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decided: October 30, 1975.



Albert Ominsky, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen and Pomeroy, JJ., concur in the result.

Author: Roberts

[ 464 Pa. Page 504]


This appeal arises from appellant John McQuaid's commitment in Farview State Hospital since 1960 because of his incompetency to stand trial. The hearing court held that appellant's confinement could be continued without a civil commitment hearing. We vacate the hearing court's order and remand for further proceedings.

Appellant was involved in a stabbing incident on March 7, 1960, and was subsequently charged with murder. However, on March 11, 1960, after a hearing in the Court of Common Pleas of Philadelphia, he was found incompetent to stand trial and was ordered committed. Appellant's first rehearing occurred on February 22, 1974, pursuant to his own motion to commence trial. Appellant was recommitted by the hearing court despite a contrary recommendation by the Psychiatric Division of the Probation Department.

On April 29 and May 3, 1974, the court held an additional hearing to determine what action if any should be taken pursuant to Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), which held that a defendant could not be committed indefinitely solely because he was incompetent to stand trial. At this hearing three medical experts testified that appellant, because of his paranoid schizophrenia, was potentially dangerous to himself and others and would probably never become competent to stand trial. Thus, appellant's incompetency caused what amounted to an indefinite commitment. However, the court, after considering differences in Pennsylvania and Indiana law, concluded that the rule in Jackson did not affect appellant's case. It ordered appellant committed until he either becomes competent to stand trial or ceases to be dangerous to himself or others.

[ 464 Pa. Page 505]

Appellant raises three claims: (1) that his commitment cannot continue under section 408 of the Mental Health and Mental Retardation Act (hereinafter "section 408")*fn1 (which provides for the commitment of those charged with crime but found incompetent to stand trial); (2) that the fifteen year delay in appellant's trial violates his constitutional right to a speedy trial; and (3) that his commitment is cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. The hearing court denied relief on all three claims. We find appellant's first claim to be meritorious.


Appellant's first claim, that he may not be committed indefinitely under section 408, is based on the Supreme Court's decision in Jackson v. Indiana, supra. In that case, a mentally defective deaf mute charged with robbery was found incompetent to stand trial and was committed to a state mental institution, where he remained for three and a half years. The defendant could not read, write, or otherwise communicate, and the reviewing psychiatrists gave him little chance of gaining competency. Thus, his commitment under the incompetency law of Indiana was tantamount to an indefinite sentence.

Jackson challenged his commitment as a denial of both due process and equal protection. The Indiana statutory scheme permitted the indefinite pretrial commitment of persons charged with a criminal offense under standards for commitment and release that provided fewer safeguards than those applying to any other civil commitment. The United States Supreme Court held that such a scheme for allocating procedural and substantive safeguards to persons civilly committed was repugnant to the

[ 464 Pa. Page 506]

    equal protection clause of the Fourteenth Amendment.*fn2 Furthermore, the Court agreed that the commitment violated due process:

". . . 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. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding . . . or release the defendant."

Jackson v. Indiana, supra 406 U.S. at 738, 92 S.Ct. at 1858.

Our determination in this case depends on the proper interpretation of the commitment, release, and treatment standards contained in the civil commitment provision (section 406) and the incompetency to stand trial provision (section 408) of the Mental Health and Mental Retardation Act*fn3 and the applicability of Jackson to those standards. The hearing court held that these standards were sufficiently similar to avoid any violation of the rule in Jackson. We cannot agree. The two statutory sections serve different purposes, have different commitment

[ 464 Pa. Page 507]

    and release standards, and must therefore be treated differently by the courts.

Commitment Standards

Section 408, under which appellant is committed, provides for the commitment of "a person who has been charged with crime [and] is detained in a penal or correctional institution . . . ."*fn4 The court must be

[ 464 Pa. Page 508]

"satisfied that the person is mentally disabled and that his commitment is necessary" prior to committing the defendant to a mental facility.*fn5

Section 102*fn6 which defines "mental disability" in general terms, is applicable to both section 408 and section 406:

"'Mental disability' means any mental illness, mental impairment, mental retardation, or mental deficiency, which so lessens the capacity of a person to use his customary self-control, judgment and discretion in the conduct of his affairs and social relations as to make it necessary or advisable for him to be under care as provided in this act. . . ."

However, in making this determination under section 408, the court must give "due regard" to:

"the capacity of such person to understand the nature and object of the proceedings against him, to comprehend his own condition in reference to such proceeding, to understand the nature of the punishment which might be inflicted upon him, to confer with his counsel

[ 464 Pa. Page 509]

    with reference to such proceedings, to make a rational defense, and the probable effect of the trial on such person's physical and mental condition."*fn7

Trial of a defendant who lacks the capacity substantially similar to that described in this provision would violate due process standards. Commonwealth v. Ware, 459 Pa. 334, 349, 329 A.2d 258, 264 (1974); Commonwealth v. Kennedy, 451 Pa. 483, 305 A.2d 890 (1973); Commonwealth v. Bruno, 435 Pa. 200, 205, n. 1, 255 A.2d 519, 522, n. 1 (1969); Commonwealth ex rel. Hilberry v. Maroney, 424 Pa. 493, 227 A.2d 159 (1967).

Thus, section 408 has a distinct purpose. It makes no reference to the accused's "need of care or treatment" and applies only to a criminal defendant. The court's primary concern is the defendant's competency to stand trial. The court must give close attention to particular factors relating to the defendant's ability to stand trial in its determination whether he lacks the "customary self-control, judgment, and discretion in the conduct of his affairs." A defendant might easily lack "self-control, judgment and discretion" in the context of a criminal trial and yet be capable of caring for himself in his daily "affairs and social relations."

Commitment standards under section 406, on the other hand, differ significantly. The section applies to: "[any] person . . . believed to be mentally disabled, and in need of care or treatment by reason of such mental disability" without regard to an existing detention or criminal charge.*fn8 The court, in certain circumstances,

[ 464 Pa. Page 510]

    may order a compulsory examination, and, if the examining physicians or the director of the facility in which the person is examined determine "that such person is in need of care at a facility . . . [, they] shall immediately report to [the] court which may order the commitment of such person for care and treatment."*fn9 No criminal charge is needed, and the court must make a general finding concerning a person's lack of "customary self-control, judgment and discretion in the conduct of his affairs and social relations." Unlike section 408, the question of the person's ability to stand trial on a criminal charge is irrelevant.

[ 464 Pa. Page 511]

Thus, although the two provisions may not be mutually exclusive, a person could be committable under section 408 but not under section 406.*fn10

This conclusion is substantiated by other considerations. Because section 406 can be applied to any person without regard to criminality, at least two safeguards inapplicable to section 408 may be constitutionally required prior to any civil commitment. The hearing

[ 464 Pa. Page 512]

    court, recognizing this, held that mental deficiency must include a finding of dangerousness to oneself or others under either section 406 or section 408.*fn11 Dangerousness may well be a requirement for civil commitment;*fn12 however, it need not and should not be applied to section 408. A defendant's incompetency may be curable but not dangerous. The interests of both the Commonwealth and the defendant would be best served by having the defendant committed and treated in hope that he will become competent and the trial might then proceed. Requiring a finding of dangerousness would

[ 464 Pa. Page 513]

    cause the trial to be stayed indefinitely because a nondangerous but incompetent defendant could not be committed and therefore would not receive potentially beneficial treatment. The Legislature intended no such result, as shown by its listing of the numerous competency elements, and the Jackson holding does not require otherwise.*fn13

Moreover, involuntary commitment under section 408 requires a finding based only on the preponderance of the evidence. See Commonwealth v. Davis, 459 Pa. 575, 578, 330 A.2d 847, 848 (1975); Commonwealth v. Kennedy, supra, 451 Pa. at 487, 305 A.2d at 892. Although we have had no occasion to consider the burden of proof required for civil commitment, we note that numerous federal decisions have held that a stricter standard is constitutionally required. See, e. g., In re Balley, 157 U.S. App.D.C. 59, 482 F.2d 648 (1973); Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.1974); Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.Wis.1972), vacated and remanded on other grounds 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974); Dixon v. Attorney General of the Commonwealth of Pennsylvania, 325 F.Supp. 966 (M.D.Pa.1971).

Finally, the procedures prior to commitment under the two provisions have at least one significant difference

[ 464 Pa. Page 514]

    that is relevant here.*fn14 Section 408 provides a sixty day commitment for examination and section 406 provides only a ten day period.*fn15 The longer delay under section 408 can be justified because of the pending trial and the need for thorough examination; a person held under section 406 is not accused of any offense and a longer restraint on his liberty prior to the necessary finding cannot be justified.*fn16

Release Standards

The differing release standards also point to the differences in these sections. Section 408 is more restrictive of one's freedom than section 406. Under section 408, if commitment is ordered:

". . . the director shall detain the person so committed within the facility, provided, however, that if it is determined that partial hospitalization or out-patient care would be beneficial to the person so committed, such may be permitted by the court upon application therefore by the director and upon such terms and conditions as the court may direct, including the entry of bail to secure such person's return to the facility or his appearance."*fn17

Section 406 provides:

"In its order of commitment, said court may permit partial hospitalization or out-patient care, or if at any

[ 464 Pa. Page 515]

    time thereafter the director shall determine such partial hospitalization or outpatient care to be beneficial to the person so committed, the same may be permitted by said court upon application by the director."*fn18

Thus, section 408, unlike section 406, does not allow an initial order of partial hospitalization or outpatient care, and the director "shall detain" defendant. Moreover, this Court has held that, under section 406, the committing court cannot overrule the director's determination of partial hospitalization or outpatient care. Commonwealth ex rel. DiEmilio v. Shovlin, 449 Pa. 177, 295 A.2d 320 (1975). Under section 420,*fn19 the Secretary of the Department of Public Welfare may review and summarily discharge any non-criminal commitment if he finds that the committed person is no longer in need of care and treatment in a facility. The hearing court held that section 408 release standards are governed by the same standards as section 406.*fn20 Yet section 408 expressly gives the court the power to revise the director's application for release with "such terms and conditions as the court may direct, including the entry of bail to secure such person's return to the facility or his appearance."*fn21 To deny the court this power could seriously jeopardize the orderly disposition of the pending

[ 464 Pa. Page 516]

    trial. Moreover, section 420 does not apply to those committed under section 408.

Treatment Standards

Finally, the hearing court and the Commonwealth argue that the treatment afforded appellant under either statute is identical. The record neither supports nor contradicts this contention, although most commentators and many courts disagree.*fn22 The Mental Health Act itself makes a distinction between the two commitments in the event of escape; under section 425,*fn23 one who leaves the institution while committed as incompetent to stand trial is guilty of prison breach while one who leaves while civilly committed is guilty of no crime. It can be inferred from this distinction that a section 408 commitment should involve stricter discipline and surveillance.*fn24

[ 464 Pa. Page 517]

In summary, section 408's primary purpose is to facilitate the proper disposition of a criminal trial. Because it would be unconstitutional to try an incompetent defendant, the court must have the power to order a competency hearing and to commit the defendant to an appropriate facility for treatment. The treatment should aid the defendant to become competent, and the release standards should be interpreted in light of the pending trial. The policies underlying section 408 offer no justification for indefinite involuntary commitment, which may occur when it is found that the defendant will probably never be competent. Section 406, on the other hand, does not deal with criminal charges; the standards of commitment, release, and treatment are substantially different. It may require a more careful protection of a person's liberty, particularly since it authorizes indefinite confinement.

The Jackson holding is therefore controlling here. Appellant has been confined over fifteen years and has no better prospect of being released and tried than did the defendant in Jackson, who had been committed only three and a half years. We cannot conclude that appellant's commitment, treatment or potential release would or should have similar results under sections 406 and 408. Section 408 does not provide for indefinite commitment, and equal protection requires that appellant be afforded the safeguards of civil commitment prior to indefinite confinement. Jackson v. Indiana, supra. We hold, as mandated by Jackson, that a defendant may be committed under section 408.

". . . [only for a] reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future."*fn25

Jackson v. Indiana, supra, 406 U.S. at 738, 92 S.Ct. at 1858.

[ 464 Pa. Page 518]

Appellant must either be committed under the civil commitment provisions of section 406 or be released.


Appellant also claims that this fifteen year delay constitutes a denial of his sixth amendment right to a speedy trial, a fundamental right applicable to the states through the fourteenth amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Commonwealth v. Jones, 450 Pa. 442, 299 A.2d 288 (1972). He therefore argues that we must dismiss with prejudice the murder charge against him. We cannot agree.

The right to a speedy trial is necessarily relative and the length of delay, although a factor to be considered, is not dispositive. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974). This results, at least in part, from:

". . . the incompatibility of haste with the procedural safeguards designed to effectuate other rights of the accused and to insure he receives due process."

Commonwealth v. Ware, supra, at 345, 329 A.2d at 263; see United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966). We must therefore engage in a "difficult and sensitive" balancing of four factors: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Barker v. Wingo, supra, 407 U.S. at 530, 533, 92 S.Ct. at 2192-93; Commonwealth v. Ware, supra, 459 Pa. at 346, 329 A.2d at 264; Commonwealth v. Williams, 457 Pa. 502, 506, 327 A.2d 15, 17 (1974); Commonwealth v. Jones, supra, 450 Pa. at 447, 299 A.2d at 291.

Normally, any delay of trial caused by the incompetency of the defendant is justified because it is

[ 464 Pa. Page 519]

    necessary for the protection of the defendant's right to a fair trial. Commonwealth v. Ware, supra, 459 Pa. at 347, 329 A.2d at 264.*fn26 Moreover, it is irrelevant whether a defendant asserts his right to a speedy trial while incompetent, since the Commonwealth is constitutionally restrained from proceeding to trial. Commonwealth v. Ware, supra, at 350, 329 A.2d at 264; Commonwealth v. Bruno, 435 Pa. 200, 205, n. 1, 255 A.2d 519, 522 n. 1 (1969). Thus, two of the four factors to be considered -- reason for delay and defendant's assertion of his right -- offer no support for dismissal of appellant's charges.

Nevertheless, the Supreme Court, in Jackson v. Indiana, supra 406 U.S. at 739-41, 92 S.Ct. 1858-59, suggests that a defendant may have a valid speedy trial claim even if the delay is caused solely by his incompetence. The Court refused to consider this issue only because it had not been presented to the state courts.

Other federal courts have suggested that a sufficient showing of delay and prejudice could create a valid speedy trial claim by one incompetent to stand trial. United States ex rel. Little v. Twomey, 477 F.2d 767, 770 (7th Cir. 1973); Williams v. United States, 102 U.S. App.D.C. 51, 250 F.2d 19, 21 (1957); United States ex rel. Daniels v. Johnston, 328 F.Supp. 100, 110 (S.D.N.Y.1971). However, in Little, the court found that the defendant had been held for a "reasonable" period (sixteen months) and dismissed the appeal; in Williams, the court decided in favor of defendant, but it based its decision, at least in part, on prosecution delay prior to defendant's incompetence; and in Daniels, the court concluded that an eight and a half year delay, without a showing of "compelling" prejudice, did not constitute a denial of speedy trial. See also United States v. Mills, 434 F.2d 266 (8th Cir. 1970), cert. denied, 401 U.S. 925, 91 S.Ct. 908, 27 L.Ed.2d 828 (1971) (court excused an

[ 464 Pa. Page 520]

    eleven year postponement, which included both administrative and incompetency delay).

Appellant seeks support from United States ex rel. von Wolfersdorf v. Johnston, 317 F.Supp. 66 (S.D.N.Y.1970), which involved a defendant detained twenty years because of his incompetence to stand trial. The court held that defendant had a valid speedy trial claim. However, the only relief granted on that claim was a transfer from criminal to civil commitment (the same relief we have already granted in Part I of this opinion). The court refused to dismiss the indictment despite a strong showing of prejudice:

". . . this court does not purport . . . to 'dismiss' or otherwise erase the indictment. If the State should ever undertake to bring relator to trial, today's decision is not meant to foreclose . . . a prosecution claim that such proceedings are consistent with the right to a speedy trial. All this court now holds, or needs to hold, is that for purposes of the concrete claim to elementary decency now ripe for decision, the implications of the federal right to have an indictment tried and done with forbid the gruesome use to which the State has put its pending charge."

United States ex rel. von Wolfersdorf v. Johnston, supra at 68.

Thus, even if we assume that a long delay caused by appellant's incompetence might create a valid speedy trial claim, he must make a strong showing of prejudice.*fn27 Admittedly, a fifteen year delay is "presumptively prejudicial." Commonwealth v. Ware, supra 459 Pa. at 346, 329 A.2d at 264; Commonwealth v. Williams,

[ 464 Pa. Page 521]

    supra 457 Pa. at 507, 327 A.2d at 17; Commonwealth v. Hamilton, 449 Pa. 297, 299-300, 297 A.2d 127-28 (1972). However, appellant must articulate the specific prejudices caused to his defense. Commonwealth v. Ware, supra 459 Pa. at 352, 329 A.2d at 265. He has failed to make any such showing here. The hearing court found that the records for his primary defense, insanity, are all preserved, and appellant does not allege that any key witnesses or other evidence are now unavailable. The evidence preserved is stale, but this does not automatically require a dismissal. Commonwealth v. Ware, supra at 349, 329 A.2d at 265. Although appellant asserts that he might raise other defenses which could be prejudiced by the delay, he fails to articulate the grounds for these proposed defenses or the nature of the exculpatory evidence that has been lost. This record is clearly insufficient to warrant a finding of a denial of speedy trial or a dismissal of the murder indictment.

This conclusion is supported by analyzing the rights which a speedy trial is intended to protect.*fn28 The Supreme Court has stated that the speedy trial claim is designed:

"(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired."

Barker v. Wingo, supra 404 U.S. at 532, 92 S.Ct. at 2193. See Commonwealth v. Williams, supra 457 Pa. at 507, 327 A.2d at 17.

Our holding in Part I adequately protects appellant's first interest, preventing oppressive pretrial incarceration, and appellant makes little or no showing of serious

[ 464 Pa. Page 522]

    jeopardization of his third interest, the possible impairment of his defense. Thus, we are concerned only with the possible infringement of appellant's second interest, minimizing his anxiety and concern. We find that, on this record, the possible infringement of this interest is insufficient to justify a dismissal with prejudice of the murder charge.*fn29 Such a result would deny the Commonwealth the opportunity to try a serious offense and would be an unnecessary obstruction of public justice.

In his third claim, that of cruel and unusual punishment, appellant requests only the relief already granted to him in Part I. We therefore need not reach the merits of that claim.

The order of commitment under section 408 of the Mental Health and Mental Retardation Act is vacated; case is remanded for proceedings in conformity with this opinion.

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