Commonwealth v. Garnett

• Decision Date: 14 December 1984
• Citation: 485 A.2d 821,336 Pa.Super. 313
• Parties: COMMONWEALTH of Pennsylvania v. Trina GARNETT, Appellant.
• Court: Pennsylvania Superior Court

485 A.2d 821

336 Pa.Super. 313

COMMONWEALTH of Pennsylvania v. Trina GARNETT, Appellant.

Superior Court of Pennsylvania.

December 14, 1984

Argued Sept. 5, 1984. [Copyrighted Material Omitted]

Joseph Branca, Asst. Public Defender, Media for appellant.

Vram Nedurian, Jr., Asst. Dist. Atty., Media, for Commonwealth appellee.

Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.

OLSZEWSKI Judge:

This appeal follows denial of appellant's petition for relief under the Post Conviction Hearing Act.

On August 29, 1976, two children died in a fire at 1138 Spruce Street, Chester. Investigation by the Pennsylvania State Police Fire Marshal revealed that the fire had been set. As a result of their investigation, the Chester police filed criminal complaints against appellant, then age 14. The girl was bound over, following a preliminary hearing, on charges of criminal homicide-murder, criminal homicide, burglary, conspiracy-homicide, criminal mischief, recklessly endangering another person, causing a catastrophe and arson. Appellant was tried as an adult on all counts. Jury trial commenced on March 14, 1977. Verdicts of guilty were returned on two charges of second degree murder, on burglary, arson, recklessly endangering another person, and risking and causing a catastrophe. Counsel filed boiler-plate post-verdict motions. Those post-verdict motions denied, appellant was sentenced to concurrent terms of life imprisonment, to be followed at the close of the life terms, by an additional twenty to forty years imprisonment. No direct appeal was taken.

Appellant makes four allegations of ineffective assistance by counsel. She first charges that counsel was ineffective for failing to obtain an independent determination of her competency to stand trial and for failing to challenge her certification as competent to stand trial.

Conviction of an accused while she is legally incompetent violates due process. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966); Commonwealth v. Knight, 276 Pa.Super. 348, 357, 419 A.2d 492, 496 (1980) (and cases cited therein). Incompetence to proceed on criminal charges is defined by statute. "Whenever a person who has been charged with a crime is found to be substantially unable to understand the nature or object of the proceedings against him or to participate or assist in his defense, he shall be deemed incompetent to be tried, convicted or sentenced so long as such incapacity continues." 50 P.S. § 7402(a). Appellant was found incompetent by three psychiatrists, competent by a fourth. On the weight of that last evaluation, she proceeded to trial and conviction.

The PCHA court found that appellant had presented no evidence to establish that she was in fact incompetent to stand trial in March of 1977. ^[1] It concluded, "without such evidence Defendant's position does not rise above a mere allegation." While we sympathize with the lower court's predicament, we believe that the inquiry cannot end there.

Admittedly, difficulties attend the court's attempt to determine retrospectively an accused's competence to stand trial. See Pate v. Robinson, 383 U.S. at 387, 86 S.Ct. at 843; Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Where, as here, years separate the trial and the challenge, the difficulties may be insurmountable. In Commonwealth v. Dimitris, for example, Judge Spaeth for the Court en banc wrote: "To hold a hearing now [1977] on the question of appellant's competency to stand trial in 1973 would not be sufficient safeguard of his due process rights." 247 Pa.Super. 486, 493-494 n. 6, 372 A.2d 930, 933 n. 6 (1977); compare Commonwealth v. Hunt, 259 Pa.Super. 1, 12 n. 13, 393 A.2d 686, 691 n. 13 (1978) (plurality opinion) (remand for evidentiary hearing after passage of five years where the record contained four psychiatric reports written at or about the time of trial). This Court has addressed those difficulties. If the record initially reveals serious doubts about a defendant's competency, the reviewing court will proceed to determine whether the record conclusively establishes the accused's incompetency. Where the record does not permit such a judgment, the court will order a remand for an evidentiary hearing or, in unique circumstances where a remand hearing would not satisfy the demands of due process, grant a new trial. See Commonwealth v. Megella, 268 Pa.Super. 316, 325, 408 A.2d 483, 488 (1979) (Cercone, J., concurring) and cases cited therein.

The psychiatric reports relied on in this case do not appear of record. From testimony at the PCHA hearing, we deduce that there exist a social history from Allentown State Hospital dated January, 1973, summaries of her condition from Allentown State Hospital dated September 19 and September 24, 1974; a school summary dated April 28, 1975; a report from the Mental Health Institute for Children at Allentown State Hospital dated June 27, 1973; progress notes from Crozer-Chester Mental Health Center dated September, 1975 and December, 1975; a summary from Child Care Center of Delaware County, for the period June, 1975, and September, 1976, which included a psychiatric evaluation dated December 10, 1975, and a psychological examination dated August 25, 1976; a discharge summary from Eastern State School dated November 23, 1976, which included a psychological examination by Signe Larson, dated October 4, 1976; a psychiatric evaluation of Dr. Fong dated September 14, 1976; and another by Dr. Fong dated November 30, 1976; a report of a mental health hearing by Dr. Barry, dated December 3, 1976; a discharge summary from Norristown State Hospital dated January 16, 1977; a psychiatric evaluation done by Divine Providence Hospital in Williamsport, covering the period August 3 to 30, 1977; and a psychological evaluation by Muncy State Prison dated September 11, 1979.

Denied access to those reports, we turn to the facts of the case. Appellant has presented evidence which raises serious doubts about her competency at the time of trial. The fire occurred on August 29, 1976. Appellant had spent 2 1/2 of the preceding 4 years as a patient undergoing treatment for psychological disorders. She left the institution against the advice of a doctor who felt appellant was "too compulsive and not able to control herself." Following her arrest September 3, 1976, appellant was evaluated at the request of prison authorities. The court-appointed psychiatrist, Dr. John Fong, superintendent of Haverford State Hospital, found the girl incompetent to stand trial. She was placed in the Eastern State School and Hospital. There she was treated, tested and again found incompetent to stand trial. On December 3, 1976, a second psychiatrist, Dr. Theodore J. Barry, also of Haverford State Hospital, examined appellant and diagnosed her condition as chronic undifferentiated schizophrenia. He recommended she be hospitalized. The girl was committed to Norristown State Hospital. Two weeks after appellant's arrival at Norristown, the staff of that institution found her competent to stand trial.

More than two months later, the matter proceeded to trial without objection. ^[2]

In the present case it appears from the trial judge's opinion that he relied on the conclusions reached by the staff of Norristown State Hospital. ^[3] He fails to explain, however, what facts gave rise to these conclusions or even what standard the staff applied. None of the staff members testified nor were any of their reports made part of the record. On review, we are unable to come to a final judgment as to the sufficiency of the last examination. See Commonwealth v. Hunt, 259 Pa.Super. at 11 n. 10, 393 A.2d at 691 n. 10 (psychiatrist's report probative, but not dispositive, on question of appellant's competence); Commonwealth v. Savage, 270 Pa.Super. 388, 411 A.2d 774 (1979) (per Cirillo, J.). ^[4]

The lower court failed to make findings of fact regarding the girl's competency. With neither reports nor findings of fact on record, we are constrained to remand this matter. We do so reluctantly, mindful of the interests of judicial economy in the administration of criminal justice. Here, however, the deficiencies of the record impel the result.

On remand, the court is directed to hold an evidentiary hearing limited to the question of appellant's competence to stand trial in March of 1977. If the court below concludes that she was competent at the time of trial, the judgment of sentence as modified will be upheld. See, infra, p. 829. If appellant is found to have been incompetent, judgment of sentence is reversed and a new trial is ordered.

We find no merit to appellant's remaining claims.

Appellant next argues that trial counsel was ineffective for failing to present the defense of diminished capacity. It is true appellant was entitled to present evidence that she suffered from a mental defect which rendered her incapable of forming the specific intent to kill. Commonwealth v. Walzack, 486 Pa. 210, 360 A.2d 914 (1976). Under the Crimes Code, negation of a specific intent to kill would have reduced the crime to murder of the third degree. See 18 Pa.C.S. § 2502. Dr. Mark Shulkin, the court-appointed psychiatrist, testified that on the date of the fire, August 29, 1976, appellant lacked the capacity to form the specific intent to kill. Her IQ is listed at 69 or 70. Psychological tests conducted shortly after the fire indicated that appellant's thoughts are little more than animal instinct with no consideration of circumstances and no thinking beforehand.

Appellant was convicted, however, of second, not first, degree murder. Under the then-operative statute, "[a] criminal homicide constitutes murder of the second degree when the death of the victim occurred...