*1 can cause meso- exposure asbestos amounts of relatively small need frequent exposure regular thelioma and form of cancer. cause this occur to test,2 completely has Tragarz Majority
Relying Tragarz medical all this evidence. proffered of disregarded cannot of to asbestos exposure direct evidence held when regular, frequent, must show plaintiff a putative be proven, a cause of action. asbestos to state contact with and proximate such circum- Here, however, does not need Appellee/Plaintiff of factual basis has a sufficient as he asserted stantial evidence Hence, summary judgment. to overcome exposure direct challenge to the be denied and judgment should summary either occur s evidence should sufficiency Appellee/Plaintiff of trial, supra, through or at Frye hearing, as discussed at a presenta- experts of Appellee/Plaintiffs cross-examination jury opposing expert views. tion to a joins dissenting opinion. BALDWIN Justice
943A.2d Pennsylvania, Appellant COMMONWEALTH
v.
George BANKS, Appellee E. Banks, George
In re E. Mary Yelland, Appeal Friend. as Next Pennsylvania, Appellant Cases). (Two George Banks, Appellee E. Pennsylvania.
Supreme Court of Feb. 2007. Submitted Dec. Decided 2007. (7th Cir.1992). Corp., Tragarz v. Keene F.2d 411 *3 County Luzerne Gartley, Lupas, David W.
Scott Challes Buck, PA, Office, Wilkes-Barre, Ann Jennifer Attorney’s Dist. Gen., Eshbach, of Atty. Office Jonelle Harter Amy Zapp, PA, for the of PA. Harrisburg, Com. Defender Ass’n of Ñolas, Lawry, C. Horatio Matthew
Billy Flora, Public County Luzerne Joseph Albert Philadelphia, Wilkes-Barre, Office, E. Banks. George Defender’s Lev, Ñolas, Lawry, C. Horatio Matthew Billy Brian Stuart Philadelphia, of Defender Ass’n Kearney Rowley, Maureen Flora, Jr., Ruzzo, County Luzerne Joseph Albert William Wilkes-Barre, Office, Mary Yelland. Defender’s Public OPINION PER CURIAM. a the Commonwealth challenge
Before us is of Common Pleas of the Court and conclusions law findings 300 (“trial court”), Court, County Luzerne which this after matter, jurisdiction
assuming plenary
over this
directed to
determine
appellee1 George
competent
E. Banks is
follow,
be executed. For the reasons that
the trial court is
directed to
a
expeditious competency hearing
conduct new and
can present opinion testimony
from qualified expert
choosing.
a
of its
1983,
a jury
appellee
June
convicted
counts of
twelve
murder,
murder,
one
first-degree
third-degree
count
25,
related
in connection
September
offenses
with his
1982
Wilkes-Barre,
early morning killing spree
and near
Lu-
defense,
zerne County.2
rejecting
insanity
After
his
the jury
imposed the death sentence for each of appellee’s twelve first-
degree murder convictions. This
appellee’s
Court affirmed
convictions and sentences on direct appeal, Commonwealth v.
Banks,
318,
(1987),
513 Pa.
521
1
unanimously
A.2d
denied
relief,
Banks,
post-conviction
143,
Commonwealth v.
540 Pa.
(1995).
656 A.2d
Appellee’s
467
federal habeas corpus petition
ultimately
was
denied
the second of
decisions of the
two
Banks,
406,
U.S.
Court. Beard v.
U.S.
S.Ct.
(2004).
5, 2004,
On November Mary behalf, filed a “next petition friend” on his seeking stay of alia, execution and inter alleging, incompe tent to be executed under Ford v. Wainwright, 477 U.S. S.Ct. L.Ed.2d 335 (holding Eighth *4 Amendment prohibits States from executing defendants deter insane). mined to be The trial court the petition denied jurisdiction, of it finding want that was time-barred under the appealed PCRA. Yelland to this In an Court. order issued Although findings 1. our review the trial court’s and conclusions does “appeal” not constitute a traditional as we assumed —and still retain— plenary jurisdiction, designated “appel- Banks has nonetheless been the lee” because the trial court ruled in his favor. majority appellee 2. The of the thirteen victims that shot to with death children, his assault rifle were all but one of whom had fathered, and most of the others were the children’s various mothers. 1, 2004, under plenary jurisdiction assumed on December we execution, direct 726,3 stayed § the warrant 42 Pa.C.S. healing expeditiously competency trial court to “hold a ed the Wainwright.” Reproduced Ford v. Record in accordance with factu (“R.R.”) can contested 20a. Because be credibility, be questions because there could ally, and trial Court, essentially drafted the retaining jurisdiction, while further December we to act as a master. On judge appellee pos trial court to determine directed the or clemency proceedings to initiate capacity sessed the mental initiate them on his behalf. someone to designate 17, 2004, the trial court issued an order December On (“DOC”) produce the of Corrections directing Department The docket appellee. in its related to possession all records until February reflects no of the case progress sheet trial court held a status conference at which when April conference for merely telephone court scheduled a primarily The conference addressed April telephone in the of the DOC that possession certain documents protected by attorney/elient asserted were Commonwealth had forty-five After privilege. agreeing provide parties with issue, the to address proceeded more to brief the court days appellee by scheduled examination of yet-to-be the issue of the Michals, M.D., Timothy the Common- psychiatrist forensic It in this context that de- psychiatric expert. wealth’s right present” during fense counsel asserted “a examination as “the psychiatric light Commonwealth’s as well a mental health Notes of person present.” Testimony to have (“N.T.”), 4/13/05, Neither counsel at 17. Common- upon supposed “rights” nor the court commented wealth Instead, merely defense counsel. the court direct- asserted provides 3. Section 726 of the Judicial Code as follows: law, may, Notwithstanding any provision of other any upon petition any party, in matter its own motion or magisterial judge pending district of this Com- before court importance, involving public as- monwealth an issue of immediate jurisdiction any stage plenary of such matter at thereof and sume right justice final otherwise cause to be done. enter a order or § 42 Pa.C.S. 726. *5 the examination ten parties days. ed the schedule within See id. at 18. the examination not scheduled
Unfortunately, as this Court sua Accordingly, July court directed. on sponte per curiam order the trial court to directing entered on 2005. The trial court hearing hold or before October 3rd, for the last ultimately hearing day scheduled October however, permissible hearing, under our order. The did not scheduled, take as because place apparently appellee was from a skin Be- supposedly suffering contagious condition. it that the had been appeared hearing postponed cause indefi- another sua sponte yet entered order on nitely, court to directing October trial determine the competency extent of the skin condition and to reschedule the hearing. appellee’s treating
The trial court heard Arias, on At physician, Felipe hearing, October 11th. Dr. Arias testified that been in the appellee prison had treated infirmary for an skin condition for the undiagnosed past but that recently improved several months his condition had such that could attend a competency hearing without 10/11/05, N.T., anyone present. a health risk to at 32. posing Accordingly, the trial court rescheduled the hear- ing Monday, October 21st, Friday, defense counsel submitted to the
On October physician’s recommending trial court a affidavit that appellee not be transported competency hearing scheduled following Monday because the exact nature of his skin remained supposedly parties condition undetermined. The Monday, met as scheduled on October 24th. Instead of hold- that, the scheduled the court indicated ing hearing, based on affidavit, the physician’s competency hearing would be continued until it could be held at After SCI-Graterford. it then stating proceed telephone would to conduct a conference with the warden of SCI-Graterford to discuss the there, court logistics holding hearing asked the parties they place anything wished to else on the that, counsel informed the court response, record. 23rd, Mr. Dr. Michals and saw September [sic] “went *6 us, no notice to defense any any Banks notice to without counsel, there, no opportunity no for us to be opportunity way in any us to either observe or advise Mr. Banks N.T., 10/24/05, way.” at 4-5. Defense participate any he anticipated further the court that he that counsel advised witness, be that Dr. Michals be stricken as a requesting would “Well, motion, file responded simply, your to which the court the court happy respond Finally, I’ll be to to it.” Id. at 5. conference, it con- proceeded telephone during tacted the warden of SCI-Graterford and secured his assur- ances that the could be held there for competency hearing days beginning January four 2006.4 14, 2005, against On November to further guard any in this case in our inexplicable delay reposed original while jurisdiction, yet this Court entered another sua order sponte to, directing February trial court no later than “render its it decision issues was directed consider prior this Court’s orders of December December interim, 2004.” R.R. at 59a. In the on December the trial court held a on hearing appellee’s motion—a motion authorized this Dr. from by preclude never Court—to Michals testifying competency hearing based on defense coun- sel’s absence at Dr. Michals’ brief contact with on appellee September Throughout hearing, 23rd. counsel defense the trial court that alleged previously had “ordered” defense counsel contact present during any be between Michals and appellee.5 reality, as the Commonwealth notes any timing 4. Given the absence of discussion on the record as to the competency hearing, why hearing the scheduled it is unclear could not be held until more than three months later. N.T., 12/19/05, ("Our position 5. See at 4-5 is the Commonwealth scope shocking degree ... exceeded the of Your Honor's Order and, therefore, Your Honor should exclude the of Dr. Michals Honor, ...."); ("Your case, you specific id. at 8 what held in this any up up, contact with Mr. Banks would be on the with defense present, counsel with notice to the defense so that a defense counsel why you anything would be there. And the reason ordered that is not case.”); (“Mr. unique blatantly psychotic, to this he’s id. Banks is but counsel, you still entitled what to counsel and advice from that's Court, entered such an Brief this the trial court never
in its fact, to Dr. Michals’ contact with prior order.6 In 23rd, record indication whatsoev- gave the court no September arranging barred er that the Commonwealth was counsel. See outside the of defense such contact N.T., 4/13/05, upon no comment (making at 17-18 conference of April telephone at the counsel’s assertion a mental health right and “the to have right present” “a Moreover, not reflect the docket sheet does person present”). below, there is explained an order. As the existence of such statute, or in a for the no either in case law simply support, importantly, More asserted defense counsel. “rights” Court, original jurisdiction, impose did exercising the court expert when upon such restriction Commonwealth’s *7 simply expeditious trial court hold an ordered the we ordered.”); September contact was (alleging that the 23rd id. at scenes, everybody’s "arranged secretly back in behind the behind case”); at 14 expressed Order in’ this id. violation of Your Honor's ("And case, you That was Your Honor’s order. in this that's what said. there, up.”); lawyers, up let them be do it all on Tell the defense ("And you a violation of the statute[] [and] what have here is id. at case, your your which ... and a violation of own Order case law litigation.”); at 36- be done in the context of this id. Honor said should Order, ("But up go your initial which sets the first I back to provides defendant had the psychiatric examination which that the right present.”). have counsel appellee’s parties prior to evidence of a "directive”'made to the 6. As Cappy Dissenting Opinion competency hearing, Mr. Chief Justice in his opinion merely in the trial court's as to a cites to an observation made parties. Dissenting Op. at 231 supposed understanding between the ("The parties specifically that the 'understood that found[ ] [ ] trial court by pres- in the any with Banks the Commonwealth would be contact " representatives of the defense.' ence of defense counsel or other above, Nevertheless, 2)). Op.. (quoting Trial Ct. at as detailed no evidence that the trial court ever ordered —either record contains during verbally writing present be examina- or in defense counsel —that appellee. tions of regard, posits that "the Commonwealth In this the Chief Justice further theory proceeded that it was uninformed of the trial never contrary, as it was able to directive Id. To the as soon [sic].” court’s inconsistent with defense counsel's determine that the docket sheet was hearing, allegations the Commonwealth repeated at the December 19th the trial bring of the “order” to the attention of did the non-existence Reconsideration, & R.R. at 130a court. See Commonwealth’s Motion for n. 2. event, by is not bound this Court any hearing. competency any “order” by or even parties, of the “understanding” ' our control.7 acting under tribunal the lower on hearing held Nevertheless, of the the conclusion motion to 19th, granted appellee’s trial court December scheduled at the testifying Dr. Michals outright preclude it ruled that would The court further hearing. competency if Commonwealth, expert to re-hire a new though “allow the terms assuming that hearing, can they prior and that order are met with original of my [sic] conditions interviews of Mr. at all future present counsel be N.T., 12/19/05,at 39. from the DOC.” any people Banks and/or at the scheduled testifying Dr. Michals from In precluding that it “relied the trial court stated hearing, law, pre-hearing own parties’ principles of relevant contacts Banks expected with that this recognition [c]ourt of the in the only experts Commonwealth 2/27/06, authority cited only at 3. The Op., Trial Ct. defense.” which, explained as Wainwright, supra, Ford v. the court is notion of a coun below, supports than undermines rather requirement. sel-presence for Recon- filed a Motion subsequently
The Commonwealth was, fact, sideration, ‘original “no order’ that there arguing 130a. The trial R.R. at could have been violated.” motion, its depriving court denied *8 See, hearings expeditious in related contexts. Court has directed 7. This Saranchak, 570 Pa. 810 A.2d e.g., Commonwealth conducted, rights concerning to waive (proceeding determination, Court, proceeded final and matter upon order of this timeframe). delay simply here twelve-day The unauthorized is within inexplicable. timely currently place specific procedure for the in a There is not PCRAor other handling Wainwright claims—either under the of Ford v. hoped that this case legislation, or Court’s rules. We had under this developing procedure, a but the might proper vehicle for such be the expired parties do not appellee's has and the for execution warrant Therefore, procedure employed here. we propriety of the address the Rules Appellate Court Procedural Commit will refer the matter to the to recommend a Criminal Procedural Rules Committee tee and the stay filing disposition for of execution and of motions framework purported incompetence be executed. a defendant's based on only psychiatric six expert weeks before the scheduled compe- tency hearing.
After a retaining expert, psychiatrist new forensic Michael Weiner, M.D., the Commonwealth notified the that Dr. DOC Weiner would need to examine interview the personnel DOC whom Dr. Michals had interviewed. R.R. at 157a. The DOC that it responded would allow Dr. Weiner to examine appellee deny but would request Commonwealth’s Thereafter, personnel. re-interviews of DOC Id. promptly Commonwealth filed a Motion to Compel the re- The trial court granted interviews. the Commonwealth’s mo- required tion but the interviews be transcribed and in conducted of defense counsel. The Common- objection wealth twice noted its to the conditions that 1/18/06, N.T., court imposed. at 17-18.
Understandably, Dr. Weiner declined to conduct the inter- under the imposed by views conditions the trial court. When asked “what those impact conditions that were imposed would ability interview,” have had to conduct a [his] candid responded Weiner as follows: Well, it would have a effect.... chilling [P]eople they have feel that are communicating with someone records their who ideas a candid way, they but to feel they have are not caught up some sort of deposition, process. adversarial know, You I’m psychiati’ist. a I’m not an attorney. you If want to conduct a deposition, you don’t need a psychiatrist for that. But kind of psychiatrist interviewing witnesses examinees is done in a way that more resem- bles doctor’s office and less a deposition. resembles people them, When feel that there are people monitoring and this in my professional is experience, they are chilled they are silent. And if the purpose is to elicit candor openness, then it purpose defeats the and it it renders an ineffectual exercise.
N.T., 1/31/06, at 381-82. Accordingly, “that in requested light of Dr. Weiner’s testimony, the [e]ourt *9 the record request and allow the reconsider Commonwealth’s complete offer a may he and prepare so that open to remain Id. at 407. The trial hearing.” of this testimony purposes request. the court denied re-
Thereafter, “interlocutory sought the Commonwealth and evidentiary rulings pre-hearing the trial court’s of view” The trial court hearing. of stay the requested request, the stay and denied certify “appeal” the declined therefrom emergency filed an motion the rule on stay but did not request We denied in this Court. competen- The interlocutory “appeals.” the Commonwealth’s 30, 2006, at which January hearing finally was held cy that he opined expert three witnesses who presented appellee his death understanding a rational and factual lacked of the same. implications for and reasons sentences restrictions, Commonwealth, could the trial court’s given The no evidence. produce 27, 2006, findings its the trial court issued February
On the three Citing and conclusions of law. fact DOC hearing, appellee’s at the experts who testified exhibits, found that records, the court hearing and other Wainwright. under Ford v. The incompetent appellee “lacks the overall further found that trial court is incapable and thus general competency, capacity rational, making legal process in the rationally participating to seek decisions such as the decision whether intelligent 2/27/06, In its explaining Trial at 21. clemency.” Op., Ct. noted that the evidence repeatedly the trial court findings, see id. uncontradicted, 8, 10, defense went presented Commonwealth did ultimately found “[t]he hearing, for the necessary diligence” preparing act with is ruling trial court’s competency id. The of the propriety before this Court. now Wainwright, Court held Ford
In
the U.S.
execut
Amendment restricts
States
Eighth
holding,
determined to be insane.
so
a defendant
ing
task of
however,
explicitly
State[s]
the Court
“le[ft]
*10
ways to enforce
constitutional
developing appropriate
th[at]
Ford,
416,
2595;
at
106
see also
restriction.”
477 U.S.
S.Ct.
Butler,
485
108 S.Ct.
99
U.S.
Lowenfield
that,
(Brennan, J.,
in
dissenting) (noting
L.Ed.2d 686
Ford,
majority
agree
precise
of this Court did not
“[a]
the
is
procedures
requires
question
that the Constitution
when
execution”).
a
In the brief in
prisoner’s sanity
raised of
motion to
Dr. Michals from
support
appellee’s
preclude
Smith,
that,
counsel asserted
in Estelle v.
testifying, appellee’s
(1981),
454, 101
High
451 U.S.
S.Ct.
Estelle v.
concerned a Texas
prisoner’s petition
Smith
trial,
habeas
relief. Before
once the
corpus
Smith’s
.federal
prosecution announced that it
seek the death penalty,
would
the
judge
sponte
prosecution
arrange
trial
sua
ordered the
a
examination of
a
psychiatric
court-appointed psy
Smith
chiatrist. The trial
ordered the examination “to deter
judge
mine
to stand trial”
though
Smith’s
even
alleged
incompetent
defense had not
that Smith
to .stand
was
Smith,
1, 101
trial.
In in the Court was careful reaching holding High its to note as follows: issue before us is whether a defendant’s Sixth Amend-
[T]he the right abridged ment to the assistance counsel is when to consult given prior opportunity defendant is not with about his in the examina- participation psychiatric counsel tion. assert, Appeals not and the Court of did not does
[Smith] find, actually pres- to right constitutional have counsel fact, during Appeals ent the examination. the Court “an recognized attorney present during psychiatric that seriously could contribute little and might disrupt interview the examination.” (citation omitted)
Smith, n. 1866 U.S. S.Ct. 708). Smith, 602 F.2d at (quoting
Thus, not the issue of although squarely present Smith did be present during psychiatric defense counsel must defendant,8
examinations of the
the decision does not support
as
appellee’s
counsel asserted
black-letter
propositions
Smith occurred at the
in
thing,
For one
the examination
law.
stage,
there
a Sixth Amendment
to
pre-trial
right
where
was
important,
explicitly disclaiming
counsel.
in
the hold
Equally
it,
counsel cites
noted
ing
appellee’s
High
which
articulated
Dr.
in the
very
by
same concerns
Weiner
in declining
instant matter
to conduct the interviews under the
ultimately
by
conditions
the trial court. Nor does
imposed
Smith
that
here
suggest
committed
by
constitutional violation
defense counsel
failing
notify
before,
23, 2005,
Dr.
September
attempted
Michals
appellee
questioned
personnel
examine
DOC
response
defense,
to a claim of
raised
incompetency
defense counsel
Commonwealth. Volunteer
was well aware
be
exactly
examining appellee
questioning
who would
{i.e., Michals),
personnel
exactly
limited purpose
what
(i.e., incompetent
determine whether
was
executed,
claimed), and,
as counsel
respect
person
with
nel, exactly
with
Compare
questions
would be asked.
Smith,
Texas,
supra-, see also Satterwhite v.
486 U.S.
108 S.Ct.
Moreover, that it to the extent is In the supports appellee’s position. rather than undermines Dr. Michals preclude motion to appellee’s support brief that, de- in the absence of argued testifying, appellee from go could counsel, “misperceptions expert’s a psychiatric fense to chal- misdiagnoses impossible rendered uncorrected and noted, however, Ford at 65a. As the R.R. lenge.” may the defense for such concerns when there is no reason witness, “bringing thereby the expert cross-examine simply beliefs, underlying factors precise the bases for light [his] on the beliefs, caprice” of error or any history those [and] Ford, 2595. More- at 106 S.Ct. 477 U.S. expert’s part. case, Indeed, in this over, experts. has its the defense own deemed cross-examination apparently the trial court Commonwealth, not require as it did sufficient for the at examinations attorneys appellee’s presence government to, and occurred notice without by experts, of, See counsel for the Commonwealth. outside the N.T., 12/19/05, 24. counsel-presence clear that the foregoing
The makes (1) actually trial court not by the was: requirement imposed (2) order; authorized court in an never memorialized Court; binding or justified by warranted court, including other authority persuasive even error, the Common compound To U.S. Court. expert its time to allow second denied sufficient wealth was adequately. prepare compe- another
Therefore, court is directed hold the trial may present the Commonwealth tency hearing at which competency, question appellee’s meaningful case The wishes, testimony of Dr. Michals. if it including, *13 is specifically hearing expeditiously hold such court shall .312 to no impose presence-of-counsel upon
directed restrictions Moreover, expert. exception Commonwealth’s with the matters, the trial scheduling logistical court is not to be by tangential by diverted motions and assertions counsel: this jurisdiction retains such matters. The trial court Court over in conducting is to act expeditiously rehearing. Jurisdiction retained.9 SAYLOR, EAKIN, BAER join
Justices and FITZGERALD opinion. dissenting opinion Chief Justice CAPPY files a joins. Justice BALDWIN dissenting.
Chief Justice CAPPY Majority grants I dissent. The competency hearing new merely because the trial court of the precluded Michals, psychiatric expert, Commonwealth’s six weeks competency hearing Contrary before the was conducted. to the Majority, my examination of the record leads me to that the conclude Commonwealth created its predicament own when it failed to abide the trial court’s directive failed overwhelming to refute the evidence E. establishing George Banks’ I affirm incompetence. Accordingly, would the find- ings and conclusions of of the law Common Pleas County, establishing Luzerne that Banks is incompetent pursue clemency proceedings and to be executed. incompetent
Initially,
agree
I
that the
Majority
with
record does not
include a written trial court order
requiring defense counsel
be present during psychiatric interviews of Banks. The trial
found, however,
court specifically
parties
that the
“understood
contact
Banks
with
be
Commonwealth would
presence
of defense counsel or
representatives
other
July
application
post-
9. On
filed an
for leave to file
pursuant
urging
submission communication
to Pa.R.A.P.
Court to consider the U.S.
Court’s recent decision in Panetti v.
-
Quarterman,
-,
U.S.
127 S.Ct.
313 Moreover, the Opinion at 2. Com- the defense.” Trial Court theory on the it un- proceeded monwealth never At the hearing of the trial court’s directive. informed testimony, to Dr. Michals’ the Commonwealth motion exclude counsel had to not assert that it was unaware that defense did Instead, counsel for the be for interviews Banks. present in “oversightedness” failing for her apologized Commonwealth to see going advise defense counsel that Dr. Michals was to Banks a third time. N.T. at 25.1 11/19/2005 existed, I not ruling established that such would
Having required into the trial court defense properly delve Dr. of Banks. presence during counsel’s Michals’ examination developed the has not this claim. Simply put, Commonwealth in arguments than made examining parties Rather briefs, great their instead to to Majority goes lengths statements in motion to Dr. Appellee’s preclude refute made See 308, testifying. Majority Opinion Michals from 943 currently A.2d at motion is not before our 236-37. Such The plenary jurisdiction Court. mere fact that we assumed jurisdiction the matter retained the trial court over while as fact their parties acted finder did absolve the trial obligation properly adhere to court’s directives and in address claims of error their briefs filed this Court. I While concede that Commonwealth raised the issue challenging propriety presence-of-counsel require- of the ment,2 directly, it does not address issue but includes its discussion the collateral order doctrine an assertion that aside, granted preclude 1. As an the trial court the motion to (1) testimony grounds: an Michals’ on two that Dr. Michals had 19, improper September third contact with Banks on 2005 without counsel; (2) notice to or the of defense that Dr. Michals employees Department had interviewed of the of Corrections without Majority The notice to access the defense. does not address the ground preclusion for the of Dr. Michals' alternative report. 3, queries: In its statement of Issue No. the Commonwealth Did the lower court err when it ordered that defense must be counsel present Depart- at all future Commonwealth interviews of Banks and staff and be tran- ment Corrections that such interviews must scribed? Appellant's Brief at 6.
814 Wainwright, Ford v. 477 106 91 L.Ed.2d U.S. S.Ct. (1986), does not require present counsel Brief at 24- during competency Appellant’s evaluations. See simply 25. Such assertion is to warrant relief. insufficient Edmiston, Pa. generally See (holding A.2d that defendant’s claim that the him provide meaningful opportunity court failed to with a fails because defendant develop adduce evidence failed argument). that, I trial
Finally, disagree given the court’s restrictions *15 evidence, on the of the Commonwealth was effec- presentation tively precluded presenting Notwithstanding evidence. permitted the fact that the trial court the to Commonwealth Dr. in preparing hearing, utilize Michals for the the Common- did not in of the any way challenge reliability wealth on cross-examination or rebut the expert opinions substantive Further, presented evidence on behalf of Banks. the Com- Samuel, had another Dr. expert, monwealth Steven who did not have contact with Banks. The improper Commonwealth in was also free retain additional the six experts weeks remaining hearing. before the scheduled presented testimony
The instead of Dr. Commonwealth Weiner, not who stated that he did have sufficient time to the information to form an as to opinion compe- review Banks’ tency. The trial court concluded that there a lack of on the of the in diligence part preparing Commonwealth Dr. for the a lack hearing diligence part Weiner and in the records he failing possessed Weiner review Banks prior hearing. interview These conclu- and/or supported by sions are the record. At the outset of the competency hearing, “partic- Commonwealth noted its fashion, in this be in a limited ipation hearing will as proceed.” when we N.T. at 10. The will.observe 1/31/2006 strategy regard Commonwealth’s to its detri- proved ment. said, I being proceed
This the trial court’s would review determinations. The standard to determine if one is to be' executed under Ford is incompetent and its penalty for the death the reason “comprehends person 371, 652 Jermyn, v. 539 Pa. implications.” Commonwealth (1995). Further, that it is the have held A.2d we or her incompetence to establish his of the defendant burden Zook, of the preponderance a evidence. (2005). 1225-26 Banks’ counsel 585 Pa. 887 A.2d satisfied this burden. clearly any evidentiary trial found that under standard
The court lacks established that Banks proof, records of his understanding for rational and factual capacity implications of the actual reasons for and death sentences and engaged comprehen- The trial court of those sentences. not findings of the and its are analysis presented sive evidence record, undisputed. but are only clearly supported disor- diagnosed psychotic Three Banks with expert witnesses der, (testimony N.T. at 17 specified. otherwise 1/31/2006 Obrien, II); at 152 of Dr. (testimony of Dr. John Sebastian Id. Jr.); (testimony Richard G. Id. at 251 Dr. Jethro Dudley, Toomer). delusional, that Banks is experts explained The W. suicidal, eat, speaks refuses to of devils demonic torturing experts him. Id. at 37. The further spirits directly that Banks’ delusions to the issue of his explained go pardoned, death sentence as he believes that he has been *16 execution, awaiting no and that he is longer facing he is Id. at 186. The established that Banks release. evidence skin disorder body, self-mutilated his referred to his resultant demon,” and medical treatment. Id. “flesh-eating as refused experts agreed malingering. 210. The that Banks is not Id. at 331. This conclusion based was of time psychotic symptoms consistent documentation over different contexts. hearing including Banks’ counsel further submitted exhibits officers, counselors, su- documentation from the correctional nurses, doctors, medical pervisors, prison superintendent, evaluators, oth- commitment psychiatrists, psychologists, had sources daily pains- ers who contact with Banks. These Banks’ The conclu- takingly psychotic documented behavior. consistent professionals entirely sions reached these were experts. conclusions of Banks’ The trial court itself with the evidentiary that Banks’ behavior at further observed that it his mental illness and hearing was consistent with or able to interact rationally engaged clear that he was not Trial capacity participate. and lacked the with counsel short, estab- presented at 18. In the evidence Opinion incompetency nothing overwhelming Banks’ is short lishing is competency hearing and a second unwarranted. incompetent I rule that Banks is Accordingly, would to be executed. pursue clemency proceedings incompetent joins dissenting opinion. Justice BALDWIN A.2d 241 Pennsylvania, Appellant, v. COMMONWEALTH of BINNEY, Appellee. Justin C. Pennsylvania. Court of March ORDER PER CURIAM. NOW, March, 2008,
AND
this 18th
the order of the
day
Erie
Pleas is
insofar as it
County Court
Common
reversed
Code,
§
declared
3802 of the
75 Pa.C.S.
Section
Vehicle
unconstitutional,
pro-
and the case is remanded for further
ceedings.
upheld
constitutionality
This Court
Sections
*17
3802(c)
3802(a)(2)
Duda,
Pa.
(2007),
Finchio,