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COMMONWEALTH PENNSYLVANIA v. DAVID SCOTT (08/28/79)

submitted: August 28, 1979.

COMMONWEALTH OF PENNSYLVANIA,
v.
DAVID SCOTT, APPELLANT



No. 284 Special Transfer Docket, Appeal from Order of Court of Common Pleas of Philadelphia County Dated June 1, 1977, No. 286 January Term, 1973

COUNSEL

Raymond J. Takiff, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, Appellee.

Hoffman, Eagen and Hess, JJ.*fn*

Author: Per Curiam

[ 271 Pa. Super. Page 548]

On June 7, 1973, appellant, David Scott, entered a plea of guilty to charges against him in connection with the murder of his wife. At that time, Scott's counsel stated the plea agreement for the record to the effect that, if Scott pled guilty to murder generally, the Commonwealth would certify that the crime rose no higher than murder of the second degree and would recommend that the sentence be eight to twenty years, and further, that, "if after the plea has been taken it is determined by the State Psychiatric System that Mr. Scott is in need of additional treatment, that then instead of his being incarcerated in a prison, that he would be sent to a mental institution. . . ."

Following the June 7 proceeding, Scott was examined by a court-appointed psychiatrist. Since the court could not ascertain from the psychiatric report whether hospitalization or incarceration was recommended, it directed the doctor to provide a specific recommendation on sentencing.

On September 25, 1973, Scott again pled guilty, and a full guilty plea colloquy took place before the court accepted the plea and found Scott guilty of murder of the second degree.*fn* At that time, Scott's counsel again stated the plea

[ 271 Pa. Super. Page 549]

    agreement for the record which reads, in pertinent part ". . . that [the Commonwealth] will recommend to Your Honor that the sentence will be one of eight to twenty years, in a state mental institution, if after a psychiatric evaluation is performed the consensus of the psychiatrists is that the defendant should spend his time in a mental institution, as opposed to a correctional facility." The court explained that it was not bound by the agreement but stated that the bargain seemed reasonable and that it would probably be followed. Nevertheless, Scott was advised that if, after hearing the facts, the court could not abide by the agreement, he would be permitted to withdraw his plea of guilty.

At the sentencing hearing which followed, the Commonwealth presented an updated psychiatric report which indicated that Scott was not in need of hospitalization and recommended that any sentence imposed should be served in a state correctional institution. Thereafter, the court sentenced Scott to eight to twenty years imprisonment with the proviso that, if it was later determined that he would benefit from psychiatric care, he should be transferred to an appropriate institution to receive that care.

On June 27, 1975, Scott's petition under the Post Conviction Hearing Act, January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp.1979-80), in which he attacked the validity of his guilty plea, was denied following an evidentiary hearing. He appealed, and on January 28, 1977, the Supreme Court remanded to permit the filing of post-trial motions nunc pro tunc. These motions were filed and later denied by the trial court. This appeal from the judgment of sentence followed.

Scott advances three arguments. First, he asserts he was was incompetent to enter a plea of guilty since, at the time it was entered, he was on medication. The test for determining a defendant's mental competency to enter a guilty ...


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