Com. v. Sam

Decision Date08 December 1993
Citation635 A.2d 603,535 Pa. 350
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Thavirak SAM a/k/a Thaviak Sam, Appellant.
CourtPennsylvania Supreme Court

Ronald Eisenberg, Philadelphia, Norman Gross, Robert A. Graci, Atty. Gen. Office, for appellees.




This direct appeal arises from the June, 1991 jury trial of Appellant Sam for the shooting deaths of three relatives. Sam was found guilty of three counts of first degree murder and possession of an instrument of crime. He then requested a waiver of his right to have the jury decide the penalty, and instructed his attorney not to argue any mitigating circumstances. After an extensive colloquy in which Sam acknowledged that he was in effect asking the court to sentence him to death, the trial judge entered three consecutive death sentences. He specifically found at least one aggravating circumstance and no mitigating circumstance for each murder. Thereafter, the court heard and denied post-verdict motions and suspended sentence on the charge of possession of an instrument of crime. At that proceeding, Sam indicated for the first time that he did not want to die. The court then appointed new counsel, who filed this timely appeal.

Initially, although appellant does not challenge the sufficiency of the evidence, we must review the record to determine if the evidence is legally sufficient to sustain each of his convictions for murder of the first degree. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). Clearly, it is. Uncontradicted evidence presented at trial established that at approximately 1:00 p.m. on July 20, 1989, appellant's sister-in-law, Hong Ing, called the family restaurant to report that Sam was beating his son. Sam had habitually beaten the child since he was one month old and occasionally beat his two-year old niece as well. Sam's mother-in-law, Thay Ing, had instructed Hong to call her if Sam beat his son.

When Thay Ing learned that Sam was beating the child again, she left the restaurant and returned to the family home at 723 Snyder Avenue in Philadelphia. Sou Ing, her son and brother-in-law of Sam, accompanied her. When they entered the house, they did not see Sam, as he had already gone upstairs. Sou told Hong that he would take both children back to the restaurant. Sou then went upstairs to rest for a brief time. Thay Ing remained downstairs with the children.

At some point shortly thereafter, Sam retrieved a loaded .380 caliber semi-automatic pistol from his bedroom. The gun, which he had purchased the day before along with 100 rounds of ammunition, held a thirteen bullet clip. At approximately 1:50 p.m. Sam shot Thay twice and attacked his brother-in-law Sou, firing at him inside the house and chasing him out onto the street. As Sou ran down Snyder Avenue, one of the bullets hit him in the back and severed his spinal column. He fell to the ground. Sam then ran up, loaded a fresh clip, and fired continuously at the fallen body. Five bullets entered the back of the victim's head as horrified bystanders watched.

As the shooting stopped, Sam's wife ran into the street and dropped to her knees by her brother. Sam ignored her, turned and walked back to the house. Almost immediately upon re-entering, he shot his two-year-old niece once between the eyes at close range. He then shot his mother-in-law again while she lay on the floor.

Several bystanders then saw Sam come out, get into his car, and drive off. Two people wrote down his license plate number and later gave it to police. Almost simultaneously, police arrived at the scene. Upon entering the house, they discovered the two bodies and found Sam's wife crying hysterically on the second floor. When asked what had occurred, she said that her husband shot the three relatives because she had threatened to divorce him for beating their child.

As a result of further investigation, the police learned that Sam may have fled to a friend's house in North Lebanon Township. They notified the North Lebanon police and advised that they were obtaining a warrant for his arrest. The North Lebanon police then went to the friend's residence, and saw Sam in his car in the driveway. While awaiting confirmation that a warrant had been issued, the police received a frantic call from the residence. The caller reported that a man had a gun and was threatening to kill himself. At that point, the police moved in and made the arrest. They also retrieved the murder weapon.


Appellant's first argument is that defense counsel was ineffective for failing to object to the trial court's ruling that he was competent to stand trial. He contends that there was conflicting evidence presented about his ability to comprehend, and that his conduct during trial confirmed that he did not understand the proceedings. Further, he claims that counsel was ineffective for failing to request additional psychiatric testing.

Our standard for reviewing ineffectiveness claims is well established. In Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), this court held that:

ineffectiveness claims are measured by two components. First, counsel's performance is evaluated in light of its reasonableness if it is determined that the underlying claim is of arguable merit ...

Second, we have required that the defendant demonstrate how the ineffectiveness prejudiced him.

515 Pa. at 158-59, 527 A.2d at 975 (citations omitted).

At the end of the first day of voir dire, counsel explained to the court that his client "... doesn't care, he is not paying attention, he is not looking at anyone, he is not interested." He also said that Sam complained about "feeling dizzy" because he had not received one of his medications that morning. The court then asked a court psychologist, Dr. Alan Levitt, to interview Sam to determine if he was competent to proceed. Later that day, with the assistance of a Cambodian interpreter, Dr. Levitt examined Sam and concluded that "[h]e seems withdrawn, he seems somewhat out of contact with reality at present. He is not able to focus adequately. And in my opinion he is in a disturbed state, too disturbed to defend himself adequately in a trial situation at this point." Dr. Levitt opined that Sam could not understand what was happening at trial.

At that point, the court entered an order for a full psychiatric examination, which was conducted by Dr. Robert Stanton, again with the aid of an interpreter. Dr. Stanton disagreed with Dr. Levitt's findings, and concluded that Sam was competent to stand trial. He found that Sam was able to understand the nature of the charges against him and why the proceedings were being held. He opined that Sam "managed to grasp the meaning of all the different, important aspects, such as charges, function, purpose of a trial ... [Sam] was aware that if he was acquitted he would go free, that was the outcome that he wanted and he was going to work towards that." After hearing both experts, the trial court concluded that appellant was competent and jury selection resumed. At no point thereafter did counsel ever inform the court of any continuing problems.

A person is incompetent to stand trial where he is "substantially unable to understand the nature or object of the proceedings against him or to participate and assist in his defense." 50 Pa.S. § 7402(a) See also Commonwealth v. Banks, 513 Pa. 318, 340-41, 521 A.2d 1, 12, cert. denied sub. nom., Banks v. Pennsylvania, 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987). The person asserting incompetency has the burden of proving it by clear and convincing evidence. 50 Pa.S. § 7403(a). Moreover, the determination of competency rests in the sound discretion of the trial court. Commonwealth v. Banks, 513 Pa. at 341, 521 A.2d at 12.

Sam is arguing that this court should believe the testimony of Dr. Levitt, and discount the conflicting expert testimony. He would have us substitute our judgment for that of the trial judge, who had the opportunity to observe Sam's demeanor throughout the proceedings. We decline to do so.

After the competency ruling, counsel never again complained that Sam was unable to understand the proceedings or assist with his defense. The court conducted several extensive colloquies with appellant during the course of trial. On each occasion, he demonstrated that he understood what was occurring, and gave no indication that he was confused or unable to participate in his defense. Appellant has not established, by clear and convincing evidence, that he was incompetent to stand trial. Commonwealth v. Banks, 513 Pa. at 342-44, 521 A.2d at 12-13 (defendant failed to meet his burden of demonstrating, by clear and convincing evidence, that he was incompetent to stand trial; expert testimony conflicted as to whether defendant would be capable of understanding nature and object of proceedings and trial judge observed that defendant's behavior, demeanor, and presentations throughout proceedings corroborated rather than contradicted finding of competency). Therefore, despite appellant's insistence that counsel failed to represent his interests when the competency issue was not pursued, counsel cannot be ineffective for failing to lodge a meritless claim.


Appellant's next claim of error concerns the Commonwealth's introduction of evidence that Sam beat his son and niece. While Sam concedes that the Commonwealth was entitled to present evidence that he beat his two-year-old son on the day of the murders, he argues that the trial court improperly admitted evidence that he had beaten his son on other occasions, and that he had also beaten his two-year-old niece on prior occasions. He further argues that trial counsel was ineffective...

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