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decided: April 23, 1974.


Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1968, Nos. 209, 210 and 211, in case of Commonwealth of Pennsylvania v. Eugene Marshall.


T. D. Watkins, with him Robert B. Mozenter, Paul Leo McSorley, Marino & Mozenter, and McSorley & McSorley, for appellant.

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

Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Opinion by Mr. Justice Manderino. Mr. Chief Justice Jones and Mr. Justice Nix took no part in the consideration or decision of this case.

Author: Manderino

[ 456 Pa. Page 314]

The appellant, Eugene Marshall, allegedly shot his estranged wife in full view of several eyewitnesses on December 26, 1967. In August of 1968, prior to trial, he was given a psychiatric examination which was ordered by the trial court. The report of that examination stated that the appellant was competent to stand trial but stated "[i]t is recommended that the subject be seen weekly by a psychiatrist in order to allow him to continue to function well, with the understanding that under prolonged stress, he may in fact, deteriorate and become a quite ill individual. Some psychiatric chemotherapy or counseling seems indicated at this time for him to maintain adequate functioning." (Emphasis added.)

[ 456 Pa. Page 315]

Six weeks later, on October 1, 1968, prior to trial, defense counsel requested funds to hire a psychiatrist. This request was denied. The appellant's trial began a few weeks later, on October 28, 1968. Following appellant's conviction in a jury trial of second degree murder, post-verdict motions were filed. While these motions were pending, the trial court ordered a psychiatric examination for sentencing purposes. Court psychiatrists examined the appellant in October of 1969, and submitted a report to the trial court. This second psychiatric report apparently confirmed the expected deterioration of the appellant's condition indicated in the first psychiatric report made prior to trial -- fourteen months earlier. This second report diagnosed the appellant as a "Schizophrenic Reaction, Paranoid Type, Acute," and recommended "Incarceration in the Institute for Criminally Insane at Farview." The report stated: "It appears that since his incarceration his past defenses have decompensated to the extent that he now only has a tenuous contact with reality, is preoccupied with the physical complaint and somatic delusions, fanatically influenced by bizarre religiosity and engages in private conversation with God." (Emphasis added.)

About eight months after the second psychiatric report was submitted, the trial court, on June 12, 1970, ordered a new trial because of error in the trial court's charge to the jury. The error was not related to the appellant's mental competency. When the new trial was ordered, the trial court also granted defense counsel's request for permission to withdraw from the case. The trial court said that new counsel would be appointed and also said that another psychiatric examination of the appellant would be ordered.

New counsel was appointed two weeks later but another psychiatric examination was not ordered. New defense counsel made no request at any time for any psychiatric examination and raised no question about

[ 456 Pa. Page 316]

    appellant's mental competency before or during the second trial, although he did request, prior to trial, that he be permitted to withdraw because he was not receiving any cooperation from the appellant in preparing a defense. That request was denied. The record is not clear as to whether new defense counsel knew about the appellant's two previous psychiatric examinations which had occurred prior to his appointment. The prosecution's brief assumes that the first report was given to former defense counsel "because it is the practice in our courts," but concedes that the second psychiatric report which recommended the appellant's commitment to Farview was not in the appellant's files since it had been prepared for sentencing purposes prior to the grant of a new trial.

The appellant was released on bail on September 3, 1970, and remained at liberty until his conviction about six months later. During that time, he returned to his former ...

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