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COMMONWEALTH v. WOLENSKI (10/30/72)

decided: October 30, 1972.

COMMONWEALTH
v.
WOLENSKI, APPELLANT



Appeal from order of Court of Common Pleas of Delaware County, March T., 1954, Nos. 541 and 542, in case of Commonwealth of Pennsylvania v. Henry V. Wolenski.

COUNSEL

R. Barclay Surrick, Assistant Public Defender, for appellant.

Ralph B. D'Iorio, Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Manderino joins in this dissent.

Author: Per Curiam

[ 449 Pa. Page 174]

Order reversed and record remanded for reconsideration in the light of Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845 (1972), Com. ex rel. DiEmilio v. Shovlin, 449 Pa. 177, 295 A.2d 320 (1972), and the Mental Health and Mental Retardation Act of 1966, Spec Sess. No. 3, October 20, P. L. 96, 50 P.S. ยง 4101 et seq., without prejudice to counsel for appellant to raise any other matters.

Disposition

Order reversed and record remanded for reconsideration.

Dissenting Opinion by Mr. Justice Roberts:

The recently decided case of Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845 (1972), compels dissent. For as the Court said in Jackson : " We hold, consequently, that a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future." The Court

[ 449 Pa. Page 175]

    continued: "If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal. In light of differing state facilities and procedures and a lack of evidence in this record, we do not think it appropriate for us to attempt to prescribe arbitrary time limits. We note, however, that petitioner Jackson has now been confined for three and one-half years on a record that sufficiently establishes the lack of a substantial probability that he will ever be able to participate fully in a trial." Id. 406 U.S. at 738-39, 92 S. Ct. at 1858 (footnote omitted) (emphasis added).

Accordingly, appellant must either be released from custody or civilly committed under the same standards applicable to the population in general. Having been confined for almost nineteen years at Farview State Hospital as incompetent to stand trial, appellant, under the mandate of Jackson, has unquestionably been denied due process and equal protection. Appellant has been a patient since 1953; however, having been committed under the predecessor to Section 408 of the Mental Health and Mental Retardation Act of 1966, Act of October 20, 1966, Spec. Sess. No. 3, P. L. 96, 50 ...


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