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COMMONWEALTH v. MOZZILLO (06/28/71)

decided: June 28, 1971.

COMMONWEALTH
v.
MOZZILLO, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1962, No. 456, in case of Commonwealth of Pennsylvania v. Samuel Mozzillo.

COUNSEL

Irving W. Backman, for appellant.

Milton M. Stein, Assistant District Attorney, with him Steven H. Goldblatt, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Eagen concurs in the result. Mr. Chief Justice Bell dissents. Mr. Justice Cohen took no part in the decision of this case. Mr. Justice Roberts took no part in the consideration or decision of this case.

Author: O'brien

[ 443 Pa. Page 172]

The appellant, Samuel Mozzillo, was indicted as of November Term, 1962, on charges of murder and arson. The charges concerned the death of Philip Fromenko, an eight-month old infant who died in a fire on October 20, 1962, at an apartment house in Philadelphia,

[ 443 Pa. Page 173]

    where both he and the appellant lived. During the police investigation of the incident, appellant gave certain self-incriminating statements which were later suppressed as inadmissible at trial.

In December, 1962, a lunacy commission examined the appellant and found him to be sane. In March, 1963, appellant's attorney petitioned for the court appointment of a psychiatrist to help in the preparation for trial. At that time the appellant's attorney believed that appellant, who was an epileptic and had been hospitalized for a seizure shortly before the fire, might have had a seizure at the time of the fire. The psychiatric examination confirmed that appellant suffered from epilepsy. Moreover, the appellant was found to have an IQ of 59. However, the psychiatric examination of the appellant did not reveal any evidence of "mental disease."

Nevertheless, because of the convulsive disorder and the low IQ, the psychiatrists recommended that the appellant be committed to the state institution at Dallas as incompetent to stand trial since he was "not competent to confer with counsel in the preparation of his trial or to testify in his own defense." The assistant district attorney agreed with the recommendation of the psychiatrists and appellant's attorney prepared the commitment forms under Section 1225 of the Mental Health Act. On July 30, 1963, the court signed an order committing appellant to the Dallas Institution for Mental Defectives.

On October 28, 1966, following a petition for a writ of habeas corpus, appellant was ordered transferred to the Philadelphia State Hospital (Byberry) pending a psychiatric examination for the purpose of determining whether appellant was competent to stand trial. Appellant was instead transferred to Holmesburg prison on October 28, 1966. On December 5, 1966, appellant

[ 443 Pa. Page 174]

    was examined by Dr. Kenneth Kool, who was at that time the Medical Director of the Psychiatric Division of the Probation Department. Dr. Kool found that the appellant was competent to stand trial and to cooperate ...


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