Nos. 50 and 185 January Term, 1977, Appeal from Judgments of Sentence of July 31, 1975, of the Court of Common Pleas, Criminal Trial Division, of Philadelphia, at Nos. 177, 186, 187 and 188 February Sessions, 1970.
Neil E. Jokelson, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Marianne Cox, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Pomeroy, Nix and Manderino, JJ. Roberts, J., took no part in the consideration or decision of this case. Eagan, C. J., and Pomeroy and Nix, JJ., concurred in the result. Manderino, J., filed a dissenting opinion.
On November 21, 1973, appellant, Wesley Leon Harper, was tried by a judge and jury and found guilty of murder of the first degree, burglary, and two counts of robbery. The above convictions resulted from the October 29, 1969, robbery of a Philadelphia National Bank office in Northeast Philadelphia and the shooting death of bank guard George Bordner during the burglary and robbery. Post-verdict motions were denied on July 31, 1975. Appellant was sentenced to life imprisonment for the murder of the first degree conviction and concurrent ten-to-twenty year sentences on each of the robbery and burglary convictions. Appellant appealed the murder conviction to this court and
the robbery-burglary convictions to the Superior Court, which certified that appeal to this court.
The facts surrounding the homicide-robbery are as follows. Appellant and Benjamin McElveen entered a branch office of the Philadelphia National Bank in Northeast Philadelphia on October 29, 1969. Upon entering the bank, appellant pulled out a gun and yelled: "This is a holdup, lie down on the floor." McElveen then approached the tellers' cages and demanded that the tellers fill an attache case with money. As appellant proceeded toward the office area, the decedent, George Bordner, rose from his chair. Upon seeing the bank guard, appellant fired three shots. As a result of these gunshot wounds, George Bordner died.
McElveen and appellant left the bank with $8,095, $400 of which was marked for identification. On November 2, 1969, appellant was arrested in Tampa, Florida, by the F.B.I. pursuant to a fugitive warrant. On November 27, 1969, he was identified by an employee of the bank as the person who shot the decedent. This identification was confirmed at trial.
We have a statutorily imposed duty to review the evidence in all judgments of sentence for murder of the first degree to determine if there exists on the record sufficient evidence to sustain such a conviction. Act of February 15, 1870, P.L. 15, § 2, 19 P.S. § 1187. Exercising this duty, our review of the record clearly reveals sufficient evidence to sustain appellant's conviction of murder of the first degree.
Appellant first argues that he was not competent to stand trial. We do not agree. In Commonwealth v. Kennedy, 451 Pa. 483, 487-88, 305 A.2d 890, 892 (1973), this court stated:
"In Commonwealth ex rel Hilberry v. Maroney, 424 Pa. 493, 227 A.2d 159 (1967), we pertinently stated the following with respect to what the defendant must establish: ' [T]he test to be applied in determining the legal sufficiency of his mental capacity to stand trial, or enter a plea at the time involved, is not the M'Naghten "right of wrong" test, but rather his ability to comprehend his position as one accused of murder and to cooperate with his counsel, Page 46} in making a rational defense. See Commonwealth v. Moon, [383 Pa. 18, 117 A.2d 96 (1955)], and Commonwealth ex rel. Hilberry v. Maroney, supra, 451 Pa. at 544, 227 A.2d 159. Or stated another way, did he have sufficient ability at the pertinent time to consult with his lawyers with a reasonable degree of rational understanding, and have a rational as well as factual understanding of the proceedings against him. See Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Otherwise, the proceedings would lack due process: Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956).' Id. 451 Pa. at 495, 227 A.2d at 160. See also Commonwealth v. Harris, 431 Pa. 114, 243 A.2d 408 (1968)." (Emphasis added.)
Appellant's allegation of error is two-pronged. He initially argues that the court below erred in February, 1972, in determining that he was competent to stand trial; and, secondly, he argues that the court below erred in not declaring him incompetent to stand trial in November, 1973. We will discuss these allegations separately.
Appellant contends that the court below erred in February, 1972, by finding him competent to stand trial. We do not agree. Initially, we must point out that the complained of competency determination was made approximately twenty months prior to appellant's trial and, therefore, would have little value in the determination of competency in 1973. Appellant did not file a pretrial motion in 1973 alleging incompetence to stand trial.
Applying the Kennedy standard, the February, 1972, record is sufficient to show that appellant could consult with his attorney and did understand the nature of the charges and the proceedings against him. At the competency hearing, Dr. Edward B. Guy testified on behalf of the Commonwealth. His testimony was clear that in his judgment appellant was competent to consult with his attorney and also that appellant knew and understood the nature of the charge and the ...