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decided: April 3, 1974.


Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Feb. T., 1973, No. 1843A, in case of Commonwealth of Pennsylvania v. Meredith Smith.


John J. Dean, Chief, Appellate Division, with him John R. Cook, Trial Defender, and George H. Ross, Public Defender, for appellant.

James Wilson Bush, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Spaeth, J.

Author: Spaeth

[ 227 Pa. Super. Page 358]

Appellant was convicted by a jury of attempted statutory rape and indecent assault.*fn1 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, 50 P.S. § 4410, to Farview State Hospital for a period not to exceed three years.

The facts may be summarized as follows. On the evening of January 25, 1973, the prosecutrix, who was fourteen years old, was baby-sitting 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 prosecutrix'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

[ 227 Pa. Super. Page 359]

    and was trying to kiss her. After talking with her mother, the prosecutrix tried to call a friend. Appellant would not allow her to use the downstairs telephone so she went upstairs to place the call. Appellant followed her and again prevented her from using the telephone. Appellant then pushed the prosecutrix down on a bed and lay on top of her. She struggled with him, tried to resist his attack, and cried for help. He hit her and tore off her clothing. At least one adult male witnessed these events but did nothing. Two of the children with whom the prosecutrix was sitting were also present; one of them ran for help. Eventually the other people in the house pulled appellant off the prosecutrix. Appellant ran downstairs, where he briefly fought with his brother, and out of the house. He was arrested twenty minutes later.

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.*fn2 Counsel attempted to explain her failure to

[ 227 Pa. Super. Page 360]

    raise the matter earlier by stating that the President Judge had told her to make her request to the trial judge but the case had not been assigned to a trial judge until it was too late. The trial judge denied her request but conducted "a conference in Chambers"*fn3 on the matter of appellant's competency. After questioning appellant, the judge heard from a Mr. Minneci of the Behavior Clinic.

Appellant described himself as the oldest of ten children. When asked about his educational background, he stated that from the time he had had a "nervous breakdown", following the death of his mother, he attended a special education school in Clairton. He could not remember the name of the school, nor could he remember whether he had ever attended a regular grade school. With respect to his recent medical history, he said (without reference to any specific date), "I was going to the 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 had bad nerves. I was getting liquid Thorazine, injection shots." He went on to say that he had been in jail for 110 days prior to trial,*fn4 during part

[ 227 Pa. Super. Page 361]

    of which time he was confined in the hospital section. "They was giving me medication for a little while, and they had me strapped down up there." He said that "the medicine calms my nerves, it makes me tired and makes me fall asleep . . .", but that he had not received any medicine in the month prior to trial, including the day before and the day of trial. Appellant stated that he recognized his lawyer and had met and talked with her two or three times in preparation for trial. After explaining the nature of a jury trial, the trial judge said: "Now the question that your lawyer has raised here is whether or not you are in mental shape to go to trial. Do you feel competent enough to stand trial, that you have been able to cooperate with her enough to help her in preparing for the case so as to put forth the best defense she could for you? How do feel about that?" Appellant replied, "I feel okay. I am a little bit nervous though." The judge went on to question appellant about his understanding of the charges against him, asking, "What would a person have to do to be guilty of rape?" After the judge rephrased the question, the appellant said, "whenever you take it, whenever she ain't willing, that's rape." He also said that he knew that in statutory rape, "The girl is younger." He also knew he could "serve time" if convicted of the charges against him.

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.

[ 227 Pa. Super. Page 362]

Mr. Minneci stated that "[appellant] has been seen by Dr. Bowman and Dr. Davis. He has also been tested by Dr. Ruby, a psychologist. All of these gentlemen agree that [he] is competent to go to trial. His main difficulty, he is mentally retarded. But he understands and fits into the category -- we see no point in delaying this case, if it can be avoided, because [he] has been a management problem in the County Jail. I happen to know [appellant] very well. . . . He's been a problem in the jail, in that he doesn't get along too well and it has been necessary from time to time to put him in the jail hospital and shackle him down, tie him, chain him to the bed. Therefore, it would be in the best interest of everyone concerned."

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."

[ 227 Pa. Super. Page 363]

In applying for the appointment of a sanity commission, counsel for appellant had said to the court: "Mr. Minneci had a complete file on my client. The file indicated that his IQ is 58. Mr. Minneci indicated they believe he has severe mental problems which would require treatment. And he suggested that he be committed, if convicted, in lieu of sentence . . . to Farview. . . ." In the conference in chambers, Mr. Minneci repeated this opinion, telling the judge that "it was the unanimous opinion" that "if adjudged guilty . . . [appellant] should be committed . . . to a State Mental Hospital, in lieu of sentence." So far as appears, he did not produce the file to which counsel had referred. Nor did Dr. Davis or any other person who had examined appellant appear before the judge.

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. Requests for psychiatric examinations should be made prior to trial, Pa. R. Crim. P. 304, Reporter's Comments, in writing, Pa. R. Crim. P. 304(a), and at least "ten days before trial unless opportunity therefor did not ...

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