Commonwealth v. MarshallCommonwealth v. Marshall
- Reporters:
- , ,
- Before:
- Manderino
Opinion by
Mr. Justice Manderino,The appellant, Eugene Marshall, allegedly shot his estranged wife in full view of several eyewitnesses on December 26, 1967. In August of 1968, prior to trial, he was given a psychiatric examination which was ordered by the trial court. The report of that examination stated that the appellant was competent to stand trial but stated “[i]t is recommended that the subject be seen weekly by a psychiatrist in order to allow him to continue to function well, with the understanding that under prolonged stress, he may in fact, deteriorate and become a quite ill individ/ml. Some psychiatric chemotherapy or counseling seems indicated at this time for him to maintain adequate functioning.” (Emphasis added.)
About eight months after the second psychiatric report was submitted, the trial court, on June 12, 1970, ordered a new trial because of error in the trial court’s charge to the jury. The error was not related to the appellant’s mental competency. When the new trial was ordered, the trial court also granted defense counsel’s request for permission to withdraw from the case. The trial court said that new counsel would be appointed and also said that another psychiatric examination of the appellant would be ordered.
New counsel was appointed two weeks later but another psychiatric examination was not ordered. New defense counsel made no request at any time for any psychiatric examination and raised no question about
The appellant was released on bail on September 3, 1970, and remained at liberty until his conviction about six months later. During that time, he returned to his former employment as a stock clerk and a taxi driver.
The appellant’s second trial began on February 22, 1971, about eight months after the appointment of new defense counsel. During the trial, no evidence was presented by the defense. The appellant was convicted by a jury of second degree murder on February 24, 1971. Post-verdict motions were filed without raising any issues about the appellant’s mental competency. While these motions were pending, the trial court ordered a psychiatric examination for sentencing purposes. The examination took place on March 23, 1971,
one month after the appellant’s conviction.
The diagnostic formulation in the report of that examination said “[t]his man is best seen at this time
as continuing
in a Schizophrenic Reaction of the Paranoid Type with inappropriate affect, delusional ideation and apparently hallucinatory phenomenon of a religious nature.” (Emphasis added.) The report recommended that “[t]his man’s
After this report was submitted, while post-verdict motions were still pending, defense counsel raised the question of the appellant’s mental competency to stand trial. During argument on post-verdict motions, on September 10, 1971, about six months after the appellant’s third psychiatric examination, the following colloquy occurred between the trial court and defense counsel: “The Court: It would seem to me, [defense counsel], that some testimony would have to be submitted. The Court just could not take your evaluation of the defendant’s ability to fully appreciate and understand the nature and consequences of the proceeding. [Defense Counsel]: Yes, and it is within Your Honor’s discretion to have a hearing with regard to whether or not the defendant was in fact competent at the time. The Court: It is your duty to offer evidence, psychiatric or otherwise. [Defense Counsel]: Yes, sir, I would intend to do that, sir, if Your Honor would allow me to do that. It is discretionary with the Court whether or not Your Honor would allow me. There is a case that indicated that it is within the Court’s discretion to allow that type of proceeding, that type of hearing. The Court : Is that cited? [Defense Counsel]: Yes, sir, I think it is, sir. The Court : Then perhaps I better let the Commonwealth reply to your brief, and con
At a conference in chambers held on October 19, 1971, the trial court noted that the briefs filed had been considered and requested that the appellant submit to another psychiatric examination. Ten days later, the appellant was examined. This was the fourth psychiatric examination by court psychiatrists. The report of the court psychiatrist which was submitted on November 18, 1971, stated “[o]n the basis of the information obtained during this interview, I cannot conclude anything other than the fact that Mr. Marshall is at best Schizoid and is at the present moment quite capable of defending himself.” (Emphasis added.) The report, however, did not make any evaluation of the appellant’s mental competency at the time of his second trial, eight months before this last examination. No hearing was held after the submission of this last report, but on December 22, 1971, post-verdict motions were denied and the appellant was sentenced to a term of five to fifteen years imprisonment. This appeal followed.
The appellant claims that the trial court erred in concluding that “[t]here was no factual basis to support defendant’s contention that he was incompetent to stand trial. . . .” The appellant asks that we conclude, on the basis of the record before us, that the appellant was denied due process of law because he was tried in February of 1971 while he was mentally incompetent. We cannot, however, on the record before us, grant the appellant’s request nor can we affirm the trial court’s denial of post-verdict motions. We cannot grant appellant’s request because, during the nine month period between the second and third psychiatric examinations, the appellant was out on bail for a period of six months and returned to his former employments. We cannot
“[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, 15 L. Ed. 2d 815, 818, 86 S. Ct. 836, 838 (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, 15 L. Ed. 2d 815, 821, 86 S. Ct. 836, 841 (1966). The issue, therefore, was properly raised in post-verdict motions and is properly before us.