Com. v. Sam

Decision Date22 July 2008
Docket NumberNo. 49 EAP 2005.,49 EAP 2005.
Citation952 A.2d 565
PartiesCOMMONWEALTH of Pennsylvania, Appellant v. Thavirak SAM, Appellee.
CourtPennsylvania Supreme Court

Hugh J. Burns, Jr., Philadelphia Dist. Attorney's Office, Jeffrey Krulik, for the Com. of PA, appellant.

Jules Epstein, Kairys, Rudovsky, Messing & Feinberg, Philadelphia, for Thavirak Sam, appellee.



Chief Justice CASTILLE.

Today we decide two appeals that present the identical issue of whether an inmate who is presently incompetent may be compelled to take psychiatric medication in order to render him competent to determine whether to pursue relief under the Post Conviction Relief Act (PCRA).1 In this matter, as in the companion case of Commonwealth v. Watson, ___ Pa. ___, 952 A.2d 541, 2008 WL 2806576 (2008), which we also decide today, the Court of Common Pleas of Philadelphia County ("PCRA court") denied a request by the Commonwealth for an order to compel the administration of such medication. For the reasons that follow, we reverse the PCRA court's denial of the Commonwealth's request and remand for proceedings consistent with this Opinion.

On July 2, 1991, appellee Thavirak Sam was convicted of, inter alia, three counts of first-degree murder and received three consecutive death sentences for the killing of his mother-in-law, brother-in-law, and two-year-old niece. This Court affirmed appellee's convictions and sentence on direct appeal. Commonwealth v. Sam, 535 Pa. 350, 635 A.2d 603 (1993), cert. denied, 511 U.S. 1115, 114 S.Ct. 2123, 128 L.Ed.2d 678 (1994) (relating facts underlying appellee's convictions).

On January 16, 1997, Robert Brett Dunham, Esquire, of the Center for Legal Education, Advocacy and Defense Assistance (CLEADA) filed a PCRA petition, purportedly on behalf of appellee.2 In Box 5 of the petition ("THE FACTS IN SUPPORT OF THE ALLEGED ERROR(S) UPON WHICH THIS MOTION IS BASED"), Attorney Dunham alleged as follows: "This person is not presently competent and does not have a rational understanding of these proceedings or of his rights. Accordingly, this form is being filed on his behalf in order to preserve his rights and seek appointment of counsel." PCRA Petition, filed Jan. 16, 1997, at 3 (unnumbered). Attorney Dunham was not retained by appellee, nor was he appointed by any Pennsylvania court to represent him, so as to be authorized to initiate PCRA proceedings "on his behalf." The Honorable C. Darnell Jones, II, of the Court of Common Pleas of Philadelphia County, was subsequently assigned to the case, and Jules Epstein, Esquire, was appointed as PCRA counsel.3

With the approval of the court, appellee was examined by psychologist William F. Russell, Ph.D., for the defense on May 10 and May 24, 2000, and by psychiatrist John S. O'Brien, II, M.D., for the Commonwealth on October 4, 2000. Although Dr. O'Brien diagnosed appellee with bipolar disorder and Dr. Russell determined the diagnosis to be paranoid schizophrenia, both mental health experts concluded that appellee was presently suffering from delusions and that, as a result, he was mentally incompetent to participate in PCRA proceedings.

On January 7, 2002, the Commonwealth filed a Motion to Compel Psychiatric Medication in which it relied on the conclusions of Drs. O'Brien and Russell. In particular, the Commonwealth's motion quoted the following from the report of Dr. Russell: "Mr. Sam will not disclose any personal, let alone pertinent information unless he perceives the person as being trustworthy and in line with his delusions. Without intervention[4] and subsequent loosening of the mental hold on the delusions, this is unlikely." Motion to Compel Psychiatric Medication, filed Jan. 7, 2002, at 3 (quoting Report of Mental Health Examination at 5). The Commonwealth's motion also quoted the following from the report of Dr. O'Brien:

It is my opinion that Mr. Sam's treatment records reflect good response to appropriate psychiatric treatment and utilization of medications in the past, and I would expect that the current manifestations of his psychiatric condition would likewise respond to necessary and appropriate psychiatric treatment. It is my opinion that Mr. Sam's prognosis for achievement of a remission of his current grandiose and paranoid symptoms, with appropriate psychiatric treatment, is excellent.

Id. (quoting Letter from Dr. O'Brien to Christopher Diviny, Esquire, Assistant District Attorney (Feb. 5, 2001), at 4-5). The defense timely filed a Memorandum of Law in Response to the Commonwealth's motion on February 20, 2002.5

On April 4, 2003, the PCRA court held a hearing on the Commonwealth's Motion to Compel Psychiatric Medication. At the outset of the hearing, the Commonwealth and the defense stipulated that appellee was presently "incompetent for purposes of proceeding in a courtroom." Notes of Testimony ("N.T."), 4/4/03, at 5. No stipulation was made as to whether appellee was competent to initiate the PCRA process, or to approve of Mr. Dunham's filing of a PCRA petition "on his behalf."

The Commonwealth then presented the testimony of Dr. O'Brien. During direct examination, Dr. O'Brien stated a number of conclusions that he had reached after examining appellee and reviewing numerous materials in connection with his case, including prison medical records and reports of prior mental health evaluations. In particular, Dr. O'Brien testified that it was his "opinion, with a reasonable degree of medical certainly [sic], that Mr. Sam would respond to treatment, psychiatric treatment, for his current symptoms." Id. at 17. Dr. O'Brien noted that his opinion in this regard was based both on his general expertise in forensic psychiatry as well as the fact that "Mr. Sam himself[ ] has been treated in the past with antidepressant and antipsychotic medications with good response"i.e., without symptoms of the type that he was currently presenting. Id. at 18.

Dr. O'Brien also testified extensively as to the general course of treatment with psychiatric medications and their potential for side effects. In particular, Dr. O'Brien testified as follows:

Q. How would someone like Mr. Sam be treated with these drugs you are describing?

A. Well, just in more general terms, physicians identify symptoms in the course of conducting examinations of patients. And then select medications that are known to have a beneficial effect on those particular symptoms.

* * * *

We have a body of knowledge in medicine that basically educates us about the statistical likelihood of therapeutic responses and also certain side effects. But there is really no way ... predicting in advance how a particular patient will respond to a particular medication of choice until that choice has been made, the medication prescribed, and at that point the physician observes the patient's response to the medication in terms of it's [sic] effect on the symptoms, and also observers [sic] the patient to determine whether or not side effects are present.

Id. at 20-21. Dr. O'Brien proceeded to explain the typical course of treatment of psychosis as follows:

[T]he way in which one would typically proceed is to choose one of the lower side effect profile newer medications first and try those, or try one of those. If he was [sic] not to respond, then there are a number of other ones within that category that one can try. But, if none of those work, you would move then to the medications that have a higher side effect profiles [sic]. In other words, a greater statistical likelihood of side effects.

Id. at 23.

With respect to the specific medications available to treat psychosis, Dr. O'Brien testified that "most of the medications are very effective. The newer medications have very low side effect profiles. The older medications, such as the ones [appellee]'s been on in the past, have higher side effect profiles." Id. at 23. Indeed, Dr. O'Brien testified that appellee "was treated with a higher side effect profile antipsychotic medication, Thorazine, and didn't demonstrate serious side effects" and that "[m]edications that are available today have a far more benign side effect profile than Thorazine." Id. at 25. When asked whether there were any less intrusive means of achieving appellee's competency, Dr. O'Brien responded that it was his opinion that there were not and that, in fact, appellee's symptoms would not improve if left untreated. Id. at 29-30;6 see also id. at 33 (opining that "the likelihood and gravity of the side effects of the medication that we've been discussing would not overwhelm or outweigh their benefits"). When asked whether treatment with antipsychotic medications was in appellee's best medical interest, Dr. O'Brien responded that this would be "the treatment of choice" given the symptoms appellee was presenting. Id. at 37. Finally, when asked whether there was "any specific medication that [he] would advise the Court as absolutely appropriate," Dr. O'Brien responded that he "wouldn't dictate a specific choice of medication to a treating clinician because it's up to the clinician to assess the patient and then work with the patient to identify a medication, or treatment regimen that would have therapeutic benefit and few, if any, side effects." Id. at 42.

Following the testimony of Dr. O'Brien, defense counsel called Dr. Russell, the psychologist who had examined appellee for the defense. Dr. Russell agreed with Dr. O'Brien that appellee's delusions are "the predominant issues at the present time that interfere with his competency." Id. at 72. Dr. Russell further agreed with Dr. O'Brien that whether the source of appellee's delusions was bipolar disorder (as Dr. O'Brien concluded) or paranoid schizophrenia (as Dr. Russell determined), the treatment protocol would be "very similar." Id. at 91. When the defense attempted to...

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