No. 361 January Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, Imposed on Indictment No. 1825, September Session, 1974
Raymond J. Takiff, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Sheldon M. Finkelstein, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ.
Appellant, Frederick Tyson, was convicted in a non-jury trial of murder in the third degree. Post-verdict motions were denied and a sentence of ten to twenty years was imposed. Appellant now appeals to this Court pursuant to the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, No. 223, Art. II, Section 202, Subsection 1, 17 P.S. § 211.202(1) (Supp.1978-79).
Appellant was convicted of the shooting death of his brother, Chester Tyson, with whom he lived. A neighbor testified that she saw the victim enter the Tyson family home and approximately twenty minutes later heard shots at which time she called the police. The police arrived at the house and, after knocking on the front and back doors, looked through the windows and observed someone in the dining room. An officer then identified himself and ordered the individual to open the door. Appellant opened the door and informed the officer that his brother had been shot. Appellant said be thought someone was upstairs but no one else was found following a search of the house. The basement, where a German Shepard dog was kept, was not searched. The victim, who was still alive, was removed to a hospital where he died approximately one month later. The medical examiner testified that the gunshot wound was the cause of death.
Appellant raises two issues for our consideration in this appeal. First, that he was incompetent to stand trial and second, that he was not guilty as a matter of law because he lacked the mental capacity required under the MacNaghten Rule.
Although the record is clear that appellant had a history of mental illness prior to the shooting death of his brother, that fact is not dispositive of the issues before us. Even though one has a history of mental illness that person may, at a given time, be competent to stand trial and may have been legally sane at the time of the commission of the
crime. In this case a hearing was held six days before appellant's trial commenced in order to determine whether appellant was competent to stand trial. The testimony of two qualified psychiatrists established that appellant understood the nature of the charges and was capable of cooperating with counsel in the preparation of his defense. Nonetheless, appellant attacks the basis of their opinions and also contends that the colloquy conducted six days later at the beginning of the trial illustrates his incompetency and alleges the trial judge erred by failing to order a new examination during the trial.
The prosecution asserts that appellant has waived this claim by failing to raise it in post-verdict motions, even though appellant did not properly object at the time of the trial. Ordinarily, the failure to raise an issue in post-verdict motions would constitute a waiver. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). We have concluded however that when the issue presented is whether a person was competent to stand trial, the waiver rule is not applicable. See ...