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COMMONWEALTH v. KENNEDY (05/04/73)

decided: May 4, 1973.

COMMONWEALTH
v.
KENNEDY, APPELLANT



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1970, Nos. 752 to 756, inclusive, in case of Commonwealth of Pennsylvania v. Howard Kennedy, a/k/a Tyrone Mars.

COUNSEL

John T. Grigsby, III, and Eugene H. Clarke, Jr., for appellant.

Norris E. Gelman and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen.

Author: Eagen

[ 451 Pa. Page 484]

The appellant, Howard Kennedy, was convicted by a jury of murder in the second degree, aggravated robbery, burglary and conspiracy. All of the crimes were based on and were allegedly committed in the perpetration of a robbery of a drug store in Philadelphia during which the druggist was fatally shot. After post-trial motions were denied, separate prison sentences of 10 to 20 years, to run consecutively, were imposed on the murder, robbery and burglary convictions. Sentence was suspended on the conspiracy conviction. A timely appeal from the judgment of sentence imposed on the murder conviction was filed in this Court.*fn1

[ 451 Pa. Page 485]

Two assignments of error are asserted, but only one need be discussed herein.

Prior to trial the issue was raised as to whether or not Kennedy was competent to stand trial. After an extended hearing the trial court found he was so competent. On the record this ruling was incorrect.

At the pretrial competency hearing the following evidence was presented. Dr. Francis Hoffman, Director of the Neuropsychiatric Unit of the Court of Common Pleas in Philadelphia stated it was his opinion, after undertaking an examination of appellant in conjunction with the efforts of one Dr. VonSchlichten, that appellant was a paranoid schizophrenic and incompetent to stand trial. The foundation of the Doctor's opinion rested on the fact that throughout the period of examination, appellant did not in any way cooperate with the doctors, and it was the Doctor's judgment that this was not a deliberate refusal, but rather appellant was unable to cooperate because of his illness. The Doctor indicated this involuntariness would carry over to the efforts of appellant's trial counsel.

Dr. James Nelson, a certified neuropsychologist, also testified appellant was a paranoid schizophrenic and unable to stand trial. The Doctor stated appellant's paranoia rendered him incapable of trusting anyone and he would be unable to cooperate with his counsel even if it were to his own advantage.*fn2

[ 451 Pa. Page 486]

Lastly, Doctor Edward Guy,*fn3 Director of Psychiatric Services in the Philadelphia prison testified. While Doctor Guy would not say that appellant could not stand trial he expressed serious doubts as to whether appellant could stand trial because he could not ...


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