Commonwealth v. SmithCommonwealth v. Smith
- Reporters:
- , ,
- Before:
- Spaeth
Opinion by
Spaeth, J.,
Appellant was convicted by a jury of attempted statutory rape and indecent assault.
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Instead of being sentenced he was committed under the Mental Health and Mental Retardation Act of 1966, Act of Special Sess. No. 3, Oct. 20, P. L. 96, art. IV, §410,
The facts may be summarized as follows. On the evening of January 25, 1973, the prosecutrix, who was fourteen years old, was babysitting at a neighbor’s home in Duquesne, Pennsylvania. Also present were several other young people, including appellant, who was twenty-two years old and was a friend of the prose-cutrix’s family (especially of her older brothers; he had no special relationship with the prosecutrix). About 8:00 p.m. the mother of the prosecutrix telephoned to ask if she was all right. The prosecutrix said that appellant was bothering her and would not leave her alone. Just then, appellant had begun to embrace her
Competency To Stand Trial
Of the numerous contentions appellant makes, the most disturbing concerns his competency to stand trial.
After the jury had been selected and just before the trial was to begin, appellant’s counsel requested that the trial be delayed and a sanity commission consisting of two psychiatrists and an attorney be appointed to determine whether her client was competent to stand trial.
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Counsel attempted to explain her failure to
Appellant described himself as tbe oldest of ten children. When asked about bis educational background, be stated that from tbe time be bad bad a “nervous breakdown”, following tbe death of bis mother, be attended a special education school in Clairton. He could not remember the name of tbe school, nor could be remember whether be bad ever attended a regular grade school. With respect to bis recent medical history, be said (without reference to any specific date), “I was going to tbe clinic over in McKeesport,” and that a year ago, “I was in Woodville [Hospital] . . . for a month. . . . My parole officer put me up there because I bad bad nerves. I was getting liquid Thorazine, injection shots.” He went on to say that be bad been in jail for 110 days prior to trial,
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during part
Following this colloquy with appellant, the judge received a statement from “Mr. Minneci” (a full name is not of record). Mr. Minneci is connected with “the Behavior Clinic” and is evidently known by the judge and both counsel. It may be assumed that the Behavior Clinic is operated by the court to advise it with respect to the competency to stand trial of persons charged with crimes and also with respect to sentencing. However, Mr. Minneci’s title and functions at the Clinic are not of record.
When asked by the judge whether appellant had been restrained “because of his mental competency or is he a disciplinary problem?”, Mr. Minneci replied, “He is a disciplinary problem more than anything, Your Honor.” When asked by the judge, “Now, what was the occasion for the clinic making a determination of his competency; was the question raised by someone?”, he replied: “No, Your Honor. We routinely see all cases of Rape, Murder, certain categories of crimes, and the crime that [appellant] had committed was one of those that routinely is seen by the Behavior Clinic. We also have seen him on prior occasions because of his mental disability and in regard to his being somewhat mentally defective.”
When asked by counsel for appellant, “What standards are used to evaluate competency?”, Mr. Minneci replied, “Well, regular psychiatric examination. Mr. Davis would be available — I don’t know whether he is there now — he was over in the County Jail, but he’d be available to testify.” Later, when counsel asked again “what standards are used,” he replied, “Well, I am not a psychiatrist, so I wouldn’t want to answer that.”
Following Mr. Minneci’s statement, the judge concluded that appellant was competent to stand trial, the parties returned to the court room, and the jury was sworn.
In appraising this proceeding it may be noted initially that there can be no question that the oral request by appellant’s counsel that a sanity commission be appointed was both improper in form and untimely. Bequests for psychiatric examinations should be made prior to trial, Pa. B. Crim. P. 304, Beporter’s Comments, in writing, Pa. B. Crim. P. 304(a), and at least “ten days before trial unless opportunity therefor did not exist or the defendant or his attorney was not aware of the grounds for the application.” Pa. B. Crim. P. 305.
Nonetheless, given the information in counsel’s request for a sanity commission — that the Behavior Clinic “believe [d] [appellant had] severe mental problems . . . [and should] be committed, if convicted” — the trial judge properly concluded that he should inquire into appellant’s competency, despite counsel’s failure to
Inquiry here having been made, the question becomes whether the judge’s ruling that appellant was competent is supported by sufficient evidence.
In resolving this question, the usual rule is that “the person asserting mental incompetence to stand trial has the burden of proving incompetency by a preponderance of the evidence. Cf. Commonwealth v. Carluccetti, 369 Pa. 190, 85 A. 2d 391
(1952);
Commonwealth v. Simanowicz, 242 Pa. 402, 89 A. 562 (1913).”
Commonwealth v. Kennedy, supra
at 487, 305 A. 2d at 892. In the present case, however, this rule
As stated in
Commonwealth ex rel. Hilberry v. Maroney,
424 Pa. 493, 495, 227 A. 2d 159, 160 (1967) : “[T]he test to be applied in determining the legal sufficiency of [a defendant’s] mental capacity to stand trial . . . is not the M’Naghten ‘right or wrong’ test, but rather his ability to comprehend his position as one accused of [a crime] and to cooperate with his counsel in making a rational defense.... Or stated another way, did he have sufficient ability at the pertinent time to consult with his lawyers with a reasonable degree of rational understanding, and have a rational as well as a factual understanding of the proceedings against Mm.” See
Dusky v. United States,
362 U.S. 402 (1960). Due regard should be given to “the capacity of [the defendant] to understand the nature and object of the proceedings against him, to comprehend his own condition in reference to such proceedings, to understand the nature of the punishment which might be inflicted upon him, to confer with his counsel with reference to such proceedings, to make a rational defense, and the probable effect of the trial on such person’s physical and mental condition.” Mental Health and Mental Betardation Act of 1966,
supra
§408(d),
In the present case it appears from the trial judge’s opinion that he relied on the conclusions
In
Commonwealth v. Bruno, supra,
it was held that neither the confrontation clause nor considerations of due process require that the hearsay rule apply in sanity commission hearings. Presumably, the same
When the limitations of the record here are weighed, the conclusion cannot be avoided that there was insufficient evidence to support the ruling that appellant was competent to stand trial. Accordingly, the matter must be remanded for a fuller hearing.
Appellant’s trial was held on Monday, April 23, 1973, or about a year ago. A retrospective hearing to determine if appellant was competent at the time he
If after the retrospective hearing, appellant is found to have been incompetent at the time of his trial, the provisions of §408 of the Mental Health and Mental Retardation Act of 1966,
supra,
The Trial Judge’s Examination of the Prosecutrix
Appellant contends that a mistrial should have been declared after the trial judge questioned the prosecu-trix because the examination was “prejudicial”, “involved repetitive and leading questions”, and “placed the trial court in a position before the jury of presenting the prosecution’s case.”
On direct examination the prosecutrix (who it will be recalled was fourteen years old) had difficulty describing what occurred. It was impossible to determine from her testimony whether appellant achieved penetration. She stated that while appellant was on top of her “[he] started to get it in, you know move.” The Assistant District Attorney asked her what part of appellant’s anatomy she was referring to when she said “it”. The prosecutrix responded, “[t]he bottom,” but
“Q. And just how was it committed? What happened with you and Meredith that makes you now say that there was a rape committed? A. (No verbal response). Q. Are you able to say? A. (No verbal response).”
In Commonwealth v. Myma, 278 Pa. 505, 507-08, 123 A. 486, 487 (1924), it was said:
“A judge in a jury trial has a right to interrogate witnesses. It sometimes becomes his duty to do so, even to the point of recalling a witness to supply an omission of proof on a material point: Boggs v. Jewell Tea Co., 266 Pa. 428, 434; State v. Jackson, 87 S.C. 407, 89 S.E. 883; Lycan v. People, 107 Ill. 423. But a judge may so conduct an examination as to make it an abuse of discretion, requiring a new trial.
“Witnesses should be interrogated by the judge only when he conceives the interest of justice so requires. It is better to permit counsel to bring out the evidence and clear up disputed points on cross-examination unaided by the court; but where an important fact is indefinite or a disputed point needs to be clarified, the court may see that it is done by taking part in the examination. The practice of a judge entering into the trial of a case as an advocate is emphatically disapproved. The judge occupies an exalted and dignified position; he is the one person to whom the jury, with rare exceptions, looks for guidance, and from whom the litigants expect absolute impartiality. . . .”
See also, Commonwealth v. McCoy, 401 Pa. 100, 104, 162 A. 2d 636, 642 (1960) (Musmanno, J., concurring and dissenting) (questioning proper if designed to clarify issues, remove ambiguity, and protect the rights of parties and witnesses); Commonwealth v. Watts, 358 Pa. 92, 56 A. 2d 81 (1948) (questioning improper if it shows bias or feeling or is unduly prolonged); A.B.A. Canons of Judicial Ethics No. 15 (intervention to promote expedition, prevent unnecessary waste of time, or clear up obscurity proper; undue interference, impatience, or participation or a severe attitude toward witnesses may be counter-productive).
Applying these standards, we find no abuse of discretion here. The trial judge’s questions, although repetitive, went to an important issue in the case. It was in the interest of both the Commonwealth and appellant that this issue be clarified. The trial judge waited until both attorneys had finished their questions; thus, he did not interfere with either attorney’s presentation. His questioning was not unduly prolonged, nor did it indicate bias or prejudice in favor of either side. Finally, the jury in rendering a verdict of guilty of attempted statutory rape resolved the matter in appellant’s favor.
Testimony by the Prosecutrix After Violation of Sequestration Order
The prosecutrix was followed to the stand by Dr. Karen Green and Doris Hamilton. Dr. Green, a resident in obstetrics and gynecology, examined the prose-cutrix on the night she was attacked by appellant. Doris Hamilton was one of the persons who pulled appellant off the prosecutrix. After Ms. Hamilton’s testimony, the court recessed for lunch. When court reconvened, the Assistant District Attorney asked to recall the prosecutrix, stating in chambers that he had talked with her during the lunch break and she was now prepared to answer questions she had not responded to before. Appellant’s counsel objected. At the beginning of trial the judge had ordered the sequestration of all witnesses in the corridor outside the courtroom. In violation of that order the prosecutrix had sat in
It is within the sound discretion of the trial judge to permit a witness who has violated a sequestration order to testify. Commonwealth v. Martin, 440 Pa. 150, 269 A. 2d 722 (1970). See also United States v. Marson, 408 F. 2d 644 (4th Cir. 1968). In exercising this discretion the judge should determine what effect, if any, violation of the order may have had in shaping the testimony the disobedient witness would offer. Commonwealth v. Ross, 190 Pa. Superior Ct. 145, 152 A. 2d 778 (1959). He should consider whether the witness actually heard others testify; whether the witness intentionally disobeyed the order so that he might hear others testify; whether the party calling the witness procured his disobedience; and whether the testimony heard was related to the witness’s expected testimony in such a way that he could have been influenced by or gained knowledge from it. 2 Torcia, Wharton’s Crim. Evid. §405 (13th ed. 1972); 14 A.L.R. 3d 16 (1967).
The trial judge here did not abuse his discretion in permitting the prosecutrix to testify after she had violated the order. It was not established what testimony the prosecutrix overheard. She stated on the stand in response to a question from appellant’s attorney that she had entered the courtroom just as Ms. Hamilton was getting off the stand. There is no evidence that her disobedience of the judge’s order was intentional. Dr. Green during her testimony used the
Appellant, for the first time, argues that the trial judge should have noted for the jury the violation of the sequestration order and should have charged that the witness’s disobedience could be considered as affecting her credibility. Commonwealth v. Turner, 389 Pa. 239, 133 A. 2d 187 (1957). We shall not consider this argument. Any objection to the omission of such a charge should have been made before the jury retired to deliberate. Pa. E. Crim. P. 1119(b). At the end of his charge, the judge afforded appellant’s counsel an opportunity to discuss at side bar any instruction misstated or overlooked, but counsel made no request.
The Commonwealth’s Failure To Call Two Eyewitnesses
It appears from the testimony of the prosecutrix and Doris Hamilton that one Tony Underwood and one Stanley Mitchell were eyewitnesses to all or part of the attack.
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Neither was called by the Commonwealth. Appellant’s attorney requested that the trial judge charge the jury that it could infer that any witnesses known to the Commonwealth but not called would have given testimony unfavorable to the Commonwealth.
Bee Hertz Corp. v. Hardy,
197 Pa. Superior Ct. 466, 473, 178 A. 2d 833, 837 (1962). The judge
The Offense of Attempted Statutory Rape
Appellant argues that he should not have been convicted of attempted statutory rape because no such crime existed in Pennsylvania.
At the time of appellant’s arrest and trial (both of which occurred before the effective date of the new Crimes Code,
Appellant points to the definition of the crime of assault with intent to ravish: “Whoever commits an assault and battery upon a female with intent forcibly and against her will, to have unlawful carnal knowledge of her, is guilty of a felony.” Act of Special Sess., No. 3, May 12, 1966, P. L. 84, §1,
Inconsistency in the Verdict
Appellant’s final contention is that the jury in finding him guilty of both attempted statutory rape and indecent assault rendered an inconsistent verdict.
At the time of trial, “indecent assault” was “the taking by a man of indecent liberties with the person of a female without her consent and against her will, but with no intent to commit the crime of rape.” Commonwealth v. DeQrange, 97 Pa. Superior Ct. 181, 185 (1929). Appellant contends that he could not have acted at one time both with and without an intent to have sexual intercourse with the prosecutrix. The Commonwealth, on the other hand, contends that appellant made two attacks on the prosecutrix, and that it is the first, which occurred in the living room when appellant embraced the prosecutrix and attempted to kiss her, that is the basis for the indecent assault verdict.
On defendant’s appeal the evidence must be regarded in the light most favorable to the Commonwealth. Commonwealth v. Simpson, 436 Pa. 459, 463, 260 A. 2d 751, 754 (1970). So regarded, the evidence supports the Commonwealth’s argument that the jury could have found that appellant made two attacks on the prosecutrix. The question therefore becomes whether the first attack was an “indecent assault”.
The case is remanded for further proceedings consistent with this opinion.
Notes
The trial judge directed a verdict in appellant’s favor on a charge of forcible rape.
Counsel was apparently seeking to invoke §408 of The Mental Health and Mental Ketardation Act of 1966,
supra,
“(a) Whenever a person who has been charged with crime is detained in a penal or correctional institution and he is believed to be mentally disabled so that his commitment to a facility is necessary, a petition for such commitment may be presented to the court of the county where he stands charged with crime. The petition may be made by the warden or other officer in charge of the detaining institution, a relative of the detained person, the detained person or his counsel or the attorney for the Commonwealth.
“(b) To assist in determining the questions raised by the petition the court may adopt one or any combination of the following procedures:
“(2) Appoint a commission consisting of two physicians and an attorney which shall examine such person in the detaining institution and in addition, receive any other evidence from any source bearing upon the questions of whether the person is mentally disabled and whether his commitment is necessary.
So far as the record discloses, the conference was informal; although what was said was transcribed, it was not under oath.
If appellant was in jail from the day of his arrest until the day of trial, he would have been in jail 89 days.
None of this is to excuse careless practice by counsel. Nor do we suggest that a trial judge is not free to decline to explore a defendant’s competency to stand trial where the issue has not been raised as required by
The opinion reads in part as follows: “The trial court, in the interests of justice, upon learning of defendant’s desire to request psychiatric examination, after the jury was picked, conducted a hearing, on the record, and out of the presence of the jury. During this hearing defendant’s attorney indicated knowledge of a Behavior Clinic opinion that the defendant was competent to stand trial. Nevertheless, the trial court conducted a colloquy with defendant as a result of which it was the court’s opinion that the defendant was competent to stand trial. The representative of the Behavior Clinic joined the colloquy and reported that Doctors Bowman and Davis, psychiatrists, as well as Dr. Ruby, psychologist, agreed in their opinion as to defendant’s competence to stand trial in spite of being mentally retarded.” [References to pages where evidence appears in the record have been omitted.‘]
There was the following: “Q. Do you know what that bottom is called? A. I forget. Q. All right, do you have on your body what he tried to get into yours? A. I did. Q. Now, let me — let me see if I can better express this. This part of the body that lie tried to get into yours, this physical part of his body, do you have the same physical feature, the same part on your body as he does on his? A. No.”
Appellant‘s brother was also present. Because of the possibility of interfering with the relationship between the brothers, and because the prosecutrix testified more fully upon being recalled, the Assistant District Attorney did not call appellant’s brother. Appellant is not objecting to this.
Appellant argues that there was no proof of consent, and that therefore he could only have been charged with rape and (absent proof of penetration) only have been, convicted of attempted rape. This argument misconceives the elements of the offense of statutory rape. Consent need not be established as an element of the offense; it must be proved only when a defendant by way of defense asserts that a conviction of fornication rather than statutory rape is in order.