudged competent, and on October 28, 1976, entered a plea of guilty to the charge of disorderly conduct; the other two charges were nolle prossed as part of the plea agreement. Appellant was sentenced to a one year probation period and ordered to submit to a full- time course of therapy at the Norristown Hospital. Appellant left the hospital after two or three days claiming, "I don't believe I needed treatment in the first place." (N.T. 21, Parole Revocation Hearing). Although this was violative of the terms of his probation, proceedings to revoke the probation were not instituted at that time.
The events giving rise to appellant's subsequent arrest occurred during May of 1977. On May 14, 1977, appellant, a resident of Norristown, was charged with harassment for throwing rocks at the Bridgeport residence of Kathy Brown and her parents. A few days earlier, he had threatened a Mr. William Mashintonio in a bar in Bridgeport. Mr. Mashintonio had testified against appellant in a separate and unrelated case involving an assault upon a police officer. On May 19, 1977, appellant was arrested and, after speaking with his probation officer, was released on May 20. Despite numerous warnings from the probation officer and the chief of police of Bridgeport not to return to that town, appellant returned on May 21, 1977. He stopped Alice Brown, the sister of Kathy Brown, and requested that the Brown family clear his record. He also requested to speak to Kathy Brown and allegedly threatened to kill her. Alice Brown left, under the pretense of summoning her sister, and contacted the police. In the interim, her brother and father arrived and became embroiled in a fist fight with appellant.
Appellant was arrested and charged with violating the terms of his October 28, 1976 probation. On May 24, 1977, a Gagnon I hearing was held, See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), during which probable cause regarding appellant's violation of probation was established. Also on May 24, 1977, by agreement, a Gagnon II hearing was held at which appellant was found to have violated his probation, and he was sentenced as mentioned previously.
Appellant appeals from the order revoking probation and the subsequent sentence and asserts the following errors: (1) the court violated appellant's due process rights when it did not sua sponte order a psychiatric examination to determine if appellant was competent to participate in the Gagnon II hearing; (2) appellant was mentally incompetent at the time he committed the acts that constituted a violation of his probation; and (3) the court below abused its discretion when it did not order a psychiatric examination prior to imposing sentence upon appellant. None of these contentions was advanced in the court below, and appellant's counsel never requested that an examination be conducted nor claimed that appellant was incompetent. For the reasons stated herein, we affirm the order and judgment of the court below.
First, we must agree with appellant that a violation of due process results when an incompetent defendant is forced to participate in a criminal proceeding.
" '(T)he mental competence of an accused must be regarded as an absolute and basic condition of a fair trial.' Commonwealth v. Bruno, 435 Pa. 200, 205 n. 1, 255 A.2d 519, 522 n. 1 (1969). '(T)he conviction of an accused person while he is legally incompetent violates due process . . . and . . . state procedures must be adequate to protect this right.' Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815, 818 (1966); See Commonwealth v. Ragone, 317 Pa. 113, 176 A. 454 (1935).
The failure of the appellant's counsel to raise the issue of the appellant's mental competency prior to or during the appellant's trial did not constitute a waiver by the appellant. '(I)t is contradictory to argue that a defendant may be incompetent, and yet knowingly and intelligently "waive" his right to have the court determine his capacity to stand trial.' Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836, 841, 15 L.Ed.2d 815, 821 (1966). The issue, therefore, was properly raised in post-verdict motions and is properly before us. " Commonwealth v. Marshall, 456 Pa. 313, 319, 318 A.2d 724, 727 (1974).
See Commonwealth v. Smith, 227 Pa.Super. 355, 324 A.2d 483 (1974).
Appellant does not, however, specifically claim that he was incompetent to participate in the Gagnon II hearing on May 24, 1977. He claims rather, that his due process rights were violated when the court below did not sua sponte order a psychiatric examination to determine if he was incompetent.
Pursuant to section 402 of the Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, §§ 101 et seq., "(t)he court, either on application or its own motion, may order an incompetency examination at any stage in the proceedings . . . ." 50 P.S. § 7402(d). Moreover, in Commonwealth v. Smith, supra, we held that "(i)nquiry is therefore wise whenever there arises from the evidence, no matter how presented to the trial judge, a reasonable doubt that the defendant is competent to stand trial." Id. at 364, 324 A.2d at 488. In both instances, however, the language is advisory rather than mandatory in nature. Thus, although the revocation of probation and subsequent re-sentencing of a defendant who is mentally incapable of participating in the proceeding is a violation of due process, See Commonwealth v. Marshall, supra; Commonwealth v. Smith, supra, the failure by a court to sua sponte order a psychiatric hearing is not such a violation. Appellant's first contention is therefore without merit.
Appellant next asserts that he was mentally incompetent at the time he committed the acts leading to his parole revocation. Generally, a criminal defendant is presumed to have been sane at the time of the commission of the offense. Once, however, "a defendant offers evidence of his insanity, the presumption falls aside and the Commonwealth has the burden of proving the defendant's sanity beyond a reasonable doubt." Commonwealth v. Vogel, 468 Pa. 438, 448, 364 A.2d 274, 279 (1976); See Commonwealth v. Delker, 467 Pa. 305, 356 A.2d 762 (1976); Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974).
Instantly, appellant never presented evidence nor raised the issue in the court below that he was insane at the time he committed the acts that were violative of his probation. Moreover, an examination of the record does not reasonably indicate that this was an issue.
Appellant testified at the Gagnon II hearing on May 24, 1977, that his decision to terminate treatment at the Norristown Hospital was based upon his assessment that the treatment was ineffective. He further stated that his motive in returning to Bridgeport on May 21, 1977, was to meet with Kathy Brown. He felt that the initial encounter with her, which caused her to file charges against him and thus precipitated his original problems, had been misunderstood. Appellant felt that if only he could meet with her, the problems could be erased, and his record cleared. Moreover, he stated that he never threatened to kill Kathy Brown in his discussion with her sister on May 21. He claimed that the question was posed by Alice Brown as to whether he was going to continue to harass the Brown family until Kathy was killed; appellant responded in the negative. Appellant also gave an extensive recitation of the May 21, 1977 encounter between himself and Kathy's brother and father, and claimed that it was they who had initiated the fight. That explanation was so extensive it lead the court below and the chief of police of Bridgeport to conclude that appellant may have been partially or wholly innocent in provoking the encounter. Finally, appellant's probation officer testified at the Gagnon I hearing on May 24, 1977, that appellant's problems arose from his perception that the initial charges filed by Kathy Brown were spurious. He was nevertheless charged with various offenses and therefore undertook a vendetta against those who presented the charges. The probation officer further testified that after being arrested for throwing stones at the Brown residence, appellant met with him on May 20, 1977, and finally admitted that he had been harassing the Brown family.
In light of the above, we cannot conclude that the evidence was such as to reasonably present the issue that appellant was incompetent at the time he committed the acts violative of his probation. His failure to continue treatment at the Norristown Hospital was the result...
To continue reading
Request your trial